//  5/9/17  //  Commentary

Erwin Chemerinsky and I just published an op-ed in The Sacramento Bee discussing the friend of the court brief we signed in the travel ban litigation. Joshua Matz is counsel to the signatories of the brief, who include many contributors to this blog.

The brief argues that the travel ban is unlawful because the President’s animus toward Islam was a motivating factor behind the ban. The brief calls this theory of the ban's illegality the “anti-animus principle” of the Establishment Clause. The anti-animus principle refers to the idea that the government is forbidden from acting on the basis of animus toward religion in general, or animus toward a particular religious group. In this context, animus means anything ranging from bigotry, to unconscious prejudice, to negative stereotypes about a group.

The anti-animus principle is well rooted in our constitutional tradition. The principle is a way of implementing the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and the Due Process Clause(s). And it safeguards some of the core tenets of the Establishment Clause. The anti-animus principle is part of how our Constitution safeguards equal treatment, and how the Establishment Clause protects religious freedom for those sects not favored by the political majority. the Establishment Clause.  

The anti-animus principle also captures what is so egregious about the travel ban. The President and his administration have repeatedly manifested animus toward Islam and Muslims. Amir Ali has several posts (some with Joshua) documenting that pattern, as well as an amicus brief in the travel ban ligiation. The prior iteration of the travel ban, on which this version is based, explicitly preferred other religions to Islam. This version of the travel ban calls to mind gross stereotypes about Islam and Muslims (the reference to “honor killings”) to justify the ban’s unfavorable treatment of Muslim-majority countries.

It is simply wrong to presume that a person is more dangerous because of his or her religion, or race, or national origin.  On this point, I wanted to draw a parallel between the argument in our friend of court brief and an argument that was made by George Takei in his recent, moving op-ed in the New York Times, “Internment, America’s Great Mistake.” (If you have not read the op-ed, I would strongly encourage you to do so.)

In the op-ed, Takei describes the yearly pilgrimage that is undertaken to Manzanar, California, the location of one of the internment camps that forcibly housed Americans of Japanese descent during part of World War II. “The pilgrimage,” Takei writes,“includes elderly original internees and their families …. and, since Sept. 11, American Muslims, who see parallels between what once happened and today.

Why make this pilgrimage? Well, Takei explains, “Our oft-repeated plea is simple: We must understand and honor the past in order to learn from and not repeat it.” (Joshua Matz and I made a similar point in an earlier post; the point is often made when Trump, as he is wont to do, mischaracterizes history or attempts to rewrite it.)

Takei describes a particular kind of harm that was caused by the forced incarceration of Americans of Japanese descent:

The horror of the internment lay in the racial animus the government itself propagated. It whipped up hatred and fear toward an entire group of people based solely on our ancestry.

That kind of harm has consequences, Takei explains, that endure well beyond the duration of the unlawful policy. He writes:

When nations make historic mistakes, atonement may never truly come. It took almost 50 years for the United States to apologize to those it had interned. While modest reparations were eventually paid, it was far from enough to restore what had been so unjustly taken.

Takei’s op-ed makes clear the pain and harm that animus-driven policies cause the group that is the target of the animus. The travel ban may very well spell the death and suffering of individuals who are seeking to flee oppressive regimes engaged in human rights violations. That harm is, of course, bad enough on its own. On top of that, the ban also works a real harm on American Muslims and other individuals who may not be subject to the ban themselves, but nonetheless feel its effects. (The recent drop in international applications to U.S. schools suggests that those who are not subject to the ban nonetheless understand that the ban and the administration represent a less welcoming climate in general.)

There’s at least one other group the entry ban also harms, which is the group (or country) that institutes and enforces a policy that is laced with animus. In interviews, Trump has pointed out that our country is not so innocent when it comes to human rights and respecting basic values. He and his administration are certainly doing their part to make that so.

Disclosure:  As I mentioned, I'm one of the signatories to the amicus brief discussed in this post.  Joshua Matz, the publisher of this blog, is counsel to the signatories of the brief.

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