‘No’ To Asylum Via Religious Establishment?

In a direct response to the tragic terrorist attack on Paris on Nov. 2015, some elected officials (both on the federal and state level) are refusing to accept Syrian refugees into their states until more stringent steps are taken to ensure safety of all. The problem is (putting aside the federalism issue if the states have the power to refuse refugees) is some of the elected officials refusing refugees are using religious grounds as a justification.  Refusal of refugees on religious grounds can amount to an establishment test, possibly violating the First Amendment of the United States Constitution.

United States Senator and presidential hopeful Ted Cruz believes that using religion as a test can help ensure the country’s safety.  “It makes no sense whatsoever for us to be bringing in refugees who our intelligence cannot determine if they are terrorists here to kill us or not.  Those who are fleeing persecution should be resettled in the middle east, in majority Muslim countries.  Now on the other hand, Christians who are being targeted for genocide for persecution, Christians who are being beheaded or crucified, we should be providing safe haven for them.”1

Other elected officials have hinted after the Paris attacks that at least part of the reason why they are refusing refugees into their state may have to do with religion.  “These acts serve as a reminder that the world remains at war with radical Islamic terrorists. Our national leaders must react with the urgency and leadership that every American expects to protect our citizens.” said Arizona’s Governor Doug Ducey after the Paris terrorist attacks.2

I argue that using religious establishment (preferring one religion over others) when granting asylum to refugees is unconstitutional and should not be permitted.

While elected officials states do have the constitutional duty to act for the safety of the people through the police powers, those powers can and should be limited when infringing upon fundamental rights. “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.”3

The reason for the constitutional protection against government sponsored religious establishment is because many of the early settlers to this country came to escape laws which favored a particular religion.  Government back religions throughout history have had amazing power: “Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews.”‘4  Even during the colonial era many people were religiously persecuted for their views.5

Religious Establishment
A Catholic Church — Photo Taken By Intermediate Scrutiny

However, using the present day scenarios listed above, it appears some politicians are using religion seemingly as a litmus test, especially when deciding to accept Syrian refugees after the terrorist attack on Paris.  The message conveyed is: one type of religion is permitted and another type of religion is not.  Some are referring to this as a religious test, sparking some confusion on the issue.

The defenders of religious tests says that religion is plays a role in the asylum process and is used as a test there, so religious tests are neither against the law nor unconstitutional.  For example, under federal law an individual is a refugee if he or she is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”6  Even laws applying to citizens who work in American take religion into account, for example federal law prohibiting employment discrimination.7

I think the defenders of religious tests are part right and part wrong.  They are right insofar as there are at least a few federal laws that do take religion into consideration in the legal analysis.  However, where the difference applies is no federal law that I know of singles out a particular religion.  For example, both the laws governing asylum and prohibiting employment discrimination take religion into account if an individual is persecuted or discriminated against because of their religious beliefs.  The religious beliefs are only taken into consideration insofar as an injurious action was made based upon those religious beliefs.  Federal law does not prefer one religion over another.  Thus, in the two examples looked at here, it would be more accurate to say federal law does not look at religion, but provides a remedy when states or individuals do.  In other words, current federal law does not prefer one religion over another or create a religious establishment, like the current proposals do.

What some elected officials are proposing right now of barring people of a certain religion into the United States, is essentially sending a message from the government what religions are acceptable to believe in.  This likely violates long-standing religious freedom doctrine.  “Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law.”8  This situation appears to be a severe form of a restriction.  What this policy says: is if the immigrants are similarly situated with a different religion (perhaps Christian) then they will be permitted entry and if they are of a different religion then they will not.

This policy proposal is not narrowly tailored to promote safety and will infringe upon constitutionally protected religious freedoms, by creating a religious establishment.


Joseph Thomas

Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.
Joseph Thomas

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  1. Ted Cruz, Fox and Friends, Fox News Network,at 2:13 of the video, Nov. 15, 2015, available at: https://www.youtube.com/watch?v=NrOQQkY1bxQ (see video above).
  2. Statement From Arizona Governor Doug Ducey (Nov. 16, 2015) available at: http://azgovernor.gov/governor/news/2015/11/statement-governor-doug-ducey.
  3. Lynch v. Donnelly, 465 US 668, 687 (1984) (O’Connor, J., concurring).
  4. Everson v. Board of Ed. of Ewing, 330 US 1, 9 (1947).
  5. Id. at 9-11; Thomas J. Curry, First Freedoms (1986); Leonard W. Levy, The Establishment Clause (1986).
  6. 8 U.S.C. § 1101(a)(42)(A).
  7. 42 U.S.C. 2000e-2, et seq.
  8. Cantwell v. Connecticut, 310 US 296, 303 (1940).

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Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.

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