The court of appeals denied the cross-appeal below, which argued that the preliminary injunction should not have been limited to individuals with a bona fide relationship with a U.S. person or entity. This petition seeks certiorari on that question, which is not presented in Hawai‘i. In addition, this petition raises the same four questions already before the Court in Hawai‘i, and requests that the cases be consolidated once again.Muslim Advocates issued a press release announcing the filing of the cert. petition.
Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Tuesday, February 27, 2018
Another 3rd Travel Ban Cert. Petition Filed
Wednesday, October 25, 2017
Supreme Court Dismisses As Moot Remaining Travel Ban Challenge On Its Docket
Sunday, December 24, 2017
9th Circuit: Trump's 3rd Travel Ban Violates Immigration Act
The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation.The court avoided deciding the question of whether the Proclamation violates the Establishment Clause. The court also limited the district court's preliminary injunction to foreign nationals who have a bona fide relationship with a person or entity in the United States. Also, as already ordered by the Supreme Court, the 9th Circuit stayed its injunction pending Supreme Court review. Los Angeles Times reports on the decision.
Tuesday, March 28, 2017
Virginia Federal Court OK's Trump's Second Travel Ban EO
Given the revisions in EO-2, the question is now whether the President's past statements continue to fatally infect what is facially a lawful exercise of presidential authority. In that regard, the Supreme Court has held that "past actions [do not] forever taint any effort on [the government's] part to deal with the subject matter. . . ." This Court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent. And while the President and his advisors have continued to make statements following the issuance of EO-1 that have characterized or anticipated the nature of EO-2, the Court cannot conclude for the purposes of the Motion that these statements, together with the President's past statements, have effectively disqualified him from exercising his lawful presidential authority under Section 1182(f). In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President's statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose.The Hill reports on the decision.
Wednesday, January 29, 2020
4th Circuit Hears Arguments In Challenge To Trump's Travel Ban
Thursday, March 30, 2017
Hawaii Federal District Court Converts TRO Against Travel Ban To Preliminary Injunction
The Court determined in its TRO that the preliminary evidence demonstrates the Executive Order’s failure to satisfy Lemon’s first test.... As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination.
Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order.... No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door.
Thursday, March 16, 2017
5 Judges In 9th Circuit Would Uphold Trump's First Travel Ban
Friday, September 08, 2017
9th Circuit Affirms Enforceable Scope of Travel Ban
(1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.Honolulu Star Advertiser has more on the decision.
Thursday, May 25, 2017
4th Circuit En Banc Upholds Preliminary Injunction Against Trump's Second Travel Ban Executive Order
The majority opinion, written by Chief Judge Gregory (joined in full by 6 other judges and in part by 2 more (with one judge joining only in the judgment), focused on the Establishment Clause. The Court said in part:
The question for this Court, distilled to its essential form, is whether the Constitution ... remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.Judge Keenan joined by Judge Thacker filed a concurring opinion indicating that they would also uphold the preliminary injunction because the President failed to make adequate finding as required under 8 U.S.C. § 1182(f) before he can exclude a group of aliens that entry of that group of aliens would be detrimental to the interests of the United States.
Judge Wynn filed a concurring opinion indicating that he would also find that the Executive Order exceeded the President's authority under the Immigration Act. Judge Thacker also filed a concurring opinion, stating that he concurred even though he would not consider statements made by candidate Trump before he took the oath of office as relevant.
Judges Niemeyer, Shedd and Agee, each writing a dissenting opinion concurred in by the others. The opinions, among other things, objected to the consideration of campaign statements "to recast a later-issued executive order," and argued that plaintiffs lacked standing.
The Washington Post reporting on the decision notes:
All of the judges in the majority were placed on the court by Democratic presidents and the three dissenting judges ... were all nominated to the bench by Republican presidents.UPDATE: Attorney General Jeff Sessions announced on Thursday that the government will seek review of the decision in the U.S. Supreme Court.
Saturday, May 24, 2014
South Dakota Suit Challenges Ban on Same-Sex Marriage
Wednesday, February 15, 2017
New Suit Challenges Syrian Refugee Ban In Trump Executive Order; Hawaii Suit Moves Ahead
suffered in Syria. The complaint (full text) in Doe v. Trump, (WD WI, filed 2/13/2017), says that the ban prevents plaintiff from bringing his wife and 3-year old daughter to the U.S. from Syria under a derivative asylum petition which is being processed by the government. The Executive Order prevents USCIS from adjudicating the petition and the State Department from issuing visas to his family. It also contends that the nationwide temporary restraining order issued by a Washington federal district court is not broad enough to cover this situation because the TRO applies only to enforcement at "United States borders and ports of entry." This new suit alleges that the Executive Order violates the Establishment Clause, the Equal Protection and Due Process clauses and various statutory provisions. WRN News reports on the lawsuit.
Meanwhile, Hawaii's Attorney General announced yesterday that a federal district judge has partially lifted a stay he imposed last week on Hawaii's suit against the Executive Order. This allows an Hawaii resident to be added as a plaintiff. The court also allowed Hawaii to file an amended complaint (full text) adding a challenge under the Religious Freedom Restoration Act. KHON News reports on these developments.
Thursday, February 09, 2017
9th Circuit Upholds TRO Against Trump's Travel Ban On Due Process Grounds; Postpones Ruling On Religious Discrimination Issue
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye,Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).
The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
Tuesday, February 14, 2017
Virginia Federal Judge Says Trump Travel Ban Likely Violates Establishment Clause
The "Muslim ban" was the centerpiece of the president's campaign for months.... [Rudy] Giuliani said two days after the EO was signed that Trump's desire for a Muslim ban was the impetus for this policy.The court enjoined enforcement of Section 3(c) of the Executive Order at any port of entry against Virginia residents how either were lawful permanent residents or who held a valid student visa or work visa at the time the Executive Order was signed. NBC4 News reports on the decision.
Wednesday, October 14, 2009
British Tribunal Reverses Exclusion of Dutch Politician Geert Wilders
Tuesday, September 10, 2019
Recent Articles of Interest
- Hashika Durai & K. Niranjana, A Study on Religious Laws and Religious Crimes in India, (August 26, 2019).
- Cyra Akila Choudhury, Reflections on the Christchurch Massacre: Incorporating a Critique of Islamophobia and TWAIL, (TWAILR: Reflections - 9/2019).
- Perry Dane, Echad: A D’var Torah on Parshat Vaetchanan, (August 17, 2019).
- Mark Kelman, What is in a Name?, (Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019)).
- Richard W. Garnett, The Communitarian Work and Vision(s) of Robert Cochran (and Thomas Shaffer), (Pepperdine Law Review, Vol. 46, 2019).
- Thomas Charles Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, (15 University of St. Thomas Law Journal 517 (2019)).
- Etienne Wain, The Blessing of Same Gender Relationships in the Anglican Church of Aotearoa New Zealand and Polynesia: A Mixed Blessing?, (Victoria University of Wellington Legal Research Paper (Sept. 2019)).
- Khaled Beydoun, The Ban and the Borderlands Within: The Travel Ban As a Domestic War on Terror Tool, (Stanford Law Review, Vol. 71, 2019).
- Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
- Douglas NeJaime, The Constitution of Parenthood, (Stanford Law Review, Vol. 72, Forthcoming).
- L. Darnell Weeden, A Functional Free Exercise Clause Analysis Requires a State To Prove a Compelling Interest Before Interfering With an Individual's Faith-Based Same-Sex Marriage Participation Objections, [Abstract], 18 Appalachian Journal of Law 113-150 (2018-2019).
- Rabea Benhalim, The Case for American Muslim Arbitration, [Abstract], 2019 Wisconsin Law Review 531-591.
Tuesday, April 13, 2021
Biden Statement on the Beginning of Ramadan
Yesterday President Biden issued a Statement on the Beginning of Ramadan (full text), saying in part:
On my first day as President, I was proud to end the shameful Muslim travel ban, and I will continue to stand up for human rights everywhere, including for Uyghurs in China, Rohingya in Burma, and Muslim communities all over the world.
As we remember those who we have lost since last Ramadan, we are hopeful for brighter days ahead. The Holy Qur’an reminds us that “God is the light of the heavens and earth,” who leads us out of darkness to the light. Although our White House festivities will be held virtually this Ramadan, Jill and I look forward to resuming the traditional White House Eid celebration in person next year, inshallah. We wish your families an inspiring and rewarding month.
Tuesday, October 24, 2017
U.S. Will Announce New Vetting Rules That Will Allow Refugees From All Countries To Enter
Tuesday, November 06, 2018
Pakistan Blasphemy Case Is Not Over As Government Agrees To Seek Another Review
Pakistan's top court acquitted Bibi on Wednesday of the charges carrying the death penalty, infuriating hard-line Islamists who held three days of nationwide protests demanding her execution. The enraged protesters torched scores of vehicles, blocked highways and attacked government and public property; a radical cleric also threatened to kill the three judges who acquitted Bibi. According to the Reuters news agency, Cleric Khadim Hussain Rizvi, who leads the Islamist Tehreek-e-Labbaik (TLP) party, had his Twitter account suspended on Monday for inciting violence.
The protests ended after the government agreed to impose a travel ban on Bibi and allow her case to be reviewed. A review petition was filed in the Supreme Court....
Earlier in the day, police said over 150 people were arrested on charges of arson, vandalism and violence during the protests.Meanwhile, Al Jazeera reports that Bibi's lawyer has fled to the Netherlands after threats on his life.
Saturday, February 04, 2017
Washington Federal District Court Issues TRO Against Travel Ban; Appeal Filed-- Here Are Links To Primary Sources [UPDATED]
The three judges who will likely hear the appeal -- assuming no one has to step aside over any conflicts -- are: Judge William Canby, who was appointed by President Jimmy Carter; Richard Clifton, who was appointed by Bush; and Michelle Friedland, a President Barack Obama appointee.UPDATE: On Saturday night (2/4) the 9th Circuit denied an immediate stay of the district court opinion pending briefing by Monday on the emergency motion. (Full text of 9th Circuit's order). The order was issued by Judges Canby and Friedland.
UPDATE2: Also on Feb. 3, a Massachusetts federal district court refused to renew a temporary restraining order that had prevented detention and/or removal of individuals with approved refugee applications who would be legally admitted to the United States in absence of President Trump's Executive Order. The original TRO expired Feb. 5. The court in Louhghalam v. Trump, (D MA, Feb. 3, 2017) held that rational basis review applies to equal protection challenges to federal government categorizations with respect to non-resident aliens. It held that plaintiffs raising establishment clause objections lacked standing to do so. It added:
Moreover, the language in Section 5 of the EO is neutral with respect to religion. Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause. The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian. Nothing in Section 5 compels a finding that Christians are preferred to any other group.ACLU has links to all the pleadings in the Louhghalam case.
Monday, February 26, 2018
Recent Articles of Interest
- David Bleich, Mitochondrial DNA Replacement: Moral and Halakhic Concerns, (International Journal of the Jurisprudence of the Family, Forthcoming).
- SpearIt, Legal Punishment As Civil Ritual: Making Cultural Sense of Harsh Punishment, (ECI Interdisciplinary Journal for Legal and Social Policy, Vol. 5 [2017], Iss. 1, Art. 1).
- Richard R. Carlson, The Sincerely Religious Corporation, (January 31, 2018).
- Desirée C. Schmitt, The Doctrine of Consular Nonreviewability in the Travel Ban Cases: Kerry v. Din Revisited, (February 2018).
- Joanna C. Schwartz, The Case Against Qualified Immunity, (Notre Dame Law Review, Forthcoming).
- Teri Dobbins Baxter, Child Marriage as Child Abuse and Constitutional Violation, (February 1, 2018).
- Muhammad Ahmad, Jihad, Jihadi Organizations and Liberation Struggle, (Hazara Islamicus, 6:2 (2017), 15-31).
- Muhammad Mehmood, Artificial Insemination in Shari’ah: A Case of Test-Tube Baby in Shari’ah and Its Legal Status in Pakistan, (Pakistan Annual Research Journal, 2017).
- Angela C. Carmella, Catholic Institutions in Court: The Religion Clauses and Political-Legal Compromise, [Abstract], 120 West Virginia Law Review 1-94 (2017).