I have posted to SSRN a draft of my new essay for the symposium issue of the Roger Williams Law Review, titled “The Domestic Establishment Clause.” As the title suggest, the Court’s Establishment Clause jurisprudence has never been extended to the foreign context, especially when it concerns immigration and national security. The lower courts have showed no hesitation in extending this doctrine. The Supreme Court should.
Here is the abstract:
Over the past year, several courts have relied on the Establishment Clause to enjoin President Trump’s entry bans. None of these decisions showed any hesitation before extending the Supreme Court’s Establishment Clause domestic jurisprudence to the foreign context, with respect to the denial of entry and visas to aliens abroad. Judge Jay Bybee, dissenting from denial of rehearing en banc in Washington v. Trump, challenged the “unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.” Indeed, the federal government’s brief stressed that Supreme Court case law “addressing domestic questions involving local religious displays, school subsidies, and the like . . . have no proper application to foreign- policy, national-security, and immigration judgments of the President.”
Judge Bybee and the government are correct. The Supreme Court’s Establishment Clause precedents concerning domestic matters—such as school prayer and public displays of religion—have had no place in the realm of foreign affairs and national security. Specifically, Congress’s longstanding practices afford benefits to aliens of certain religious sects, and disadvantage others that do not share those beliefs. The lower courts should have hesitated before extending this doctrine to the immigration context. If the Supreme Court opts to extend this doctrine, the Justices will have to account for the myriad other ways in which the government countenances the use of religion in the immigration context.