Supreme Court Upholds the Travel Ban Despite Underlying Bigotry

Today in Trump vs. Hawaii, the United States Supreme Court upheld President Trump’s Executive Order restricting nationals of eight countries, including six Muslim-majority countries, from entering the United States (“the travel ban”). Writing for a 5-4 majority, Chief Justice Roberts rejected challenges to the travel ban based on federal law and the First Amendment of the U.S. Constitution— which provides that the government “shall make no law respecting an establishment of religion,” and which is supposed to protect against government actions that favor or disfavor a particular religion.

The decision effectively looks the other way from the Islamophobia, xenophobia, and bigotry that motivated the president’s order. The majority’s opinion frames the case’s constitutional question as whether the travel ban “can reasonably be understood to result from” a legitimate interest in protecting national security, rather than from unconstitutional discrimination – and shockingly, concludes that it can. In accepting the president’s pretextual “national security” rationale, the Court’s analysis discounts the many, many, many statements by Trump during his campaign and into his presidency that demonstrate the true purpose of the ban: a “total and complete shutdown of Muslims entering the United States.” More than twenty of these statements are documented in Justice Sotomayor’s dissent, in addition to three anti-Muslim videos that Trump retweeted in September 2017.

While the majority is careful to say that its decision does not condone Trump’s remarks, the truth is that his bigotry was not a deal-breaker in the Court’s legal analysis, just as it was not a deal-breaker to the Americans who voted him into office. The decision leaves unchecked the president’s racist remarks and the ideology of white supremacy underlying them. That same ideology is at work in Trump’s separation of families at the Southern border, and it has fueled a dramatic rise in hate crimes against Muslims and immigrants since his election.

The travel ban itself, and today’s decision upholding it, speak to so much more than who may come in and out of this country. They speak to our character as a nation, and what it means to be American. As Justice Sotomayor points out, government actions abridging the freedom of religion “send messages to members of minority faiths ‘that they are outsiders, not full members of the political community.’” By sanctifying a policy so deeply rooted in Islamophobia and xenophobia, the Court’s decision today sends the message that our democracy and our freedoms are not really for all of us.  

Today’s decision hurts deeply. It is also a reminder of why we at Demos must continue to fight for a democracy that is truly inclusive of members of the new American demos, including Muslims, people of color, and immigrants. Where the Court has looked away, the movement for an inclusive democracy must not. Where the Court has allowed those in power to tell the ugliest possible stories about who we are as a people, we must tell a story of our common humanity and our intertwined fates. The future of our nation depends on it.

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