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

[Jesse Merriam]

I just want to add to Paul's list of works dealing with the
Establishment Clause's transnational applicability my own work on the
subject.  See in particular my 2010 article "Establishment
Clause-Trophobia: Building a Framework for Escaping the Confines of
Domestic Church-State Jurisprudence"  published in The Columbia Human
Rights Law Review:
http://www3.law.columbia.edu/hrlr/hrlr_journal/41.3/Merriam.pdf.

I have argued there, as well as in other works, that based on the
Court's precedents in this area (in particular, the Insular Cases,
Verdugo-Urquidez, and Boumediene) the applicability of a
constitutional provision abroad turns on two factors: (1) the nature
of the right in question, and (2) the extent of control that the U.S.
government exercises over the area where the dispute has arisen.  See
also my discussion of the "impracticable and anomalous" standard in
the William & Mary Bill of Rights Journal:
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1631=wmborj

I doubt, however, that a ban on Muslim immigration would raise a
transnational applicability issue -- the Supreme Court cases dealing
with the transnational applicability of other constitutional
provisions have generally arisen in occupied territories and military
bases, not borders or embassies.

-Jesse

On Thu, Dec 10, 2015 at 1:01 AM, Paul Horwitz  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  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 their individual 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 
> 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 
>> To: Law & Religion issues for Law Academics 
>> Sent: Tuesday, December 8, 2015 7:10 PM
>> Subject: the unconstitutionality of barring Muslims from entering the U.S.
>>
>> There has been much 

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

[Ira Lupu]

Bob Tuttle and I have just expanded the Establishment Clause argument in
this post:
http://www.acslaw.org/acsblog/the-legality-of-muslim-exclusion-part-ii-the-establishment-clause

On Thu, Dec 10, 2015 at 10:24 AM, Marty Lederman 
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 
> 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  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 their individual 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 
>> 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 

Re: Religionlaw Digest, Vol 141, Issue 3

[Rob Katz]

​The Indianapolis Star reports
that
"Two conservative groups filed a lawsuit Thursday afternoon challenging the
constitutionality of the Religious Freedom Restoration Act "fix" and local
nondiscrimination ordinances in Indianapolis and Carmel."
Here is the complaint

.
The argument is quite complicated.
I see this as more of a political statement than a serious lawsuit
​.​
​  In political terms, it implicitly endorses S
​B 100, the Indiana Senate Republicans' proposed
anti-discrimination/religious accommodation law,​
for preempting local human rights ordinances.  In the plaintiffs’ view
religious conservatives need protection from cities and counties
that would infringe upon their religious liberty
.  At the same time, the lawsuit implicitly criticizes SB 100 for not doing
enough to protect religious conservatives: it fails to exempt organizations
(profit or nonprofit) that object to same-sex relations on religious
grounds but which are not churches or church-affiliated religious or that
have four or more employees.

Robert Katz
Professor of Law
Indiana University Robert H. McKinney School of Law
​
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

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

[Ira Lupu]

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  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 a
> Christian. You can’t prove it, then, you know, you err on the side of
> 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 
> 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 

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

[James Oleske]

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 a
Christian. You can’t prove it, then, you know, you err on the side of
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 
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 
> 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 

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

[Ira Lupu]

The Establishment Clause does not apply to persons, here or abroad.  The clause 
applies to the government and its actions. In the matter under discussion, the 
actions would occur at the border of the United States and in US embassies 
around the world. As I understand it, those embassies are not extra- 
territorial.

Sent from my iPhone

> On Dec 10, 2015, at 10:24 AM, Marty Lederman  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  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  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 their individual 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  
 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 
 

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

[James Oleske]

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  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  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 a
>> Christian. You can’t prove it, then, you know, you err on the side of
>> 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 

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

[Marty Lederman]

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  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  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 their individual 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 
> 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 
>> *To:* Law & Religion issues for Law Academics 
>>
>> *Sent:* Tuesday, December 8,