Tomorrow (Wednesday), the Supreme Court of the United States is scheduled to hear oral arguments on the latest version of the so-called “Muslim travel ban,” barring citizens of certain predominantly Muslim nations from entering the United States. This prohibition was instituted by President Trump last year, and has been modified several times since then to address the concerns of opponents and to attempt to make the ban strong enough to withstand legal challenges.
The current version of the case is titled “Donald J. Trump, President of the United States, et al., Petitioners, v. State of Hawaii, et al., Respondents,” and is an appeal from rulings of the United States Court of Appeals for the Ninth Circuit (which circuit includes the state of Hawaii; hence the name of the court case), and is usually shortened to “Trump v. Hawaii.” The president is petitioning (hence, the label of “Petitioner”) the United States Supreme Court to rule on challenges that Trump has made to certain rulings of the Hawaiian court in favor of those who opposed the ban, to which those opponents must respond (hence, the label of “Respondents”).
There have been numerous court hearings, and revisions to the ban, and issues raised and settled or abandoned, over the course of the legal challenges. In its current state, the questions for the Supreme Court to address are these:
1. Whether the challenges of the Respondents are appropriate to bring before the court;
2. Whether the President’s proclamation limiting entry to the United States falls within the President’s powers;
3. Whether the so-call ban is so broad as to be illegal; and
4. Whether the President’s proclamation violates the First Amendment clause protecting the free exercise of religion.
Nineteen “Scholars of Mormon History & Law” – of which group I am proud to be a member – filed an Amici Curiae brief in the case last year. That brief has been revised as the court case has evolved: some parts of the brief were dropped as parts of the case were ruled upon in past hearings; what remains addresses aspects of the current case.
“Amici Curiae” means “Friends of the Court.” Such a brief, or report, may be submitted by those who are not directly involved in a court case, to advise the court of issues the court may not otherwise be familiar with. It is common for such a brief to be submitted in support of one side or the other. In our case, the brief was submitted in support of neither party. It is purely an effort to inform the court of the Mormon experience as a religious minority with immigration and otherwise being at odds with the federal government – in practical terms, our historical experience aligns us with Muslims whom the President seeks to bar from entry into the United States, but our brief does not endorse the legal arguments of the President’s challengers. It merely says, “This is what happens when the United States government attempts to exclude people by using their religion as a predictor of future bad behavior.”
The entire project – the decision to submit such a brief, the gathering of data, the relating of the Mormon experience to various legal issues, the writing of the brief in its various iterations, the working with legal counsel to have the brief accepted as part of the court record – is to the eternal credit of Nate Oman, one of the founding fathers of the Bloggernacle and a professor of law at William & Mary Law School in Virginia. The full list of signatories, who have contributed scholarship, discussion, approval, and the weight of their professional and academic status (all speaking individually and not for their institutions), is:
Thomas G. Alexander, Brigham Young University
Michael Austin, University of Evansville
Matthew Bowman, Henderson State University
Samuel D. Brunson, Loyola University Chicago School of Law
Claudia Bushman, Columbia University
Richard Bushman, Columbia University
Kathryn M. Daynes, Brigham Young University
Kathleen Flake, University of Virginia
J. Spencer Fluhman, Brigham Young University
Russell Arben Fox, Friends University
Terryl Givens, University of Richmond
Patrick Q. Mason, Claremont Graduate University
M. Colleen McDannell, University of Utah
Nathan B. Oman, William & Mary Law School
Benjamin E. Park, Sam Houston State University
Ardis Parshall, independent scholar
Daniel C. Peterson, Brigham Young University
Taylor Petrey, Kalamazoo College
Andrea Radke-Moss, Brigham Young University–Idaho
W. Paul Reeve, University of Utah
Laurel Thatcher Ulrich, Harvard University
Men and women, Mormon and not, specialists in history and law – united in recognizing the parallels between 19th century government actions against a religious minority and those of the 21st century, and the perils of such government action.
From the brief’s introduction:
In the late 19th century, the government undertook a sustained legal campaign against members of the Mormon faith – a campaign that included attempts to limit Mormon immigration – which led to decades of Mormon exclusion from the American civic community.
The parallels between the Mormon experience and this case are surprising. Using language one might hear today about unpopular immigrant groups, 19th century officials described Mormons as a “community of traitors, murderers, fanatics, and whores.” Politicians and the press explicitly compared Mormons to Muslims and “Orientals,” viewing them as “distinct, peculiar, suspicious and potentially dangerous outsiders.” …
The government responded to this popular animus by initiating a variety of legal measures targeting Mormons, including executive actions designed to cut down Mormon immigration to the United States.
Amici, scholars of Mormon history and law, do not take a position on whether the President’s September 24, 2017 Proclamation violates the Establishment Clause or is otherwise unlawful. But amici do seek to provide this Court with an example of religious discrimination in immigration from America’s past, and to show the harms caused by treating particular religious minorities as dangerous and foreign. If the Proclamation does target Muslims for disfavored treatment, then the history of the government’s mistreatment of Mormons suggests it could take decades – if not longer – to undo the damage that official action would cause to both America’s body politic and the place of Muslims in our society.
The body of the brief then walks the Court through Mormon and American history on these points:
I. The history of religious discrimination against Mormon immigrants demonstrates the needed for vigilant judicial review of government actions based on fear of religion minorities
A. Mormons were the objects of widespread religious hostility in the 19th century
B. Animus against Mormons was often linked to animus against Muslims or other “foreigners”
C. Nineteenth century immigration restrictions targeted Mormons because of religious animus
D. The effects of the federal government’s targeting of Mormons lingered for decadesII. The First Amendment requires courts to take a hard look at the government’s justifications and motivations for actions that disparately affect a religious group
Among the history recited is that of the 1879 Evarts Circular, a document sent by then-United States Secretary of State William Evarts to governments around the world, urging them to prohibit the emigration of their subjects and citizens who intended to join the Mormon community in Utah, and encouraging them to put all possible barriers in the way of Mormon missionaries in their country to prevent the making of Mormon converts who might want to emigrate to the United States. This is a topic I have been addressing for many years – my 2004 paper “The Very Real Consequences of the American Government’s 1979 Effort to Bar Mormon Immigration”, is posted at Keepa, and is listed in the brief’s Table of Authorities.
Will our brief have any effect on the deliberations of the Supreme Court? Quite possibly not … but maybe. It is likely that one clerk of each of the nine Justices has reviewed the brief. We will likely never know whether any of those clerks submitted summaries or notes based on their reading to their respective Justices. That depends, probably, on the clerks’ knowledge of the interests of individual Justices, or perhaps on their insider knowledge of the relevance of the brief to internal discussions that may have already taken place.
Regardless of whether the brief has any direct effect on the Court at all, or not, I am confident that each of the scholars who participated is grateful for Nate’s work, and for the opportunity to take part in the process. We have expressed our confidence in the rule of law under the American system; we have honored the experiences of our religious forebears; we have hope of protecting other people of faith from unjust stigmatization.
Last week a writer in The Atlantic discussed three religion-themed briefs, including ours, saying:
The third brief may be the most surprising; it comes from a group of scholars who study the history of the Church of Jesus Christ of Latter-day Saints. Mormonism has no foreign origins; indeed, it arose in upstate New York and eventually centered itself in Utah, and today is the most uniquely American of the world’s great faiths. The scholars, however, remind the Court that the church was persecuted for decades as a sinister and foreign force corrupting American innocence, a “community of traitors, murderers, fanatics, and whores,” as one contemporary put it, led by an “American Mahomet” who presided over “the deepest debauchery, superstition and despotism known to Paganism, Mohammedanism, or Medieval Papacy.” …
The most impressive thing about the Mormonism scholars’ brief, to me, is its modesty. The scholars don’t support either party; all they ask is that, this time, the justices make the government show real evidence that Trump’s Proclamation is aimed at some genuine danger rather than generalized fears of Islam:
The Mormon experience illustrates why it is important for courts to carefully examine the government’s proffered reasons for singling out religious minorities. … This is precisely why the courts have an obligation to look beyond the government’s purported justifications to determine whether they are religious gerrymanders. Accordingly, amici urge this Court to take a hard look at the entire context of government action that may have a disparate impact on religious minorities.
You can read the brief at the Supreme Court website (go to March 8, 2018, the brief’s filing date), and see what other briefs have been filed in the matter.
This is a difficult moment in American political history. I am more grateful than I can say for this opportunity to participate in an action that intersects so many issues that so deeply concern me.
As with other potentially contentious posts, I feel the need to ask that any discussion maintain Keepa’s commenting norms of civility towards other commenters, friendliness or at least tolerance of Mormonism, and staying on topic. In this instance, the topic is our brief and its contents; comments that merely address political issues or the general topic of Islam, especially in a negative way, may be deleted without warning. As always, regular commenters at Keepa can be forgiven for going a little further in those directions than I might like, but drive-by commenters have little leeway for breaking the norms.
I love that you’re one of the friends, Ardis.
I am going to read the brief, as you have invited us. While your view is a very good one, my view is a result of having spent 20 years with a very high military security clearance and seeing much of the world from that viewpoint. I have a feeling the two viewpoints could have a long conversation. But when all is said and done, the real question to be answered is: Does the President of the United States have the authority to establish such a travel ban? The question I’ve been asking since the ban was first announced is: what classified information might he be basing his actions on? As a Latter-day Saint whose ancestors make the long journey to gather to Zion, and as a veteran who knows that many of the decisions made in the White House are based on information the public rarely sees, this is not an easy topic. I am going to enjoy reading the brief you’ve given us a link to!
Okay, I’ve read the brief. Excellent. Well thought out; well layed out. Well worth reading.
While Bruce is correct that a primary question here is “Does the President of the United States have the authority to establish such a travel ban?” there is also the additional question regarding the constitutionality of the ban, namely does it indeed limit the free exercise of religion by targeting a specific religious group? I believe it is pretty clear that the president has broad powers when it comes to immigration policy, but those powers are not unlimited and are subject to constitutional review.
I am certainly not a legal scholar, but efforts like this renew some of my faith in American democracy these days, that this kind of input to the highest court of the land is possible, and can be listened to. There is too much misinformation out there, and this serves as a reminder that government ultimately derives its power from all its peoples, and not one side or the other.
Okay, can I just say that this whole nonpartisan posturing is nonsense? Of course you’re taking a position against Trump. If he had not issued his idiotic travel ban, you wouldn’t have filed the brief. End of story. The whole point of your brief is to let the court know that what Trump is proposing will likely have both intended and unintended negative consequences.
Wally, engaging with the legal world (among other worlds) requires accepting the rules of that world, including legal fictions. In order for the criminal justice system to work, for example, we all have to pretend, while engaged in the legal process, that a defendant is “innocent until proven guilty,” when in reality, outside the justice system, the defendant was guilty of bank robbery the moment he pulled out his gun and told the teller to hand over all the cash. Outside the justice system itself, anybody is free to believe and state anything he wants to about the guilt or innocence of the defendant. That’s an entirely different world, outside.
The premise in this specific matter is that the Court has identified the issues it will consider (they’re listed 1-4 above). They will not consider any issue beyond those four, in this particular phase of the whole argument. They will not consider what I (or any others of the group) personally feel about the travel ban.
Those four questions boil down to: Is the Proclamation, in its current form, legal under the Constitution? And in that sense, the brief is nonpartisan: What we are saying is, “While you consider the arguments, keep this example from Mormon history in mind. The government must meet a high standard of evidence that the Proclamation is based on legitimate national danger and not on petty religious bigotry. Our history shows what happens when that standard is not met.”
The brief in and of itself does not support either side and is non-partisan. It does not support the government’s claim to having evidence of legitimate danger. It does not support the Respondents who say the Proclamation is unconstitutional or unnecessary.
Don’t conflate your ideas of ultimate causes (“you wouldn’t have filed it if …”) with the finely tuned legal process. Outside of that process, you’re free to believe and say anything you want to about the travel ban, the legal process, our participation in it. But within that system, our brief is anything but “nonpartisan posturing” or “nonsense.”
Wally — I think what you’re interpreting as “nonpartisan posturing” is merely us being courteous; nothing wrong with that. 🙂 Ardis’ blog doesn’t attract weak souls; I think we’re all pretty opinionated. But, we also know that politics isn’t the focus of Ardis’ site; history is. The brief she helped create is being presented to show church history that some might not be aware of. If the purpose of this site was to discuss the political side of the topic, I’m willing to bet it would have turned into a free-for-all by now.
NOTE: My last post was written while Ardis was posting hers; my screen hadn’t refreshed; if I’d have seen Aridis’ post I wouldn’t have posted it; sorry.
That’s okay, Bruce. I do like to police Keepa myself rather than leave it up to commenters, but there’s certainly nothing wrong with the reminder that history is the topic and courtesy is the model, in every discussion (well, except perhaps my occasional personal rants. 🙂 )
I’ve read the brief, and I’m impressed. I posted the Church’s Newsroom statement on Facebook the next day, and was surprised by the hostility I received. My old High Priest Group leader unfriended me, and another friend (who has since served a couple’s mission) said that she was not about to let the Church dictate to her what her politics should be.
I’ve run into the same hostility, CSEric, and it seems, in my experience, that remarks like “won’t let the Church dictate” come most often from people who don’t know our history and haven’t read the brief. I don’t at all mean to say that they are ignorant of current issues or that they don’t have valid arguments for their points of view, only that they haven’t read the brief and misunderstand what it addresses, and only assume that it is some wicked liberal conspiracy.
It really does only recite some pertinent Mormon history, and urges the Court to look closely at the Proclamation for any taint of religious antagonism; it doesn’t urge anything beyond that. (Well, you know that, having read it. I guess I’m speaking to people who might judge the brief by its cover and not its content.)
I really like the brief. I read it a while ago and found it very impressive. But let me comment on the hostility that many have expressed about the Church’s statements in recent years. I remember when only political “liberals” (to use current American labels) were offended by Church pronouncements, and conservative Church members would chide them to get with the program. Now that the Church has made some statements that run the other way, it is troubling to see so many good conservative Mormons stumbling because their political beliefs are now being challenged.
I wish more Church members understood the history of the Church with respect to politics, so they could see that the Church is not “conservative” or “liberal” or whatever current label might be used, but the Church of Jesus Christ, who probably doesn’t care much for our temporary labels anyway.
I read the brief soon after it was first filed, and I was impressed. At the time, I thought that the brief would have had more value if the executive action actually banned people because of their religion — but as I understand it, the action does not have any religious aspect. For example, the executive action bans everyone from Syria, not just Muslims from Syria. And it bans everyone from North Korea, not just Muslims from North Korea (but there are no Muslims in North Korea). Muslims from Saudi Arabia, Indonesia, Egypt, and the rest of the world are wholly unaffected by the action. I hope many people will read the brief. This will be an interesting case to watch (or listen to, as the Supreme Court releases audio of oral arguments).
ji, the Proclamation can have no “religious aspect” only to someone who studiously ignores everything the President said in calling for a ban. As the brief notes (omitting citations to the record):
In case you missed it when you read the brief, all of the citations for the first quoted paragraph come from documents — especially judicial rulings — in the previous iterations of the action. Cosmetic changes in the latest iteration of the Proclamation cannot hide the fact, already accepted by the Court, that antipathy toward Islam is the primary, if not sole, inspiration for the ban in all its forms.
The only way to pretend otherwise, after all the evidence presented, accepted, unrebutted, and included in the courts’ previous rulings, is to put your fingers in your ears and loudly repeat “la la la la I don’t hear any reference to Muslims la la la la.”
I’ll watch tomorrow’s proceedings with added interest because of this post. Thanks, Ardis, and colleagues, for this contribution to the process. I’m still hopeful that bigotry won’t define us.
To those few whose comments have not appeared or have been removed: Comments have been courteous and, I believe, sincerely offered. However, this is not the place for debate on the merits or demerits of the travel restriction, of immigration in general, or of President Trump. The topic is the content of the brief we filed, and the role of Mormon history in informing the narrow questions to be considered in oral arguments before the Supreme Court later today.
The broader points that some of you have wished to make, or to insist upon after I have pointed you back toward the brief itself, are too potentially contentious and too far removed from Mormon history for me to be willing to host here.
You are a firm but courteous hostess. 🙂 Thank you again for presenting the brief. I learned from it.
I listened to the audio recording of about the first 25 minutes of the arguments, and the establishment clause did come up, but nothing that would indicate that the Supremes had given any particular weight to your brief. However, I couldn’t listen to the whole hour-plus proceedings, and will have to wait for the transcripts. I liked how the Atlantic article referenced your brief along with the precedents of the Japanese Internment and the plight of Jewish refugees after Kristallnacht.
kevinf, I didn’t suppose our brief would pop up during oral arguments — even if any Justice were head over heels excited by it, they couldn’t expect the parties’ attorneys to be experts in Mormon history to the point of it coming up in questioning. (I realize you aren’t saying you expected any explicit mention, but were listening for any signs of influence on the questioning.)
Rather, I suppose that if the brief does carry any weight, that will occur in the Court’s private conversations — even so they wouldn’t necessarily cite the brief in their decision. But we can still hope that it personalizes the problem of executive actions that privilege/punish one religion to the exclusion of all others. I hope. (For those like Wally who don’t see how this could possibly be non-partisan, the Court could still decide that the Petitioner brought such overwhelming evidence that the Proclamation was issued not because of religious animus but because of a genuine threat to national security; in that case, the brief would still have served its purpose by causing the Court to insist on that overwhelming evidence and not on some lightweight self-serving political assertions.)
The Atlantic article was nice, wasn’t it? The writer really seemed to understand what we were saying.
The Washington Post, here (may require subscription), recognizes why some religiously based groups have involved themselves in Trump v. Hawaii without supporting either side; they understand where we fit in.