9th Circuit: Psychoanalysis, not legal analysis

The Bill of Rights is not a suicide pact. While Supreme Court Justice Jackson may have landed on the wrong side of the case in which he made that observation, today's judiciary should heed his warnings in the context of the current immigration crisis.

Naturally, the 9th Circuit's decision to preserve the restraining order on President Trump's immigration action raises significant questions about the extent of executive authority over national security issues. But its opinion also raises the constitutionally outlandish possibility that the safety of the American people may ultimately fall victim to a disastrous Establishment Clause jurisprudence that should have been disavowed long ago.

Let's first take a minute to get the basic facts straight. President Trump's Executive Order 13769, "Protecting the Nation from Foreign Terrorist Entry Into the United States," states an intention to "ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism." Here's what it does, in a nutshell:

• It suspends entry of aliens from seven named countries for 90 days.
• It suspends the Refugee Admissions Program for 120 days. After that, the secretary of state is to prioritize refugees who belong to a religious minority group in their countries and claim persecution.
• It suspends entry of Syrian refuges indefinitely, but allows exceptions on a case-by-case basis, including in cases of religious persecution.

Taken at face value, these actions appear to be a common-sense effort to protect Americans from the threat of terrorism posed by Muslim extremists – while also honoring America's legacy as a beacon of religious freedom by carving out special exceptions to embrace victims of religious persecution. But in light of the inescapable fact that the impacted nations are predominantly Muslim, the 9th Circuit took interest in the claim that the order violates the First Amendment's commandment that "Congress shall make no law respecting an establishment of religion."

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Now most of us have long recognized that the modern interpretation of the Establishment Clause bears little resemblance to its original meaning – that Congress was forbidden to set up one particular church as the official church of the United States, or to compel support for such a church. But in fact, the modern interpretation bears little relation to even the modern meaning of the text. The modern "interpretation" is that the Establishment Clause simply means something completely different from what it actually says. To wit: that any government policy that might be viewed – or even misunderstood – to favor one religion over another, or even religion over irreligion – violates the First Amendment.

Legal experts cringe in horror whenever a court winds up to apply the gangly framework the Supreme Court has created for analyzing claims that a policy violates this novel ideation of the Establishment Clause. The "Lemon Test" asks whether the challenged policy has a secular purpose, a primary effect that neither advances nor hinders religion and whether it involves an excessive government entanglement with religion.

This three-pronged "test" may be as good as any other as long as we're plucking interesting considerations out of thin air, but, sadly, it can't claim much more of a constitutional basis than that. In practice, the analysis is so subjective that the only possible way to predict its outcome is to see how the particular court ruled on it the last time.

The late Justice Scalia summed it up best:

"Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, [the Lemon Test] stalks our Establishment Clause jurisprudence once again. …"

Unfortunately, the alternative frameworks proposed to replace the big Lemon would take us from awful to ridiculous. The 9th Circuit referenced the most notable of these in its opinion. It operates more like psychoanalysis than legal analysis, asking whether the challenged policy or practice causes anyone to feel like an outsider.

Now as long as these junk "legal" analyses are restricted to adjudicating the appropriateness of nativity scenes on public property (which, as it turns out under these tests, depends upon the number and proximity of reindeer, polar bears and candy-striped poles), maybe they just aren't considered enough of a threat to anyone to warrant serious reconsideration.

But now the safety of the American people is at stake. Let us all hope and pray that the specter of allowing "ghouls" and hurt feelings to compromise our national security will finally motivate our Supreme Court to develop a textually based Establishment Clause framework that can be taken seriously.