SALT LAKE CITY — The Supreme Court on Wednesday considered the travel ban's bad reputation, weighing whether restricting travel from five Muslim-majority countries constitutes anti-Muslim discrimination.
"If you look at what was done, it does not look at all like a Muslim ban," said Justice Samuel Alito, noting that President Donald Trump's travel policy affects only around 8 percent of the world's Muslims.
Justice Elena Kagan, on the other hand, argued that it's fair to worry about discrimination when dealing with a leader who's made hostile religion-related comments, even if he can offer other justifications for a travel ban.
"The question is not really what his heart of hearts is. The question is what are reasonable observers to think," she said, after describing a hypothetical situation in which an anti-Semitic leader banned travel from Israel.
During the hour-long oral arguments for Trump v. Hawaii, the justices pressed lawyers for both sides to define the scope of presidential authority and the ramifications of the travel ban. They appeared skeptical of allowing Trump's anti-Muslim tweets and campaign statements to influence their ruling, which signals that their decision will ultimately not say much about religious discrimination, according to legal analysts.
Neal Katyal, arguing against the travel ban on behalf of the state of Hawaii and immigration rights groups, said the ban unlawfully discriminates on the basis of nationality, interfering with businesses and colleges who depend on foreign workers.
"Our point about … the discrimination has nothing to do with any campaign statements or anything else. It's purely the text of the proclamation, which is nationality-based discrimination through and through," he said.
U.S. Solicitor General Noel Francisco, arguing in support of the travel ban, made the same point as Justice Alito, claiming that it's ridiculous to label the policy a "Muslim ban" when it leaves dozens of Muslim-majority countries untouched.
"This is not a so-called Muslim ban," he said. "If it were, it would be the most ineffective Muslim ban that one could possibly imagine."
The contested ban is Trump's third attempt at protecting national security through travel restrictions.
He issued his first executive order on travel within a week of taking office in January 2017. It banned travelers from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen for 90 days and was soon blocked by several federal judges.
Lawsuits related to the executive order accused Trump of unlawful anti-Muslim bias, citing inflammatory tweets and statements during the presidential campaign.
The next travel ban, announced in March 2017, removed Iraq from the list of affected countries. But, like the first executive order, it was met with widespread protests and multiple lawsuits.
"After Trump issued the third version in September — subtracting Sudan, adding Chad, North Korea and Venezuela, setting separate criteria for each country and making it indefinite rather than temporary — federal courts again struck it down. But in December, the (Supreme Court) justices allowed it to go into effect, and in January they scheduled it for oral argument," USA Today reported.
Chad was removed from the list of affected countries this month, the article noted.
During Wednesday's oral arguments, religiously affiliated organizations and other civil rights activists rallied outside the Supreme Court building. Speakers at the "No Muslim Ban Ever" event included Rep. André Carson, D-Indiana, and Khizr Khan, a Muslim who spoke at the 2016 Democratic National Convention about losing his son in the Iraq War and famously questioned then-candidate Trump's knowledge of the Constitution.
Participants carried signs with slogans like "Love Thy Neighbor (No Exceptions.)"
A variety of faith groups filed briefs opposing the travel ban, arguing that the policy is at odds with America's efforts to protect religious freedom, as the Deseret News reported earlier this month.
"Our (country's) founders were clear that the nation's new laws prohibiting religious discrimination extended to people of all faiths and backgrounds," explained the brief signed by the Anti-Defamation League, Union for Reform Judaism and four other Jewish groups.
Eighty-four percent of Muslims, 70 percent of Jews, 62 percent of Catholics and 58 percent of Protestants oppose a ban on visas to Muslims wanting to enter the United States, according to new research from the Institute for Social Policy and Understanding. White evangelical Christians are the most supportive of travel restrictions affecting the Muslim community, with only 34 expressing opposition.
Jews, Catholics, Mormons and other faith groups have fought discriminatory policies in the past, which motivates political activism today, faith leaders said.
"Having once bourne the brunt of severe discriminatory treatment, particularly in the immigration context, the Catholic Church will not sit silent while others suffer on account of their religion," reads the brief from the U.S. Conference of Catholic Bishops, Catholic Charities USA and Catholic Legal Immigration Network, Inc.
In the end, however, the Supreme Court ruling may center on the question of presidential authority, rather than religious discrimination, legal analysts said. Justices returned to this topic again and again throughout oral arguments on April 25, and a majority of them resisted interfering with the work of the executive branch.
"The court's conservative justices appeared sympathetic to the administration's contention that it has the authority to regulate immigration in the name of national security," USA Today reported.
Justice Stephen Breyer, one of the court's four liberal justices, seemed more concerned about exceptions to the travel ban than the ban itself, the article noted.
He "voiced concern mostly about the ability of travelers from five majority-Muslim countries to get waivers," USA Today reported.13 comments on this story
Justice Breyer and other liberal justices may be willing to join a ruling for the government if the waiver process is shown to be fair, according to The Wall Street Journal's live analysis of oral arguments.
"Whether the court believes that the government truly is admitting people who fit the exceptions, or whether their inclusion in the travel ban order merely are window dressing, could be critical not only to whether the Trump administration wins," but also whether there is a broader ruling, joined by some liberal justices, for the government, it said.
The Supreme Court's ruling is expected in June.