Stating a Claim Under the Establishment and Free Exercise Clauses: What Trump v. Hawaii Can Teach Us

Extract

It is little appreciated that the decision by the Supreme Court of the United States in Trump v. Hawaii, in addition to addressing the scope of the power of the executive concerning President Trump’s “Muslim immigration ban,” speaks to the First Amendment and religious freedom.¹ Specifically, mistakes made by plaintiffs’ counsel regarding the elements necessary to successfully state a claim under the Establishment and Free Exercise Clauses are instructive in how pleadings should be drafted.² Additionally, the case is a useful vehicle for clarifying the sorts of injuries that are (and are not) redressable by these two distinct First Amendment restraints on government authority.³

The matter of Trump v. Hawaii came before the United States Supreme court on an interlocutory appeal from the entry of a nationwide preliminary injunction against the government. Writing for a 5-to-4 divided Court, Chief Justice Roberts first determined that President Trump had not exceeded his authority as delegated in the Immigration and Nationality Act of 1952 (INA).⁴ The chief justice then went on to hold that plaintiffs failed to show a likelihood of success on the merits concerning their Establishment Clause claim.⁵ Historically, a lower standard of review has been applied to constitutional restraints in the discrete context of national security and the denial of permission to a foreign national to enter the country.⁶ The lawsuit is far from over, however, as the matter was remanded back to the lower courts for further proceedings.⁷ That could entail additional fact finding and will most certainly mean a renewal of those free-exercise claims alleging religious discrimination that were not before the Supreme Court in this limited appeal.