COMMON LAW: A Religious Test For Immigration

The short answer is still that the ban would most likely be found unconstitutional, but I was overstating my case to add “wildly.” While the bulk of legal opinion I found on the issue agreed with me, I did find voices like Eric Posner in dissent. So what are the constitutional arguments against a ban on Muslim immigration, and where might a hypothetical Trump Administration look to defend the legality of its policies?

— Don Zeko, A Religious Test For Immigration?, at Common Law

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5 thoughts on “COMMON LAW: A Religious Test For Immigration

  1. I’m a layman, not a lawyer, but one type of religious test is I think you can prioritize people who are being persecuted. Christians and Yazidis in the Middle East could be prioritized over Muslims because they receive more than their share of violence from Sunnis and Shia in their neighborhood.

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    • Correct. You can push somebody to the head of the line if their religious identity supports an asylum claim. That’s extremely different from Trump’s proposal, and you can see why it survives equal protection analysis. If the government is trying to protect persecuted religious groups via the asylum process, then looking at whether or not they are member of a persecuted religious group is narrowly tailored to that purpose.

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      • Is their some filter that prevents the ‘import’ of a protected persecuted religious group, that would create a persecuted religious group, internally within the nation? Or are we assuming the internal cost of protection internally upon acceptance? If it goes pair shaped is their a Plan B?

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        • What do you mean by the ‘import’ of a persecuted religious group? Do you mean that the persecution would be imported along with the victims of the persecution, rather than being left behind with the persecutors?

          Realistically, can you come up with an example where that would apply in a context of immigration to the US? What is the religion that is currently persecuted severely enough abroad to warrant refugee status on the grounds of that persecution, that is likely to suffer significant persecution in the US (much less than what they’re fleeing from, but still significant)?

          I think the orthodox assumption is we don’t have religious persecution here – that we live in a paradise of secularism and religious tolerance. (And to the extent we don’t, to the extent a particular religious group is persecuted here, members of that group will be seeking to emigrate rather than immigrate)

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          • I was trying to account that religious factions will likely be in conflict if randomly dropped into a nation full of other religious factions. You don’t neccesarily get rid of persecution by moving factions around, you just change scenery, or create another persecuted faction.

            As much as I would like to think a specific nation could be a true melting pot, this tends to not be the case. By my estimates 70% of people have prefered religious factions. The faction members want their faction to be the one driving the bus.

            Depending on local conditions the degree with which they invest authority into the religious faction can determine how much escalation occurs. Maybe during times of comfort the conflicts of faction are minimal, but when difficult times occur, this may not remain constant.

            “that we live in a paradise of secularism and religious tolerance.”

            If you can keep it, what happens when it isn’t kept?

            Is Plan B cascade failure? What does that look like?

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