In recent weeks, religious discrimination has once again come to the political forefront. This is because many have described President Trump’s decision to suspend travel from seven Muslim-majority countries as a “Muslim ban.” Some, including White House officials, have pushed back on that characterization. Fair enough. I don’t buy their argument, but it’s not crazy.
More disturbingly, however, some have argued that a “Muslim ban” would be perfectly all right. That’s an argument no American should stomach.
Religious discrimination runs against the principles embodied in three constitutional provisions. Contra the Establishment Clause, religious discrimination creates official religious preferences. Such preferences are very much like those that underlie a full-blown state church. Contra the Free Exercise Clause, it makes it more difficult for individuals and groups to live out their faith. And contra the Equal Protection Clause, it fails to treat equally situated persons equally.*
At this point, some readers might object to my statement that Muslims and those who follow other religious traditions are “equally situated.” Predictably, they will cite certain so-called “sword verses” in the Quran. Because the Quran teaches violence, the argument goes, Muslims can be treated differently in the interest of national security.
But Muslims debate whether the Quran actually commands violence. The vast majority of Muslims believe that Islam is peaceful — that the “sword verses” have been taken out of context by those who would commit acts of violence. Thus, what Islam actually teaches is a religious question.
But no government has the authority to answer religious questions. Multiple Supreme Court cases have made this clear. The Court wrote in Thomas v. Review Board (1981) that “Courts are not arbiters of scriptural interpretation.” In Presbyterian Church v. Hull Church (1969), it stated that courts could not resolve “controversies over religious doctrine and practice.” And in Watson v. Jones (1872), it noted that judges were utterly incompetent on questions of “ecclesiastical law and religious faith.” This prohibition against answering religious questions is rooted in both the Establishment Clause and the Free Exercise Clause, and what is true for courts must certainly be true for the executive branch.
As a result, no federal, state, or local government body can determine whether Islam is a “religion of violence” or a “religion of peace.” Accordingly, no such body can base immigration decisions on a Muslim’s religious identity.
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Does this leave America open to attack? By no means. The government has a responsibility to protect the public’s safety. It is therefore both necessary and appropriate to deny entry to those individuals with violent intentions. But this is true whether those intentions are religious or secular in nature. What should matter is motive, not religion.
This individualized inquiry accords with the constitutional principle of not answering doctrinal questions. It also makes intuitive sense.
Just consider the following example: The Bible teaches Christians to love their neighbors as they love themselves (Mark 12:31). Yet far too many (so-called) “Christians” twist Scripture to justify violence and racism instead of peace and love. Yet despite the fact that they would both self-identify as “Christian,” it is possible to distinguish Dr. Martin Luther King Jr., from a Klansman. That we can distinguish between Christians shows that we can distinguish between Muslims.
As a Christian myself, I know that King was the one faithfully handling Biblical passages and that violence and racism are both morally repugnant. But importantly, we as a nation were able to make progress toward civil rights without the government resolving who had the better hermeneutic.
The same agnosticism should apply in immigration decisions. As far as the government is concerned, what Islam teaches is irrelevant — it is a question the government cannot answer. What matters is whether a particular individual has violent intentions—not whether that individual is a Muslim, Christian, Sikh, Jew, Hindu, Zoroastrian, or anything else.
Simply put, religious liberty is for everyone. It means that religious non-discrimination is a fundamental principle of our Constitution. It means that the government cannot answer religious questions. And it means that a “Muslim ban” is contrary to our Constitutional values.
Caleb C. Wolanek is a student at Harvard Law School and a graduate of Auburn University
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