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The Trump Travel Ban is Religiously Biased

One of the key elements which the court, either the 9th Court of Appeals or the Supreme Court, will examine in  order to make a decision as to the constitutionality of President Trump’s Executive Order banning travel is whether the order reflects discrimination based upon religion. The Trump administration  cleverly named the same seven countries covered by its ban that were on the list that the Obama administration designated in 2015, as countries that fit the profile of “one that has repeatedly provided support for acts of international terrorism. ” At that time, dual passport holders who had recently visited those countries were made ineligible for visa waivers based on their other country of citizenship. The Trump administration’s strategy made it difficult to argue that the seven countries named in their Executive Order were selected on the basis of their dominant religion.

The State of Washington argued in the 9th Court of Appeals that a religious basis for the Trump executive order could be assumed, based upon statements made by Donald Trump during the campaign either in public or more recently to his advisors, which indicated that the president wanted to employ a “Muslim ban” and that such statements imply a religious intent in his actions.

Whether or not the Washington State argument prevails, a much stronger indication of the religious nature of the Executive Order is contained in its provision that, following lifting of the ban  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.”

Given that all of the seven countries named in the order are Muslim-majority countries, the “prioritization” excludes Muslims. In an interview on the Christian Broadcasting Network following publication of his order, President Trump explained, Do you know if you were a Christian in Syria it was impossible, at least very tough, to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.

The order is religiously biased, given its exclusion of Muslims from prioritization in issuing visas. Trump is correct in citing the low number of Christian refugees from Syria, but according to former U.N. High Commissioner for Refugees and current U.N. Secretary General António Guterres, fewer Syrian Christians apply for refugee status because they tend to be sympathetic to the Assad regime and the vast majority of Syrians applying as refugees are dislocated Muslims whose cities and villages have been attacked by government forces. In Iraq, for instance, where most refugees are those suffering from the war against ISIS, 15.4% of the refugees accepted by the UN were Christians, although they are only 0.8% of the Iraqi population.

Christians and other non-Muslim minorities, such as Yazidis have, indeed, been targeted for persecution, mostly by ISIS. In Syria alone, which has a population of 2.2 million Christians, 259 Christians were killed in terror attacks related to their religion and not part of more general war actions between 2014 and 2016. However, 946 Muslims were killed in Syria by such non-war related terror attacks during the same period. In one attack, on the Al-Shaitat Sunni Muslim tribe, 700 men, women and children were slaughtered by ISIS. But political persecution is more widespread than religious persecution (although the two are sometimes related) in Syria. The Assad regime is reported to have hanged 13, 000 mostly Muslim, political prisoners.  Their bombing attacks in cities such as Aleppo have targeted mostly Sunni civilians and rebel groups, killing 24,000 civilians over four years. The largest number of victims of religious persecution and non-general warfare terror attacks by ISIS in the seven named countries have been Shia Muslims in Iraq, with at least 961 people killed in religiously targeted attacks on Shia mosques, weddings, and enclaves outside of war zones between 2014 and 2016. In the war torn areas of Iraq, such as Mosul, the U.N. reported that between in 2014 and 2015, 19,000 civilians were killed by ISIS, based upon their allegiance to the government or tribal affiliations. Nearly all were Muslims. 

The data on terror attacks shows no support for the idea that non-Muslim religions are targeted more often in the seven countries named than are Muslims, the latter either because of their membership in one or another religious sect (e.g. Shias as targets of ISIS, Sunnis as targets of Assad), because they are members of rival tribes, or because they are political opponents. In much smaller numbers, non-Muslims, such as Christians and Yazidis have been targeted also. To single out non-Muslims for prioritization in awarding visas, once the travel ban is lifted, especially, as the president has stated, in order to prioritize Christians, is clear cut religious bias and should be ruled unconstitutional.

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