by Joshua Sparks
We must zealously protect our First Amendment rights in the wake of President Trump’s Muslim travel ban.
The suspension of travel to the United States imposed by President Trump’s recent executive order has sparked controversy, and the recent court decision scotching implementation likely has not diminished frustration with what amounts to a ban of Muslim immigrants. Trump’s order blocked travel from several predominantly Muslim countries, (with the notable exception of Christian refugees), stranding many at international airports, turning away others, separating families, slowing travel times, and affecting students and even people who assisted the U.S. military. Talk of priority for Christian refugees has led to the assumption that there will be an enforced religious test for prospective travelers, which is forbidden by the First Amendment of the United States Constitution. The initial confusion and distress caused by the order may have passed, but the Trump administration’s vow to continue to fight for this ban provides an opportunity to candidly discuss the First Amendment and its protections.
According to our Constitution, the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
This freedom has allowed many people from all walks of life to engage in discussions about their beliefs, free from the meddling of the United States government. Or, as former Supreme Court Justice Joseph Story explains, “[t]he whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice; and the Catholic and the Protestant, the Calvinist and the Armenian, the Jew and the Infidel, may sit down at the common table of the national councils.”
This common table has grown to seat a number of other beliefs, including people who are Muslims, Hindus, agnostics, atheists, and non-practicing theists, among others. This common table shared by those of different beliefs is part of what makes our country great. It allows us to speak freely about matters of conscience, thereby contributing to our larger culture as a society.
The founders placed this clause in the First Amendment to defend the right to maintain a unique identity, giving the people a true choice in democracy – something no true democracy would be without. The amendment is important because it allows for differing viewpoints to exist without federal hostility.
Unfortunately, if this right comes under attack in any way – not just ways that affect the majority – the integrity of this right weakens. If a religious ban, or any unconstitutional law, is passed, then we are relinquishing our rights to the interpretation of the courts, who must determine these laws’ constitutionality, leading to further straying from the original intentions of the framers.
Originally the state governments had great autonomy to celebrate religious institutions, including state meetings that included prayer, state-funded nativity scenes, and secular funding of religious institutions, such as churches and mosques. Recently this religious celebration has been challenged, fostering a political scene that leads to religious intolerance.
This straying from the framers’ intentions is in some ways already happening, as the Constitution was originally designed for the federal government only, and thus had limited power over the states. But through the Supreme Court deciding cases for state governments and legal precedent, the limitations of federal government have been applied in many contexts to state governments, and will continue to be so applied in the future.
This is on the wings of the Supreme Court arbitrarily applying the Constitution to state law to sometimes champion religion, and sometimes prohibit it, with no seemingly coherent formula. The same Supreme Court that has allowed people to celebrate their different beliefs at the state level is beginning to prohibit them at the state level more often, turning towards the French brand of freedom of religion, called laïcité.
Laïcité is essentially making religion a private affair of the people, not to be endorsed or celebrated in public. But as time goes on, it seems popular favor has turned toward a particularly offensive form of laïcité: the ban of certain religious people from the public sphere. If this is breach of First Amendment rights is upheld, this ban and religious test will be a blow that will begin to dismantle the common table seat by seat.
So now the executive branch of our government is enforcing a ban based on religious origin and the way people express themselves, and we must be aware of the problem, because a right that is not enforced is a right lost – not only for Muslim immigrants but for the core of American society.
We must study our rights closely in this new age of alternative facts. As our understanding of our rights increases, we will be able to better safeguard our social, political, and religious freedoms that have made our nation a great place to live.