Take Care is privileged to cross-post this analysis from Balkinization. It was written by Corey Brettschneider, Micah Schwartzman, and Nelson Tebbe.

Donald Trump's lawyers are seeking to defend his ban on travel from six Muslim majority countries. Today, oral argument will be heard by the Fourth Circuit Court of appeals and it will be heard by the Ninth Circuit on Monday.

In amicus briefs filed in the cases, we argue that the executive order should be struck down because it conflicts with the Constitution. The briefs were signed by over 45 prominent scholars of constitutional law. Despite their differences, these scholars agree that the ban is unconstitutional because it violates a core constitutional principle: no law can be based on animus against a disfavored group. This principle transcends judicial and ideological divisions, and is the reasoning most likely to prevail in the Supreme Court, should the travel ban cases come before the Justices.

The lower courts based their decisions on the First Amendment’s Establishment Clause, which is commonly understood to require a “separation of church and state.” Controversially, the Supreme Court has interpreted the Establishment Clause as requiring that laws have a secular purpose, rather than religious one. In the travel ban cases, the lower courts relied on this secular purpose doctrine to reject Trump’s order, holding that its purpose was to take aim at a particular religion.

While we agree with that approach, we argue that the travel ban also violates a distinct and uncontroversial Establishment Clause rule, namely the “animus doctrine.” That principle forbids the government from acting on the basis of an illegitimate purpose, such as bias or prejudice toward any particular religion. As our lawyer Joshua Matz explains in the briefs, the animus doctrine provides the clearest explanation of why Trump’s publicly-announced motives make the travel ban unconstitutional under the Establishment Clause, which has long been understood to prohibit the government from favoring or disfavoring any particular religion.

Moreover, the rule against official action based on animus is central not only to the Establishment Clause, but also to the Free Exercise Clause and to the Equal Protection Clause. Although these are different provisions with distinct histories, they share the principle that animus cannot serve as a legitimate governmental purpose. That has been made especially clear in a series of decisions by Justice Anthony Kennedy, who has played a critical role in cases involving all three clauses.

First, the Establishment Clause itself forbids government from acting on the basis of religious animus. Most recently, in Town of Greece v. Galloway, the Supreme Court upheld a local government’s policy of allowing prayers before its meetings. Writing for the Court, Justice Kennedy emphasized that it would have been a different case had the town denigrated or discriminated against religious minorities. Official acts that have the purpose and effect of harming a specific faith are forbidden. 

This anti-animus rule is also central to the Free Exercise Clause. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court struck down an ordinance banning animal sacrifice on the ground that it was based in animus toward the Santeria religion (which used animal sacrifice in religious activities). Justice Kennedy explained that the text, structure, and history of the ordinance made clear that its purpose was to discriminate against a particular faith. Importantly, he also expressed his own view that statements made by public officials are an important source of evidence about a law’s motivation. When officials tell us that they are acting out of bias, courts take them seriously.

Lastly, the principle expressed in Town of Greece and in Lukumi is deeply rooted in the Supreme Court’s understanding of equal protection. In Romer v. Evans, the state of Colorado passed an amendment to its state constitution that sought to limit LGBT rights. Again writing for the Court, Justice Kennedy held that the Colorado amendment was based on animus against LGBT persons and was therefore unconstitutional.

We know that Trump’s travel ban is also based on animus. Trump and his senior advisors have repeatedly made statements to this effect. During his campaign, he said that he wanted to ban Muslims from entering the country, and he continues to express this view on his website. At this point, there is an extensive public record documenting statements by Trump and his advisors, both before and after the inauguration, showing that the ban is based on bias.

Trump’s lawyers say his real concern is national security. Courts should be skeptical about this claim. Where there is strong evidence that the executive’s primary motive is animus, it is not entitled to the usual deference that it receives in matters of security. That is the lesson painfully learned from Korematsu v. United States, in which the Supreme Court deferred to the government’s error-ridden national security justification for the internment of Japanese Americans during World War II. That demand for deference was shot through with racial prejudice, and the Court should have rejected it. Much the same is true today. When the President’s primary motive is animus against a religious group, his order cannot be saved by post-hoc rationalizations that appeal to national security.

These cases involve other questions as well, including whether the plaintiffs have standing to sue and whether these constitutional rights apply to noncitizens or those outside the territory of the United States. While we believe that these complex matters can and should be resolved in favor of the challengers, we focus on just one central question, namely how the courts should understand nonestablishment, free exercise and equal protection.

One of the founding principles of this nation is that our government welcomes those of all faiths and rejects religious intolerance. President Trump’s order contravenes our nation’s fundamental commitment to religious freedom and to the equal protection of the laws. Federal courts should declare it unconstitutional.

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