It is little appreciated that the United States Supreme Court’s decision today in Trump v. Hawaii, No. 17-965, in addition to addressing the scope of presidential power concerning the entry of foreign nationals into the country, concerns the First Amendment on religious freedom. In particular, the case is instructive regarding the elements for stating a claim under the Establishment Clause, as well as clarifying those harms that are redressable by the clause.

Writing for a 5-4 Court, Chief Justice Roberts held that President Trump did not exceed his authority as outlined in congressional legislation. He also said that he did not today reach the Establishment Clause question, but only because a lower standard of review is applied to constitutional claims in this context of immigration and national security concerns. The case is far from over, however, as the matter was remanded back to the lower courts for further proceedings. That could entail additional fact finding and renewal of claims not before the Court today.

At the center of Trump v. Hawaii is Proclamation No. 9645, an order captioned Enhancing Vetting Capabilities and Process for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.[i] The proclamation is the third iteration of President Trump’s so-called “immigration travel ban” directed at foreign nationals from eight nations, six of which are Muslim-majority in population. The central allegation is that the President, by targeting nations with overwhelming Muslim majorities, was motivated by discriminatory intent toward those of the Islamic religion. Throughout the country lawsuits were filed alleging that the executive order: (i) conflicted with the President’s authority as detailed in congressional legislation; (ii) exceeded the President’s power in the Constitution; and, (iii) violated the First Amendment on religious freedom. Finding the pleadings meritorious, federal district courts entered nationwide preliminary injunctions against the President and the departmental secretaries charged with implementing the proclamation. The injunctions were later upheld in various circuit courts of appeal.[ii]

Trump v. Hawaii came to the Supreme Court from the Ninth Circuit. The case was decided in the circuit on the bases that in issuing Proclamation No. 9645 the President exceeded his authority under congressional statutes.[iii] The Ninth Circuit did not reach the Plaintiffs’ alternative claims, among which were claims under the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). The Supreme Court granted certiorari on the question concerning presidential powers, as well as on the claim that the proclamation violated the Establishment Clause.[iv]

The suit was brought by three types of plaintiffs.[v] The State of Hawaii alleged proprietary harms to its own agencies and loss of revenue, including hindering the operation of the state university in enrolling students and recruiting qualified faculty.[vi] Three individual Plaintiffs, Dr. Ismail Elshikh and John Does 1 and 2, alleged that as U.S. citizens they had a statutory right to bring family that are closely related by blood or marriage to live in the United States. But the planned relocations were waylaid by the proclamation. Finally, an associational Plaintiff, Muslim Association of Hawaii, Inc., likewise had members whose family relocations were interrupted, and it reported that the entity was losing members because they found affiliation with an Islamic organization brought members unfavorable attention.[vii] These individual and associational Plaintiffs are Muslim and, unlike the State of Hawaii, they can allege religious injury. Aliens abroad typically have no constitutional rights, but these domestic Plaintiffs raised their own legal rights and averred losses and injuries specific to themselves.

Deferential Review Under the Establishment Clause?

Because the alleged religious discrimination was directed at foreign nationals, the Government argued that Plaintiffs’ constitutional claims were subject to a standard of review that was highly deferential to the Government. Kleindienst v. Mandel[viii] held that courts should engage in only limited judicial review when a U.S. citizen contends that the denial of a visa to an alien abroad violates the citizen’s own constitutional rights. Under Mandel, the Government need only give “a facially legitimate and bona fide reason” for its adverse decision toward entry of a foreign national said to have caused harm to the U.S. citizen filing suit.[ix] Once the Government has stated to the court a lawful reason for its actions and the reason appears truthful, that is the end of the matter. The citizen-plaintiff does not get to probe into whether the Government’s explanation is pretextual.

In a parallel case, the Fourth Circuit earlier found that the Government’s proffered national security rationale for the proclamation was not bona fide.[x] There also have been exceptions to the rule in Mandel involving constitutional rights like free speech and due process. So far, however, the exceptions are few and the direction of the law is uncertain. Finally, some Justices were on record as wanting to modify Mandel and permit pretextual challenges. Chief Justice Roberts, for the Court, noted the conventional Mandel rule but elected not to apply it. Slip op. 30-32. Instead, he applied a rational-basis standard of review which does permit pretextual challenges. Slip op. 32. He likely took this path so as not to lose his majority, divided as there likely were over Mandel. The Chief Justice proceeded to find that the proclamation was rational and so administered. Slip op. 33-38.

While claiming to not reach the Establishment Clause claim, the majority proceed to lower the rigor of its protection to rational basis in this limited context. This drew a dissent by Justice Sotomayor. Slip op. 15-16 n. 6 (Sotomayor, J., dissenting). This is so, rejoined the Chief Justice, not just as to the Establishment Clause but as to all constitutional rights and restraints. Slip op. 32-33 n.5. It is all because of the special context of executive authority concerning national security and immigration. So, on remand, the less rigorous standard will apply to the Plaintiffs’ Free Exercise Clause claim, but not to the RFRA claim and its requirement of strict scrutiny. Citing Romer v. Evans, the Court says that a showing of animus against a class would show irrationality. Slip op. 33. What is not clear is if a law can fail rational-basis review in the absence of animus.

The Supreme Court, however, did not need to resolve whether to follow the Mandel rule here, or fashion a new one of rational-basis review. As will be shown below the Establishment Clause claims fail on bases as straightforward as the Constitution’s text.

What Does the Establishment Clause Prohibit?

The Supreme Court’s case law has developed two lines of authority or rules under the Establishment Clause that are possibly relevant here.

Rule 1 is that the Establishment Clause prohibits government from intentionally discriminating among religions, that is, preferring one religion over another. In such cases the injury is a type of discrimination, such as a religious claimant missing out on some governmental advantage afforded those of other religions.

The leading case is Larson v. Valente.[xi] In Larson, the Supreme Court held that the Establishment Clause was violated by state legislation regulating solicitation by charities where the statute purposefully favored long-standing or well-known churches over new religious movements. There was evidence that legislators explicitly sought to assist well-known or familiar churches because they were deemed not in need of oversight, whereas certain new religions were suspect and their fund-raising methods aggressive and so unwelcome.[xii] To intentionally favor one group of religions over another group of religions is to advance the former and suppress the latter. So it makes sense to regard the legislation in Larson as a forbidden “establishment” of the favored churches.

Instances of government openly favoring one religion over another are uncommon. Gillette v. United States[xiii] is the only other Establishment Clause case of this sort to reach the High Court. In Gillette, the complaint was that a religious exemption to the military draft accommodated those who opposed all wars for religious reasons but did not accommodate those who opposed only unjust wars for religious reasons. The claimant was deemed to have stated a prima facie claim under the Establishment Clause for government preferring one religious doctrine over a competing doctrine. However, the Court went on to hold that Congress had sufficient nonreligious reasons to justify making the distinction. Because there was no intent to favor one religion over another religion, there was no violation of the Establishment Clause.[xiv] Larson is thus the only case decided by the Court where the religious claimant actually succeeded in proving a violation of Rule 1.

Rule 2 is that the Establishment Clause prohibits government from enforcing a religious preference, that is, an intentional preferring of religion over the secular. In such cases the injury is temporal or nonreligious. For example, the harm is a pecuniary or economic loss, as in Estate of Thornton v. Caldor[xv] and Larkin v. Grendel’s Den.[xvi] Or the temporal injury is a state’s hindrance of open academic inquiry, as in Edwards v. Aguillard[xvii] and Epperson v. Arkansas.[xviii] Or the harm is the inability to hold a public office due to a religious test, as in Torcaso v. Watkins.[xix] In each of these cases there was an intentional favoring of religion over the secular, which fits the First Amendment’s text of forbidding the “mak[ing of a] … law respecting an establishment of religion.“[xx] As can be seen, a claimant does not have to first subscribe to a religion to successfully state a claim under the Establishment Clause.

The reverse of Rule 2, namely, the government favoring the secular over the religious, is not a forbidden establishment. This is only common sense. The plain text of the clause forbids the “mak[ing of a] … law respecting an establishment of religion.” Nothing in the text prohibits going the other way, namely: preferring the secular over religion. Government cannot establish a religion by aiding the secular. Rather, any favoring of the secular over religion will have to be framed as a challenge under the Free Exercise Clause.

In their briefs, Plaintiffs quote McCreary County v. ACLU of Kentucky,[xxi] where courts seeking to determine whether an act by an official had an improper “religious purpose” are instructed to look to “the text, legislative history, and implementation of the statute, or comparable official act” in question.[xxii] Applying this test, Plaintiffs aver that a governmental law disfavoring religion can implicate the Establishment Clause.[xxiii] That is not just wrong, but silly—a mindless application of the three-prong Lemon test wholly disconnected from the constitutional text the Plaintiffs are invoking. A government cannot establish a religion by disfavoring it. To make matters worse, in its Opening Brief the Government seems to go along with Plaintiffs and repeats the error that official acts “of favoring or disfavoring religion can implicate the Establishment Clause.”[xxiv]

In her dissent, Justice Sotomayor cites McCreary County, as well as Larson, Edwards, Epperson, and other cases decided under the Establishment Clause for the proposition that the clause is violated not only when religion is favored over the secular but when the secular is favored over religion. Slip. op. 2-3 (Sotomayor, J., dissenting). But all the cases cited are ones where government favored religion over the secular, never the reverse. And for good reason: it makes no sense to say the government is establishing religion when under the facts it is suppressing religion.

Application of these Rules on Remand

The State of Hawaii is not a religion, nor does it subscribe to one. So Rule 1, which requires discrimination among religions, is of no use to the State. Rule 2 requires an intentional preferring of religion over the secular. But the State’s claim goes in the other direction, to wit:  by discriminating against Muslims the proclamation prefers the secular concern for national security over religion. So Rule 2 is of no use to the State. Hawaii cannot state a claim under the Establishment Clause.

The individual and associational Plaintiffs are Islamic and allege a colorable claim of religious injury. Rule 1 is that the Establishment Clause prohibits government from intentionally preferring one religion over another religion. Islam is disfavored. But does Proclamation No. 9645 advance Christianity, Judaism, or some other religion by discriminating against Muslims? I suppose it is remotely possible to envision Christianity or Judaism as receiving some benefit from Proclamation No. 9645, but it is just as likely or more so that the fortunes of other religions are unaffected or even damaged by the proclamation.[xxv] In any event, that either Christianity or Judaism are advanced by the proclamation is wholly speculative and unproven by the Plaintiffs. Rule 1 is out.

Nor does Proclamation No. 9645 establish or otherwise prefer Islam over the secular, the subject of Rule 2. Indeed, if anything the proclamation does the opposite: preferring the secular concern for national security over religion. Preferring the secular over religion is the opposite of establishing religion. Rule 2 is out.

It follows that neither the State of Hawaii nor the individual and institutional Plaintiffs can state a claim under the Establishment Clause.

What About the Free Exercise Clause?

A pleading framed as the government preferring the secular over religion requires turning to the Free Exercise Clause. However, from the plain language of the clause’s text (“make no law … prohibiting the free exercise of [religion].”), a person or organization must first have a religion before it can be exercised.[xxvi] The State of Hawaii has no religion to exercise and thus can suffer no religious burden or injury. Hawaii cannot state a claim under the Free Exercise Clause.

The individual and associational Plaintiffs do have a colorable claim of religious injury and did set out in their amended complaint a count under the Free Exercise Clause. Under Oregon Employment Division v. Smith[xxvii] and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,[xxviii] the federal government is prohibited from singling out a religion, such as Islam, for adverse treatment. Animus need not be shown, just intent.[xxix] Normally such laws receive strict scrutiny and will be sustained only if the government can satisfy the compelling interest test.[xxx]

The Plaintiffs’ Free Exercise Clause and RFRA claims were not in the Court’s grant of certiorari. However, today Trump v. Hawaii was remanded to the lower courts for further proceedings. Slip op. 38-39. Normally the individual and associational Plaintiffs would have an opportunity to show that the proclamation was issued with discriminatory intent. However, the Court today held that all constitutional rights were subject to mere rational basis review. Slip op. 32-33 n.5. In the holding today and given this record, the Court found the proclamation rational, so on remand it will be difficult to prevail on the Free Exercise Clause unless the record is reopened and new and rather damming evidence is admitted. The RFRA claim, however, is by its own terms not limited by the special context of national security and presidential authority.

Nothing in the foregoing is to be taken as condoning governmental discrimination against Muslims or the President’s intemperate remarks on Islam and immigration. Both are to be deplored.

* * *

Carl Esbeck is the R.B. Price Professor Emeritus and Isabella Wade & Paul C. Lyda Professor of Law Emeritus at the University of Missouri.

[i] 82 Fed. Reg. 45,161 (Sept. 24, 2017).

[ii] See, e.g., Int’l Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir. 2018) (en banc), petition for cert. filed U.S. Sup. Ct. No. 17-1270.

[iii] Hawaii v. Trump, 878 F.3d 662, 683-98 (9th Cir. 2017) (per curiam).

[iv] 138 S. Ct. 923 (Jan. 5, 2018). A few weeks earlier the Court had granted a stay of the injunction pending appellate review. 138 S. Ct. 542 (Dec. 4, 2017).

[v] The multiple counts in Plaintiffs’ third amended complaint are summarized in Hawaii v. Trump, 878 F.3d at 674.

[vi] Id. at 682.

[vii] Id. at 678, 681-82.

[viii] 408 U.S. 753 (1972).

[ix] Id. at 770.

[x] Int’l Refugee Assistance Project, 883 F.3d at 264-65.

[xi] 456 U.S. 228, 253-54 (1982).

[xii] Id. at 231-33, 246-47 n.23, 250-51, 254-55.

[xiii] 401 U.S. 437 (1971).

[xiv] In contrast to a claim of intentional discrimination among religions, when a general law has a disparate effect among religions the Establishment Clause is not violated. See Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 696 (1989) (limitations on charitable deductions in federal income tax law that had disparate impact on the giving patterns of members of a particular church did not violate the Establishment Clause); Bob Jones University v. United States, 461 U.S. 574, 604 n.30 (1983) (discrimination among religions that have differing beliefs concerning race was not purposeful, but the unintended effect of the IRS’s facially neutral regulation); cf. Larson v. Valente, 456 U.S. 228, 246 n.23 (1982) (dicta to effect that state regulatory act was not generally applicable legislation having disparate impact, but intentionally drafted to favor well-known churches while targeting new religious movements).

[xv] 472 U.S. 703 (1985) (upholding claim by department store against Sabbath labor law).

[xvi] 459 U.S. 116 (1982) (upholding claim by tavern seeking liquor license blocked by nearby church).

[xvii] 482 U.S. 578 (1987) (striking down state law that required teaching of creation in public school science classes if evolution is taught).

[xviii] 393 U.S. 97 (1968) (striking down state prohibition on teaching evolution in public school science classes).

[xix] 367 U.S. 488 (1961) (atheist kept from public office because state required oath professing belief in God).

[xx] Care must be taken not to confuse a religious preference with a religious exemption. The Establishment Clause will strike down an unyielding religious preference. Religious exemptions are altogether different, however, and have been consistently upheld by the Supreme Court because exemptions do not entail “state action” that causes harm to others. See Carl H. Esbeck, Do Discretionary Religious Exemptions Violate the Establishment Clause?, 106 Kty. L. J. no. 4 (June 2018).

[xxi] 545 U.S. 844 (2005).

[xxii] Id. at 862 (internal quotation marks omitted).

[xxiii] Cf. Int’l Refugee Assistance Project, 883 F.3d at 256 (“The Plaintiffs allege that the Proclamation violates the Establishment Clause by disfavoring Muslims.”).

[xxiv] Trump v. Hawaii, U.S. Sup. Ct. No. 17-965, Brief for the Petitioners, p. 65 (filed Feb. 21, 2018) (emphasis added).

[xxv] When a Muslim community believes it is under persecution by a democratic state, that may cause tension with Christians, Jews, or other religions, or at least engender resentment toward those of other faiths who have the votes stop the persecution but fail to do so. Thus, it might be conjectured that every religion is harmed by the rise in tensions among them.

[xxvi] There is no claim under the Free Exercise Clause unless a plaintiff first professes a religion. Frazee v. Illinois Dep't of Empl. Security, 489 U.S. 829, 833 (1989) (noting that only beliefs rooted in religion are protected by the Free Exercise Clause; secular views will not suffice); Thomas v. Review Bd., 450 U.S. 707, 713-14 (1981) (noting that only beliefs rooted in religion are protected by the Free Exercise Clause); Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972) (identifying religious claims that are “personal” and “philosophical” and those "merely a matter of personal preference" as not protected by free exercise). This understanding aligns with the drafting history of the Free Exercise Clause in the First Federal Congress of 1789. See Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 525-67 (2011); see especially id. at 563.

[xxvii] 494 U.S. 872, 884 (1990).

[xxviii] 508 U.S. 520 (1993).

[xxix] Shrum v. City of Coweta, 449 F.3d 1132, 1145 (10th Cir. 2006).

[xxx] See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 430-32 (2006) (describing the focused, case-by-case nature of the compelling interest test in the Religious Freedom Restoration Act, which is the same test as under the Free Exercise Clause).