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If you live in the U.S, or you keep up with U.S politics, you've probably heard how state governors aren't allowing Syrian refugees into their states, and some politicians only want to allow Christan refugees into the U.S. This led me to wonder, is it legal to deny a refugee, or immigrant based on their religion?

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+100

tl;dr

My assumption: the U.S. government is considering whether to accept refugees and immigrants (given your Syria comment). The background section talks about State attempts to restrict entry.

The answer is nuanced since there are different standards for an entrance decision than there are for someone who is already in the U.S. This is because foreign nationals in their home nations aren't "persons within the jurisdiction of the United States," and so laws like the Civil Rights Act only apply in spirit. What does that mean?

We wouldn't expect to see the federal government discriminate based on religion, but we might expect to see decisions made about groups that incidentally share an common religion.

This is because the federal government has wide latitude when it comes to alienage---which is just a formal name for policies related to non-citizens. While religion is afforded a high degree of protection, the federal government's alienage policies are governed by the lowest level of judicial scrutiny. This implies a practical challenge: things like religion and national origin can be very difficult to disentangle from questions that pertain to the alienage category. For example, a policy might restrict some group's entry "because of" a particular alienage reason and "in spite of" the fact that most of the affected people happen to share a common religion.

Background

The Equal Protection Clause U.S. Const. Am. XIV § 1 prohibits States from denying any person within its jurisdiction "equal protection of the laws." The Clause is often applied to the federal government as well, via the Due Process Clause U.S. Const. Am. V. See, e.g. Bolling v. Sharpe, 347 U.S. 497 (1954).

In relation to the clause, laws are reviewed for their constitutionality using either strict, intermediate, or rational basis scrutiny. Strict scrutiny would mean that in order to distinguish based on a particular trait, the government has to have a compelling, narrowly tailored interest, and no less restrictive alternative available. Rational basis just means the government's interest is subject to a lower level of scrutiny (e.g. benefits exceed costs, or don't let in felons). Things like, race, religion, national origin, and some forms of alienage are suspect classes that merit strict scrutiny.

This bit about alienage is important. As we'd expect from the above, when States enact alienage statutes, they're subject to strict scrutiny, and when those statues cross the line, the courts have found that State attempts to restrict resident or non-resident aliens encroach upon the federal government's exclusive control over entrance of aliens. Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971). In other words, the federal government, not the States, decides whether various "aliens" are admitted. Note: State scrutiny levels when dealing with undocumented immigrants may be context specific. See, e.g. Plyler v. Doe, 457 U.S. 202 (1982) (children and education).

The federal government's authority over immigration is further solidified by the Supremacy Clause of the U.S. Const. Article VI. See Mathews v. Diaz, 426 U.S. 67 (1967). As such, the courts have applied rational basis scrutiny to the federal government's immigration policy.

One reason alienage is interesting is that it tends to encompass things like national origin and religion. This doesn't imply the federal government makes its decisions on the basis of religion. In fact, it'd be hard to make an argument that they do. However, since the categories can be so closely entwined, many scholars have argued for a change in standard.

Edit

In hindsight, this topic seems quite forward looking. A couple weeks after the OP's question a U.S. presidential candidate (Donald Trump) came out in favor of a ban on entry into the U.S. by Muslims. That led to a flurry of activity, and to this insightful blog post by Professor E. Posner.

  • It's worth noting that the federal government does discriminate on the basis of national origin with respect to immigration. – phoog Nov 25 '15 at 5:47
  • @phoog Exactly, and along other non-protected margins as well. An example is varying standards based on education level (the "brain drain") – Pat W. Nov 25 '15 at 12:44
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The granddaddy of civil rights legislation is the 1964 Civil Right Act. It prohibits discrimination based on race, color, religion, national origin with respect to:

  1. Voting
  2. Most hotels, motels, restaurants, theaters, and public accommodations engaged in interstate commerce
  3. Access to state and municipal public facilities
  4. Public schools
  5. Most programs that are federally funded.
  6. Most employment settings

The provisions of this act are in the US Code: https://www.law.cornell.edu/uscode/text/42/chapter-21

The Act itself is here: http://www.senate.gov/artandhistory/history/resources/pdf/CivilRightsActOf1964.pdf

A source of unknown authority describes it here: https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964#Title_I

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    The Civil Rights Act is truly an awesome piece of legislation, but it applies to people who are within the jurisdiction of the U.S. There are different standards for entrance decisions. Are you able to edit your answer to assume the refugees or immigrants are already within a U.S. jurisdiction? Then we'd have 2 answers that treat different perspectives! – Pat W. Nov 23 '15 at 14:15
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    @PatW. The question asked about the power of Governors to restrict movement of aliens. I presumed the aliens in question were already in the USA, perhaps on property controlled by the federal government. So, perhaps no change is needed to my answer. What do you think? – user3270 Nov 23 '15 at 17:22
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    It looks like the question talks about 2 situations....entrance into the U.S. and then entrance into states. The piece about the Governors restricting entry is going to come from Graham and Plyler; the CRA might be a little thin for discussing interstate entry restrictions, but maybe you can morph it into the types of discrimination that are prohibited given they're already in a geography that's allowed? – Pat W. Nov 23 '15 at 19:27
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It would not be unprecedented. For example, the U.S. had programs for Russian Jews. Mr. Brin of Google was one of the beneficiaries.

The answer is, probably YES.

  • Where did you read about the program? Sounds interesting... – Pat W. Nov 24 '15 at 19:42
  • @PatW. Programs for Russian Jews were I believe predicated on discrimination they faced in the Soviet Union. Granting someone asylum or refugee status is based on their status as a persecuted person; the religious rationale for the persecution -- or lack thereof -- is secondary. – phoog Nov 25 '15 at 5:52
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Discrimination based on religion under the Constitution as ratified and understood within the ratifying conventions is acceptable. So called Constitutional “Law” is self-evidently unconstitutional for it violates separation of powers. Courts cannot make laws. This erroneous concept was enhanced with a doctrine created by the Court in the early 20th century; that doctrine being the Incorporation Doctrine.

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