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

[K Chen]

Between Stephen Prothero's highly accessible *Religious Literacy *and Pew's
survey <http://www.pewforum.org/2010/09/28/u-s-religious-knowledge-survey/> on
the topic, you will find a lot of back up for the proposition that most
American Christians know very little about the knowledge of their religion.
In a very real sense, the proposition that knowledge about Christianity is
in any way a requirement of Christianity is antithetical to the Evangelical
tradition, especially in it's Pentecostal forms. It gets worse: of the
reasonably common knowledge among Christians, much has significant
factional (that is, religious in nature) implication. For example, who
wrote the Epistle to the Hebrews? Well, scholarship and most of the
mainline churches would say someone other than Paul. Many of the
Evangelical churches will insist to their dying breath that such liberal
scholarship should be rejected and Pauline authorship is indisputable as a
matter of faith. Passing a college course that discusses the documentary
hypothesis can put people into serious dispute with their own religion.

Christianity is a religion that is obsessed with orthodoxy, an obsession so
deep that we consider it the normal way religions deal with issues. To try
to judge factually what beliefs make one an actual Christian is to be
perilously close to making normative declarations on whether one is a good
Christian.

Any judge that attempts to determine sincerity of a Christian on any
factual test so fraught is a fool or a chauvinist. Deciding on the *sine
qua non* of Christianity would be a stupendous judicial overreach
considering the history of schism on such a topic as old as the religion
itself. (Luke-Acts depicts, among other things, James and Paul having a big
debate on the requirements of Christians as to Jewish dietary law).

Judging the sincerity of a Christian as a Christian will necessarily have
almost nothing to do with one's consistency to any vision of Christianity
and everything to do with the rest of the standard toolbox we have for
determining whether people are lying to us.

-Kevin Chen



On Dec 11, 2015 5:51 PM, "Paul Finkelman"  wrote:

> 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 
> *To:* Law & Religion issues for Law Academics 
>
> *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
> th

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

[Kniffin, Eric N.]

All too true!

Eric N. Kniffin, Of Counsel

Lewis Roca Rothgerber LLP

90 S Cascade Ave Suite 1100 | Colorado Springs, CO 
80903-1662

(T) 719.386.3017
(F) 719.386.3070

eknif...@lrrlaw.com<mailto:eknif...@lrrlaw.com> 
|www.LRRLaw.com<http://www.lrrlaw.com/>


On Dec 11, 2015, at 4:13 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:

And, in my experience, it's an uncommon Roman Catholic who remembers/knows what 
he or she celebrates on the Feast of the Immaculate Conception (just a few days 
ago, on Dec. 8!).  I'm aware of a case in Maine in which the government lawyer 
attempted to undermine a Catholic plaintiff's religion-based claim in a 
tuition-assistance-related case by catching the plaintiff in a mistake about 
that Feast.  (If I remember correctly, the government lawyer was wrong about 
it, too.)

More seriously, though:  It doesn't seem to me that the undeniable fact of many 
believers' ignorance or forgetfulness regarding theological or historical 
details should be seen as weakening the case for (in appropriate cases) 
religion-specific asylum claims.

Sincerely (!),

Rick

On Fri, Dec 11, 2015 at 10:28 AM, Rick Duncan 
mailto:nebraskalawp...@yahoo.com>> wrote:
I remember Prof. R.C. Sproul once mentioned that he often starts some of his 
theology classes in seminary by asking students to list the 10 Commandments. 
Many of these theology students can't name more than a few!

Probably a majority of Christians could not name all 12 Apostles. Maybe 5 or 
6--but not 12.

Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902


From: James Oleske mailto:jole...@lclark.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Thursday, December 10, 2015 8:22 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 
mailto: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 the

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 
To: Law & Religion issues for Law Academics 
Date: Fri, 11 Dec 2015 16:35:39 + (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 
>  To: Law & Religion issues for Law Academics 
>  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  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 o

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

[Rick Garnett]

And, in my experience, it's an uncommon Roman Catholic who remembers/knows
what he or she celebrates on the Feast of the Immaculate Conception (just a
few days ago, on Dec. 8!).  I'm aware of a case in Maine in which the
government lawyer attempted to undermine a Catholic plaintiff's
religion-based claim in a tuition-assistance-related case by catching the
plaintiff in a mistake about that Feast.  (If I remember correctly, the
government lawyer was wrong about it, too.)

More seriously, though:  It doesn't seem to me that the undeniable fact of
many believers' ignorance or forgetfulness regarding theological or
historical details should be seen as weakening the case for (in appropriate
cases) religion-specific asylum claims.

Sincerely (!),

Rick

On Fri, Dec 11, 2015 at 10:28 AM, Rick Duncan 
wrote:

> I remember Prof. R.C. Sproul once mentioned that he often starts some of
> his theology classes in seminary by asking students to list the 10
> Commandments. Many of these *theology students* can't name more than a
> few!
>
> Probably a majority of Christians could not name all 12 Apostles. Maybe 5
> or 6--but not 12.
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> --
> *From:* James Oleske 
> *To:* Law & Religion issues for Law Academics 
>
> *Sent:* Thursday, December 10, 2015 8:22 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  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

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 suggested resources. In the meantime, on
>> t

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 certain forms of
>> religion that it could never do h

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 reactions and predictions, in which they are
>> la

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 non-citizen-foreign-national
>>> have standing to challenge the exclusion under the EC?
>>>
>>> Rick Duncan

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&context=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 discussion in the press and on blog posts re: the
>> constitutionality of of Trump's proposal to bar (non-cit

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 
 violation of  EC limitations on National power. The clearest command of 
 the EC forbids denomina

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, 2015 7:10 PM
>> *Subject:* the unconstitutionality of barring Muslims from entering the
>> U.S.
>>
>> There has been mu

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

[Paul Horwitz]

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 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

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

[James Oleske]

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 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)994-7053
> Co-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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Re: the unconstitutionality of barring Muslims from entering the U.S.

[Steven Jamar]

I think too much is made about the difficulty of deciding who is or who is not 
a member of a religion.  First, self-identification would handle most cases.  
Second, a simple questionaire of just a few key points would be sufficient to 
identify a Muslim — unless the person was lying, but pretty much nothing is 
going to be able to handle that problem.

We can keep people out based on the country they are coming from and that plus 
the name could be used as a pretty good proxy for religion since names often 
divide along religious lines in many countries.

But to keep out all Muslims?  Clearly if the establishment clause applies, that 
would be an action respecting the establishment of religion by disfavoring one 
religion compared to all others.  But does the establishment clause apply to 
limit what the government does with respect to immigration?  I should think 
that basic establishment principles of neutrallity, non-endorsement, and 
accommodation are all being violated as, indeed, would separation.  Lemon would 
prohibit such an action under the purpose to exclude prong.

So, I think the structural view of the establishment clause would win out here 
— or at least should.

But, I’m pretty sure this is (still) utterly fanciful, 
angels-dancing-on-the-head-of-a-pin sort of stuff.

Steve Jamar

> On Dec 8, 2015, at 8:10 PM, Ira Lupu  wrote:
> 
> 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)994-7053
> Co-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 
> ___
> 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.


-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Face violence if necessary, but refuse to return violence.  If we respect 
those who oppose us, they may achieve a new understanding of the human 
relations involved."

Martin Luther King, Jr.





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Anyone can subscribe to the list and read messages that are posted; people can 
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