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Federal appeals court maintains suspension of Trump’s immigration order

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K

KHarvey16

Member
Even if we accept it's facially neutral the court explicitly says that that isn't enough to protect it:

It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.
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Quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993):

”The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality."
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Further:

Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).
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B

Back-In-Black

Banned
numble said:
That is still not facially neutral. It establishes discrimination against majority religions. If there were preferential treatment for people from majority religions it is still touching the establishment of religion.
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Government's argument:

17-35105 Motion for Stay Pending Appeal said:
But Section 5(b) provides an accommodation for refugees from each country in the refugee program, not just those specified in sections 3(a) & (c). As a result, it does not favor Christian refugees at the expense of Muslims, but rather is neutral with respect to religion. See Louhghalam, Civ. No. 17-10154-NMG, Order 13 (Section 5(b) does not favor Christians over Muslims in violation of the Establishment Clause because it ”could be invoked to give preferred refugee status to a Muslim individual in a country that is predominantly Christian"). Nor does it violate the Clause to recognize that religious minorities are more likely to face persecution than members of the dominant religion. Cf. Cutter v. Wilkinson, 544 U.S. 709, 713 (2005) (Establishment Clause permits accommodation of religion).
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On its face I would likely see the court finding the order facially neutral. They would have to look behind the text of the statute to find a violation of the Establishment Clause, which they will likely do. The 9th Circuit's own opinion doesn't challenge that the law is likely facially neutral but that they have the ability to look past its facial neutrality when dealing with the Establishment Clause:

17-35105 Opinion said:
It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (”The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality."); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions);
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C

Cake Boss

Banned
Fancyarcher said:
This really shouldn't be a concern. A lot of Trump supporters are lazy assholes who use to make themselves look tougher than they are. In reality they won't do shit.
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Oh yeah just like the Quebec shooter and the SC Church shooter, oh yeah and plant parenthood shooter.
 
A

Advocatus Diaboli

Member
Back-In-Black said:
Government's argument:



On its face I would likely see the court finding the order facially neutral. They would have to look behind the text of the statute to find a violation of the Establishment Clause, which they will likely do. The 9th Circuit's own opinion doesn't challenge that the law is likely facially neutral but that they have the ability to look past its facial neutrality when dealing with the Establishment Clause:
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I agree with that. My gut reaction is that we're dealing with hyperbolic tweets from an arguably senile, unarguably bombastic POTUS and an off-the-cuff interview from Rudy, who didn't prepare the order.

Put another way, can contemporaneous statements from a POTUS cut against facial neutrality? I think the answer is unmistakably yes. The question is what happens when you're dealing with 140 characters, constant misdirection, and just the general, chaotic shitshow that is the Trump administration. That smoking gun was walked back, then re-fired several times.
 
I

illiniguy05

Member
numble said:
You are talking about non-establishment clause claims. There are no protected classes for establishment clause claims.
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I see what you are saying. Were there 1st amendment claims in the TRO complaint? I have to imagine that there were, but as you can imagine from my thought process these type of issues are usually dealt with in the equal protection realm. I don't recall the appellate decision touching on any establishment claims.
 
B

BronsonLee

Member
I am a big fan of Breitbart not understanding:
How live streaming works
How recording works
How wearing a suit works
How news works
 
N

numble

Member
Back-In-Black said:
Government's argument:



On its face I would likely see the court finding the order facially neutral. They would have to look behind the text of the statute to find a violation of the Establishment Clause, which they will likely do. The 9th Circuit's own opinion doesn't challenge that the law is likely facially neutral but that they have the ability to look past its facial neutrality when dealing with the Establishment Clause:
Click to expand...
The 9th Circuit acknowledges that the states have used the text of the law to make an establishment clause claim as well as evidence beyond the text. They did not say it is likely facially neutral, but said that they can consider items in addition to the text even if it were facially neutral.
 
S

Shoeless

Member
Peltz said:
He's not going to ignore the Court's orders. That would get him impeached.

Yes, even by a republican congress.
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I'm curious about this part. If an impeachment requires the majority of Congress to go forward, then why wouldn't the Republicans simply let him ignore court orders, then refuse to impeach him? As long as they do that, can't he just continue to do what he wants?
 
I

illiniguy05

Member
numble said:
The 9th Circuit acknowledges that the states have used the text of the law to make an establishment clause claim as well as evidence beyond the text. They did not say it is likely facially neutral, but said that they can consider items in addition to the text even if it were facially neutral.
Click to expand...

Yep, that is the reason that the Lemon test was discussed at oral argument and in briefing.
 
K

KHarvey16

Member
numble said:
The 9th Circuit acknowledges that the states have used the text of the law to make an establishment clause claim as well as evidence beyond the text. They did not say it is likely facially neutral, but said that they can consider items in addition to the text even if it were facially neutral.
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Yup, they specifically mention reserving consideration on the establishment clause claims given the failure of the government to demonstrate likely success on appealing the due process claims.
 
K

Kthulhu

Member
Metalingus5150 said:
Breitbart gets an exclusive interview?
BREITBART?!
WHAT THE FUCK!!!
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Watch it dude, it's totally worth it.

Tovarisc said:
Breitbart got exclusive interview with Spicer about this ruling. Spicer doesn't say anything we don't already know, but good on Breitbart for scoring exclusive like this after lid was called.

Here: https://twitter.com/ashleyfeinberg/status/829855768434397187
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I'd feel bad for that guy of be didn't work for Brightbart.
 
T

Tovarisc

Member
Back-In-Black said:
Spicer lied there about the "Boston case," the judge there never ruled on the merits he merely ruled on whether to continue the TRO.
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Huh, thanks for correcting me about that. I guess I haven't been paying attention with that ruling.

Something new and good came from that interview after all.
 
G

GK86

Homeland Security Fail
chk155D.jpg
 
P

plagiarize

Banned
Shoeless said:
I'm curious about this part. If an impeachment requires the majority of Congress to go forward, then why wouldn't the Republicans simply let him ignore court orders, then refuse to impeach him? As long as they do that, can't he just continue to do what he wants?
Click to expand...

Sure. If they want there to be no due process or checks and balances next time the democrats find themselves in the same position.

There are some lines that no one is going to let be crossed. Not even small mouthed GOP politicians with Donald Trump's dick tickling their tonsils.
 
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