united-states constitutional-law religion
What is the argument for the constitutional illegality of a religious travel ban?
<p>The Trump administration's travel ban has certainly been the source of a fierce debate in and out of the courts. Whether or not the ban is good policy (I think it isn't), the question remains whether it is constitutional.</p>

<p>Let's put aside the issue of whether the ban, as written, <a href="https://www.nytimes.com/2017/01/27/opinion/trumps-immigration-ban-is-illegal.html?mcubz=1" rel="nofollow noreferrer">contradicts the 1965 Immigration act</a> or other immigration law passed by Congress, as this is a somewhat seperate issue. In fact, to focus on what I consider the crux of the issue, consider a government body X (either the congress of the president) issuing a blanket ban on all members of religion Y to travel to the US. Assume the ban does not apply to US citizens or green card holders.</p>

<p><em>What would be the legal argument for the unconstitutionality of such a ban?</em> The ban, though unequivocally discriminating based on religion, would presumably effect non-US citizens who would not be covered by the first amendment.</p>

<p>One might argue the ban would still be unconstitutional because it would disproportionately restrict members of religion Y from using the immigration system to bring their families to the US, hence constituting a violation of the first amendment. If this is a reason for such a ban's unconstitutionality, would carefully designing the ban as to surgically allow members of Y to bring their families into the US affect its constitutionality?</p>

<p>The government is prohibited by the first amendment from creating a law which gives preference to one religion over another. Banning entry to persons of one or more religions would do this.</p>
