For a time, top of mind and above the fold was news of Trump’s travel bans, classic and redux and their serial invalidation by federal district courts around the country. But recently the Fourth Circuit, comprised of Maryland, the Virginias and the Carolinas, became the first appellate court to rule against the ban. The news was drowned out by “the Russia thing” then Trump’s renunciation of the Paris Climate Accord and finally the Tower Bridge/Borough Market atrocities. Time to pause and give the Fourth Circuit its due and consider what that court was really rejecting – de facto establishment of state religion as much or more than institutionalized Islamophobia.
Remember the big word “antidisestablishmentarianism?” For people of an age it was childhood’s longest, until Mary Poppins topped it. And once you could spell it, you learned that it meant opposition to ending the Anglican reign as England’s established church. Followed with the social studies teacher’s admonition that our Constitution prohibited official state religion and America had thrived, replacing Britain as world leader in part because of that. And good civics teachers went on to contrast our history with other nations’ that struggled with constant tension between God and Caesar and oppression of countrymen who worshiped lesser gods.
Then came the Fourth Circuit, already on a roll, having invalidated North Carolina’s racially gerrymandered congressional district lines and that state’s surgically precise attempt at suppression of the African-American vote (HL 36 and HL 38). On May 25th the circuit court sitting en banc (with 13 of the court’s 15 judges participating and two recused) struck again, upholding the Maryland district court’s order enjoining the second travel ban.
It has been constantly and inaccurately reported that Trump’s bans restricted immigration and travel from seven and then six “predominantly Muslim” countries. They are Muslim countries, each having established Islam as the state religion and several applying Shari ’a law in courts and as the foundation of legislation. We see how that’s turned out in Sudan, Somalia, Iran, Libya, Syria, Yemen and Iraq, the dropout from the first travel ban. Their citizens seek haven everywhere and especially in America, that has never permitted an establishment of religion.
Though implicit in the overall structure of the Constitution, the prohibition of state religion was made explicit by the First Amendment’s establishment clause. Then came Trump and many in his base who called for the restoration of America’s greatness as a “Christian Nation” founded on Judeo-Christian values. That this aspiration invoked a false history and required trampling on the Constitution does not deter the base or the fake President. But the courts, they be another thing. And here you will first hear what will happen in SCOTUS. It will rule the travel ban unconstitutional by a vote of 6 to 3 and possibly with even a greater number in the majority.
Justice Gorsuch will be in that majority, not because he is a great defender of the First Amendment. But in an early case, he will be eager to show he’s not Trump’s bitch. We doubt he is. He is his very own deceptive and dissembling jurist HL 26.