Words Matter: Trump’s Own Statements Sink Muslim Ban in Court

Donald Trump
Was it something I said? Yes, Donald, exactly.

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 MuslimIslam, or religion, he’s not discriminating against Muslims.

So writes federal judge Derrick Watson:

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.)

44 Responses to Words Matter: Trump’s Own Statements Sink Muslim Ban in Court

  1. Trump called it a muslim ban, but now he says it’s not a ban and not about muslims. The court went with the facts, not the alternative facts.

  2. mike from iowa

    Drumpf was at a rally and said this last EO was a watered down version of the first one. That is just exactly opposite of what his lawyers argued in court. This guy is dangerous. This guy does not take no for an answer. This guy is not precedential. Doesn’t understand how the government works, etc. Loose cannon. Moron.

  3. Roger Beranek

    I thought the justice system was reviewing law, not the person behind the law. This must mean placing travel restrictions on Brazil would be a racist action targeting Hispanics, and any talk about viruses just wouldn’t fly.

  4. Ha ha ha. Democrats think words matter. Ha ha… ha ha ha.

    …And Mexico is gonna pay for it.

    If you’re famous enough, grab that pussy, or anything you want – as you can get away with ‘anything.’

    “The Greatest Job Creator God Ever Made” has just taken the helm, but he [definately] ain’t no Tom Brady.

  5. OMG – I’m gonna say it… I’m actually gonna say it:

    Tom Brady and his offensive line would be a better President and Cabinet than this Orange Man Group.

    So there. I said it. Somebody’s gotta do it!

  6. Mohamed A Sharif

    you do not have to be a Muslim to oppose this bigot Ban. more than 25% of the world are Muslims . You can’t Ban some and pretend the rest are not effected. the Good people who rejected the idea of banning Muslims from the beginning know Trump is selling an empty promise , false sense of security. Fear mongering never won anything at the END .Stay intellect Stay alert. Thanks

  7. Roger, you’re playing the same game as Trump, thinking you can hide racist, religionist intent behind a narrow, contextless reading of the law. Words matter, and the words Trump and Giuliani said in leading us to the enjoined policy matter.

  8. bearcreekbat

    “precedential” – good one mfi!

  9. For all of the Trump loving xenophobes, Dan Lederman’s BFF Steve King and Aberdeen’s own fear mongering haters, Happy St. Patrick’s Day!


  10. Hmmmm. If this is the standard, the Blaine Amendment should be ruled unconstitutional because its rationale was openly anti-Catholic. Can we expect the readers of DFP to get behind the move to eliminate the Blaine Amendment from the SD Constitution?

  11. bearcreekbat

    Troy, thanks for mentioning the Blaine Amendment. I checked with Wikipedia to learn more about the Blaine Amendment. Wiki stated:

    The term Blaine Amendment refers to either a failed amendment to the U.S. Constitution or actual constitutional provisions in 38 of the 50 state constitutions in the United States that forbid direct government aid to educational institutions that have a religious affiliation.

    Is SD a “Blaine Amendment” state? If so, is there evidence that the SD officials or individuals primarily responsible for enacting the SD Blaine amendment made public “anti-Catholic” statements similar to the Trump and surrogate statements calling for a “Muslin ban?”

  12. I watched Trump’s joint press conference with Angela Merkel today, and it finally hit home for me what Trump looks and sounds like on the international level, as a U.S. President.

    I have never, until this very day (St. Patrick’s Day 2017) felt as if the United States might be legitimately laughed at by other civilized countries, but now, we’re a damn joke – and rightly so.

    Today, Donald Trump met with the leader of the free world and is now proven to say stupid things NO MATTER WHAT SETTING you place him in. Get ready for an international scale of many jokes about Americans. It’s coming.

  13. mike from iowa

    Adam- Sweden, the Netherlands, Switzerland, Portugal and Denmark have all made little video replies to Drumpf. Most are quite funny.

  14. Roger Beranek

    Cory, words do matter. The precise words used in the text of a legal document matter.
    Just because somebody is a racist, doesn’t mean everything they ever do or say should be dismissed out of hand. Certainly not by the branch designed to embody impartiality. We aren’t analyzing the precise meaning of a broad and far reaching constitutional amendment written centuries ago. We are looking at the legality of a narrow, temporary, executive action. The very idea that a federal judge gets away with blocking the ext executive because he doesn’t trust Trump is appalling (nobody CAN trust him, but that is irrelevant) I was offended by the first decision when so much of their energy was addressing the need and effectiveness of the law when those aspects should never be a part of the judicial review.
    Secondly, is anybody claiming the countries being restricted do NOT show lots of cause for security concerns? Religion plays no part in this beyond the part it plays in fomenting terroristic sediments that we should be concerned with. No, it likely wouldn’t accomplish much….but that is also obviously assumed by the writers of any measure that expires in a few months. I don’t have faith that, after that time, these morons would have constructed some great screening process to allow people to come here with flawless vetting. But the knee jerk raving irrationality of the left and of the media makes them both look nearly as pathetic as trump himself.

  15. Mike, I’ve seen those videos; they are awesome… But they are so very definitely the tip of the iceberg of what’s to come.

    “knee jerk raving irrationality of the left and of the media” – my ass.

    The country we live in today demands our smarter Americans to be vs the stupid ones – right now. The media ‘and the left’ are trying to keep their composure while the stupid amongst us take pot shots at Lady Liberty. How ‘nice’ should the voice of reason be – in these times? I’m pretty sure, if the voice of reason is going to get through the thick skull of the dummies, we gotta use more colorful language and call like we see it – which is inherently more like the way it actually is.

  16. bearcreekbat

    Here is a great resource addressing Troy’s “Blaine Amendment” arguments, and answering the questions I asked Troy about whether SD lawmakers that adopted our Blaine Amendment exhibited hostility toward Catholics. It is published by the U.S. Commission on Civil Rights, titled “School Choice, The Blaine Amendments and Anti-Catholicism.”


    The report includes very informative and generally well documented arguments on both sides of the anti-Catholic issue. None argued that SD lawmakers had any anti-Catholic animus leading to our state’s adoption of our Blaine Amendment. Instead, after 1889 federal law required new states to include a Blaine provision the new constitutions. SD became a state in 1890 and included our Blaine provision to comply with that condition of being admitted as a state. Thus there appears no evidence to accuse the 1890 SD state legislature of having an anti-Catholic animus.

    The historical record on Rep. Blaine also indicates that his mother and daughters were Catholic, which seems inconsistent with an anti-Catholic animus for Blaine’s Amendment.

    When considering current voucher arguments, this report by U.S. Commission on Civil Rights becomes extremely timely and relevant.

  17. mike from iowa

    Punctuation matters, too. I see a New England dairy lost 13 million bucks due to an errant Oxford comma, whatever the heck that is.


  18. Bear,

    I have no idea what your read in that report to come to that conclusion. On page 5 they summarized the motives of its supporters and its intended effect: “In short, Blaine Amendments were not designed to implement benign concerns for the separation of church and state traceable to the founding, but instead to target for special disadvantage the faiths of immigrants, especially Catholicism.”

    Later, it talked how the word “sectarian” was selected a pejorative and to directly target Catholicism as a “non-common religion” not deserving the benefits of our “common religion.” This thought was specifically outlined in the US Supreme Court opinion which they described a “doctrine of bigotry.”

    But your point is there is no evidence SD leaders who supported the Blaine Amendment were anti-Catholic. The first Bishop of the Episcopal Church (can’t recall his name) was a principle advocate of the Blaine Amendment and his anti-Catholicism was of a particular virulent nature and he rallied in particular the other three major Protestant faiths in Sioux Falls (which spread across the state)- Lutheran, Methodist and Congregational. There is 100 page or so pamphlet/small book at the SD Historical Society which in its title has the words “pitchforks” that discusses the anti-Catholicism in SD at the time of statehood through the 1960’s.

    There is also periodic display that goes up at the Historical Society that is about the KKK in SD. Did you know that in the mid-1920’s, the largest KKK group outside the former Confederacy was in SD (Sioux Falls primarily) where their animus was toward Catholics (especially Irish Catholics).

    The second Country Club in Sioux Falls was formed by the Catholics and Jews in 1959 because the other Club didn’t admit Catholics or Jews. That older Club admitted its first Catholic in 1968 or 1969.

    The assertion SD and its prevailing political views at statehood weren’t anti-Catholic is ludicrous and contrary to the open public record. It is not even arguable.

    One more thing: Blaine’s motive is thought to be initially two-fold:

    1) A reaction against his mother’s faith and in support of his father’s.
    2) Politically motivated as a path to get the Presidential nomination.

    His later softening on his amendment is thought to be related to:

    1) It wasn’t a successful strategy.
    2) His desire to reconcile with half his family as he aged.

  19. Darin Larson

    Troy, your story of the discrimination against Catholics should make you even more sensitive to the plight of similarly situated religious minorities who face discrimination. That doesn’t seem to be the case, unfortunately.

    It probably has nothing to do with the fact that instead of discriminating against Catholics, our state government now carves out niches on their behalf for tax breaks to serve the purposes of their sectarian schools.

  20. bearcreekbat

    Troy, can you elaborate by quoting the “conclusion” in my comment that you are referencing when you write

    I have no idea what your read in that report to come to that conclusion.

    I looked back at the comment and couldn’t determine which of my conclusions your question referenced.

    And beginning on page 5 of the report, Anthony R. Picarello, Jr., presented his argument that the Blaine Amendment was intended to disadvantage Catholics. Picarello also made the “sectarian” argument. Richard Komer also took that position.

    K.Hollyn Hoffman and Ellen Johnson provided well documented counter positions that are worth considering. What weaknesses did you find in their arguments?

    I questioned the “sectarian” as a pejorative secret term meaning “Catholic” to be a type of “Info-wars” argument, that would go something like this:

    Protestant leaders from the many states gathered together and decided that they did not want the government to fund Catholic schools, but wanted the government to fund Protestant schools. Even though they were powerful lawmakers they worried that if they came right out and said only Catholic schools should be denied public funds, something terrible might happen. To avoid whatever they were worried about, they decided to use a word in the proposed amendment that would secretly mean “Catholic,” even though in law they knew their secret word would also exclude all different Protestant and other religious sects from public funds. Meanwhile, the Protestants then secretly formed an all-Protestant cabel, mixing all variations of Protestants into one big group, and agreed to call their schools “public schools” so they so they could still get tax dollars while promulgating the evils of Catholicism (notwithstanding the danger of a Methodist teacher poisoning the mind of a Baptist child or a Jewish teacher corrupting a Muslim child).

    I wonder if Alex Jones has heard about this yet?

  21. Troy, just curious what your take is on Steve King and what you think of his relationship with Dan Lederman who is the current chair of the SDGOP and the Rushmore PAC.

    Seems a little like what you are against.

    Follow up question, would Reagan or Lincoln have a seat at the current GOP table?

    Why is my thought that today’s GOP’s sense of a good/Christian/fair community and nation end at the fence in their backyard?

    We can discuss how the Trump/GOP budget and Trump/Ryan healthcare plan affects South Dakotans later.

    I will also stay away from from your advocacy of corporate welfare at the expense of the greater good for now. But if you want to tell us again about the story of trickle down economics, go for it and then back it up with reality.

  22. No, Troy, I will not endorse repeal of the Blaine amendments. Restrictions on state aid to sectarian schools supports the Establishment Clause, keeping our tax dollars from propping up religious institutions. Donald Trump’s Muslim immigrant ban violates the Establishment Clause by attacking one specific religion and its adherents.

    And remember, the moment you spend tax dollars on O’Gorman, you have to offer equal public support for madrassas. I’d rather spend public dollars strictly on public education and leave private education completely private.

    I’d also rather not make immigration decisions based on the religion of the immigrants.

  23. But, you all support the judge in Hawaii who ruled against an Executive Order based on the words used by candidate Trump? My question is why aren’t you then supporting a judge ruling against the Blaine Amendment because of the words/rationale used for its purposes?

    Cory, if you think supporting religious schools is against the Establishment Clause, you can still be against the Blaine Amendment because it would be redundant.

    Darin, I’m not the one on a high horse for Muslims. I’m just wondering why you aren’t on the same high horse on behalf of Catholics. Or are you just a hypocrite.

    Bear, your failure to acknowledge the anti-Catholic roots of the Blaine Amendment.

    Jana, I don’t know anything of Steve King or who he is but I assume you aren’t talking about the ESPS commentator. Thus, I have no judgment on what personal or professional relationship he may have with Dan Lederman.

  24. Troy, I think you may mean comrade trump. Easy mistake, for you guys to make, candidate trump..comrade trump. FBI is digging now and they don’t have to use a borehole to find what supporters of the judge in Hawaii already know. Why do you support the Russian involvement in our country? Is beating up on Muslims, Mexicans and other minority groups acceptable to you? You do know that this kind of hate comes directly from Eastern Europe home of comrade trumps running mate, you do know that correct?

    BTW, it was comrade trumps spokesperson Stephen Miller as well that really put the wheels in motion for the ban against the ban. Look that feller up and check his eyes, man, they are as dead as I have ever seen.

  25. troy, that’s Federal District Court Judge, to you. troy, get off it: “you all support the judge in Hawaii who ruled against an Executive Order based on the words used by candidate Trump”

    “Clint Bolick, president and general counsel for the pro-voucher Alliance for School Choice has taken a position with a Scottsdale law firm. In recent years, Bolick has committed himself to fighting against public education, he first rose to prominence a crusader against affirmative action as a disciple of Clarence Thomas. He was co-founder of the right-wing legal group called the Institute for Justice and a prominent player in the conservative libertarian community.”

    From the Blaine report: Richard Komer

    Mr. Komer serves as senior litigation attorney at the Institute for Justice. He litigates school choice cases in both federal and state courts. Several of his current cases involve the constitutionality of allowing school choice programs to include religious schools among the private schools that can participate.

    Prior to his work at the Institute, Mr. Komer worked as a civil rights lawyer for the federal government, working at the Department of Education and Justice, as well as the Equal Employment Opportunity Commission as a special assistant to the Chairman, Clarence Thomas.”

    Dems have been cheated by republicans 3 times of recent note. Thomas. Bush v. Gore. Merrick Garland.

    Over at Slate, court watcher Dahlia Lithwick says that Democrats, by virtue of just showing up for the hearing, have already given up on their best argument against Gorsuch: “that the nomination is wholly illegitimate.” “Gorsuch may or may not be a good judge,” she writes, “but there is no principled reason for him to have a hearing when Merrick Garland did not.” http://billmoyers.com/story/daily-reads-senators-might-get-goods-gorsuch-reclusive-billionaire-behind-breitbart-trump/

  26. but you distract with catholic diatribe. you aren’t a great supporter of the world’s liberal pope, either, are you?

  27. Here you go Troy. Congressman Steve King from Iowa. This is the guy that Dan Lederman’s PAC gives money and pals around with in Iowa. Ask him. David Duke, loves this guy.


  28. Darin Larson

    Just to summarize the argument here: Troy claims discrimination against Catholics in the late 1800’s occurred in the form of the Blaine Amendment. In Troy’s eyes, if you aren’t aware of its significance and ready to march against the Blaine Amendment in 2017, you can’t be against discrimination against Muslims in 2017. That is what Troy’s argument boils down to.
    It is an interesting argument to say the least in how it refuses to acknowledge current day discrimination based upon previous discrimination, as if two wrongs make a right.

    How Troy can be against religious discrimination in 1889, but not be against it in 2017 is probably a scenario played out over the centuries in human history. It is different this time and the people are different than us is always the refrain. The English and French immigrants to America forgot they were once immigrants. After a few generations, the folks that were here started thinking of the new immigrants like the Irish as lesser people. The same prejudices occurred against Italian immigrants. I’m sure Germans, Swedes and Norwegians were all treated poorly at one time or another based upon where they were from.

    In the same way, prejudices based upon religious affiliation have weaved their threads through our history. Our checkered past is not always a tapestry to be proud of, but we usually try to learn from the mistakes of the past and become a better nation for it. I hope that we can learn from the mistakes that are being made right now.

  29. Leslie, I love Pope Francis and follow him with the same commitment I followed Pope Benedict and Pope John Paul II. The others during my life were before I thought beyond dinner, homework and my friends,.

    Darin, a judge rules an executive order violates the Constitution because of words said months before vs. the actual words of the executive order. By that same logic, the Blaine Amendment should be unconstitutional. My only argument (nothing I’ve said is for or against the merit of the Trump Executive Order or direct public assistance to parochial schools).

    If you agree with the judge from Hawaii, you should agree with a hypothetical judge who makes a ruling against the Blaine Amendment. Otherwise, your high horse is selective.

    Jana, I could hardly follow that article and his rant. Didn’t illuminate me to the issue.

  30. bearcreekbat

    Troy, I think I refuted any argument that the Blaine Amendment is unconstitutional in SD based on the motive for it’s adoption – a mandatory requirement for statehood.

    Addressing your hypothetical case: Even assuming there was circumstantial evidence of discrimination against Catholics at the time, there are a couple significant problems that differ Blaine from Trump.

    Blaine proponents needed to convince an entire legislative body to enact the amendment. Even if Blaine made anti-Catholic statements, such statements are not proof of legislative intent. Likewise public statements by legislators usually are insufficient evidence of legislative intent.

    Instead, the courts are required to look to the official legislative record for statements by legislative bodies to determine intent. Without reference to such legislative statements supporting the anti-Catholic theory, the court must decline to infer an unlawful purpose.

    Trump, alone, issued the executive order in question. Whatever he said publicly about his purpose in issuing such an order would be direct evidence of the purpose of the order. Trump repeatedly made public statements that he would implement a Muslim ban and this is the very first “ban” he alone issued as President. The ban being directed at countries with large majority Muslim populations was the nail in the coffin (and the religious preference discretion for Christians probably didn’t help).

    Unless you have a means of overcoming these differences, which I am open to consider, at this time it would appear to be an unwarranted waste of resources to litigate a Blaine case based on the Trump decision.

  31. Bear,

    If you did some historical research, you would see it is conclusive the Blaine Amendment was targeted against Catholics. An internet search and selective extraction of sections is not research.

    You keep asking for circumstantial evidence of ill-motives. I cited at least one US Supreme Court ruling that declared the Blaine Amendment as motivated by open bigotry. One ruling which called it a “doctrine of bigotry” yet it wasn’t declared unconstitutional. Yet a judge from Hawaii did.

    Finally, I’m not advocating using this yahoo’s ruling as a justification to go against Blaine. I’m just enjoying watching the extent you folks will do intellectual gymnastics not to say the judge in Hawaii is a bozo.

  32. bearcreekbat

    Okay Troy, I appreciate the fact that you

    cited at least one US Supreme Court ruling that declared the Blaine Amendment as motivated by open bigotry.

    Justice Thomas’ statements were accepted by a “plurality” of the Court in the case you cited, which suggests his statements deserve some respect and deference. I just wonder if you can give the same deference in cases where you disagree with the decision, like, for example, the 7-2 majority decision authored by Justice Blackman in Roe v. Wade?

  33. Here Troy, here’s an editorial from the very conservative Sioux City Journal and the New York Times documenting the GOP chastising King. This is the same Congressman who received South Dakota GOP members money.

    Heck, Dan Lederman is your party head…call him.



  34. mike from iowa

    King is getting strong support from western iowa for his remarks. I haven’t the foggiest idea why.

  35. Darin Larson

    Troy claims “intellectual gymnastics” are necessary to support the judge’s decision in the Hawaii challenge to Trump’s latest ban. What kind of intellectual skill does it take to listen to Trump say he was going to ban Muslims and then remember that promise a matter of months later when he put his ban in place. It is like adding 2 and 2 together and Troy feigns amazement that we came up with 4.

  36. Some people might say that it should be illegal to have laws – as all them damn things require too much intellectual gymnastics to read and write. Especially for the rural folk.

    Ahhhh… the art of trivialization. Ya gotta love it; don’t ya Troy.

  37. We need a “Hell No Party” [political] in America. Only because an awkward few still give this President any benefit of the doubt.

    What poor judges of character they are – and unable to discern between right and wrong nor truth nor lies.

  38. Darin,

    By your standard, if the Blaine Amendment was targeted against Catholics it should be Unconstitutional, regardless of the actual words.

    I disagree on both counts (Blaine is unconstitutional and Trump ban is unconstitutional). You though have different standards depending on if you agree. So mucch for the rule of law in your world.

  39. bearcreekbat

    When asked for evidence that the Blaine Amendment was designed to discriminate against Catholics, Troy stated: “I cited at least one US Supreme Court ruling that declared the Blaine Amendment as motivated by open bigotry.” This appears to be a reference to the Mitchell v. Helms’ case, in which the plurality held that the law aiding both public and private schools “is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated.”

    Recalling that many of Troy’s sources seem often to be misunderstood or mis-described, I decided to take a second look at Helms to see if Troy’s assertion about the Court’s “ruling” was accurate. Justice Thomas made a single, short statement about the Blaine Amendment:

    . . . Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’ consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” See generally Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992).


    The 1993 article by Steven Green that Thomas cites provides a good background to the proposal and consideration of the amendment. In the late 19th century Catholic immigrants were attaining more and more political influence and leaders in the Catholic church began demanding that tax dollars support Catholic schools. Protestants objected to using tax dollars to support any sectarian religion. It is this disagreement about whether to use public funds to pay for Catholic and other sectarian groups that Thomas and apologists describe as religious “bigotry.” Green’s article is excellent and well worth the read:


    Thomas’ statement is not a “US Supreme Court ruling that declared the Blaine Amendment as motivated by open bigotry.” It is not a ruling at all, rather it is simply an interpretation Thomas chooses to give to the political conflict between Catholics and Protestants. It has nothing at all to do with a single ruling, finding of fact, nor the outcome in the case.

    Meanwhile, ten years later Green wrote:

    . . .the prohibition of public funding of private sectarian schools arose independently of anti-religious animus. Long before any period of significant Catholic immigration, the principle of no-aid was established in development of the public schools in this country with the use of the term “sectarian” applied to Protestant entities. Both the gradual development of public schools and the application of the term sectarian in that development and the debates about funding schools counter attempts to reduce state constitutional no-aid provisions to anti-Catholic measures.

    Steven K. Green, ‘Blaming Blaine’: Understanding the Blaine Amendment
    and the ‘No Funding’ Principle, 2 First Amendment L. Rev. (Winter 2003).

  40. GOPs should embrace impeachment. The sooner Trump is impeached and removed from office, the sooner the unqualified fringe yes-men will be booted from the executive branch with him and the nation can move past the constant lies, propaganda and incompetence with a President who is up to the job and will hire others who are up to their jobs.

  41. Bear,

    Regardless of the any potential merits of opposing taxpayer subsidy of religious schools, the environment in South Dakota and this country was openly virulently anti-Catholic which politically made institutionally codifying the Blaine Amendment in State Constitutions. It is important to also remember the context of that time that Protestant ministers were given time during the school week to teach religion and there was prayer in schools which were let’s just say not ecumenical. Another reference to the time: Read Philip Hamburger’s study “Separation of Church and State” (Harvard Univ. Press, 2002) where he gives the context I mention.

    But, in the end, you are going to pretend anti-Catholicism wasn’t the motive of the Blaine Amendment but a enlightened view with regard to Separation of State and Religion and somehow the rule of law is served by what this Hawaii judge did.

    My position is wholly consistent:

    1) If the text of Blaine Amendment is Constitutional on its face (even if as Cory asserts it is duplicative of the Establishment Clause), the motives of its sponsors is irrelevant and it needs to be dealt with in the political realm. Or conversely, if unconstitutional, it is unconstitutional regardless of the motives of its sponsors.

    2) If the text of Trump’s travel restrictions is Constitutional on its face (doesn’t matter who writes it), the motives of the sponsors is irrelevant and it needs to be dealt with in the political realm. Or conversely, if unconstitutional, it is unconstitutional regardless of the motives* of its sponsors.

    * Whether sincerely motivated by national defense matters or any other legitimate motive or hidden or open bigotry.

  42. mike from iowa

    Sectarian as it was understood in Ireland when I wuz growing up, was violence between Catholics and Protestants.

    Master are we having a problemo with emails now? I send to you they immediately come back with a phishing notification. How am I ever to get the holders of US debt to you to beat wingnuts over the head with?

  43. bearcreekbat

    Troy, you are overlooking additional judicial obligations when reviewing a law that is “Constitutional on its face.”

    First, the court is required to determine whether the law is merely a “pretext” that uses language that is “Constitutional on its face” to accomplish an unconstitutional act. This makes it necessary to consider motive.

    Second, the court must determine whether implementation of the law results in unlawful discrimination. If a facially neutral law prevents Catholics or Muslims from full and equal participation in our society, then that law may also be unconstitutional.

    Justia law reports

    A classification that is ostensibly neutral but is an obvious pretext for racial discrimination or for discrimination on some other forbidden basis is subject to heightened scrutiny and ordinarily invalidation.


  44. BCB points toward a key difference between the Blane amendments and Trump’s anti-Muslim travel bans. I can point to an entirely constitutional basis for denying public funds to religious schools. The Trump Administration has failed to offer a constitutional justification for its travel bans. Additionally, it has failed to provide evidence of any compelling state interest served by targeting members of one religion for this treatment.