Re: the unconstitutionality of barring Muslims from entering the U.S.

[Will Linden]

My impression is that most of the self-styled-mainline Protestants around me 
wouldn't know justification by faith if they fell over it, and can't explain 
"their" doctrines any farther than "We-don't-believe-in-the-Pope".

----- Original Message -----
From: Paul Finkelman <paul.finkel...@yahoo.com>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Date: Fri, 11 Dec 2015 16:35:39 +0000 (UTC)
Subject: Re: the unconstitutionality of barring Muslims from entering the U.S.

> Just out of curiosity, how many Christan faiths, sects, denominations, 
> require that a convert know all 12 of the apostles to be Baptized?  I would 
> hazard a guess that millions of American Christians cannot pass this test.  
> Furthermore, my understanding (as an outsider) is that "Christianity begins" 
> with the acceptance of Jesus as the "savior" and "the son of God" -- so does 
> the unnamed immigration judge here fail his/her own test?
>
> I give talks all the time on the Ten Commandments, and most of the people in 
> my audiences do now know all Ten or the order they are in;  virtually none 
> have a clue that Jews, Roman Catholics, Lutherans, and 
> Anglicans/Episcopalians all have a different Ten Commandments.  Does that 
> mean they are not Christians (or Jews)?.
>   
> ******************
> Paul Finkelman, Ph.D.
> Senior Fellow
>  Penn Program on Democracy, Citizenship, and Constitutionalism
>  University of Pennsylvania
>  and
> Scholars Advisory Panel
> National Constitution Center 
>  Philadelphia, Pennsylvania 
>  518-439-7296 (w)
>  518-605-0296 (c) 
>  paul.finkel...@yahoo.com 
> www.paulfinkelman.com
>       From: James Oleske <jole...@lclark.edu>
>  To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>  Sent: Thursday, December 10, 2015 9:22 PM
>  Subject: Re: the unconstitutionality of barring Muslims from entering the 
> U.S.
>
> Thanks, Chip. I can see why sincerity might be more difficult to judge in the 
> denial-of-affiliation situation than in the claim-of-affiliation situation, 
> but I'm not sure a sincerity inquiry is impossible in the former situation. 
> And I do wonder how often the line between a permissible sincerity inquiry 
> and an impermissible judicial development of a religious test gets blurred in 
> the latter situation. In one BIA decision affirmed by the Ninth Circuit, an 
> immigration judge included this explanation for why it had found that the 
> claimant had not converted to Christianity: 
> "The respondent cannot even name the 12 apostles of Jesus Christ. With the 
> Court's understanding that Christianity begins with the life and teaching of 
> Jesus Christ in the New Testament, the 12 apostles have some of the most 
> important, if not the most important, writings of Christianity. The Court has 
> serious doubt in the respondent's conversion to Christianity when he cannot 
> even give the names of the 12 apostles of Jesus Christ." 
> Toufighi v. Mukasey, 538 F.3d 988, 991 (9th Cir. 2008) (affirming the BIA's 
> decision after finding that the court lacked jurisdiction to review the IJ's 
> factual findings). But see id. at 1000 (Berzon, dissenting) ("[T]he question 
> is not what Toufighi believes but what Iran understands him to believe—or, 
> more accurately, not to believe. It is thoroughly plausible that because he 
> attends Christian services and belongs to a Christian church, Toufighi will 
> be taken to have renounced Islam. Neither the BIA's nor the IJ's 'opinion[s] 
> ... consider[ed] what could count as conversion in the eyes of an Iranian 
> religious judge, which is the only thing that would count as far as the 
> danger to [the petitioner] is concerned.' Even if his conversion is not 
> 'genuine,' he remains at risk.") (quoting Bastanipour v. I.N.S., 980 F.2d 
> 1129, 1132 (7th Cir.1992)).
> Putting aside the dispute between the majority and dissent in Toufighi over 
> the relevance of the IJ's factual finding, I think the finding itself could 
> be viewed not only as a questionable sincerity finding, but also an 
> impermissible assumption of judicial authority to determine the religious 
> importance of the 12 apostles. 
> - Jim
>
>
>
> On Thu, Dec 10, 2015 at 3:46 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
>
> Thanks, Jim, for the kind words about the book.
> On the asylum and refugee problem -- someone asked me about this yesterday, 
> off-list.  I answered with a variation on the following:In persecution 
> cases, someone is claiming to be of a certain faith (or at least that she 
> fears persecution because others perceive her to be of that faith).  
> Sincerity is an appropriate inquiry into either of those assertions.  But 
> the context of the Trump proposal involves someone denying that she is a 
> Muslim.  If the person seeking entry denies affiliation, what questions can 
> you ask?  The government may not assert that anyone who believes X is 
> therefore a member of Faith Y.  If immigration judges probe affiliation, 
> I'll bet they don't ask whether the applicant believes in the divinity of 
> Christ, or believes in the inviolability of teachings in the Koran.  
> Reaching conclusions based on those questions would involve the government 
> taking a position on matters disputed within the faith itself.
>
> On Thu, Dec 10, 2015 at 5:23 PM, James Oleske <jole...@lclark.edu> wrote:
>
> I agree with Marty that this whole discussion is unnerving, but given the 
> initial polls showing (1) substantial majority support for Trump's proposal 
> among likely Republican primary voters, as well as support from a sizable 
> minority of likely Democratic primary voters, and (2) Trump reaching new 
> heights in the GOP primary, I think a discussion of the constitutionality of 
> Trump's deplorable proposal is inevitable.
> And even putting Trump's proposal aside, some of the proposals from more 
> "conventional" candidates would seem to raise similar issues to those that 
> we've been discussing here. For example, Governor Bush recently indicated 
> that Christian refugees from Syria should receive preference over other 
> Syrian refugees because there are "no Christian terrorists in the Middle 
> East." When asked by a reporter about how the screening process would work, 
> Bush responded: "You’re a Christian — I mean, you can prove you're 
> aChristian. You can’t prove it, then, you know, you err on the sideof 
> caution.” 
> This approach would potentially implicate both the "ecclesiastical question" 
> rule and the "denominational discrimination" rule (assuming persecuted 
> Christians are given preference over persecuted Yazidis, Shiites, etc.). 
> Which brings us back to the question of whether these rules are best viewed 
> as structural constraints on the federal government, rather than 
> rights-oriented rules, and thus have extraterritorial reach.
> On the issue of the Establishment Clause's extraterritorial reach, many 
> thanks to Paul and Jesse for the suggested resources. In the meantime, on the 
> broader structural-v-rights issue, I went back and took another look at the 
> opening chapters of Chip and Bob's book, and I commend to list members their 
> discussion of the "evolution of rights talk as a mode of Establishment Clause 
> discourse," which they counter with "an alternative account of 
> nonestablishment, one framed as a jurisdictional limitation on civil 
> authority."  (Note: As I was writing this, Chip and Bob posted their ACS 
> piece elaborating on the applicability of their approach to the Trump 
> proposal.)   
> Finally, a question for those familiar with asylum and refugee proceedings: 
> when addressing claims based on religious persecution, do the proceedings 
> typically focus on how a claimant is likely to be treated by their home 
> country based on their perceived religion or also on whether the claimant 
> actually qualifies as a member of the persecuted religious group? To the 
> extent the proceedings focus on the latter question, does that raise the 
> problem Chip and Bob have flagged of the government answering ecclesiastical 
> questions? (In some initial research, I have found a couple Seventh Circuit 
> decisions and one Ninth Circuit dissent indicating that the proceedings 
> should not focus on the latter question, albeit without any mention of the 
> Establishment Clause).
> - Jim  
> On Thu, Dec 10, 2015 at 7:24 AM, Marty Lederman <lederman.ma...@gmail.com> 
> wrote:
>
> This post by Steve Vladeck strikes me as just right:
> https://www.justsecurity.org/28221/missing-constitutional-analyses-donald-trumps-muslim-immigration-ban/
>
> Three relatively minor additional points:  
> 1.  I don't believe there have ever been any Supreme Court cases in which 
> the "plenary power" doctrine was ever applied as to expressly racial or 
> religious terms of exclusion; so even as a matter of stare decisis, there's 
> nothing there.
> 2.  As Paul suggests, when it comes to the EC, there is the additional 
> complication of whether and how it applies to aliens overseas -- the old 
> Lamont v. Woods question.  This has practical implications, in that the US 
> government occasionally spends money overseas to promote certain forms of 
> religion that it could never do here in the States.
> 3.  There's something a bit unnerving, frankly, about so many of us ConLaw 
> academics treating this question so seriously.  Lends the whole thing an air 
> of "Trump has raised a serious, close, contested question," which, of course, 
> implies that this is something that should even be a topic of public debate, 
> rather than dismissed straight away as an abomination.  Not saying we 
> shouldn't set the record straight once it's being discussed -- Steve and Chip 
> are 100% right not to let the Posner/Spiro view go unchallenged.  But the 
> whole discussion is deeply disturbing (as are the Court's precedents, of 
> course!).
> On Thu, Dec 10, 2015 at 1:01 AM, Paul Horwitz <phorw...@hotmail.com> wrote:
>
> I'm sorry not to see reference in the discussion to preexisting scholarly 
> discussions of the question of the extraterritorial reach of the EC or other 
> clauses of the First Amendment. No offense to the worthy statements of those 
> who have posted, or written elsewhere, although I do think academics 
> generally have a comparative advantage at calm and slow reflection, not 
> short-term reactions and predictions, in which they are largely as subject to 
> cognitive limitations as all humans are.
> To that end, may I commend Timothy Zick's The Cosmopolitan First Amendment: 
> Protecting Transborder Expressive and Religious Liberties (Cambridge 
> University Press, 
> 2015),http://www.amazon.com/The-Cosmopolitan-First-Amendment-Transborder/dp/1107547210.
>  His endnotes point to other relevant and reflective treatments. See also 
> this valuable report of a task force on religion and U.S. foreign policy 
> sponsored by the Chicago Council on Global Affairs: 
> http://kroc.nd.edu/sites/default/files/engaging_religious_communities_abroad.pdf.
>  I think everyone will find both sources valuable, interesting, and 
> time-consuming.
>
>
> On Dec 9, 2015, at 11:12 PM, James Oleske <jole...@lclark.edu> wrote:
>
>
> Although Rick and Chip agree that Trump's proposal violates the Establishment 
> Clause, they travel different paths to that conclusion, and those different 
> paths raise (I think) an interesting question:
> Under the Court's precedents, is it clear that the "denominational 
> discrimination" rule Rick invokes is, like the "ecclesiastical question" rule 
> Chip originally invoked, structural in nature and not rights oriented? 
> Between O'Connor's opinion in Lynch, and the Court's opinions in Grand 
> Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of 
> language that makes the issue of endorsement or disapproval sound in 
> individual rights ("person's standing in the political community" "not full 
> members of the political community" “perceived by … nonadherents as a 
> disapproval[] of theirindividual religious choices"). In its latest 
> explanation of the denominational-discrimination rule in McCreary, the Court 
> wrote that "Manifesting a purpose to favor one faith over another ... clashes 
> with the 'understanding, reached ... after decades of religious war, that 
> liberty and social stability demand a religious tolerance that respects the 
> views of all citizens." If we're talking about non-citizens who are not part 
> of the American political community, could one colorably argue that the 
> denominational-discrimiantion rule -- as currently understood by the Court -- 
> does not apply?
> - Jim
> On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan <nebraskalawp...@yahoo.com> 
> wrote:
>
> I missed Chip's great post before I asked my question.
> I agree completely with what Chip says here. It seems like a clear violation 
> of  EC limitations on National power. The clearest command of the EC forbids 
> denominational discrimination by the National government ("Congress shall 
> make no law").
>
> The only problem might be standing. Would a non-citizen-foreign-national have 
> standing to challenge the exclusion under the EC?
>  Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
>      From: Ira Lupu <icl...@law.gwu.edu>
>  To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>  Sent: Tuesday, December 8, 2015 7:10 PM
>  Subject: the unconstitutionality of barring Muslims from entering the U.S.
>
> There has been much discussion in the press and on blog posts re: the 
> constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from 
> entering the U.S.  Several commentators have suggested the "plenary power" 
> doctrine, governing Congressional power over immigration, would insulate such 
> a proposal from a finding of unconstitutionality. I think the strongest 
> constitutional argument against this proposal is based on the Establishment 
> Clause, which severely limits the government's power to decide who is and who 
> is not a Muslim. Suppose the person seeking entry disputes the label; how 
> will immigration officials adjudicate the question? What criteria would the 
> government apply to decide who fits the disqualification? This is an 
> ecclesiastical question, the decisions of which are off-limits to the 
> government. (See Hosanna-Tabor v. EEOC; more generally, see Lupu & Tuttle, 
> Secular Government, Religious People, chaps. 1-2.) Because the Establishment 
> Clause is structural, and not rights-oriented, It does not matter whether or 
> not the decisions pertain to American nationals. The plenary power doctrine 
> cannot undo this structural limitation, any more than it can undo limitations 
> based on separation of powers (e.g., Congress may not delegate to a 
> congressional committee the power to process immigration cases).
> Reactions from list members to this argument?
> --
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law, Emeritus
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053Co-author (with Professor Robert Tuttle) of "Secular Government, 
> Religious People" ( Wm. B. Eerdmans Pub. Co., 2014))
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>
>
>
>
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>
> --
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law, Emeritus
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053Co-author (with Professor Robert Tuttle) of "Secular Government, 
> Religious People" ( Wm. B. Eerdmans Pub. Co., 2014))
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
> _______________________________________________
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