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.
