In suffering judicial suspension of its second Muslim immigration ban, the Trump Administration may be learning that words matter. Specifically, Donald Trump doesn’t get to spend over a year publicly declaring his intention to discriminate against Muslims and then pretend that, just because he signs an Executive Order that doesn’t use the words Muslim, Islam, or religion, he’s not discriminating against Muslims.
Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim [Judge Derrick Watson, Order Granting Motion for Temporary Restraining Order, State of Hawai’i and Ismail Elshikh v. Donald J. Trump et al., #1:17-cv-00050-DKW-KSC, 2017.03.15, pp. 28–29].
The Government argued to the Court that the Executive Order can’t be religiously motivated, because “the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population…. [T]he suspension covers every national of those countries, including millions of non-Muslim individuals[.]”
In a delicious one-liner that reasonable observers may apply for the rest of Trump’s rein, “The illogic of the Government’s contentions is palpable” [p. 30].
The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise. See Aziz, 2017 WL 580855, at *9 (rejecting the argument that “the Court cannot infer an anti-Muslim animus because [Executive Order No. 13,769] does not affect all, or even most, Muslims,” because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution” (citation omitted)). Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%.12 It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the Government does, that it does not [Order, 2017.03.15, pp. 30–31].
The Court cites numerous public statements from Trump (see here, here, here, and here) and Rudy Giuliani (here) to show that we need not delve into any “veiled psyche” or “secret motives” to conclude from the “plainly worded statements” of Trump and his Administration that the President’s second attempt to ban immigrants from six Muslim nations is driven by “religious animus”—and that, says the Establishment Clause, is not cool.
Words matter. Donald Trump’s own words have rightly sunk both of his (let’s call them what they are) Muslim bans.
(If you’re interested, review my February 10 commentary on the Ninth Circuit’s rejection of Trump’s first anti-Muslim executive order here.)