Earlier this month, the U.S. Court of Appeals for the Ninth Circuit upheld a district court’s issuance of a temporary restraining order prohibiting the enforcement of Executive Order 13769 – “Protecting The Nation From Foreign Terrorist Entry Into The United States” – and denying the federal government’s emergency motion for a stay to allow enforcement of the Executive Order pending appeal.  The Executive Order bans individuals from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) from entering the United States.  According to the Ninth Circuit, in State of Washington v. Donald J. Trump, the temporary restraining order was warranted as the States of Washington and Minnesota were likely to succeed on the merits of their claim that the Executive Order violates the Due Process Clause of the U.S. Constitution: “The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.”  The Ninth Circuit also noted that the States’ claims that the Order violates the Establishment and Equal Protection Clauses by disfavoring Muslims “raise serious allegations and present significant constitutional questions.”  In other words, the Ninth Circuit did not reach the merits of these two claims, but stated that it was possible the Executive Order is also unconstitutional because it discriminates against Muslims.

Last week, a federal court in Virginia addressed the religious discrimination issue and found that the Executive Order likely violates the Establishment Clause.  In Aziz v. Donald Trump, the Eastern District of Virginia relied on statements by Donald Trump before and during his presidential campaign and others to find that the Executive Order was meant to be a “Muslim ban,” including the following:

  • “On December 7, 2015, then-candidate Trump issued a press release[] titled ‘Donald J. Trump’s Statement on Preventing Muslim Immigration,’” in which he called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
  • A 2011 interview with Fox News’s Bill O’Reilly in which the following exchange occurred:

O’Reilly: Is there a Muslim problem in the world?

Trump:  Absolutely.  Absolutely.  I don’t notice Swedish people knocking down the World Trade Center.

O’Reilly: But you do believe overall there is a Muslim problem in the world.

Trump:  Well, there is a Muslim problem.  Absolutely.  You just have to turn on your television set.

O’Reilly: And do you think it encompasses all Muslims?

Trump:  No.  And that’s the sad part about life.  Because you have fabulous Muslims.  I know many Muslims and they’re fabulous people.  They’re smart.  They’re industrious.  They’re great.  Unfortunately, at this moment in time, there is a Muslim problem in the world.  And by the way, and you know it and I [sic] and I know it and some people don’t like saying it because they think it’s not politically correct.

  • A July 17, 2016 interview with Lesley Stahl in which Trump confirmed that Muslims would be banned and said – “call it whatever you want. We’ll call it territories, OK?”
  • A January 29, 2017 Fox News interview with former Mayor of New York City Rudolph Giulianni, in which Mr. Giulianni stated: “I’ll tell you the whole history of it….  So when [Trump] first announced it, he said ‘Muslim ban.”  He called me up.  He said, ‘Put a commission together.  Show me the right way to do it legally.’  And what we did was, we focused on, instead of religion, danger – the areas of the world that create danger for us.”

The District Court rejected the federal government’s arguments that it should limit its review to the text of the Executive Order and should not look at any statements made prior to the date Trump took office.  The Court concluded that “The Commonwealth has produced unrebutted evidence that it is likely to succeed on an Establishment Clause claim.  The ‘Muslim ban’ was a centerpiece of the president’s campaign for months….”

While these are only rulings on preliminary injunctions, with the cases still set to proceed, they are noteworthy because they have the potential to affect RLUIPA decisions for years to come.  Although the Supreme Court has never considered the merits of a RLUIPA land use case, it has considered non-land uses cases brought under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment.  These cases are frequently cited by courts across the country evaluating RLUIPA’s land use provisions.  Examples include Burwell v. Hobby Lobby Stores, Inc., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, and Employment Division v. Smith.  The plaintiffs in Aziz and State of Washington also allege violations of RFRA – the subject of the decision in Hobby Lobby.  There are several other decisions across the country challenging the Executive Order on religious discrimination grounds, begging the question if the Supreme Court will someday be asked to consider the issue.  And new lawsuits may soon follow, as reports suggest that a new immigration ban is already in the works and soon to be released.

Another issue is how active the Department of Justice (DOJ) will be in investigating and prosecuting RLUIPA violations under the new administration.  The RLUIPA statute authorizes the DOJ to sue municipalities that it believes have violated the statute.  This past July, the DOJ issued a report  noting that since 2010, it has opened 45 land use investigations, filed 8 lawsuits involving land use, and filed 8 amicus (friend of the court) briefs in privately filed RLUIPA land use cases.  The percentage of DOJ investigations involving mosques or Islamic schools has risen from 15% in the 2000 to August 2010 period to 38% during the September 2010 to present period.  DOJ activity with respect to RLUIPA land use matters remains to be seen, especially in light of the controversy surrounding President Trump’s leaked religious freedom bill, which has been described by one report as legalizing religious discrimination (full text of draft bill in linked article).