[EL] Trump v. Hawaii and suspect classifications

[Terry Martin]

Didn't really say anything since this policy was found not to target any
suspect classification. The majority says the law is neutral toward
religion since no reference to religion appears on its face, it affects
countries totaling only 8% of the total Muslim population and the countries
selected for inclusion were designated by this or prior administrations as
posing security risks. The dissents argue Church of Lukumi Babalu Aye v.
Hialeah, a case striking municipal ordinances targeting Santeria as in
violation of the Free Exercise Clause, should control the Court's treatment
of the executive action, since in that case the Court looked behind the
facial neutrality of a law to find who the government was really going
after, and relied on the history of the ordinances, including harsh
statements critical of the Santeria faith and practices made at council
meetings. That case used Equal Protection Clause jurisprudence to inform
the Free Exercise Clause challenge, and applied sort of a "with teeth"
approach that looked to the record supporting the laws to find improper
animus and trigger heightened scrutiny. The majority opinion by Roberts in
Trump v. Hawaii applied a lower standard of review that only looked to
whether the government had an independent permissible justification for the
law, since that was what was used in Mandel, a prior case about the entry
of an alien into the US, was read to establish. Only laws that have no
legitimate application, and which are therefore clearly just a pretext for
singling out a politically-unpopular group are struck. Laws that target the
mentally ill (Cleburne v. Cleburne Living Center) and homosexuals (Romer v.
Evans) have been struck under this standard. Here the executive action was
not struck, since there was an independent justification for the law in the
national security concerns it was created to address - countries were
selected based on whether they were determined to have inadequate vetting
procedures. Given the powers of the president in this area of national
security, the inquiry was less searching than in Lukumi Babalu Aye, which
was about a local government exercising the police power. I think it's
worth noting that Mandel says you don't need to look behind the text of the
law, but Roberts sorta does anyway by discussing the worldwide review
process compiled in support of it, similar to how the council meetings were
used as evidence in Lukumi Babalu Aye. Candidate Trump's statements did not
convert what the Court considered an otherwise neutral justification into
an impermissible one.

On Wed, Jun 27, 2018 at 2:18 PM, Schultz, David A. <dschultz at hamline.edu>
wrote:

> Let's think about this case for a minute.
>
> The Roberts' opinion overturns Korematsu.  However, remember in Korematsu
> the Supreme Court declared in Justice Black's opinion that:  "It should be
> noted, to begin with, that all legal restrictions which curtail the civil
> rights of a single racial group are immediately suspect."
>
> What does Trump v. Hawaii say about the status of suspect classifications?
> --
> David Schultz, Professor
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