Christian Amicus Briefs in "Trump v. Hawaii": Not All Unsupportive of Muslims
Next week's blockbuster Trump v. Hawaiicase, about the Administration's "Muslim ban", features many amicus briefs, as might be expected. But what about the briefs from the religious group which is America's largest, and also Islam's biggest "rival" in terms of worldwide adherents, i.e., the Christian faith? The "Christian" amicus briefs in Trump v. Hawaii sometimes show excessive credulity towards the Trump Administration's claims, and too little concern about animus versus Muslims.
However, there are also Christian-authored briefs which respect religious and immigration rights, for Muslims and everyone else, too. Thankfully, then, the case has not created a total divide, or "religious war", among Christians, Muslims, or other Americans, about what is fair or just.
I. "Christian" Amicae/i for the Ban
For the sake of time and space, among other reasons, this essay won't list all the Christian briefs which favor the Respondents, i.e., Hawaii, the Muslim Association of Hawaii, and individuals who feel persecuted by the "Muslim ban". Nor will it list the Muslim or Jewish briefs for Respondents, meritorious as all the briefs are. Rather, the "Christian" briefs either for Petitioners, Trump et al., or for neither party, will be the main focus.
A. "Those Pesky Ammonites and Moabites"
First off, there is Roy Moore's "Foundation for Moral Law", with its Christian "Statement of Faith". Their brief interestingly quotes Deuteronomy 23,
An Ammonite or Moabite shall not enter into the congregation of the LORD; even to their tenth generation shall they not enter into the congregation of the LORD for ever [etc.]
, Br. at 19, and features an innovative section heading, "[II.] C. The President’s Proclamation is compatible with Biblical teaching." Id. at 20.
But do we really need to know this? Are modern-day Muslims a bunch of Ammonites or Moabites, to be excluded for at least ten generations? And constitutionally, do federal actions have to be "compatible with Biblical teaching"? (And which part of the Bible? E.g., should the President issue an executive order banning eating pork and shellfish?)
Unsurprisingly, the FML brief channels the Bible (or one slant on it...) to support Trump. But other, more subtle Christian amicus briefs also support the Ban.
B. "Conservatism as 'Christianity'?"; or, Some Other Conservative Christians for the Ban
For example, there are the briefs by two Christian or Christian-affiliated groups, Liberty, Life, and Law Foundation, and American Center for Law and Justice (featuring Jay Sekulow, one of Trump's own lawyers). These briefs have more conventional legal reasoning than the Moabite-bashing "Roy Moore brief" supra, but also support the Ban, when plenty of Christian groups oppose the Ban, see, e.g., the Episcopal bishops' brief for Respondents. So, is "Christianity" sometimes a proxy for conservatism or nativism? or even white nationalism or racism?? (In fairness, Christianity can be a proxy for liberalism or progressivism in some circumstances, too.) This essay, of course, is not calling any group mentioned here "racist" or "bigoted"; but those groups' stances in Trump v. Hawaii may have adverse social effects that some biased people would applaud, unfortunately.
II. Christian Amicae/i "for Neither Party", but De Facto Favoring Trump
A. "Not Defending Religious Freedom?"
Then there are two briefs ostensibly for neither party, but really giving Petitioners a boost. First, there is the "Alliance Defending Freedom" brief, which proclaims neutrality but claims, e.g., "[III.] B. The Fourth Circuit Engaged in Impermissible Psychoanalysis of the President’s Heart of Hearts", id. at 21. Is that true, though?
Let's say a President cut off all travel or immigration from or to Israel and contemporaneously "tweeted" on Twitter, "Adolf H rocks my socks! I sure hate the J-ws!" Now there is no per se mention of Jews there (thanks to a strategically-placed hyphen), or even of Hitler (thanks to the missing letters "itler"). But intelligent people could tell what is going on. Would we give the Chief Executive a free pass in that case? or would we know enough of his intentions, even "heart of hearts", to know the score?
In its fight against the Fourth Circuit's decision against Trump on Establishment Clause issues, the ADF brief says the Court "should give significantly more weight to formal government acts than 280-character tweets and online video shares", id. at 23. Of course; but how much more weight? What if, say, the Executive not only failed to prosecute child pornography, but in fact "video shared" such pornography with the public? Would not such loathsome "sharing" be useful evidence against the Government's insane refusal to protect children?
So Alliance Defending Freedom, while supposedly neutral, may actually hurt the cause of religious freedom in this case, even if this is an ironic contrast to the group's name.
B. Becket Barters Establishment Clause for Free Exercise Clause--Needlessly, and Not Too Helpfully
An even more off-putting scenario unfolds in the "Becket Fund for Religious Liberty" brief "for neither party". This brief ostensibly upholds religious freedom by saying that in Trump v. Hawaii, the Court could consider the Free Exercise Clause of the First Amendment.....but Becket does so while saying that there is no Establishment Clause violation, see Br. passim. In fact, Becket says the Court should vacate and remand to consider Free Exercise claims, Br. at 36. Is this helpful to religious freedom, though?
Not so much. What Becket recommends is staggering, for various reasons. First, they may simply be wrong about whether the Ban violates the Establishment Clause or not. Second, what about other questions in the case? The Est. Clause question was actually an add-on by the Court; the original three "questions presented" concerned other issues, seehere. So it may not look wholly fair for Becket to suggest vacate-and-remand merely on the (questionable) notion that the Est. Clause hasn't been violated.
And third, there is what cynics might call a bait-and-switch, or at least a false dilemma. Even if the Est. Clause should (somehow) not be considered by the Court, and Free Exercise should be considered: why vacate? Why not just ask the Court to add sua sponte a Free Exercise question presented, and maybe give each side an extra five or ten minutes of argument to cover Free Ex. issues? Otherwise put: the Court could consider both Establishment and Free Exercise, not having to pick only one or the other.
Becket is not even unique in bringing up Free Ex. issues. The brief of Khizr Khan (father of war hero Humayun Khan--RIP) for Hawaii et al. brings up the Free Ex. Clause (along with the Estab. Clause), Br. at 16. A constitutional law scholars' brief for Respondents devotes several pages to Free Ex. issues, Br. at 14-16. Other briefs may also touch on Free Ex. ideas. So, Becket has no excuse for trying to vacate the case; they could have echoed the briefs immediately supra and championed Free Exercise issues without eviscerating Establishment Clause issues and trying to get the case thrown back down to a lower level.
In fact, Becket even attempted to try to get oral argument time for themselves and their ideas, see their Motion. Needless to say, they were unsuccessful. If they had been successful, they could have hurt religious liberty far more than they would've helped.
III. Some Christian Briefs for Neither Party Which Help Respondents
A. Christian Legal Society and National Association of Evangelicals Show Respect for Respondents' Religion-Clause Claims
After all the unpleasantness above, one might think that groups with names like "Christian Legal Society" and "National Association of Evangelicals" would provide more of the same. Happily enough, they do not. Their joint brief, while for neither party, at least has the decency to note that
Amici urge that this Court hold that the State of Hawaii can properly invoke the Establishment Clause as a means of redress.... Amici also urge that this Court hold that the Establishment Clause claims by the individual (Dr. Ismail Elshikh and John Does 1 and 2) and the associational (Muslim Association of Hawaii, Inc.) Respondents seeking relief from alleged religious harms are cognizable. Should any of the Respondents succeed in proving a violation of the Establishment Clause, then the proper scope of the remedy is that the offending law is facially unconstitutional.
Id. at 23. Why couldn't the "Christian" groups for Petitioners, or "for neither party" but really hurting Respondents, have said the same thing?
Moreover, CLS et al. bring up possible Free Exercise issues, Br.at, e.g., 3, but insightfully note that
The claims are not abandoned, however, and should there be a remand for further consideration on the merits, the Free Exercise Clause claims remain as a possible basis for granting a remedy personal to the individual and associational Respondents.
Id. That all just reinforces what the present essay said before, i.e., that there was no need for the Becket Fund to recommend vacating the case; if Free Ex. were covered later on in remand, that does not necessitate vacating the case at present. So what was Becket really trying to do, one is tempted to ask? They may have done some good work in the past, but their posture in this case is puzzling.
(Incidentally, any who might think of Becket as a "Catholic organization" may note Becket's submitting a brief opposing the U.S. Catholic Bishops' position in Janus v. AFSCME, see, e.g., this America article. ...Actually, Becket is opposing the bishops' position in Trump v. Hawaii, too, see the bishops' brief for Respondents.)
B. Mormons De Facto Defending Muslims
In a similar vein: people may thoughtlessly stereotype Mormons as being right-of-center, just as they might've thought CLS and the Evangelicals might come out against Muslims. But the Mormon Scholars' brief, while for neither party, actually supports tolerance, drawing on Mormons' own experience of oppression, see id. passim.
As the brief concludes,
This Court has long held that the judiciary has a special role in scrutinizing government action motivated by “prejudice against discrete and insular minorities.” .... And as this Court has explained, “facial neutrality” cannot shield “[o]fficial action that targets religious conduct for distinctive treatment.” .... Amici thus respectfully urge the Court to subject the Proclamation to close scrutiny for a religious animus to prevent repeating the harms of the past.
Id. at 26. Rather than drawing on their background to concoct ideas to exclude others, see supra the FML's dragging Ammonites and Moabites into the equation, the Mormon scholars have learned from their own background the value of mutual respect.
Conclusion: The Perpetual Importance of Not Stereotyping, Re Trump v. Hawaii or Anything Else
And what of CLS and National Association of Evangelicals? What led them to be more tolerant than some of their fellow Christian legal organizations, and led them to de facto help the alliance defending the freedom of Muslims (and all of us) in America? Maybe it's their own explicitly Christian/Evangelical organization names that may have reminded them that once you are "out" publicly with your faith, and people can target you, then anyone can be targeted. But if you don't stereotype others, maybe they won't stereotype you.
Or, as the Nazarene famously said, "Do onto others as you would have them do unto you." (Matthew 7:12)
But whatever the reason, those groups' using their brief to grant humanity to people from another religion shows that Christians, and Christian legal groups, are not all a bunch of bigots--despite stereotypes that American Christian groups tend to be a bunch of bigots. This gives hope for the future, whether to Christians, Muslims, lawyers, or anyone else. And in today's dark times, hope is a sorely needed commodity.
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(...By the way, those looking for a little levity after the serious matters above can peep this author's Easter/April Fools' Day post, touching not only on Christ's "twisty surprise" ("Fooled you if you thought I was gone!") of rising from the dead, but on whether John Paul Stevens wrote Shakespeare's plays (!!), or impersonated the Polish pope with the same first names (!!!), or other entertaining matters.)