Berkley Center

Is Trump v. Hawaii a religious liberty case? Yes. The Trump Administration’s latest travel ban is not explicitly a ban on Muslims, and it includes national security justifications. Nevertheless, this case still involves a policy that discriminates against Muslims. Government policies that appear neutral may still disproportionately affect certain religious communities. Additionally, national security considerations do not automatically justify infringements on religious liberty. The Muslim ban is a good example of the legalistic and indirect restrictions governments may place on religious belief and practice in the twenty-first century, and it should be opposed as such.

The Trump administration’s travel ban would undermine both international and U.S. definitions of religious liberty. The Universal Declaration of Human Rights guarantees the right to hold and to “manifest” religious beliefs. Limiting Muslim entry to the United States would penalize Muslims for their beliefs, undermining their religious liberty. Additionally, the First Amendment to the U.S. Constitution forbids the establishment of a state religion; government policies explicitly targeting one religion would violate that part of the Constitution. 

Of course, defenders of the travel restriction will counter these claims. They argue it is not a Muslim ban; it targets specific countries, some of which are not Muslim. It is thus neutral towards specific religions. Additionally, they say it is motivated by national security, not the desire to discriminate against one religious community.

Are these defenses valid? I am not a legal expert or philosopher. But I can draw on my experience tracking religious liberty abuses around the world to provide some insights into this question.

A Neutral Government Policy?

When it comes to restrictions on religious liberty, both intent and impact matter as much as the specific wording of a policy. That is, a policy intended to make life more difficult for certain religious groups is still problematic even if it does not directly target them. Likewise, an apparently neutral policy that disproportionately affects certain groups is a problem.

We see numerous government policies like this around the world. For example, in Romania, religious organizations require 300 members to submit personal details to the government before they are officially registered. They must be active for twelve years and represent at least 0.1 percent of the population before they receive state support. This policy discriminates against new religious organizations or small immigrant groups. Other countries have similar registration requirements, which are often intended to ensure the dominant status of traditional religious communities.  

National Security Justifications?

Policymakers should weigh national security against religious liberty protections. But national security does not justify restricting citizens’ right to hold or act on their religious beliefs. Many countries claim to protect religious liberty but include exceptions based on security and public safety. These often provide flimsy excuses for serious religious repression.

We can find many examples of such supposed security-driven limits on religious liberty around the world. Vietnam, for example, guarantees religious liberty, but limits religious practices that “undermine peace” or “cause disorder.” These national security caveats have given the Vietnamese government justification to repress and harass Christian churches, as well as Buddhist activists who criticize the government.  

Still a Religious Liberty Violation?

In light of these global examples, let’s look again at the Trump administration’s travel restriction:

• Yes, it is does not specifically target Muslims (anymore). But its biggest impact is on Muslims, and it arises from Trump’s calls to limit Muslim entry into the United States. We would consider such policies religious repression in other countries, and should view these restrictions likewise.
• Yes, its defenders point to national security considerations, but these do not by themselves justify limiting religious liberty. The restrictions on religious liberty must be the only way the government could protect its citizens. As the Cato Institute has argued, the travel ban would not have prevented any post-9/11 terrorist incidents, and the risk of death from a terrorist attack by an immigrant is incredibly small. The national security considerations for the travel ban are not valid and cannot excuse its limits on religious liberty.  

Thus, Trump v. Hawaii is a religious liberty case. Religious liberty advocates should treat it as such and end the concerning silence we have seen from many of them. This is partly to maintain consistency. But it’s also because religious repression in the twenty-first century will increasingly take the form of legalistic, seemingly-neutral policies rather than outright persecution. Taking a stand against it in the United States will provide advocates the tools to counter it around the world.