Tag Archives: Human rights

Dissenting Opinion in Supreme Court Ruling on Trump’s Muslim Ban


The dissenting opinion of Justice Sotomayor was strikingly different in every respect from that of the majority. I read somewhere that the other judges in the majority looked solemnly down when she delivered it in court. It was not kind to them.

First, she dismissed the Government’s claims that it had made a comprehensive examination of policies of other foreign governments to determine if they were interfering with America’s ability to measure the vetting process of foreign nationals. To her it was clear that its review was unimpressive.

Justice Sotomayor noted that there was ample evidence, dismissed by the majority, that Trump had clear animus towards Muslims. During the campaign Trump repeated on many occasions, that he wanted a complete ban on Muslims from entering the US, even after he was warned that such comments were unconstitutional. During the campaign, any suggestions that he tone down his rhetoric were dismissed as “political correctness.” He wanted to call it as he saw it and his supporters liked him for that. So he never disavowed his statements.

Just before issuing the Proclamation implementing the Muslim ban, Trump tweeted that the travel ban should be “far larger, tougher and more specific—but stupidly, that would not be politically correct.” Just after issuing the Proclamation, Trump retweeted 3 clearly anti-Muslim videos entitled “Muslim Destroys a Statute of Virgin Mary!” and “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrants beat up Dutch boy on crutches!” Those videos were originally tweeted by a British political party whose mission is to oppose ‘all alien an destructive political or religious doctrines including ..Islam.” The videos were highly inflammatory and arguably misleading. For example, the person depicted in the video about the Dutch boy was not actually a migrant as alleged and his religion was not known. It is abundantly clear that Trump was driven by anti-Muslim feelings. He displayed them proudly.

Justice Sotomayor started her opinion by pointing out “The United States is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.  That alone suffices to show that the plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, and misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”

Justice Sotomayor analyzed the Establishment Clause in depth. That clause in the first Amendment of the American Constitution forbids government policies “respecting an establishment of religion.” She also stated, “The  ‘clearest command’ of the Establishment Clause is that the Government cannot favor or disfavor one religion over another.”  She added, “the Establishment Clause ‘forbids hostility toward any [religion] because ‘such hostility would bring us into war with our national tradition as embodied in our First Amendment.”

The Founders of the American republic had fresh memories of the religious wars of Europe with their incredibly bloody battles and they did not want to repeat what happened there.  As Sotomayor said, “government actions that favor one religion ‘inevitably’ foster ‘the hatred, disrespect and even contempt of those who [hold] contrary beliefs…Such acts send messages that they are outsiders, not full members of the political community.”

As Justice Sotomayor added, “To guard against this serious harm, the Framers mandated a strict ‘principle of denominational neutrality’…government should not prefer one religion to another, or religion to irreligion.’” There is no neutrality when the government’s ostensible object is to take sides.

To determine whether or not the plaintiffs proved an Establishment Clause violation the court should consider whether a reasonable observer would view the government action as enacted for the purpose of disfavoring a religion, no matter what its words said. Canadian courts usually say this by declaring that the court should look at ‘substance not form’. I would put it in the way a wise Canadian judge once put it: ‘you can call a jackass an eagle but that won’t make it fly’.  That is exactly what Trump did in her view. There was evidence before the court that Trump had asked his legal advisors to put the ban in such words that it would be legal. He wanted a Muslim ban, but he decided to camouflage it as based on territory rather than religion.

In order to determine such an issue it is permissible for the court to look beyond the fine words in the Proclamation to consider the circumstances in which it was issued. That meant the court should look at what the President and his advisors said in public, over and over again.

Justice Sotomayor went through a long analysis of numerous public statements Trump and his advisors made, and this made it absolutely clear what Trump’s actualintent was.  She said that the majority only looked at a few of his statements and a more complete review of those statements clearly demonstrated “animus toward Islam. The full record paints a more harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.”

For example, in one speech Trump made in South Carolina he told a story about US General Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pigs’ blood, making it clear that such actions were needed to deal with Muslims who “hated us.” He actually repeated this story on a number of occasions. That is what strong leaders do.

Justice Sotomayor was not fooled. The Proclamation was driven by impermissible discriminatory anti-Muslim animus and not the Government’s asserted national security justifications. I would describe it this way: the Government can put lipstick on a pig, but it will still be a pig. Justice Sotomayor concluded, “The Proclamation rests on a rotten foundation…In sum, none of the features of the Proclamation highlighted by the majority supports the Government’s claim that the Proclamation is genuinely and primarily rooted in a legitimate national security interest. What the unrebuttable evidence actually shows is that a reasonable observer would conclude, quite easily, that the primary purpose and function of the Proclamation is to disfavor Islam by banishing Muslims from entering our country.”

This led Justice Sotomayor to her passionate and eloquent conclusion in which she described the First Amendment which guarantees religious freedom as follows:


The First Amendment stands as a bulwark against official religious prejudice and embodies our Nation’s deep commitment to religious plurality and tolerance.  That constitutional promise is why, [quoting from an earlier decision of the court] ‘for centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom…’ Instead of vindicating those principles, today’s decision tosses them aside. In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty.


In a previous case a judge of the U.S. Supreme Court had said, “State actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration.” That is what Trump and his officials and advisors should demonstrate. Clearly they did not.

As a result Justice Sotomayor said, “the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the fundamental principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country ‘that they are outsiders, not full members of the political community’.”

Finally, Justice Sotomayor compared Trump’s actions to the shameful actions of the American authorities in the case of the Korematsu v. United Statesduring the Second World War. In that case the court considered the constitutionality of an Executive Order which ordered Japanese Americans into internment camps during World War II regardless of their citizenship because the need to protect against espionage outweighed the rights of Americans of Japanese descent even though there was little or no evidence that Japanese Americans were acting as spies or making signals to Japan. Instead the Court gave a pass to an odious gravely injurious Presidential order. Just as Trump did, the President at the time, invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion. Justice Sotomayor said, “As here, the exclusion was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States.” Many thought that in the intervening years America had done much to leave its sordid legacy behind. Sadly, Trump and his supporters made it clear that this was not the case. That legacy is very much alive.

Justice Sotomayor made it clear that unlike the majority of the Supreme Court, she did not tolerate this. As she said, “By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court deploys the same dangerous logic underlying Korematsuand merely replaces one gravely wrong decision with another. Our constitution demands, and our country deserve a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”

Maybe you can tell. I much prefer the dissenting opinion to that of the majority of the US Supreme Court.



The U.S. Supreme Court and Trump’s Muslim Ban


On January 27, 2017, within a week of his inauguration, the American President Donald Trump tried to fulfill a very popular election promise to implement a “total and complete shutdown of Muslims entering the United States.”  That was one of his famous promises that he made during his campaign. This was all part of his design to “Make America Great Again.” He tried to fulfill this promise by issuing Proclamation 13769 that was swiftly turfed out by lower courts. Instead of appealing those decisions Trump came back with a new Proclamation 9645 in September 2017  that he himself called a “watered-down version” of his original proclamation that he actually preferred.

To those of us who always believed the United States was the epitome of religious freedom this was shocking. A number of Human Rights groups immediately launched legal action to stop the second Presidential directive as well and the case ultimately arrived at the U.S. Supreme Court. There were 9 judges who heard the appeal and 7 of them upheld the President’s proclamation.   While this surprised many, the opinions of the court are lengthy and complicated, and many judges weighed in, but I want to comment on the decision of the American Chief Justice Roberts speaking for a large majority of the court and an interesting dissent delivered by Justice Sotomayor. I will comment first on the decision of the majority and then the dissent.

Chief Justice Roberts pointed out that the proclamation claims to be seeking to improve vetting procedures for foreign nationals travelling to the U.S. by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat. The American agencies developed a “baseline” for the information they required in order to confirm the identity of individuals seeking entry into the US and to determine whether those individuals posed a security threat.

The American agencies determined that 16 countries had deficient information sharing practices and presented security concerns as a result. During a 50-day period in which Homeland Security made diplomatic efforts to encourage foreign governments to improve their practices it determined that 8 countries remained deficient. Eventually Trump determined that 1 country had improved enough to be taken off the list.

The Proclamation placed varying entry restrictions on the nationals of 8 foreign states whose systems for managing and sharing information Trump deemed inadequate. Most of these countries were countries in which a majority of people were members of the Islamic faith.

The President’s directive caused all kinds of chaos and harm to people around the world since it was implemented without warning, catching travelers and their families unawares and stranded.

The State of Hawaii and 3 individual Americans with foreign relatives who were prohibited from entering the US, argued that the Proclamation violated the Immigration and Nationality Act (INA) and the Establishment Clause of the Constitution which prohibits the government from establishing or favoring any religion.

The majority decision was actually fairly straightforward. It held that the President is given broad discretionary authority to suspend the entry of “aliens” into the US. Courts should defer to the President who is given the power to suspend entry and for how long and under what conditions. The word “aliens” may seem harsh, but that it the wording in INA. It vests the President with “ample power” to do what he did.

The Supreme court noted that President Trump had first ordered Homeland Security and other governmental agencies to conduct comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline and then based on that review he found that restricting aliens who could not be vetted adequately by American officials on account of failures of their own government, was in the national interest. The Proclamation made it clear that the conditional restrictions would remain in force onlyso long as necessary to address the identified inadequacies. Finally, the class of aliens identified were a group of people linked by nationalityand not religion.

The majority of the Supreme Court rejected the claim that the President’s statements showed that the President’s stated concerns about vetting protocols and national security were only pretexts for discriminating against Muslims. The Proclamation was expressly based on legitimate purposes so the court should not interfere with the President’s legitimate exercise of his powers under INA. It really was that simple in the view of the majority of the court.

All of that seems simple and almost unassailable. One might wonder what all the fuss was about. But wait until you hear about the opinion of the dissent. I will cover that in my next post.

Religious freedom to discriminate: Law Society of British Columbia and Trinity Western University and Brayden Volkenant


Many people in my community have become very excited about the case of Law Society of British Columbia and Trinity Western University (‘TWU’) and Brayden Volkenantwhich together with a similar case in Ontario went all the way to the Supreme Court of Canada (‘SCC’) for a decision about how religious freedom and the right to be free from discrimination worked together in Canada. It is always difficult for courts to reconcile 2 conflicting freedoms. In this case at issue was the right of the TWU community to religious freedom and the right of members of the LGBTQ community to be free from discrimination. Both are important rights protected by the Charter. Should one override the other or should one be bent in favor of the other?

To evangelical Christians in my community this was a crucial case. They felt their religious freedom was at stake. I heard that the Southland Church, the largest evangelical church in town, , held a fast and vigil the night before the decision was announced. Their prayers went unanswered.

TWU is an evangelical Christian postsecondary school that sought to open a law school that would require its students to sign a Covenant Agreement (‘Covenant’) that prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman.” That covenant prohibits conduct throughout the 3 years of law school even when students are off campus in the privacy of their own homes.

The Law Society of British Columbia (‘LSBC’) is the regulator of the legal profession in BC and implemented a resolution declaring TWU’s proposed law school was not an approved faculty of law because of its mandatory covenant. It felt that the covenant was discriminatory against the LGBTQ community and others. TWU and one of its students made an application to court to compel LSBC to approve its law school arguing that its failure to do so violated its religious rights protected by s. 2(a) of the Canadian Charter of Rights and Freedoms (‘Charter’). The SCC upheld the decision of the LSBC and hence the proposed law school is notapproved in BC. Other provinces may follow the same course of action.

Was the SCC right or are the protesters at Southland right? The reasons of the court were long and complicated. I would recommend that anyone interested in this subject read those reasons in their entirety. It is difficult to fairly précis the decisions. All in all 7 SCC judges agreed with LSBC and 2 dissented agreeing with TWU.

The nub of the matter is that law school seats are a treasured benefit. Hundreds of people, across Canada apply for each seat. TWU would have had 60 seats available for its graduates and it was clear to all that TWU’s Covenant would have effectively closed the door to the vast majority of LGBTQ students. Those who would have been able to sign the Covenant would have had 60 more law school seats per year to apply for than LGBTQ students. In short LGBTQ students would have fewer opportunities relative to others. Should that have been allowed? The majority of the SCC said “no”. The SCC held that this would undermine true equality of access to legal education and by extension the legal profession. According to the majority of the SCC “substantive equality demands more than just the availability of options and opportunities–it prevents the violation of essential human dignity and freedom” and “eliminates any possibility of a person being treated in substance as ‘less worthy’ than others.”

TWU admitted that eliminating the mandatory Covenant, which is what LSBC required, would not prevent any believing member of their community from adhering to their beliefs. Rather it said removing the Covenant was an interference with their members’ beliefs that they must be in an institution with others who shared or respected their practices on sexual relations.

The majority of the 7 judges (5 of them) disagreed with TWU holding that the impact of the decision of the LSBC was “of minor significance” to the religious freedom of the TWU community.  The Chief Justice McLachlin and one other judge  admitted it was of morethan minor significance. butnonethelessagreed that the Covenant could not lawfully be required. I find her judgment the most interesting.

First, because TWU is a private institution, the Charter does not apply to it and it is allowed to discriminate against the LGBTQ community (even though I would argue it ought not to do that because it is not right to do so). But the TWU insistence on the mandatory Covenant is a discriminatory practice because it imposes a burden on LGBTQ people solely on the basis of their sexual orientation. Married heterosexual law students can have sexual relations, while married LGBTQ students may not! The Covenant “singles out LGBTQ students” (and others I would add) “as less worthy of respect and dignity than heterosexual people and reinforces negative stereotypes against them,” the Chief Justice said. Those LGBTQ students who insist on equal treatment will have less access to law school and hence the practice of law than heterosexual students. Heterosexual students can choose from all law schools without discrimination, where one law school would only be available to LGBTQ students willing to endure discrimination.  This, the court determined, is a harmcaused by the exercise of religious freedom by TWU.

The LSBC is duty bound to protect the public interest and preserve and protect the rights and freedoms of everyone, including the LGBTQ people. The religious freedom of TWU stops at the point where it harms others and infringes on their rights. The LSBC was within its rights to refuse to condone practices that treat certain groups as less worthy than others. I would respectfully suggest that members of the Southland Church Community should also refuse to condone such practices on the part of TWU.

The Chief Justice admitted that this decision has negative impacts on the religious freedom of the TWU community and these were of more than minor significance. Yet she accepted the position of the LSBC that it could not condone a practice that discriminates by imposing burdens on the LGBTQ community on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity, and enhancement of equality in the legal profession. The Law Society was faced with an either-or decision  on which compromise was impossible–either allow the mandatory Covenant in TWU’s proposal to stand, and thereby condone unequal treatment of LGBTQ people, or deny accreditation and limit TWU’s religious practices . In the end, she said, “after much struggle the LSBC concluded that the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion…The LSBC cannot abide by its duty to combat discrimination and accredit TWU at the same time.”

While I agree completely with the decision of the Chief Justice of Canada and the other judge who agreed with her, I want to go a step farther. I want to go beyond the narrow confines of the law and the Canadian Charter. I think it is time–no it is high time–for the evangelical religious community to take an honest look at itself and its traditional practices. It is time for it to stop using religious freedom as a shield to allow it to infringe on the rights of others. That is not the purpose of religious freedom. It is time for the evangelical community to stop causing harm to others in the name of religious freedom. That is what it tried to do in this case and d it has done so over and over again in the name of religious freedom on the basis of dubious interpretations of ancient texts. The evangelical community can and should to better.

In Search of a Better World by Payam Akhavan.

If you read this book it may be the best book you read this year. It is written by a Canadian lawyer, but don’t let that stop you from reading it. Or go to the CBC Radio archive and listen to the CBC’s 2017 Massey Lectures. The book contains those lectures. It is a delightful combination of personal reminiscences of himself and his family and his life as a UN human rights prosecutor and reflections on his experiences.

The book starts out with a wonderful and humorous description of how his family fled Iran as religious exiles fleeing persecution after their revolution. He was a young lad and did not realize why they were leaving the country he loved, but he was excited to go to Canada. His first impression was from 30,000 ft. in a jet.

Sadly, he found that Canada was not the country of unabashed welcoming of refugees. Instead in the schoolyard he was bullied as a “Paki.” Ignorant Canadian school children did not know better. He was different; so he was mocked. He spoke funny, that meant he must be ready to be made fun of. He thought the Hockey Night in Canada song was our national anthem. Maybe he was right.

Later the bigotry of Canadians morphed. He described it this way, “As my school days came to a close, the all-purpose pejorative “Paki” label was given way to a more sophisticated taxonomy of bigotry. Thanks to the simplistic sound bites and sensational images that passed as evening news, Arabs and Iranians were merging in the popular imagination as a barbaric race of crazed terrorists. Instead of getting better the ordeal by association was getting worse. It didn’t matter that we were actually the biggest victims of those same bearded fanatics appearing on their television screens, or that Western leaders had sabotaged secular democracy in our countries. Our story was irrelevant. We were merely a blank screen on which others projected their psychological needs, of either scorn or of pity.

Whether in the schoolyard or in global politics the clash of civilizations is a convenient escape from the visceral fear of embracing others. The bully and the bigot, the tyrant and the terrorist need to inflict pain on others to escape their own pain. Connecting with others renders us vulnerable; accepting differences challenges our way of life. The cowardly way out is to make enemies rather than doing the hard work of learning and growing. Why struggle to discover a deeper identity when hatred is within easy reach?”

In the book Akhavan meanders through many examples of a failure to empathize. Arabs and Israelis. Serbs and Croats. Tutsis and Hutus in Rwanda. Western European settlers and North American indigenous peoples. And many more. Invariably he adds value to the discussion of these conflicts. But he always comes back to the central concept of empathy. He quotes Persian philosopher Rumi: “the wound is the place where light enters.”

Here is what he says about the West and Islam,

“For much of history, Islamic civilization has been the enduring “other” of the Western world, and Western civilization the enduring “other” of the Islamic world. But the reality today is that the irresistible forces of globalization, the inexorable expansion of our collective unconscious, is infusing diverse peoples with an ever-broader sense of belonging. That is exactly why the extremists are panicking. In these times of accelerating change, they need each other more than ever. The white crusaders and the wicked jihadists are inseparable dancing partners, entangled in an awkward tango of mutual disgust. Whether they like it or not, identities are not fossils in a museum. They are inherently dynamic constantly shaping and being shaped by others in a never-ending exchange of perspectives. Amidst intensifying interdependence, parochial identities will invariably give way to a wider loyalty. Then better to negotiate the inevitable by dialogue rather than violence. The xenophobic hissy fit of identity warriors is futile avoidance of a shared future.”

Akhavan finds empathy as the basis of human rights. As an immigrant to Canada, during a time when brown people were rare and exotic, he understands from deep personal experience, that “multiculturalism is a messy affair.” It is often difficult and challenging. But is there any reason to believe that we are not up for the challenge? Akhavan points out,

“We each have a unique path, but when our journeys occasionally converge, we may discover that we also have a shared humanity; that we all suffer; whatever our identity may be. The universality of human rights means that despite our differences, we all deserve to be treated with the same dignity. We should not project demeaning stereotypes on others, portraying them as savages to justify our bigotry. But in celebrating diversity, we should also not become apologists for those that abuse others in the name of tradition.”

It is a fundamental theme of the book that we must recognize that other people suffer, just like we do. He knows, as Shakespeare’s Shylock did, that each of us bleeds in the same way. When we recognize that, we empathize. As the original meaning of the word “sympathy” indicates, “we suffer with.”

That is precisely why we have to be skeptical of claims from our leaders that “we” are different from “them”. No matter how much they want it otherwise, this is not a matter of “us” against “them.” This is a matter of “we.” We are in this together. We really are one human race, no matter where we come from, no matter what the color of our skin, and no matter how we worship (or not) our gods. We are fellows.

Akhavan says that our encounters with human rights atrocities have a lot to say about who we actually are, as opposed to who we pretend to be. That is why Akhavan explores how the pursuit of a virtuous self-image affects our perceptions of suffering at the periphery of our society. This is a version of the thought, now often accepted, that a civilization is judged by how it treats the most vulnerable–i.e. those who suffer at the periphery.

Akhavan points out that many of us are no longer able to define the sublime by reference to the divine. Therefore, to many, they are unable to find moral certainty. As Dostoevsky’s Ivan Karamazov said, “If God is dead then all is permitted.” To such thinking Akhavan responds as follows:

“Disabused of the catastrophic illusions of the past, in our post-modern search for transcendence we have embraced human rights as the secular sacred. Having shunned absolute truths, we navigate the stormy seas of moral relativism, weary of foundering on the forbidden rocks of individual autonomy and cultural diversity. In this disenchanted universe, belief in the inherent dignity of humankind is the magical island where we can still find refuge amidst moral uncertainty.”

This book is certainly worth the trip.