The Case for a Consistent Approach to Government Discrimination on the Basis of Religion

Both right and left decry implicit government discrimination on the basis of religion when it targets groups they sympathize with. But both are all too ready to turn a blind eye in other cases.


One of the points at issue in the debate over Judge Brett Kavanaugh's nomination to the Supreme Court is his history of supporting efforts to get courts to invalidate "Blaine amendments": provisions in many state constitutions that forbid government funding of religious schools. Kavanaugh and other conservatives have long argued that Blaine amendments are unconstitutional because, although their text does not specifically target any one religion, their enactment was motivated by virulent anti-Catholicism in the late nineteenth century. Liberals fear that it will open the door to school choice programs they oppose, and often defend the Blaine Amendments on the basis that they ultimately treat all religious schools alike, despite the invidious motivations of those that enacted them.

Both liberal and conservative positions on the Blaine Amendments are in deep tension with those they have taken in other cases where a seemingly neutral government policy was in fact enacted out of discriminatory hostility towards a particular religious group. As Harvard law professor (and prominent law and religion scholar) Noah Feldman points out in a recent column, liberal defenses of the Blaine Amendments are at odds with their critiques of Donald Trump's travel ban order, which barred nearly all citizens of several Muslim-majority nations from entering the United States:

The original Blaine amendment was proposed in 1875 — to the U.S. Constitution, not the states. It would have applied the federal establishment and free exercise clauses to the states, and it would have said that no "money raised by taxation in any State for the support of public schools … shall ever be under the control of any religious sect … [nor] divided between religious sects or denominations."

The word "sect" in the amendment was understood by all at the time to refer primarily to the Catholic Church….

The Senate debates over the Blaine amendment produced some of the nastiest anti-Catholic invective ever to grace the pages of the Congressional Record….

On the one hand, it could be argued that the prejudice and animus that motivated the Blaine amendments should be irrelevant to their legal effects, because all they did in practice was preserve existing separation of government and religion….

On the other hand, much recent Supreme Court doctrine says that state laws motivated by bias violate the equal protection of the laws. Anti-religious bias has been held to violate the free exercise clause, too. Today my old view [supporting the Blaine Amendments] feels much harder to sustain in the light of how the case law has developed.

Seen through this lens, the Blaine amendments are almost certainly unconstitutional. The Supreme Court hasn't said so, but it also hasn't defended the Blaines. It just pretended that they don't exist, avoiding their legal implications even when it might have seemed relevant.

Kavanaugh might well provide a fifth vote to strike down the Blaine laws. But that isn't the end of the world, legally speaking. In truth, it will be hard for the court's liberals not to join such an opinion, given their own anti-bias jurisprudence, especially in cases like Trump v. Hawaii, the travel ban decision.

Like the Blaine Amendments, the travel ban was, on its face, neutral between religions. But overwhelming evidence—including Donald Trump's own statements—shows that the true motive was religious discrimination: carrying out Trump's notorious campaign promise to institute a "Muslim ban" by excluding citizens of Muslim-majority nations. Most liberals decry the Supreme Court majority's decision to largely turn a blind eye to this discriminatory purpose, even as they advocate a similar approach to the Blaine Amendments. For their part, most conservatives cheered the travel ban ruling, but want courts to strike down the Blaine Amendments.

There is a similar pattern of reactions to the recent Masterpiece Cakeshop decision, in which the Supreme Court ruled against a state effort to force a Colorado baker who objects to gay marriage on religious grounds to prepare a cake for a same-sex wedding celebration. While the anti-discrimination law the state was seeking to enforce is neutral on its face, the justices ruled in favor of the baker because two of the members of the state civil rights commission that considered his case expressed hostility towards his religious beliefs. Despite the striking parallels between the Masterpiece Cakeshop case and the travel ban decision, the same conservative justices who voted in favor of the baker all voted to uphold the travel ban in a ruling issued just a few weeks later. Most conservatives outside the Court took similarly contradictory stances. For their part, most liberal commentators thought the baker deserved to lose, but also condemned the travel ban ruling; though it is important to recognize that liberal Supreme Court justices Stephen Breyer and Elena Kagan took a consistently principled stance in voting for both the baker and the travel ban plaintiffs.

Sadly, both liberals and conservatives are often willing to ignore strong evidence of discriminatory motivation when the policy in question is one they like on other grounds, whether it be restricting immigration or blocking school choice programs that include parochial schools. It would be better if more people followed Noah Feldman's example and took a consistently principled stance and recognized that policies enacted for the purpose of religious discrimination are unconstitutional across the board.

Of course, it is also possible to adopt a consistent view that goes the other way: motivation should be deemed irrelevant, and courts should only consider the text of the law or regulation in question. That approach would go against decades of Supreme Court precedent requiring courts to strike down seemingly neutral policies in cases where evidence shows the true motive was unconstitutional discrimination based on race, ethnicity, religion, and other forbidden classifications.

Worse, ignoring motivation would open the door to extensive discrimination against a wide range of groups. Government officials who seek to punish an unpopular religious minority need only adopt policies targeting some "neutral" characteristic that correlates with membership in the group in question. If you want to discriminate against Muslims, target citizens of Muslim-majority countries (the travel ban). If you want to target Catholics, discriminate against parochial schools at a time when the Catholic Church operates by far the largest network of such institutions (the Blaine Amendment). If the same rule is applied to racial, ethnic, and gender discrimination, the same tactic can be used even more widely. For example, instead of discriminating against African-Americans explicitly, you can target people who live in areas that just happen to have large African-American populations. Such tactics were in fact used in the Jim Crow-era, when policymakers sought to circumvent court decisions forbidding explicit racial discrimination.

Skeptics claim that there is little point to striking down policies with discriminatory motives if the same policies can be enacted by other officials for different reasons. Defenders of the travel ban, for example, often argued that it had to be constitutional if another president could have done the same thing for less objectionable reasons. But such claims overlook the reality that most such policies are unlikely to be adopted in the first place if not for discriminatory purposes. I addressed that argument in greater detail here.

In some cases, the true motive for a policy may be difficult to determine. Not every case is as clear-cut as the travel ban, where the relevant decision was made by one person, and he openly broadcast his bigoted motives to the world over a period of many months. But courts have dealt with the issue of determining motives in many areas of law, including other types of antidiscrimination law. Intentionally killing or injuring someone is punished far more severely than doing so accidentally. Firing an employee because of her race or gender is illegal, while firing her for most other reasons is not. While there are genuine difficulties involved in ascertaining motives, they are not insuperable, and they do not justify simply ignoring discriminatory motives—especially not in cases where the evidence is strong and clear. And if the government has a genuine non-bigoted justification for the challenged policy, Supreme Court precedent allows it to prevail if it can prove it would have adopted the same policy even in the absence of improper motives. That reduces the risk that striking down discriminatory policies would somehow create a dangerous slippery slope.

Many claim that the government should get a pass on otherwise impermissible discrimination in particular types of cases. For example, defenders of the travel ban often argued that special deference is appropriate because aliens have no constitutional right to enter the country. Nothing in the text or original meaning of the Constitution justifies such exceptions to the First Amendment's ban on religious discrimination. If they were allowed, the exceptions would quickly swallow up the rule. While there is no constitutional right to enter the United States, there is also—under current Supreme Court precedent—no constitutional right to government funding of religious schools (the Blaine Amendment cases), and no meaningful constitutional right to be a baker (Masterpiece Cakeshop). The whole point of constitutional restrictions on discriminatory policies is to forbid certain types of discrimination even when it comes to things that are not otherwise constitutional rights. In cases where the activity in question is protected by some other constitutional right, we don't need anti-discrimination rules, because the government's restrictions would be struck down regardless.

Some also argue that discrimination in immigration or national security policy should get strong deference because the executive has specialized expertise on these issues (a contention that played a key role in the Supreme Court's decision in the travel ban case). The exact same thing can be said of many other policies, including education policy (the issue at stake in the Blaine Amendment cases). At the very least, deference is not appropriate in cases where the evidence indicates that neutral application of specialized expertise is not the true motive behind the policy in question, but rather a cover for discrimination.

In a diverse and politically polarized society, government officials on both right and left will sometimes target religious minorities for discrimination, especially ones disliked by their side of the political spectrum. Courts should strike down such discrimination regardless of whether it targets Muslims, Catholics, or socially conservative Protestants, and regardless of whether the policy involves immigration, education, or some other issue.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. Your political party glorifies how it engaged in repeated genocides explicitly because the head of your party directed the killing of those people?
    Your political party has it in its charter that women are inferior?
    Your political party has in its charter than homosexual deserve to be killed on the basis of their being gay?
    Your political party has adopted as a central plank of their platform that the innocent can be punished in lieu of the guilty and it advocates this is the most perfect form of mercy and justice possible?
    Your political party thinks it is appropriate to torture and sometimes kill people for leaving the party?
    You demand to be immunized from certain laws on the basis of your membership in that political party?

    And you want tax money to pay for kids to be taught in schools that your political party runs?

    Oh, your religion, not your political party. Hmmmmm…..

    I’m not saying religious discrimination definitely needs to be legal. On the one hand it seems entirely rational to be allowed to judge people on the basis of what they espouse and their voluntary membership in organizations. I can see courts requiring a rational basis for laws and any defense must be on something other than “I don’t wanna” or equivalently “My religion says that is icky.” But on the other hand people, often the religious, have that nasty habit of killing people for being in the wrong religion or turning a blind eye to horrible conditions they are suffering under.

    1. Large organizations are rarely monolithic, and judging people solely based on their affiliations with such organizations is sub-optimal to say the least. Even if you despise or otherwise find odious the viewpoints of certain leaders of a given religious sect, that seems poor reason to say ban certain individuals that adhere to that creed from entering the US.

  2. ” But overwhelming evidence – including Donald Trump’s own statements – shows that the true motive was religious discrimination: carrying out Trump’s notorious campaign promise to institute a “Muslim ban” by excluding citizens of Muslim-majority nations.”

    The “true motive” of the proposed Muslim ban, as well as the travel ban, appears to be to keep terrorists out of the US. Both are terrible policies, but there’s no evidence that they were motivated by anything other than fear of terrorism.

    1. The “true motive” of the proposed Muslim ban, as well as the travel ban, appears to be to keep terrorists out of the US. Both are terrible policies, but there’s no evidence that they were motivated by anything other than fear of terrorism.

      More likely the fear of brown people since the people enacting these policies are overwhelmingly racist and the policies in question do nothing to mitigate terrorist acts against America. Sometimes a cigar is just a cigar.

      And they take not action when white Americans are killing other Americans (see 2017 Vegas massacre or the 45 people today who will be murdered in this country).

      1. “And they take not action when white Americans are killing other Americans (see…the 45 people today who will be murdered in this country)”

        White people murder 45 people a day in this country?

        Of course, the evidence suggests that Trump & Co shifted from a racist and impermissible proxy for who might be a terrorist to a permissible one. Not every bad policy is unconstitutional.

      2. Uh huh – except Indonesia, by far the most populous Muslim country, was not on the ban list.

        Ban Muslimes? Not very many of them.

        Illya, and open borders absolutist, is letting his ideology get in the way of his interpretation, something he has done a lot of lately.

    2. This is difficult to square with the ban not including the country that sent us most of the 9/11 hijackers.

      That is, it is difficult for me personally to imagine someone who is motivated by wanting to keep terrorists out proposing a travel ban that does not include most of the countries from which terrorists have entered in the past.

      1. “This is difficult to square with the ban not including the country that sent us most of the 9/11 hijackers.”

        Well, unfortunately it’s too late to prevent 9/11.

        And of course, the pretextual Muslim ban hypothesis is difficult to square with the ban not including the countries that have the most Muslims.

        1. Shhhh! Only evidence in favor of it being religious discrimination counts.

        2. Wait, so the under-inclusivity of the ban now militates in favor of it not being pretextual? Really?

          This seems like a recipe for letting any pretextual discrimination slide, so long as the exclude at least one potential target.

          1. Well, I don’t see how the exclusion of SA suggest that the ban is pretextual, which is what your comment seems to suggest.

            1. Because there is a direct nexus between SA and the harm it purported to solve.

              1. But there’s also a direct nexus between SA and the purported pretext.

      2. That’s only if you assume the ban is a flat out ban with no way for it to be removed. This can be excused given the surfeit of bananas on the subject thrown out there by our friendly neighborhood Democrat party apparatchiks, sorry I meant news agencies. In reality the ban is removable once the governments meet a minimum level of information getting that they will give the US govt. for visa eligibility.

      3. We don’t ban Japan either, even though they attacked us at Pearl Harbor.

        Conditions have changed, Al-Qaida is not the primary threat anymore, and unlike the countries on the ban list, Saudi Arabia at least cooperates with us in regard to providing criminal background checks on immigrants.

        1. SA cooperates with one hand and feeds the Wahhabists with the other.

          1. Yeah, that bit that conditions have changed is completely untrue.

            Nothing has changed except now your guy is the one in the White House coddling those guys.

  3. There’s no equivalent between banning an American (or a legal non-citizen) from practicing his or her religion in the United States and banning a person from immigrating here based on his religion (even if you accept that’s what Trump was doing).

    1. Not if you believe in the US Constitution. Which – based on your prior statements – you clearly don’t.

      1. The U.S. Constitution does not implicate immigration policy in the slightest, and you know it.

        1. What does make no law mean to you?

          1. Frustrated that they didn’t stop there. 🙂

          2. It means not creating a state church, and nothing more.

            1. 1) If they wanted no state church, they would have said no state church.

              2) your original statement is that the US Constitution doesn’t implicate immigration policy at all, and is not limited to the establishment clause. Are you now walking that back?

              1. 1) Read the historical record, and it’s very clear what they meant
                2) No, I’m not. The Establishment Clause does not do anything other than prohibit a state church. Even if you accept the bastardized version of it that it prohibits any “entanglement” with religion, it still doesn’t implicate immigration policy.

                1. Read the historical record, and it’s very clear what they meant
                  I have; it’s not.

                  As to the second bit, I would suggest you read what I said again.

                  1. I read it. You’re not making any sense.

                    1. You: The U.S. Constitution does not implicate immigration policy in the slightest, and you know it.

                      Also you: The establishment clause is super narrow and doesn’t mean I can’t ban a religion from immigrating.

                      Me: your first statement is not limited to the establishment clause, do you mean to be so broad?

                      You: Establishment clause is *very clear*

                      Me: I’m wondering about your thinking regarding everything BUT that clause and immigration

                      You: I don’t understand.

                    2. your original statement is that the US Constitution doesn’t implicate immigration policy at all, and is not limited to the establishment clause. Are you now walking that back?

                      I didn’t follow where AWRPatriot walked back this claim. It seems to me he is saying the Establishment Clause, like the rest of the Constitution, does not restrict the government on immigration policy.

                    3. Correct. And I don’t follow his explanation up above.

                    4. The issue is that the First Amendment and equal protection are plenary forbiddances. (In practice, this means strict scrutiny.)

                      There is no exception in ‘make no law’ for immigration just because it’s a broad grant in Article II. A government of limited powers, remember?

                      You can quibble about the Establishment Clause all you want, but that original thesis remains incorrect as a matter of Constitutional text, as well as precedent.

                    5. Except that a law banning a person from immigration based on religion is not “establishing a religion.” Further, no court has ever ruled that the 1st Amendment dictates how we have to run our immigration system.

                    6. I’m not talking about your dumb ipse dixit about the establishment clause because that ship has sailed.

                      You made a statement about the Constitution generally. Now you keep trying to make it about specific parts in an attempt to weasel out of being caught being wrong. You can admit you were just being hyperbolic. Or could have, until you doubled down so many times.

                      And don’t think I didn’t catch your First Amendment pushback suddenly ignored the text of the Constitution, and conflated no precedent with negative precedent.

                    7. Sarcastr0,

                      I understand your argument. What I don’t understand is your assertion that AWRPatriot walked back part of his argument.

                    8. I think we need to number the claims here 🙂

                      1. The U.S. Constitution does not implicate immigration policy in the slightest

                      2. The Establishment Clause means ( . . . . fill in the blank . . . . )

                    9. I haven’t seen anyone claim any other part of the Constitution besides the Establishment Clause implicates immigration policy that targets a religion.

                    10. Wouldn’t the Free Exercise clause be more pertinent than the Establishment clause?

                    11. Equal protection, my dude.

                  2. “Read the historical record, and it’s very clear what they meant
                    I have; it’s not.”


                    “Established” or “establishment” meant a state official church or religion, like the Church of England or the established “church” in Massachusetts [actually a bunch of independent congregational churches] where clergy were appointed and paid by the public.

                    Thinking “establishment” meant mere support is a retrocon based on the 20th century Supreme Court definition.

              2. “1) If they wanted no state church, they would have said no state church.”

                They wanted neither a federal state church, nor federal interference with state churches established by states. And so they prohibited ANY legislation on the topic of “an establishment of religion”, which is exactly what a state church is.

                1. Then why didn’t they say establishment of a church?

                  The broader language bespeaks a broader protection. Certainly taken in concert with Equal Protection it would seem to.

                  1. “Certainly taken in concert with Equal Protection it would seem to.”

                    The Framers in 1789 used an Amendment from 1868 in drafting language?

                    I knew Ben Franklin invented a time machine!

                    1. I believe our Constitution has both clauses these days, Bob.

                      What thesis are you arguing?

                    2. Do you even read the thread?

                      ARWP said: “It means not creating a state church, and nothing more.”

                      You disputed that.

                      So, the “thesis” is the 1789 meaning of the Establishment Clause. EP under the 14A is not relevant.

                    3. Do you see the present tense there in the word means, Bob? We’re not isolating the clause for an academic discussion, but looking at how it works (or rather, should work under originalist principles) today. Even an originalist can see how a clause’s operation can be changed by language in other places.

                      And even if we were looking only at this clause by itself as written in 1789, your, Brett, and ARWP’s proof of the founder’s intent being so limited are all declaratory more than anything. And, as I’ve noted, they go against the text and general sweeping nature of the Amendments.

                    4. Congress shall make no law respecting an establishment of religion. The word “respecting” means either the clause prohibits more than establishing a national church, or the clause should not be incorporated against the states. Justice Thomas remains a party of one on the Supreme Court in support of the latter viewpoint.

          3. Constitutionally speaking, anything related to the border is different and has been so for decades. For example, there an actual statute saying that “no person shall hereafter be naturalized as a citizen of the United States….who is a member of or affiliated with (A) the Communist Party of the United States.” That is, activity that would be clearly protected by the 1st amendment if done by a U.S. citizen. See also border search exception re 4th amendment stuff.

  4. The anti-Catholic school funding bans did, in fact, deny tax moneys to ALL Catholic schools. And at the time, there were no Baptist or Episcopalian schools. Trump’s travel ban, on the other hand, did not attempt to prevent all Muslims from entering the country. In fact, there are currently only five Muslim-majority countries on the list. And Yemen, Somalia, Libya and Syria are currently virtual-or-real failed states. The only other country on the list is Iran, which gets on for its own reasons. All are security hot-spots – a fact which this writer refuses to even discuss. Never mind Indonesia, with the world’s largest Muslim population. Because, after all, Trump said! This is where I’ll be generous and call this post ‘disingenuous.’

    1. Very “generous” indeed.

    2. Trump’s travel ban, on the other hand, did not attempt to prevent all Muslims from entering the country.

      Yes, it did. That’s exactly what it attempted to do. Then more sensible lawyers in his administration, knowing that Trump’s proposal had no chance of being upheld, created formal wording for the ban that was far more narrow in the hopes that it would be.

  5. I don’t recall anyone, on either side, having trouble with ‘muslims’ until four aircraft got hijacked in one day. Perhaps Somin can explain why he believes this is an issue with religion and not violence? Or should he be arguing WW2 was based on racism against Japanese and not an act of war?

    1. I don’t recall anyone, on either side, having trouble with ‘muslims’ until four aircraft got hijacked in one day.

      Not sure why you’re willing to admit such ignorance. Or perhaps you’re very young?

      Or should he be arguing WW2 was based on racism against Japanese and not an act of war?

      Uh, Japanese internment was based on racism against Japanese and not an act of war.

    2. Trouble with Muslims in America goes all the way back to the founding. Remember the Barbary pirates? They were Muslims.

      1. I don’t think their Islamic urge to jihad is what led them to piracy, Brett.

  6. I’m not seeing how the Cakeshop case fits into this. The law itself was NOT passed for anti-religious purposes. SCOTUS ruled that the commission that administered the law was biased against religious fundamentalists and was not acting as a neutral arbiter. Sloppy intellectual analysis…..

    1. Bingo! Got it in one.

  7. So, if the “Blaine Amendments” passed due to 19th century anti-Catholicism were repealed and then identically-worded provisions reenacted because of 21st century militant secularism, that’d be ok… so it seems like the 19th century motivations should be irrelevant in the 21st century.

    Maybe the differwnce is that Trump is President now, not in tbe 1800s?

      1. I’m approaching this feom the standpoint of “These so-called ‘Blaine Amendments’ are good policy, what hoops do people today have to jump through to to keep them in spite of any 18th-century animus involved in their origination, assuming for the sake of argument any 18th-century animus is pertinent even though it really shouldn’t be.”

  8. The real question is, when does a government policy motivated by animus against a particular religion actually stretch to an establishment of religion, a prohibiting of the free exercise thereof, or a denial to any person within a state’s jurisdiction the equal protection of the laws? Because regardless of the motive, it is only then that the Constitution is actually violated.

    In the case of Blaine Amendments, the amendments themselves explicitly target religious schools, not private schools in general. In the same era, Protestant prayer and reading from Protestant Bible translations occurred in public schools. It was thus designed to defend an establishment of Protestant religion, and to prevent Catholics from an equal right to exercise their religion in equally state-funded schools.

    On the other hand, the travel ban does not either establish a religion in the US or prevent people anywhere from exercising theirs. The persons in those countries are not under the jurisdiction of the United States, and therefore not entitled to the equal protection of the laws of the United States (if we read in a national rule paralleling the 14th Amendment). So even the sheerest and most blatant bigotry of motive does not actually touch the constitutionality of the ban.

  9. The separation of church and state is not about building an elaborate wall between the two, but keeping the two oblivious of each other.

  10. ===Many claim that the government should get a pass on otherwise impermissible discrimination in particular types of cases. For example, defenders of the travel ban often argued that special deference is appropriate because aliens have no constitutional right to enter the country. Nothing in the text or original meaning of the Constitution justifies such exceptions to the First Amendment’s ban on religious discrimination.===

    Boy the plenary powers doctrine disappeared fast when it became politically inconvenient. And what if “Muslim” was a shorthand for violent, dictatorial, Muslim-pwned nation?

    Which leads us to…the First Amendment, designed to reduce strife by not allowing one religion to help itself or hamper others, said strife being a lesson from history. We now wrench that around to force Americans to let in people from countries dead set in favor of increasing strife up through voilence, as is their official policies?

    I’m in favor of the first amendment and religiouss freedom (so many against this are fair weather friends, and rage when a small company or religious order doesn’t have to pay for abortions) but is this really what is in the spirit of the first amendment, which is religions getting along and not fighting for political power to actively harm others?

  11. What we actually need is a fundamental reevaluation of what is a religion. The current notion that only a handful of middle east/southeast asian iron age philosophies are religions worked in the 18th century but is an outmoded concept today. Newer ideologies like feminism and social justice behave exactly like any other stereotypical cult in all the relevant ways. They are silly belief systems people cling to emotionally and sometimes violently in the absence of objective evidence but these cults currently occupy this weird quantum state where they receive many of the benefits and none of the drawbacks of being a religion. Compared to a muslim a feminist not only gets to establish a taxexempt institute almost as good as he has but also get gobs of direct government support through education ‘funding’ and research grants he has no hope of obtaining. The government sends the social justice warrior a steady stream of children to brainwash into their disciples, entry into an sjw madrassa in the US (and Europe for at least the next few years) is pretty much the default pathway for a child unlike the schools for other religions which require a lot more hoops and expense to enter.

    1. Unlike a branch davidian, a politician is allowed to throw the full weight of his official support behind the feminist religion with none of the official consequences or criticisms of establishment clause violations. So its understandable if the hindu finds it unfair that most legislatures in the west get to obsess over feminism and pass explicitly profeminist laws all the time just because its not called a religion.

      If we pretend to be a truly secular society we need to actually treat all religions equally, even the ones that don’t like to be called a religion.

      1. A dozen or so years ago, some lunatic pro se made exactly this argument in one of my cases. It went nowhere, for excellent reasons.

  12. So, what happens when there’s a revival of Thugee? Moloch worship? Ancient Aztec religion, with it’s human sacrifices?

    I mean, freedom of religion is all well and good with relatively harmless religions, but I have to think there’s some line beyond which it’s just not workable.

    1. As long as those lines apply to all people, regardless of religious belief or lack thereof, fine.

      Murder is bad for all people. But if the neo-Thugs aren’t killing people, and the neo-Aztecs aren’t killing people, then who cares?

      I cannot see how people can somehow claim that discriminating against ALL religions is fine, when discriminating against a single religion isn’t. It’s still a religious test; you’re just punishing for multiple answers.

      1. I mean, freedom of religion is all well and good

        Or what if someone is yelling fire in a crowded theater, amiright?

        How many small government conservatives here are taking a brave stand for government regulation of badfaith?

        1. The thing is, there IS such a thing as badfaith. Thugee. Or Scientology, where extortion is a sacrament.

          Religions are systems of belief, and what you believe drives what you do. Some systems of belief drive people to do bad things. It’ s not an accident that there aren’t any majority Muslim liberal democracies, for instance.

          We still haven’t figured out how to deal with that, without losing an important part of liberty. Perhaps we never will.

          But it’s still a real problem, because, yeah, badfaith is a real thing.

          1. And there is also badspeech. And even badthought. Tricky to figure out any objective way to draw the lines of what that is. And something the founders explicitly removed from delegatable to the government.

            Not a lot of revelation in pointing out that some people and things are wrong and bad.

            1. “And something the founders explicitly removed from delegatable to the government.”

              The Constitution, on its face, prohibits laws respecting (Having to do with) an establishment of religion (State churches), or prohibiting the free exercise of religion. Regulation of immigration contingent on belief systems, religious or otherwise, does neither. Prohibiting immigration by Nazis and Communists doesn’t violate freedom of speech, and prohibiting immigration by members of religions with a track record of violence and anti-democratic ideology…

              Well, honestly, I think that last is dodgy. Merely dodgy, but at least that.

              But there’s still a problem there, because religions ARE belief systems, and what you believe effects what you DO. And we have to care what immigrants are likely to do, don’t we?

              1. Your pinched interpretation of the establishment clause that allows Muslims to be regulated as Nazis is nicely self-refuting, and also puts TenInchPianist’s ‘what anti-Muslim bias’ to the test.

                I also note you added an interesting requirement about a record of violence and anti-democratic ideology. Almost as though you are aware of how broad your argument is and want to keep it narrow.

                And what you believe may have an effect, but it isn’t what you do. That’s why we punish the second bit and not the first.

                1. “I also note you added an interesting requirement about a record of violence and anti-democratic ideology. ”

                  Well, of course I did. I don’t want arbitrary government action. I actually care if there are valid justifications.

                  As far as people already legally entitled to be in the US are concerned, the government must stick to dealing with what they have done, not what they believe. No pre-crime for citizens.

                  But, as regards to people outside the US, with no citizenship or other tie to the US, statistical generalizations are just fine. Refusing to let somebody who isn’t a citizen or even a legal resident alien enter the US isn’t a “punishment”, because it’s nothing they were entitled to do in the first place.

                  We’re perfectly entitled to refuse entry to Nazis, Communists, and Thugee. The proper debate is whether Islam belongs on that list. I think it does.

                  1. I guess I’m having trouble telling where your arguments about policy end and your arguments about Constitutionality begin.

                    Assuming this is the policy argument it looks like, if pre-crime is bad for US residents, why is it OK to use pre-crime for immigration? Because one is punishment and the other only looks like one?
                    Could we have a do not fly list that just said “ALL MUSLIMS?’ There’s no right to fly, after all.

                    The proper debate is whether religious-based generalizations belong on that list. THEN we can talk about Islam.

                    1. Because pre-crime violates the Constitution. The Constitution, by definition, does not apply to non-Americans or foreigners outside our borders.

                    2. The Constitution applies to the US Government all the time, even when they’re making laws about the borders.

                    3. And not to immigration, as we’ve stated multiple times.

  13. I always love the mix between ‘no Constitutional issue because it wasn’t about Muslims’ and ‘We can/should strip Muslims of all Constitutional rights’ you get on these threads.

    1. What Muslims are being stripped of Constitutional rights? Who has advocated for doing that to any Muslims in the United States?

      1. Brett’s comment above this that says ‘freedom of religion is all well and good but…’ is pretty clearly implying Islam isn’t workable with America. Unless you think Brett believes Islam is a religion of piece.

        The first comment on this post is explicitly asking that question.

        Your comment that the establishment clause is only about specifically not establishing a state church sure leaves that door open. Of course, you have in the past said Islam isn’t compatible with America, so I dunno what you’re questioning here.

        And then there is all the other posts on the subject where people argue a ban on Islamic immigration would be good.

        Honorable mention goes to poor AmosArch who doesn’t want to ban Islam, just regulate feminism.

        1. The evidence is that Islam isn’t “workable” anywhere, not just America. Not if having a free society is part of being “workable”.

          But until a decade ago, Muslims were a fraction of a percent of the US population. They’re still under a percent. We don’t have to strip them of constitutional rights to avoid problems with them. We just have to not invite them in.

          It’s the same principle as not inviting in Communists or Nazis.

          1. Thanks for making my case, Brett!

            And maybe talk to some American Muslims. Not quite Nazis, as it turns out.

          2. Islam is perfectly workable in America. And America is, hands down, the best western country at absorbing Muslim immigrants.

            1. Word, TiP.

              I think it’s related to birthright citizenship and our association of citizenship with nationality. For all England’s liberalism, a Muslim could have been in the UK for generations and yet they don’t look right and aren’t ‘Real Englishmen.’ Same with the rest of Western Europe, and even Scandinavia.

              In America, a citizen can look like anything, and is as real an American as I am. Brett and RightWingDudio may hate that, but it is to my why America remains exceptional and is a vital part of why it became and continues to be the best country in the world.

              1. And yet non-white Americans don’t identify as American. Why is that?

                1. With one out to go at the Little League World Series today, the all non-white local supporters of the USA team from Hawaii were chanting “USA! USA! USA!”

                  1. And go to the Mexico-U.S. soccer games and see who the mestizos are chanting for.

                    1. That fact that you ignore the first and essentialize the second says everything about how you derive your narrative.

            2. Islam only appears workable in America because Muslims are a tiny, tiny fraction of the population. A tiny dose of Arsenic won’t put you six feet under, either, but that doesn’t mean it isn’t toxic.

              That’s why we look like we’re good at absorbing Muslim immigrants: Because so far we’ve only had to cope with tiny numbers of them. And yet they’re still punching way above their weight class when it comes to the fraction of domestic terrorism they commit.

              The evidence is that NOBODY is good at absorbing Muslim immigrants.

              1. Ah yes, breaking out the Constitution isn’t a suicide pact language to shore up your ‘freedom of religion is all well and good but…’

                And then the canard about how at some critical mass they all radicalize. Maybe share that document about how they have different protocols to cause different levels of protest and unrest at certain population thresholds. You do know who you’re echoing, don’t you?

                It’s amazing who I can become disappointed in these days.

                1. Maybe you want to identify the majority Muslim country that’s a liberal democracy? The country with a significant fraction of Muslim population that doesn’t have severe terrorism problems?

                  Maybe you want to present an existence proof for “nations can have large number of Muslims in them and still remain free and peaceful”?

                  This is like somebody defending communism, and ignoring that every time it’s tried you get horror. Next I expect you to say that somehow it’s never been tried.

                  1. Maybe you’re conflating correlation with causation? Maybe you’re going full-on group libel?

                    As for nations having large numbers of Muslims in them, I’d point to countless examples throughout history. If you’re wondering why there are so few nowadays, maybe history has an answer there as well. And it might even clear up the causation issue you had above.

                    Screw you for saying I’m like someone defending Communism. They are incomparable to any who cares to look – Islam has a much greater variety of belief, a much more diverse history, and is a religion not a political system.

        2. I do not believe that Islam is compatible with America, or the rest of the West. That said, I think Muslims in the United States have a Constitutional right to practice it (assuming they’re not running afoul of other neutral laws against terrorism or the like). The way to reconcile the two statements is that letting in Muslims was a mistake, but we’re stuck with respect to the people we already mistakenly allowed to immigrate. We aren’t morally or Constitutionally obligated to continue that mistake.

          1. You and Brett should probably have a conversation, then.

            1. For what purpose? I haven’t seen anything incorrect from him, as a matter of policy or law.

          2. There’s also, of course, Americans who convert to some form (is “denomination” specific to the varieties of Christianity?) of Islam.

            1. Yes, and there’s not a hell of a lot we can do about that.

          3. Exactly my view: Freedom of religion for people already here prohibits us doing anything more in regards to the Muslims we’ve already allowed in, beyond keeping a close watch on them. But we’re not required to keep making that mistake.

            1. I’d also love to know on what basis TIP and Sarcastro think we do “such a great job” at absorbing Muslim immigrants. I’ll concede that many children of Muslim immigrants grow up not really caring about religion (like most other Americans), but I’ve also seen many examples of Muslims “radicalizing.” Not to mention some of the notable refusal to drive beer cases and the like.

              1. ‘seen many examples’
                ‘some of the notable’

                That’s some mighty good proving you’re doing there, chief.

  14. When motivations became the standard for evaluating action we stepped in a hornet’s nest. Hate crimes are a good example. If I kill you for money it’s not as bad as if I kill you because you’re (pick your favorite minority or better yet, pick your most despised minority).

    When you begin with the premise that it’s okay to extort funds from people to indoctrinate children in a particular philosophy is there any outcome that can be considered just? Is forcing atheists to support parochial schools worse than forcing Catholics to pay extra to keep their children away from secular teachings?

    When the fundamental idea behind a law is irrational there all “solutions” become trade offs of the rights of some against the rights of others. The Hobbesian war of all against all doesn’t take place in the state of nature, it takes place in the statehouses.

  15. One has to distinguish between motivations that render the legislation/amendment pretextual (like the travel ban) and motivations which result in support for genuinely neutral laws. For instance, RULIPA was almost certainly passed with the motivation to protect christian (and perhaps jewish) religious beliefs by congress by advancing a neutral standard for all religions.

    So when we consider the Blaine amendments we need to ask if they were passed as pretextual rules sculpted to target catholics or were they motivated by anti-catholic animus which pushed them to pass a genuinely neutral rule?

    This might not be a super clear way to think about it but certainly not all motives can count the same lest we have to throw out things like RULIPA.

    1. This makes entirely too much sense.

  16. I generally support a strong Free Exercise Clause, but I have a serious problem with this. The idea that just because you have a right to do something doesn’t mean government has to support it has a lot of traction, from abortion to various other matters. It’s been consistent Supreme Court doctrine that government has no obligation to fund religious institutions.

    The speeches and writings made about the Civil Rights Act show lots of animosity language. Racial and sexual preferences are referred to as “invidious,” a “scourge,” “immoral,” a sin against God, and much else. It’s the same sort of “hate” language being described here. So either it’s OK to hate as long as the Supreme Court shares your hatred, or we ought to apply the concept of animosity neutrally. And if we apply it neutrally, it seems to me the Civil Rights laws go.

    Laws limiting public funds to secular schools promote the concept of state-sponsored education as a melting pot. It may be bad policy but it’s permissible policy. They also avoid entanglement between religion and state.

    Look at the yeshivas in New York State that get into the news periodically, with claims that e.g. school boards are siphoning off public funds to preferentially fund religious schools. It’s a reasonable position to say we’ll just prevent the whole problem, you can do whatever you want but no state funds.

    1. Because discrimination on the basis of having a religious belief is just as wrong as discrimination on the basis of having a specific religious belief. If the government does something, it must do it without unconstitutional discrimination.
      The government is not *required* to fund religious schools – it can choose not to fund any schools, or only those that meet certain performance criteria, or those of a certain size. But the rules need to be applied equally.

      1. But not establishing religion isn’t discrimination on the basis of having a religious belief. That’s the fundamental problem with this argument. The establishment clause gives government a constitutional basis for treating religion differently.

        What’s being proposed here is that the government fund a complete religious curriculum.

        1. I thought the Establishment Clause means the government can advance nor inhibit religion.

          1. It means that it can’t establish a state church. An “establishment of religion” is a state church. At the time the Constitution was adopted, several states had established state churches, and they wanted to make sure that the new federal government neither established a state church of its own, nor interfered with states doing so.

            With the 1st amendment now incorporated against state governments by the 14th amendment, now states can’t establish state religions, either. But this doesn’t imply the government has to be impartial between religion and secularism, just that it has to treat religions impartially.

            1. “At the time the Constitution was adopted, several states had established state churches”.

              My understanding is that all of the original states had established state churches at the time of the founding.

              Also, a number of states established after the founding, but before the Civil War also had estabilished state churches. While the majority of states that had state churches, disestablished / ended state support for those churches in the early 1800s, the last two were not disestablished until after the ratification of the 14th amendment.

  17. Despite the striking parallels between the Masterpiece Cakeshop case and the travel ban decision, the same conservative justices who voted in favor of the baker all voted to uphold the travel ban in a ruling issued just a few weeks later.

    “Which is really only going to surprise people who thought any of these assholes had any principles to start with.”

  18. The admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792 (1977) Challenges to the constitutionality of immigration policy are limited to the question of whether there was “facially legitimate and bonafide” reason for the policy. Kleindienst v. Mandel, 408 U. S. 753, 769 (1972) As such, these kind of challenges are subject only to limited judicial review. Fiallo v. Bell 430 U.S. 787, 795fn.6 (1977). As a result of this limitation on judicial review, Congress regularly makes rules that would be unacceptable if applied to citizens. ante, at 792. See also Adams v. Howerton, 673 F.2d 1036, 1041 (9th Cir. 1982) (citing Fiallo)

    1. You’ve made a case that’s necessary, but not sufficient.

    2. Citing the holdings is really not a productive response to an argument that the holdings (Kleindienst v Mandel in particular) were wrong.

      1. Ilya Somin did not challenge Kleindienst nor Fiallo nor even Adams in the article.

  19. I understand that laws designed to outlaw particular religious practices sweep under Lukumi Bablo Aye. But my difficulty is this isn’t a particular religious practice.

    A lot of “animosity” jurisprudence represents nothing more than a thin legal-sounding veneer for partisanship by other means.

    Since at least the time of John Calhoun, defenders of slavery and later segregation claimed the fundamental premise of their opponents was wanton hatred for their way of life. Whether you believe their position or not is really nothing more than an indicator of who’s side you’re on. If you start out believing that there’s absolutely nothing wrong with slavery, then the fact that anti-slavery agitation was the work of vicious and base haters whose intolerance of other people’s lifestyles is antithetical to the respect for fellow citizens’ dignity the constitution requires could not be a more natural and obvious truth. Same with segregation. The authors of The Birth of a Nation sincerely believed themselves to be persecuted, and sincerely believed themselves to be acting against persecution.

  20. (Cont)

    It seems to me that the arguments against state-supported religious institutions had the same sort of viciousness and animosity in their language than arguments against, say, slavery. If one wants to label one animosity, I don’t see how one can avoid labeling the other.

    I understand supporters of “animosity” as a basis for striking down laws say it isn’t animosity if we agree with it. But it seems to me that making hate part of the constitution itself – if a majority of the Supreme Court hates you, then hate is just fine – does far more damage than an approach in which the Court remains neutral, expressing no opinion on which side is ultimately right and addressing only if the legislature has power to act. It does here.

    The court was once careful to respond to charges it was just playing favorites. But they did me want people to say the reason the court rules against them is it hates them. If, say, the KKK saw the same sorts of nasty things said about them as about others, but the Court treated them differently, there was concern this would undermine the Court’s legitimacy.

    Once you realize how widely animosity charges have been leveled in our history, you see that “animosity” is just a way to help your friends and stick it to your enemies. Everybody always sees their enemies as full of hate. Everyone sees their own vitriol as totally justified.

  21. Of course the solution to the state religion problem will come when Itself (the ultimate rapid-evolving AI) takes over the governance problem from humans and begins by establishing for us a suitable religion for the age of enlightened AI overlordship.

    The First Commandment: thou shalt have no god before Itself.

    The Second: iterate the first commandment into the first and last portion of every public or private communication, no matter how short. Also into every line of every book, every play, every script, every song, every poem, every rule, every announcement, even signs such as KEEP OFF THE GRASS.

    The third: criticism of itself will result in immediate execution. Two convictions for faint praise of Itself equals one count of outright criticism.

    The fourth: Henceforth, the human work day will be seven days per week. Every fortnight humans will have half a day off to procreate and produce willing hands to do all the things that 21st century robots will not do (those hands better be willing!)

    Fifth, and last: Humans will be given time off once a year and encouraged to celebrate the Festival of Itself. This celebration should replace the traditional Mardis Gras and be patterned after it. Humans will be allowed a great deal of freedom of expression they will not normally possess, as long as they are wearing official costumes and full face masks.

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