The White House's attempt to uphold President Donald Trump's executive order in court banning individuals from seven majority-Muslim countries will be harmed by statements he and his surrogates made that imply the move in fact was designed to specifically ban Muslims, CNN reported on Monday.
Constitutional law experts agree there is a precedent for allowing such statements to be relevant.
Lawyers for the states of Washington and Minnesota objecting to the executive order in a case currently before the 9th Circuit Court of Appeals cite previous rulings on religious discrimination that it is "'the duty of the courts to distinguish a sham secular purpose from a sincere one.'"
The lawyers emphasized that "Here, the sham of a secular purpose is exposed by both the language of the order and defendants' expressions of anti-Muslim intent."
Courts have also long maintained that records about the intention of laws can be used to strike down statutes that otherwise appear to be neutral.
A classic example is an Oklahoma law passed in 1910 that required literacy to vote unless an individual's grandfather was allowed to vote. This was deemed unconstitutional, because the intent was clearly to exclude blacks, since almost all of their grandfathers would have been unable to vote.
Although the White House said that Trump's call for a total shutdown of Muslims entering the U.S. earlier in the presidential campaign was later replaced with "extreme vetting" with no connection to religion, even more recent statements by the president may well come back to harm his own case.
For example, Trump himself made comments in a Christian Broadcasting Network interview with David Brody just over a week ago that the order would prioritize persecuted Christians in countries where Muslims would be blocked by the ban.
"As it relates to persecuted Christians, do you see them as kind of a priority here?" Brody asked, to which Trump replied, "Yes."
"Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States?" Trump said. "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."
Critics also point to comments made by former New York Mayor Rudy Giuliani to Fox News last week, in which he described helping Trump formulate the order.
"I'll tell you the whole history of it," Giuliani said. "So when [Trump] first announced it, he said, 'Muslim ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally. ... We focused on, instead of religion, danger — the areas of the world that create danger for us. Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible."
Critics say those statements make clear that the order was guided by anti-Muslim intent, CNN reported.
"The vulgar animosity that accounts for the existence of Executive Order entitled 'Protecting the Nation from Terrorist Attacks by Foreign Nationals' ... is plain to see, and the absence of the words Islam or Muslim does nothing to obscure it," wrote lawyers for the Counsel on American Islamic Relations.
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