The Supreme Court and Religious Liberty: The Plot Thickens

The last day of the Supreme Court term never disappoints on drama.  And this morning, the drama related to the First Amendment and religious liberty.  Religious school funding, bakery objections to same-sex weddings, and President Trump’s Travel Ban — major action on all three fronts happened today.

SCOTUS

First, the Supreme Court (after stalling for half a year) issued its long-awaited Trinity Lutheran decision.  The Court held, 7-2, that denying a church’s application for shredded tires for its playground surfaces — on the sole basis that the playground belonged to a church — violates the Free Exercise Clause of the First Amendment.  “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”

We should expect to see dozens of new lawsuits this summer seeking to enforce the Supreme Court’s reasoning.  The effect of the Trinity Lutheran decision is that dozens of state laws around the country prohibiting governments from aiding or funding religion (even if similarly situated non-religious non-profit organizations can receive those same government benefits) are about to be struck down.  Most of these laws are more than a century old and were enacted in order to promote Protestant-focused state schools over Catholic private schools.  

Although some questions remain — such as the extent to which governments can still decline to give funding to purely religious activity — the overarching rule is that the government must treat churches neutrally as compared to other organizations when dispensing government grants for basic services.  In the next few years, expect to see an uptick in the number of and funding levels for religiously-affiliated private schools.

Second, the Supreme Court (after stalling for half a year) agreed to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission.  This is one of the classic “refusal to bake a cake for a same-sex wedding due to religious objections” cases.  With the addition of Justice Gorsuch to the Court, the expected outcome is that the Supreme Court of Colorado will be reversed, and the bakery will be permitted to refuse to bake same-sex wedding cakes.  

The interesting question to watch is whether the Court will let bakers refuse to make wedding cakes on Free Speech or Free Exercise grounds.  The Free Speech argument is significantly stronger — the theory is that the Government can’t force an individual artist to create artistic expression that contradicts his or her beliefs.  More significantly, a ruling on this ground would not allow every store owner in America to state a “religious” objection to serving people (i.e. races, genders, religions, and sexual orientations) they disagree with.  Rather, the store would first have to prove it was providing an individualized and artistically expressive service.  So bakeries and photographers would likely qualify — but pizza shops, craft supplies stores, hoteliers, and more “fungible” retail commodities would not.

The Free Exercise Clause argument is weaker.  This is because Colorado’s public accommodation law — i.e. its requirement that private businesses cannot discriminate on the basis of race, gender, religion, sexual orientation, etc. — is a general law that does not target any religious conduct specifically.  For nearly 30 years, such general laws which incidentally affect religious beliefs have been consistently upheld.  [1]

But it is possible the Supreme Court could use Masterpiece Cakeshop as an excuse to jettison or significantly scale back these 30 years of jurisprudence.  The Supreme Court could hold that the bakery has a constitutional right under the Free Exercise Clause to refuse to bake a cake for same-sex couple.  That would be a landmark decision and a huge shift in the law. In footnote 2, Trinity Lutheran today may have just signaled the Supreme Court’s openness to going down that path.  (“[Not every] application of a valid and neutral law of general applicability is necessarily constitutional under the Free Exercise Clause.”).

Third, the Supreme Court (after dramatically condensing its ordinary procedures) consolidated and then agreed to hear two challenges to President Trump’s Travel Ban. The cases are set to be argued when the Court returns in October.  

But in a twist, the Supreme Court permitted President Trump to resume banning the entry of foreigners from the six affected countries, if they have no prior connection to the United States.  Per the Court: “In practical terms, this means that [the Travel Ban] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.”  Somewhat scarily, three Justices dissented from even that — they thought the injunction against the Travel Ban should only stay in place as to the specific parties before the courts in specific cases. [2]

This partial-lift has the potential to prompt mass litigation chaos over the summer.  The Trump Administration may attempt to deny visas to and block the entry of foreign nationals without “credible” enough connections to the United States.  Meanwhile, the ACLU and other organizations will be rushing to substantiate those “credible claims” by seeking to certify specific lists and classes of foreign nationals with such demonstrated United States connections.

We’re in for a wild ride

 

[1] The most prominent “religious freedom” victories over the past decade have won when the religious objectors can take advantage of a Religious Freedom Restoration Act.  These are special federal and state laws that allow individuals to object to any government action that “substantially burdens” their religious beliefs.  It was under the federal RFRA that Hobby Lobby won five years ago.  Hobby Lobby was the Christian owners’ challenge to the Obama Administration’s requirement that private employers must provide insurance coverage for contraception.  Colorado has never passed its own Religious Freedom Restoration Act, which would provide a heightened level of protection for all religious objectors, including potentially the baker here.  Colorado’s last attempt to pass such an Act failed earlier this year.  

[2] Considering that these same three Justices (Thomas, Alito, and Gorsuch) are usually among the strongest in terms of religious liberty and joined the majority in Trinity Lutheran, court-watchers should be concerned that they may not view the Second Coming of the Travel Ban as a “religious liberty” case at all.

Comments

  1. What Trinity Lutheran means is that our Supreme Court has no problem with a state government taxing you or me and then giving that money directly to a church we don’t belong to or agree with. A surprising outcome. So Texas or Southern fundamentalist Evangelical Christians get to finance the Mormon Church through their tax dollars now. Though they’re cheering this decision, I’m not sure if they’ve thought about it that way before. But they will when the Mormon Church stands to receive a bunch of tax money from the State of Texas or Mississippi (or Iowa or anywhere else). Why? Because despite all their grandstanding and posturing when all they’re thinking about is how *they* will get that tax money, when the shoe is on the other foot and the Mormon Church stands to receive some of that money, suddenly the common-sense and critical concern of “Hey, I don’t agree with anything about the Mormon Church; they’re evil and immoral and actively seek to undermine us good fundamentalist Evangelical Christians, and so our tax money should not go to benefit them” will instantly become relevant again. But Trinity Lutheran will bind them. And, guess what? They will then blast the Supreme Court as some kind of “liberal” legislation from the bench, though they applaud the decision when they think they’re the ones who will be getting that money. Bad faith all around. And I had thought the justices in the majority had more, you know, old-fashioned, solid Americanism running in their veins. Guess not.

  2. I suspect that for Thomas, Alito, and Gorsuch, “religious liberty” means “liberty to be a Christian.” Though perhaps that is uncharitable, do they rule the same way in cases involving the religious liberties of minority religions?

  3. Yes, that is Gorsuch’s track record on the 10th Circuit — to safeguard religious freedom for all comers, not just Christians. This is something different. It weakens the separation of church and state.

  4. Please remember that the cake baker is not against selling gays cakes. He is against being forced to create a custom cake, or being forced to cater a gay wedding.

  5. Carolyn says:

    @Mark L. Right. That’s the interesting part of the case. If he refused to sell identical cookies out of his display case to a gay couple, he would almost certainly lose. It’s the wedding-cake-as-individual-work-of-art-and-customized-individualized-service that presents the interesting legal questions.

  6. Can you tell my why these Certs shouldn’t be scaring me? Because they are, frankly.

  7. john f: Rest assured, the Church of Satan will use the results of this ruling to troll legislatures mercilessly.

  8. it's a series of tubes says:

    What Trinity Lutheran means is that our Supreme Court has no problem with a state government taxing you or me and then giving that money directly to a church we don’t belong to or agree with.

    Actually, what it means is, if the government is choosing to give money away, it cannot deny money to a religious organization SOLELY on the basis that the recipient is a religious organization. Not quite a light-year from your statement, but close to it.

    For those who can be bothered to RTFA:
    https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf

    “Held: The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.”

  9. Carolyn says:

    @Tracy M. The Travel Ban certs aren’t scaring me, yet. It’s scaring me that the Alito/Thomas/Gorsuch trifecta exists — but the Supreme Court granted cert because this is a case of national and constitutional importance in which it needs to establish it’s role as an independent power. There are at least 5 votes for that proposition, hopefully 5. Hopefully 9, honestly. But I can’t imagine a world in which Trump’s Travel Ban is upheld. If I’m wrong, I’m terrified.

    As for Masterpiece Cakeshop … I’m not scared yet because I –think– the Supreme Court’s ruling will be fairly narrow and on free speech. If it’s not narrow, then…you may want to be scared.

  10. Wilhelm says:

    “…court-watchers should be concerned that they may not view the Second Coming of the Travel Ban as a “religious liberty” case at all.”

    Obvously you meant “court-watchers with lib-prog views like mine” or some permutation thereof, since, though I am a court-watcher, I would be delighted by such a view.

  11. Tubes, “But the decision wasn’t as broad as it could have been, and left many questions about what kind of church programs could receive public money. Even as conservative groups celebrated the decision, they were unsure of its impact in other cases, including fights over using state money for students to attend private religious schools” (https://www.wsj.com/articles/supreme-court-decisions-on-religious-issues-hearten-conservatives-1498508652?mod=e2tw).

    Here’s the other cases “conservative groups” weren’t sure about: whether this means taxpayer money in Texas or Mississippi could be taken from fundamentalist Christian citizens and given to the Mormon Church for some program or other.

  12. it's a series of tubes says:

    John, did you read the opinion? The WSJ quote you provide reinforces my point. The decision WASN’T as broad as it could have been; it’s certainly nothing like the picture you paint in your initial comment.

  13. Old Man says:

    I agree with the Trinity Lutheran decision. If government is to be religiously neutral (not favoring nor intolerant of religion), this is the only rational response. It is, however, a blow against militant secularism, in which religious institutions are never taken seriously. And using the LDS Church as an example of an institution potentially taking government dollars in the United States is rather laughable. It is amusing that liberal Mormons posting on a blog use their own faith as the worst-case scenario to scare other Christians.

  14. john willis says:

    two questions,
    1.) on the travel ban, will the L.D.S. historians who filed an amicus brief with the ninth circuit change the caption on the brief and file it with the supremes ???

    2.) on the baker and the gay couples wedding cake will the church file or join an amicus brief.??
    Will they stress the free exercise issue or the freedom of artistic expression ??
    I am sure the attorneys for the baker will argue both issues in the alternative.
    I wonder if the people who think the baker should win on the free exercise clause argument would feel the same way if the baker refused to make a cake for an interracial couple ??
    Many people felt that marriage between blacks and whites including members of the L.D.S. church was against the scriptures. They could point to biblical passages supporting their view.

  15. jaxjensen says:

    Wilhelm beat me to it. I’m a court-watcher with no fear of SCOTUS upholding the travel ban since it isn’t a religious liberty issue. I sincerely hope that they DON’T view it as such. Doing so would worry me greatly.

  16. Tubes, I’m not saying the opinion is as broad as you think it could have been. I’m saying what the actual effect will be. That taxpayer money can be given directly to churches for some purposes.

  17. Loursat says:

    A reminder for anyone who might be forgetting: the travel ban is obviously a religious ban and a religious freedom issue.

    Suppose a president campaigned on promises of racial purity, then banned immigrants from several central African countries, claiming that he wanted to keep lazy people out of the US. That would be a racial ban—even if there were a bunch of people claiming it’s really a way to make America industrious again.

    Just as he promised, Trump’s order is a religious ban, even though some people now claim it is something else. It is a shameful example of religious bigotry.

  18. Bruce H. says:

    Not my transfer, but I was a youth in a branch in northern Montana when one the elders kissed a 16yo girl in the branch. The rumor was that the MP’s reaction was, “Finally! A spark of life!” but the elder was transferred post haste.

  19. The effect of Trinity Lutheran is not straightforward. On its face, the decision might apply narrowly. In this case, the Supreme Court ruled that the state may not refuse to subsidize safer playground surfaces at a parochial school just because the school is sponsored by a church. If the decision only applies to equal treatment of religious organizations in non-religious activities (like building school playgrounds), then it seems right to me. However, there is a good chance that Trinity Lutheran will be interpreted to require the government to subsidize church-sponsored activities that involve proselyting. For example, the government might have to provide vouchers to religious schools and subsidies to church-owned adoption agencies where participants are indoctrinated. I think that crosses a line that the Establishment Clause is designed to protect. That’s why I find Trinity Lutheran troubling.

  20. Loursat: this is where the Church of Satan comes in. You just know that they’ll open up homeless shelters, adoption agencies…

    Or, if not the Satanists, how about Scientology?

  21. Thanks. This kind of summary has become a valued characteristic of BCC.
    As briefly as I can, since I’ve said it before, I continue to watch for:
    > Trinity Lutheran: The ongoing effort to promote religious schools, threading the needle between Establishment issues (public funding) and Exercise issues (regulation). Current events and administration can be described as big wins for the public-money-with-no-regulation camp.
    > Masterpiece Cake Shop: Expression vs discrimination. Obviously an expressive act can be harmful and there has to be a limit. Our increasingly connected world is making this more so. (But for the particulars, even if cake decorating is in general Expression that warrants protection, I would think the claim to protection is weak for scribing (or not) what somebody else dictates.)

  22. Mark B. says:

    A reminder for anyone who might be forgetting: before you ever get to any religious questions relating to the “travel ban,” you have to pass over serious separation of powers issues and jump onto a never-before-established right of non-citizens outside of the U.S. to make claims to constitutional protection.

  23. I know human nature too well to be surprised that so many Mormons are willing to throw another religious minority under the bus, but it’s still pathetic. And a waste of time–siding with the far right Protestants on bigotry against muslims (and gays, and feminists, etc etc) won’t prevent them from turning on Mormons in a heartbeat.

    Or have you forgotten why the Church abandoned polygamy? And why they were in Utah in the first place?

  24. it's a series of tubes says:

    That taxpayer money can be given directly to churches for some purposes.

    John, the “actual effect” will be this: if taxpayer money is being given away as part of a public program, a church who otherwise would qualify under the program cannot be denied simply because they are a church. So yes, churches might get tax money. So might the Elks lodge. Or an LLC. Or an S-corporation owned by a LBGT black veteran woman. The government isn’t permitted to discriminate among them on the basis of STATUS as a religious organization.

  25. Mark B. says:

    You may know human nature all too well, Nepos, but you don’t know me, and it seems apparent that you don’t know the first thing about what it means to be a judge.

    Just because something is wrong does not mean that there is a judicial remedy, and just because one believes that there is not a judicial remedy does not mean that one agrees with the wrong.

  26. Elder Holland, in September 2016:

    “[G]overnments today are not responding to the refugee problem urgently enough, nor on a large enough scale.”

    How do most U.S. Mormons react? By voting for “Muslim ban” Trump and then cheering his efforts to stop refugees from entering the U.S. from Syria and other places.

  27. Tim what’s your position that most Mormons cheer his efforts to stop refugees? It seemed to me that Mormons were one of the strongest groups in the GOP against Trump. It’s just that when push came to shove they were unwilling to vote for Clinton over him. Had the Democrats not nominated a candidate nearly as hated a Trump it’s quite possible the election would have been quite different.

    I searched and I couldn’t find any polls for recent for views on refugees among Mormon or even Utahns. (And remember that Mormons make up 60% of Utah with that 40% non-Mormon group often being quite conservative and frequently more pro-Trump than Mormons)

  28. Whoops. Hit send too quickly. The SLTrib has a poll showing most Utahns oppose Trump’s refugee policy. http://www.sltrib.com/home/4868255-155/utahns-oppose-trumps-plan-to-curtail

  29. For some reason my corrective post went into spam. I’d linked to a SL Trib poll that 55% of Utahns opposing Trump’s refugee plans.

  30. “If only the Democrats . . . ” is a sad excuse for the GOP nominating Trump in the first place.

  31. “when push came to shove they were unwilling to vote for Clinton over him”

    Um, that means they were for Trump in this election.

  32. The numbers (“most Utahns oppose”) are not particularly comforting. The January 2017 poll showed 40% of Utahns supporting or strongly supporting Trump’s refugee policy. That 40% is almost all Mormon.*

    * I assume almost all of the 40% voted Republican. We know that about 60% of Utah is Mormon and about 70% of U.S. Mormons declare themselves Republican. 60% X 70% = 56% which implies that more than half of Utah voters are Mormon and Republican. Compare that to the fact that about half of Utah voters register as Republican. There’s surely some overlap, double counting, mixed reporting, etc. But the gross size of the numbers means that most Republicans in Utah, hence most supporters of Trump’s policies, are Mormon.

  33. Some on this thread have claimed that the travel ban cases are not about religious freedom. That claim is false. Questions about the extent of executive power are important in these cases, but they are still cases about religious liberty.

    As Mark B. no doubt knows, the legal analysis of these cases does not necessarily require the courts to resolve the questions about separation of powers and the rights of non-citizens before taking up the Establishment Clause. In fact, all of these issues are legally interrelated in these cases. Religious freedom ought to affect the way the courts understand executive power in these cases. It is true that suspending the travel ban requires the courts to apply the Establishment Clause in a somewhat novel way. That’s appropriate when the courts are faced with such raw bigotry as we have here.

  34. Hmm. My comments seem to all be going into spam. I’ll try and layout the statistics of why I think it wrong to say Mormons are for Trump over at T&S.

  35. No matter how you feel about the merits of the travel ban, whether you believe it violates religious liberty or not, the question of whether the first amendment’s religion clauses limit the President’s power in immigration/foreign affairs is very much a religious freedom question.

  36. jaxjensen says:

    ““[G]overnments today are not responding to the refugee problem urgently enough, nor on a large enough scale.”

    Agreed, but noting that importing refugees isn’t the only possible response to the problem. There are plenty of ways to respond to their needs without bringing them across an ocean onto a new continent. Our gov’t COULD respond more urgently without bringing a single one here… they won’t, but they could.

  37. Granted, I only have anecdotal evidence that most Mormons support Trump’s ban. Pew Research claims that 61% of Mormons voted for Trump, so it’s clear that Trump had support from the majority of Mormons.

    As far as supporting refugees, the U.S. is doing far less than many, many other countries. The refugees we do accept, however, are typically better off–instead of placing them in tents, we give them the opportunity to work and obtain green cards, and we give them the opportunity to create stable lives here. Refugees then become valuable, contributing members of our society. Communities in the U.S. with relatively large numbers of refugees–such as Twin Falls, Idaho–tend to flourish.

  38. Turning away refugees is a sure way to spark distrust, fear, anger, etc. etc. There’s no way turning away refugees makes us more safe. But go ahead, those of you who think so, keep believing in your fantasy theories–I’m sure you’ll find a way to blame the opposite side for any negative results. Trump has already been and will continue to be a great recruitment tool for people both within and without the country of nefarious means.

  39. jaxjensen says:

    This was a Facebook post I had last week RE:refugees…

    We had an outgoing missionary speaking at church today. I suppose it was a good talk on Charity, missionary work, and not judging. She talked about treating everyone well and helping others. I got sidetracked by one little bit of it though.

    She was in Greece (were her father is the mission presidentand was speaking about the many Muslim refugees over there that she worked with. Paraphrasing, she said something about “the Muslims from this one particular town were highly persecuted and COULD NOT be in the same refugee camp as other Muslims. They had some peculiar beliefs and if they were with other Muslims then …” She stammered for a second “… then, um, there would be conflicts.”

    I’d like to know what she was going to say when she stammered. … the other Muslims would kill them? The other Muslims would steal from them? Rape them? Beat them up? What exactly does “conflicts” mean in this case? She was going to say something else, but rather than say the specific truth she thought better to just generalize it as “conflict”.

    I thought it very telling that this person, who had been among these Muslim refugees, knew them personally, and was talking about helping them, also knew for a fact that they would cause problems for those with different beliefs than themselves. That they would cause conflict. I would be good money she was going to say “if they were with other Muslims then they would be killed.” Because if it weren’t a matter of life and death, then they wouldn’t be allowed private refugee status and housing.

    When resources are scarce, like in refugee camps, having personal disagreements doesn’t get you separated. But being a potential murder victim does. And not even the “potential” would do it. It would take a valid credible threat, recognized by the authorities as legitimate, to do that. But it doesn’t really matter what that missionary’s stammer was going to be… death, beatings, rapes, or other “persecutions”… it all boils down to the fact that these Muslims aren’t peaceful! And the authorities and this missionary recognize it. They CAN NOT be with others peacefully.

    They weren’t just fleeing hostility and asking for aid. They were known to those among them to be hostile to those whose beliefs were different. They caused conflict and had to be kept apart; kept separate from those with different beliefs… even different Muslim beliefs.

    “But they are sooo peaceful, ” we are told. “These are the victims, not the hostile ones,” is another lie we are fed. At yet today at church I heard first hand testimony, from a person who spent time among them, that there would “be conflict” if these ‘peaceful’ people were mixed with others.

    Now that wasn’t the point that was emphasized by this returning missionary. She was trying to talk about doing good and serving and being charitable. She wanted to talk about helping refugees. But the message she shared also contained this fact, which even in her goodness and sincerity to help she couldn’t ignore, that Muslims as a group are not peaceful, and mixing them with others of different beliefs causes problems.

  40. Thanks, Jax, for the one story you have. Color me not convinced. I, too, have lived among large Muslim populations and I entirely disagree.

  41. Mike W. says:

    I’m trying to imagine a ward or stake in Texas submitting a government grant. Nope, can’t imagine being organized enough to accomplish any such task. Imagine if you were called by your SP and asked to head the “grant writing committee.” LOL.

  42. Mike W. says:

    *government grant application

  43. Can someone explain what the legal grounds are for overturning the ban? It seems to me that the US government discriminates all the time in all kinds of ways when it comes to immigration. So why would the court worry about this particular variant? I don’t understand the legal issue. Thank you for any illumination!

  44. Lc: In short, you can’t discriminate on religion.

    Regarding the Supreme Court (and lower courts’) review, there are lots of issues including standing, reviewability/separation of powers, Due Process, application to non-citizens, and more. But speaking to the discrimination issue, here are the words of the Ninth Circuit (citations removed):
    “The First Amendment prohibits any “law respecting an establishment of religion.” A law that has a religious, not secular, purpose violates that clause, as does one that “officially prefer[s] [one religious denomination] over another.” The Supreme Court has explained that this is because
    endorsement of a religion “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’” The Equal Protection Clause likewise prohibits the Government from impermissibly discriminating among persons based on religion.”

    In addition to the several issues noted above, there is a dispute about whether Trump’s Executive Orders in fact have a religious purpose–more specifically, about whether campaign promises, tweets, and other external evidence can be used to demonstrate purpose. I for one (actually for one of many millions) have no doubt that the Executive Orders are for the purpose of banning Muslims. (Note that purpose is intent, and not necessarily effective or best crafted or comprehensive.)

  45. Mike W. says:

    could members of Aum Shinrikyo been banned from entering the US? I.e. a small unpopular religion with terrorism as one of its hallmarks? If in fact ISIS is its own religion, can members of ISIS be banned?

  46. Thanks for this. Do the courts really require that constitutional provisions apply to noncitizens? E.g., From what I’m seeing, immigration types seem to be able to detain, search etc whoever they want at airports. Why is religion different? The logic doesn’t seem to apply — people who aren’t legal residents aren’t “full members of the political community” anyway. I’m convinced that Trump wants to ban Muslims, and I want to believe that the Supreme Court will agree, but it’s not obvious to me that it will. I’m hoping the optimistic predictions are right…..

  47. Mike W. says:

    LC, I believe it’s because the law specifically bans discriminating by religion when it comes to immigration. From what I previously read. I could be wrong.

  48. Mike W.: The standard answer is “they can be banned as terrorists, they can be banned as criminals, but they can’t be banned as ‘other’ religionists.”
    And then we get into difficult questions of purpose and intent. Note that, however difficult to prove in some cases, intent is for real, not just whatever you say it is or want it to be. Not something you can relabel. Doing a Muslim ban legally (cf. Rudy Giuliani) is just not possible, if the resulting plan is still at heart a Muslim ban.

    LC: The “constitutional provisions apply?” question is complicated . . . which means yes and no, or some do, some don’t and there are disputes . . . but really means this is where I know what I don’t know and will wait for others to fill in.

  49. I think many Mormons, though they may oppose certain Trumpian policies, voted for the man anyway, even if they oppose his immigration policies. A vote doesn’t equal complete agreement on all counts. (For the record, I voted Libertarian, as I have in every presidential election since 1988.) There may have been some hope that cooler heads would prevail, that campaign rhetoric was just for campaigns, that the man wasn’t really nuts.

    But the way the Church has been leaning politically lately, and with the immense national propaganda machine pushing a binary choice, I think members who go GOP would vote for Lilburn Boggs if he were the Republican candidate.

  50. As Christian says, the issue of whether constitutional provisions apply to non-citizens is complicated. Some certainly do, especially when you’re talking about non-citizens in the US. The prohibition on slavery, for example, doesn’t allow people in the US to keep non-citizens as slaves. It gets trickier when you’re talking about people outside the US’s territorial jurisdiction, but there are arguments on both sides when you’re talking about someone with some kind of relationship to the US. But also, there are two ways of framing it. One is as an issue of rights. But another is as an issue of restrictions on government power. That of course raises serious questions about standing–if a person doesn’t have a constitutional right to not be treated a certain way, but there is a constitutional prohibition against the government treating that person that way, can that person sue the government to enforce the prohibition, if not the right? Its complicated and largely outside my area, but it seems to me that it is at least sometimes arguably easier to satisfy the standing requirements than to prove that you have a constitutionally protected right.

    But again, the issue of when the first amendment’s religion clauses apply to non-citizens is a religious freedom issue b/c is is defining the scope of the rights that those clauses protect.

  51. Regardless of what the “correct” interpretation is, what would it say about Americans if we don’t extend the protections of our laws to outsiders?

    The Bible has a few things to say about how to treat strangers: “thou shalt neither vex a stranger, nor oppress him: for ye were strangers in the land of Egypt”; “Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.”

    While there may be a minuscule risk that a terrorist will slip into the country, allowing people to come here freely is Christian charity.

  52. AMEN!