Don’t be misled. The Establishment Clause doesn’t bar prioritizing help to refugee children (and adult women and men) who are threatened by genocide

Opponents of the President’s Executive Order (EO) Protecting the Nation from Foreign Terrorist Entry into the United States, Jan. 27, 2017, have raised a number of objections to it, but I fear one of them will have a (presumably) unintended consequence which will imperil the most desperate of refugees: those fleeing the threat of genocide.  I believe these genocide victims, to include those being targeted because of their religious beliefs, are a unique class of refugees deserving special consideration in the administrative process of resettlement.

To be clear, no one debates that we need to have compassion for all refugees.  Moreover, there are certainly procedural and substantive issues about the EO worthy of serious discussion, and – no – I wouldn’t have recommended its issuance as currently formulated.  That said, I am very concerned about the implications for genocide victims of the “throw the baby out with the bathwater” syndrome that seems to infect the Establishment Clause arguments being touted by some of the most strident EO opponents (see, e.g., here and here).

(BTW, here’s the Establishment Clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  That’s it.)

A panel here at Duke Law last week laid out what appears to be the main Establishment Clause theory critics are using to attack the EO.  A participant expressed it this way:

There’s evidence on the face of the executive order that one religion is being preferred over another.  The seven countries are predominantly Muslim.  The order also talks about the need to combat radical Islamic terrorism. I don’t see why terrorism, itself, is not enough.  There’s the preference in the text for the order of religious minorities, which the president told Christian broadcast radio that that was in there to mean that Christians would be preferred over Muslims.

I encourage you to look at the transcript of the “Christian broadcast radio” interview the panelist referenced (it’s found here) and make your own judgment.  The way I read it is that the President was asked about whether he saw – not all “Christians”  but rather just the subset of persecuted Christians, “as kind ofa priority in refugee matters.  His answer – which was “yes” – was couched in terms of a very specific country: Syria.

Inevitably, a decision will have to made as to which refugees should be helped first in the administrative process.  It is not, in my judgement, unreasonable or violative of the Establishment Clause to start with persecuted minorities, particularly those (as we’ll see below) whose persecution reached a level that caused the Obama Administration to designate them as victims of genocide.

Put another way, simply because some of those victims are Christians is not a proper reason to deny them a priority, along with those Muslims and Yazidis who are similarly designated as threatened by genocide.

Moreover, I respectfully disagree with that panelist’s claim that the “face of the executive order” shows “one religion is being preferred over another.”  There are no specific religions identified in the EO for prioritized treatment.  Rather, it says that the “Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” (Bolding and italics added.).  Clearly, it was not “one religion” but all persecuted religions that are to be prioritized.

For further context, it is worth noting that the President also said in his EO:

[T]he United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

I don’t think any of that violates the Establishment Clause or any other part of our Constitution either.  We can – and should – debate how vetting should occur, but at the end of the day would we really want to admit people known to have been engaging in violent acts against women such as rape, mutilation, or honor killings?  Or those who knowingly have persecuted others based on religion?  And, if we have information that someone would oppress Americans based on race, gender or sexual orientation, shouldn’t we want them to be blocked from entering?  Let me be unambiguous here: I very much want an EO on immigration to express such a policy against oppression.

In terms of persecuted religious minorities, the EO essentially aligns itself with the Obama Administration’s view as reflected in its U.S. Commission on International Religious Freedom 2016 Annual Report (USCIRF Report).  Indeed, the USCIRF Report indicates that the treatment of religious minorities was so horrendous that in March of 2016 Secretary of State John Kerry announced that ISIL “is responsible for genocide against groups in areas under its control, including Yezidis, Christians, and Shi’a Muslims.”  (Bolding added.)

Importantly, the concept of prioritization in the handling of refugees is not unique to the Trump Administration; the Obama Administration explicitly supported doing exactly thatSpecifically, the USCIRF Report called upon the government to:

Commit to a goal of resettling 100,000 Syrian refugees to the United States, subject to proper vetting and a prioritization based on vulnerability, in order to aid those Syrians in the greatest peril, demonstrate U.S. leadership in efforts to address this extraordinary humanitarian crisis, and show support for governments in the Middle East and Europe that are hosting millions of Syrian refugees. (Bolding added.)

For her part, Hillary Clinton said this on the campaign trail: “What is happening is genocide, deliberately aimed at destroying not only the lives but wiping out the existence of Christians and other religious minorities in the Middle East in territories controlled by ISIS….” (Bolding added.)

In light of Kerry’s declaration about genocide, I was surprised that none of the panelists mentioned our country’s obligations under the Genocide Convention, which, in Article 1, requires parties to “undertake to prevent and punish” genocide.

This obligation is very real.  Indeed, the Economist reports that concern about the responsibility to act in the face of genocide was one reason for “top-level hand-wringing about the question of whether or not to accuse IS of the ultimate crime.”  It explained:

The reason for the coyness [about a genocide declaration] lies precisely in the “broad implications” mentioned by Mrs Clinton.  As was disclosed by Samantha Power, a scholar of genocide who later became the Obama administration’s envoy to the United Nations, the word was carefully avoided by the State Department in 1994, even as the massacre of 800,000 people in Rwanda was unfolding, “for fear of being obliged to act.”  The same fear is clearly being felt now.

Quite obviously one way to “undertake to prevent” genocide as the Genocide Convention requires the U.S. to do is to prioritize the resettlement out of the area of danger of those who are targets of what most experts consider “the world’s most heinous crime.”

There is strong evidence as to why an EO prioritizing help to Yezidi, Christian, and Shi’a Muslim genocide victims is evidently necessary: too few are among the Syrian refugees the U.S. has taken.  For example, in 2015 the European Parliament found that “Christians in particular have been deliberately targeted by various extremist or jihadist groups for many years [and that] more than 700,000 Syrian Christians” had been forced to flee their country. (Bolding added.)

Notwithstanding that huge number of Syrian Christian refugees, here’s what the State Department reported about the religions of Syrian refugees admitted to the U.S. in 2016:

Nationality Cumulative
 Syria Religion CY 2016 Total
15,479 15,479
Catholic 32 32
Christian 52 52
Jehovah Witness 4 4
Moslem 139 139
Moslem Shiite 29 29
Moslem Suni 15,134 15,134
No Religion 1 1
Orthodox 32 32
Other Religion 8 8
Protestant 5 5
Yazidi 43 43
Total 15,479 15,479


In other words, despite the U.S.’s “genocide” declaration, the groups most vulnerable amounted to less than 1% of the Syrian refugees the U.S. admitted – just 43 Yazidis, 29 Muslim Shia, and only about 125 Christians, out of 15,479 Syrian refugees resettled here.

This gross disparity has not escaped the scrutiny of at last one judge.  Consider Heartland Alliance Nat’l Immigrant Justice Ctr. v. United States Dep’t of Homeland Sec., 840 F.3d 419, 2016 U.S. App. LEXIS 18988 (7th Cir. Ill. 2016), a case from last October where the plaintiff sought government information about terrorist organizations.  In the course of litigation information was revealed about Syrian refugees.  This caused Judge Daniel Manion to write a concurring opinion in which he said:

I write separately for a second, critical reason, which is my concern about the apparent lack of Syrian Christians as a part of immigrants from that country.  It is possible that our case bears a direct link to this enigma.  It is well‐documented that refuge es to the United States are not representative of that war‐torn area of the world.  Perhaps 10 percent of the population of Syria is Christian, and yet less than one‐half of one percent of Syrian refugees admitted to the United States this year are Christian.  Recognizing the crisis in Syria, the President in 2015 set a goal of resettling 10,000 refugees in the United States. And in August the government reached this laudable goal. And yet, of the nearly 11,000 refugees admitted by mid‐September, only 56 were Christian.  To date, there has not been a good explanation for this perplexing discrepancy. (Bold added)

Though they never mention the Obama Administration’s designation of Christians as among those who are victims of genocide, critics are nevertheless singling-out Christians (as opposed to the Muslim Shia’ and Yazidis who would also benefit from a priority for those suffering religious-based persecution) as a reason to oppose the EO.

No one should think the desperate situation of Christians in the Middle East is some figment of imagination of the Trump Administration or anyone else.  About two months ago Dr. Alon Ben-Meir, a professor of international relations and Middle East studies at the Center for Global Affairs at NYU, said in an essay (“The Persecution of Christians In The Middle East”) on Huffington Post (hardly a Trump mouthpiece) that:

Although Christians have lived in the Middle East – the birthplace of Christianity ­– for nearly two thousand years, as a result of years of persecution and discrimination, especially in the past 15 years, they now constitute no more than 3-4% of the region’s population, down from 20% a century ago. (Bold added.)

Dr. Ben-Meir is not alone in his conclusions.  The New York Times reported in 2015 that “extremist movements across the region are enslaving, killing and uprooting Christians, with no aid in sight.”  And there are plenty of similar reports as well (see, e.g., here and here).

Sure, there are other arguments about the Establishment Clause that were not raised at the panel, so don’t hesitate to do your own research.  For example, the American Constitution Society (ACS) made what I thought was a rather curious argument concerning the Establishment Clause and the EO:

Similarly, the government lacks constitutional authority to decide who qualifies as a Christian, Jew, Buddhist – or a Muslim.  So what will American immigration officials do with visa applicants who deny that they are Muslims?  The only way to question this is to identify the qualities – beliefs, practices, or associations – that define a Muslim, and then to determine whether the applicant possesses those qualities.  The Establishment Clause puts each of these steps – declaring the criteria for belonging to a faith, and then applying the criteria to particular applicants – off limits to the government.

Actually, there is a long history of the government pretty much doing exactly what the ACS thinks violates the Establishment Clause.  I would invite attention to § 456 (j) of the Military Selective Service Act which provides for a conscientious objector exemption from military service for those who “by reason of religious training and belief, is conscientiously opposed to participation in war in any form.”  (The American Bar Association has an excellent explanation of how conscientious objector claims are processed, and how the government makes the necessary determinations.)

Furthermore, in Welsh v. United States, 398 U.S. 333 (1970), the Court extended eligibility for conscientious objector status to those who do not source their objection in religious training and belief, per se, so long as they are “spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.”  Without question, there’s ample precedent for the government not only to determine if someone’s views are sourced “moral, ethical, or religious beliefs,” but also to decide if those beliefs are “deeply held.”

In short, there is simply no case in American law that holds that granting a priority in immigration processing to persecuted religious minorities, especially those formally deemed to be at risk of genocide, would violate the Establishment Clause.  In my opinion, that’s a very good thing for reasons that extend beyond this particular EO.

Consider that U.S. immigration law has long incorporated religious persecution as one of the bases for asylum, as I firmly believe it should.  Furthermore, there is an entire edifice of U.S. law and policy designed to protect religious minorities from discrimination and persecution.  I am convinced that none of that offends the Establishment Clause, but if the EO critics succeed, it’s not implausible to see the government’s ability to help persecuted religious minorities in other contexts eroded.

Can’t we agree that the reality is that there are times when persecuted minorities (and not just religious minorities) need prioritized help?  In fact, I would argue that refusing to do so solely because the victims in a given situation were of a particular faith would itself offend the Establishment Clause.  Wouldn’t that be patently illicit discrimination in and of itself?

To reiterate, we absolutely must not forget the plight of all refugees, even as we recognize that not all of the world’s 21.3 million refugees can be settled here.  As we make hard (and, indeed, heartbreaking) decisions as how best we might alleviate refugee suffering consonant with our own security, we must not turn our backs on the victims of genocide – even if that victimization is based on religious belief – as genocide victims are clearly the most in need of a priority.   

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