Amici Curiae Brief by Scholars of Mormonism Opposed to Trump’s Refugee and Immigrant Ban

There has been much commentary on President Trump’s executive orders regarding immigration and refugees in the Bloggernacle; now, that commentary–or, rather, an expertly distilled legal expression of it–has made it’s way into the courts. Today, a group of 19 scholars of Mormon history have filed a brief attacking Trump’s ban on refugees and immigrants from six Muslim countries in the U.S. Court of Appeals for the Ninth Circuit. The primary author of this brief is Nate Oman, one of the Ancient of Days in the Mormon blogging world, and a writer whose skill and insight is known to many here. Among those scholars who put their name to the brief are Michael Austin, Claudia and Richard Bushman, Kathryn Daynes, Kathleen Flake, Terryl Givens, Ardis Parshall, Laurel Thatcher Ulrich, and more. Read the press release announcing the filing of the brief here; feel free to read the brief, ask questions about it, and engage in the sort of argument, debate, and grammatical nitpicking for which the Bloggernacle is famous for below. (Never Trump lives!)


  1. Aaron Brown says:

    Why do all you Mormon scholars hate America???

    Aaron B

  2. Because it’s not Denmark, duh.

  3. Kevin Barney says:

    I saw something on FB alluding to an amicus brief authored by Nate, but had no idea what it was. Thanks for this notice.

  4. Kevin Barney says:

    OK, I just now read the brief. It’s not that long; I would encourage everyone to do so. Well done, guys!

  5. I read the brief and approve. I understand the desire to make the amici a group of true experts in Mormon history, but I think it could have had very widespread adoption with hundreds, even thousands, joining.
    Never one to leave a criticism on the cutting floor, I thought the “long term effects well into the 20th century” (paraphrase from memory, not a direct quote) were not fully developed. Is that a page length issue, perhaps? The case could be made that the Church moved in the direction of white Protestantism in the 20th century, and to the extent it was successful discrimination largely ended. But that distinctive practices still get treated differently. For example, one might focus on temples (building, siting, permitting), and missionaries (immigration and visas, conflicts with selective service, tensions with the “normal” sequences of college education and athletics). Query how one would treat Priesthood (in the ’60s and ’70s) and Marriage (21st century)? I tend to think of both as the Church getting out of synch or falling behind changes in the broader society. But maybe it’s a kind of unfair discrimination to give a church or it’s members a hard time for being out of synch?

  6. christiankimball, keep in mind that the brief addresses only immigration issues (the only issues relevant to the lawsuit), and only official actions of the U.S. government, not social discrimination. The Evarts circular of 1879 was still being explicitly cited behind the scenes in countries around the world *into the 1920s* to deny missionary landing permits, deny American missionaries consular protection, and otherwise hinder proselytizing (and therefore Mormon immigration to the U.S. Behind-the-scenes State Department files now available to us document the long tail of those 19th century government actions, in ways that even Mormons of the day were unaware was happening.

    Also, courts are not as patient with overlong papers as academic historians are. :)

  7. Ardis: I could argue the “only immigration issues” and “only official actions of the U.S. government”, including using phrases and arguments from the brief itself. But no matter. Your Evarts circular *into the 1920s*, and behind-the-scenes State Department files, are the kind of thing I was looking for and didn’t find, in the 20th century spill-over section of the brief.
    I do know something about the differences between briefs and academic papers, and suspected that length was an issue all along.

  8. Sorry, didn’t mean to insult you. I’m bowing out of every part of this discussion, outside my sites.

  9. Ardis: Just to be clear, I neither heard nor felt any insult. Just conversation. I didn’t intend my “do know something” as any more than agreeing with you.

  10. John Mansfield says:

    How persuasive an argument is it that a government action is bad because similar action impeded the work of Brigham Young and John Taylor’s church? The argument is persuasive to me, but I like Mormonism, including its 19th Century past. For many the response may be confusion at the idea that modern immigration restrictions are bad if they are reminiscent of the old ones aimed at preventing Brigham Young from enlarging his theocratic kingdom with prospective polygamists from Europe.

  11. Clark Goble says:

    I was thinking the same thing John.

  12. I have a limit on how much time I can spend doing this, wording is hard and takes time to sculpt and polish.

    I get that we don’t all agree, and I respect that there will be those with different (and indifferent) opinions, but since I was horrified witnessing the effects of the travel ban on good folks’ lives, and knowing that such things were done by our government, I vehemently disagree with the wholesale ban of everyone from the singled out countries. I want to be on record in agreement with this.

    I read the brief to the best of my lay-person’s understanding and found the legal forms interesting. I suppose they serve a good purpose, if only to signal to the legal cognoscenti that this was done by one of their own. The list of signers is most impressive to those of us populating this small corner of Mormon stuff online. Every name has stellar street cred. But the action itself– with which I wholeheartedly agree, and find most appropriate in this context, makes my cynical heart crack with hope and pride to be peripherally associated with such a thing. Well done and Godspeed the effort.

  13. I did read the brief in its entirety and found its recounting of 19th century Mormon history as it pertains to immigration fascinating. However, I do not agree with the brief’s premise that President Trump’s refugee and immigrant ban is bad today because of what happened to 19th century immigrating Mormons. I’m just not connecting the dots between the two events.

    First of all, before I am put into a box by my statements below, during this past campaign I was firmly in the camp of Never Trump. I followed through with that on Election Day and did not vote for President Trump.

    Yet I support President Trump’s refugee and immigrant ban for the following reasons:
    1. I am concerned with the possibility of terrorist killing and maiming Americans on American
    2. The six Islamic countries banned for travel were all designated terrorist states by former
    President Obama.
    3. The ban is temporary.

    Are my fears about Islamic terrorist from these six countries coming onto American soil unfounded?

  14. “Are my fears about Islamic terrorist from these six countries coming onto American soil unfounded?”

    As to refugees and other well-vetted immigrants from these countries? Yes, absolutely.

  15. To Tim – So there is absolutely no possibility that terrorist can infiltrate refugees and other well-vetted immigrants from six countries that were designated sponsors of terrorism by former President Obama. Good to know.

    As I understand it, the ban is temporary to give America time to set up a proper vetting process for those six countries. Sounds like giving America time to do that is not necessary. Also good to know.

  16. Lilly lover says:

    Thom, while the brief is billed otherwise in some places, I think it explicitly does not support either side of the dispute. Instead, it argues that the court must give strict scrutiny to the question whether the ban is a pretext for discrimination on religious grounds. I hope someone who read it more closely will correct me if I have misunderstood the brief.

  17. (Response to Thom at 5:36 pm): To my mind, the critical argument in this amicus brief is this:
    “This Court should ensure that history does not repeat itself by taking a hard look at the government’s purported justifications for the Executive Order, and the “evidence of purpose beyond the face of the challenged law.””
    Although the brief does not take a position on purpose, many observers (including me) believe that evidence of purpose beyond the face of the challenged law very clearly points to a Muslim ban, a religion based test for immigrant and refugee status.
    In short, you can’t ban a religion even if you dress it up as anti-terrorism. If terrorism is really the issue, you should be able to show that the rules are tailored for and from the beginning targeted toward anti-terrorism.

  18. To Lilly lover and christiankimball – I mentioned in my 5:36 reply that I just was not connecting the dots between Trump’s ban and what happened to 19th century immigrating Mormons.

    Both of you connected the dots for me – that the brief is solely about discrimination on religious grounds and that has implications on Trumps ban. My opinion regarding Trumps ban and terrorism has not change but my understanding on the reason for filing the brief has. I thank you both for your excellent replies.

  19. Darryl Driggs says:

    I noticed these were history scholars and not legal scholars. The Supreme Court will most likely uphold the band.

  20. Russia’s supreme court has effectively banned Jehovah’s Witnesses from Russia. (Not just immigrants, but also the 170,000 already living there.) Plans are to confiscate church property for state revenue and punish worship with jail. This happened two days ago, not 200 years ago. Will BCC have a post about that? Will any of these fine scholars weigh in?

  21. One tends to speak out more in rhetorical environments where one’s voice can at least theoretically affect an outcome. Amici curiae briefs from American scholars, from what I have been told, have a very limited impact on the deliberations of the Russian Supreme Court, That said, as an official signatory of the above brief, I hereby state that is a very, very bad thing that Russia has outlawed Jehova’s Witnesses. Bad, bad, bad, bad, bad.

  22. Thom: Yes, your worries regarding Islamist terrorist in this country text could be considered unfounded:

  23. Michael Austin,

    I do appreciate your work on the brief and your signature. I am not in a position to say what influence it might have. I also don’t know what (if anything) would influence the Russians.

    But I have been amazed at how hard it is to get anyone to say much about what is happening. All the responses are either “Too bad but nothing I can do” or “I don’t like Jehovah’s Witnesses either.” And this despite the fact that A) it’s a big deal when a government and its state religion team up to wipe out another religion and B) Mormons are obviously next in line.

  24. “you should be able to show that the rules are tailored for and from the beginning targeted toward anti-terrorism.”

    A religious ban would ban more than those from states the previous adminstration called terrorist states by law.

    A terrorism related ban on select states would be restricted to failed states that are a hotbed of terrorism.

    If it’s related to Islam, then people are conceding that the failed states in question, which are hot beds of terrorism are failed because they are Islamic.

    No? Then the ban isn’t because they are Islamic. It’s because they are failed states with lots of terrorists. Non failed states, with terrorists, that are Islamic, aren’t banned because the states aren’t failed.

    So the ban isn’t motivated by religion but by failed states. And any event to say the failed states she targeted because they are Islamic necessarily implicates Islam with failed states and terrorism.

    You don’t get to have your cake and eat it too.

  25. Trump said during the campaign trail that he wanted to ban Muslims from entering the U.S. Additionally, Rudy Giuliani admitted that the proposed ban was what Trump’s advisers felt was “the right way to do [the Muslim ban] legally.” These statements–statements the Supreme Court will consider–indicate the ban was absolutely motivated by a dislike of Islam.

  26. Whenever immigration comes up, I think of Exodus 22:21. God was pretty clear about how strangers should be treated. Sadly, many American Christians ignore this command (while embracing the one about homosexuality.)

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