Today, the Supreme Court upheld President Trump’s notorious travel ban, which critics have derided as a discriminatory law that targeted Muslims. Opponents like CAIR and the ACLU argued that Trump had a sordid history of animus toward Muslims, and he intentionally enacted the ban to discriminate against them.
The Court rejected that argument, holding that the travel ban was neutral toward religion because it didn’t explicitly single out Muslims. If it did, however, then it would’ve violated the “clearest command of the Establishment Clause … that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). In other words, the Constitution prohibits the government from favoring or disfavoring one religion over another.
So what if the government passed a law that expressly singled out Muslims for distinctive treatment? For example, would the San Diego Unified School District’s pro-Muslim “anti-Islamophobia” bullying initiative violate the Establishment Clause? According to the reasoning in both the majority opinion and Justice Sotomayor’s dissenting opinion, the policy would be unconstitutional because it specifically classifies on the basis of religion.
To be sure, the school district argues that its “anti-Islamophobia” initiative is not unconstitutional because it was designed to protect all students. It just so happened, the district contends, that Muslim students are “particularly vulnerable” to bullying (note: there are scant statistics to support that claim).
It doesn’t matter. Islamophobia is defined as fear or hatred of Islam or Muslims. Islam is a religion. The Constitution forbids any policy or program that classifies on the basis of religion. End of story.
As Chief Justice Roberts notes in the majority opinion, the travel ban isn’t a typical Establishment Clause case, e.g., Ten Commandment displays or school prayer. Rather, it’s about “a national security directive regulating the entry of aliens abroad.” The district could argue that preventing bullying is analogous to protecting the country. But unlike the travel ban, the anti-Islamophobia initiative purposefully divides people along religious lines and singles out one sect for discriminatory treatment.
The Constitution demands government neutrality toward religion. No law can favor or disfavor Muslims. The Court held that the president has broad executive power to suspend foreign nationals from entering the country, and so Trump’s alleged “anti-Muslim” rhetoric was not enough to make any discriminatory intent outweigh the authority granted to the president by Congress. But in the school context, school board members have no justification or higher authority to discriminate on the basis of religion.
The Supreme Court held that the travel ban was neutral toward Muslims. But when a government policy specifically singles out a religious group, like the anti-Islamophobia initiative, the Court would likely reach the opposite conclusion.