Not only is President Donald Trump’s executive order suspending the Refugee Admissions Program and barring people from seven predominantly Muslim countries from entering the U.S. bigoted and short-sighted, it violates the deepest principles of the framers of our Constitution.
The order brings back the long-rejected concept of a "religious test" for determining who receives the aid of our government, noting that when the refugee program resumes, it will "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." It also allows for individual case-by-case entry based in part on the same criteria before the program’s resumption. In other words, it will give priority to Christians fleeing Syria but not Muslims — something the president later confirmed in an interview.
The use of a similar "religious test" for determining who could hold a position in the national government is explicitly prohibited in the Constitution. The framers explained that forcing individuals to declare their religious beliefs inevitably resulted in governmental oppression. Samuel Spencer of North Carolina declared that religious tests were "the foundation of persecutions in all countries." In Massachusetts, Isaac Backus stated that "the imposing of religious tests hath been the greatest engine of tyranny in the world."
Those who fought for America’s religious liberty considered this freedom so important it was to be protected not only for those who were already residents of this country, but for those who sought entry to this land. George Washington fervently believed that this new nation should serve as a refuge for people of every faith. "The bosom of America is open," he wrote in 1783, "to receive the oppressed and persecuted of all nations and religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct, they appear to merit the enjoyment."
Two years later, James Madison echoed that sentiment of religious inclusiveness in opposing Patrick Henry’s bill to impose a tax to support "Teachers of the Christian Religion." In his famous "Memorial and Remonstrance," Madison warned that government favoring one religion contradicted the principle that all the victims of religious discrimination are to be welcomed here. Madison wrote that the religious tax, "is a departure from that generous policy, offering an Asylum to the persecuted and oppressed of every Nation and Religion. … Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution."
When this country’s founders discussed "every" religion, they did not have a narrow, cramped view of religion; they certainly did not mean to exclude Muslims. Shortly after defeating Henry’s tax proposal, Madison convinced the Virginia legislature to enact Thomas Jefferson’s landmark "Virginia Statute for Religious Freedom." This law prohibited using taxes to support religious institutions and declared that no person shall "suffer on account of his religious opinions." In his draft of the law, Jefferson had written a preamble proclaiming that all attempts to use governmental punishment to influence religious beliefs, "are a departure from the plan of the holy author of our religion." Some in the Virginia legislature tried to amend the preamble by adding the words "Jesus Christ," so that the phrase would read: "a departure from the plan of Jesus Christ, the holy author of our religion." When the amendment was defeated, Jefferson wrote that the legislature’s retention of his original inclusive language proved that the law was, "meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination."
Similarly, John Leland, a Baptist Minister who was a close friend of both Jefferson and Madison and a leading advocate for including religious freedom in the Bill of Rights, fought for a view of religious freedom that welcomed all people. According to Leland, when government is "rightly formed … it embraces Pagans, Jews, Mahometans and Christians, within its fostering arms … [and] impartially protects all of them."
President Trump’s approach to immigration is allowed to stand, we will lose our ability to share in George Washington’s pride that, "in this land of equal liberty, it is our boast, that a man’s religious tenets will not forfeit the protection of the laws."
Michael Meyerson is the DLA Piper Professor of Law at the University of Baltimore School of Law; his email is mmeyerson@ubalt.edu.
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