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Tuesday, December 08, 2015

Trump and Religious Exclusion from the US: The Mormon Precedent

Commenting on Donald Trump's proposal to exclude all prospective Muslim immigrants from the United States, Nancy Morawetz of NYU, one of the nation's leading scholars and practitioners of immigration law, was quoted in the NY Times as saying she could not "recall any historical precedent for denying immigration based on religion."  There is at least one historical example, the 1891 federal exclusion of polygamists, which, in the Immigration Act of 1917,  was revised to make clear that it applied to those "who practice polygamy, or believe in or advocate the practice of polygamy." 39 Stat. 874, 875 sec. 3.  The law's targeting of pure belief, independent of conduct, is paralleled by Davis v. Beason, 133 U.S. 333 (1890), in which the Court upheld the Idaho Territory's disenfranchisement of polygamists, or those who belonged to an organization which advocated or believed in polygamy.   The Court explained: 

It is assumed by counsel of the petitioner that, because no mode of worship can be established, or religious tenets enforced, in this country, therefore any form of worship may be followed,
and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further
from the truth. . . . requiring every person desiring to have his name registered as a voter to take an oath that he does not belong to an order that advises a disregard of the criminal law of the
territory, is not open to any valid legal objection to which out attention has been called.
Davis v. Beason, 133 U.S. 333, 345 (1890) abrogated by Romer v. Evans, 517 U.S. 620 (1996).  Here, the Court made clear that certain dangerous beliefs may be regulated, as may membership in organizations advocating dangerous ideas.  Davis v. Beason, mercifully, has been overruled, and the immigration law now provides only that "[a]ny immigrant who is coming to the United States to practice polygamy is inadmissible." 8 USC 1182(a)(10)(A).

Posted by Jack Chin on December 8, 2015 at 12:31 PM in Immigration | Permalink


That's nothing. Atheists, agnostics and humanists are prohibited from serving as judges, jurors or lawyers in the constitutions of several US states on account of their non-belief in god.

Posted by: Jimbino | Dec 10, 2015 6:44:49 PM

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