Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
On Appeal Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
On March 29 2017, the District Court for Hawaii granted a preliminary injunction effectively extending a two-week old nationwide temporary restraining order (TRO) on an Executive Order which had placed restrictions on the entry of foreign nationals. The Executive Order was the second such Order issued by U.S. President Donald J. Trump and it replaced an initial executive order that had been restrained by a Washington Court.
The initial Executive Order, issued by the President during his first week in office, placed broad restrictions on individuals traveling to the U.S. from seven Muslim-majority countries. A Washington court placed a TRO on the Order, which was upheld at the Ninth Circuit, on the grounds that the Order was likely unconstitutional and was likely to cause irreparable harm if implemented. President Trump then issued a second Executive Order which, among other things, removed some of the problematic language in the first Order. The Plaintiff State of Hawaii claimed that the Executive Order inflicts constitutional and statutory injuries on its residents, employers and educational institutions while Plaintiff Dr. Elshikh alleged injuries on behalf of himself, members of his family and members of his Mosque.
The Court found that both the State of Hawaii and Dr. Elshikh had standing to hear the case, and that the Executive Order was likely to be found unconstitutional under the Establishment Clause because the Order did not have a religiously neutral purpose. The Court reasoned that because violation of a party’s constitutional rights constitutes irreparable harm and is always contrary to the public interest, a TRO to block the Order from taking effect until courts could decide whether to issue a preliminary injunction, and ultimately, decide on the merits of the constitutional claims, was justified.
Converting the TRO into a preliminary injunction, the Court reiterated its earlier findings that the Plaintiffs had met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim; that irreparable injury was likely if the requested relief was not issued; and that the balance of the equities and public interest was in favor of granting the requested relief. The Court further stated that it would not stay its ruling or hold it in abeyance should the Defendants file an appeal of the order.
On 27 January, 2017, one week after he was sworn into office, U.S. President Donald J. Trump issued an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“the Original Order”). This Order placed a temporary ban on individuals entering the U.S. from seven Muslim-majority countries, subject to certain exceptions, and was immediately the subject of several lawsuits. On 3 February 2017, as a result of one of those lawsuits (Washington v. Trump), the Western District Court of Washington issued a preliminary injunction which prohibited the federal government from enforcing the Original Order nationwide. On 4 February 2017, the Trump administration filed an emergency motion to stay the Washington decision with the Ninth Circuit Court of Appeals, which was denied on 9 February 2017. The Ninth Circuit found that the State of Washington had standing to request the injunction because of the injuries the Original Order would cause to Washington’s public universities—organs of the state—and because the Original Order was “likely” to be found unconstitutional.
On 6 March 2017, President Trump issued a new executive order with the same title, “Protecting the Nation from Foreign Terrorist Entry in the United States” (“the Order”). This Order placed a similar travel ban on individuals from six Muslim-majority countries, rather than seven (Iraq was removed from the list), and allowed more exceptions than the Original Order, for example for Syrian refugees and skilled workers. Although the Government insisted that the wording of the Order was neutral, several lawsuits immediately disputed the constitutionality of its purpose, alleging that it discriminated against travelers on the basis of religion. One of those lawsuits is the present case, Hawaii and Elshikh v. Trump.
In the present case, the State of Hawaii and Dr. Elshikh petitioned the U.S. Federal Court for the District of Hawaii for a preliminary injunction to prevent the federal government from enforcing the Order nationwide. Dr. Elshikh is the Imam of the Muslim Association of Hawaii and a legal permanent resident of the U.S. He joined a complaint after the Original Order alleging injuries to himself, to his family and to members of his Mosque. The complaint alleged that the Order discriminates in violation of both the Constitution and the Immigration and Nationality Act (“INA”) because it denies Dr. Elshikh and others the right to associate with family members overseas on the basis of their religion and national origin, and requested a preliminary injunction to block enforcement of the Order until the constitutionality of the Order could be determined. The State of Hawaii alleged that it had standing to challenge the Order because, as a result of the travel ban, Hawaii’s public universities would lose talent and revenue. Hawaii also alleged that the Order would cause harm to tourism—Hawaii’s primary industry—and that it would therefore harm state revenue. The original complaint was stayed after the Washington decision and amended after the March 6 Order. The Hawaii District Court granted the amendment on March 8 and issued the present decision on March 15.
The Plaintiffs applied to convert the TRO into a preliminary injunction.
Judge Derrick K. Watson wrote on behalf of the Federal District of Hawaii. In a 43-page opinion issued just hours after a hearing, Judge Watson granted a TRO until a hearing for a preliminary junction could be held, effectively issuing a nationwide block on implementation of the Order pending further proceedings. Judge Watson further specified that, in the event of an emergency appeal, the Court would decline to stay the ruling or hold it in abeyance.
Judge Watson first considered the standing of the State of Hawaii and Dr. Elshikh, respectively. In order to establish standing under Article III of the U.S. Constitution, a plaintiff must demonstrate that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Flast v. Cohen, 392 U.S. 83, 95 (1968). First, Judge Watson found that Hawaii suffered an ‘imminent’ ‘injury in fact’ because the harm caused to the state’s public university system was “virtually indistinguishable” from the injuries in the Washington case, which was upheld by the Ninth Circuit; moreover, Hawaii suffered an ‘actual’ ‘injury in fact’ as a result of the Original Order, as evidenced by the drop in tourism from the countries listed in the Order. Second, Judge Watson found that the injury was directly traceable to the Order—the conduct of the defendant. And finally, Judge Watson found that a favorable ruling for the plaintiff would “likely” redress the harm because it would eliminate the Order, the source of the harm. Thus, the State of Hawaii had standing to bring its claims.
Judge Watson also found that Dr. Elshikh had standing to bring his claims, including alleged violations of the Establishment Clause in the First Amendment to the U.S. Constitution. First, Dr. Elshikh suffered an ‘injury in fact’ because, by barring and potentially blocking his Syrian mother-in-law’s visa application, the Order caused him and his family to “feel like second-class citizens” and to potentially chill “their participation in the political community”, especially because his two U.S.-citizen children were “deeply affected by the knowledge that the U.S.—their own country—would discriminate against individuals that are the same ethnicity as them, including members of their own family, and who hold the same religious beliefs.” Quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984); Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010). Dr. Elshikh’s community also suffers an ‘injury in fact’ because “as a result of the new Executive Order, he and members of the Mosque will not be able to associate as freely with those of other faiths.” Judge Watson found that these “injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context.” The other two prongs of Article III standing were easily met: the harm was directly traceable to the Order and would be redressed by an elimination of the Order.
Judge Watson next found that the case was sufficiently “ripe” for Article III adjudication—despite the Government’s objections that Dr. Elshikh’s mother-in-law’s visa-waiver process had not yet been initiated—because the injuries alleged had “already occurred and will continue to occur” once the Order was implemented and enforced.
Finally, Judge Watson turned to an analysis of the legal standards for issuing a TRO until a decision could be made on whether to issue a preliminary injunction. Judge Watson noted that the standard for issuing a TRO is virtually identical to those of issuing a preliminary injunction, but that the TRO’s purpose is to “preserve the status quo and prevent irreparable harm” pending a decision on a preliminary injunction. The key factors, Judge Watson explained, were the likelihood of plaintiffs’ success on the merits of the claim, and the likelihood of irreparable harm caused to the plaintiff in the absence of a TRO.
Judge Watson found Dr. Elshikh was likely to succeed on the merits of his Establishment Clause claim because “a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose”. 28-29. As a result, Judge Watson found that the Order was likely to fail the first prong of the Establishment Clause test set out in the seminal 1971 case of Katz v. Kurtzman—namely, that the government action at issue “(1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion.” In finding a violation of the “secular purpose” was likely, Judge Watson noted that the purpose of the Order had to be considered “in light of the context,” and he established the context in this case through the “extraordinary” record of the Trump campaign. To this end, Judge Watson quoted numerous instances over the past two years during which Donald Trump or members of his staff had openly voiced intentions to block members of the Muslim faith from entering the U.S. if elected, often broadly equating Muslims with terrorists.
Judge Watson next reiterated that ‘irreparable harm’ is presumed when there is a violation of the First Amendment. Accordingly, he found that because Dr. Elshikh’s alleged injuries had already occurred, because they would continue to occur in the absence of a TRO, and because he was likely to succeed on his Establishment Clause claim, Dr. Elshikh was likely to suffer irreparable harm in the absence of a TRO.
Finally, the Court found that the balance of equities and public interest weighed in favor of granting the TRO. Although the Government issued the Order in the name of “national security,” and although national security is “unquestionably important,” Judge Watson quoted the Ninth Circuit’s Washington decision in finding that the Government’s “questionable evidence” supporting the Order did not outweigh the public’s interest in “free flow of travel, in avoiding separation of families, and in freedom from discrimination.”
For the reasons above, the U.S. Federal Court for the District of Hawaii granted a TRO blocking implementation of the Order nationwide pending further hearings on a preliminary injunction, and ultimately, on the constitutionality of the Order.
Order Granting Motion to Convert Temporary Restraining Order to a Preliminary Injunction
On granting the Plaintiffs’ subsequent application to convert the TRO into a preliminary injunction on March 29, 2017 Judge Watson reiterated the Court’s earlier findings that the Plaintiffs had met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim; that irreparable injury was likely if the requested relief was not issued; and that the balance of the equities and public interest was in favor of granting the requested relief.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by preventing the implementation of the Executive Order nationwide. Indeed, if the Court’s reasoning holds true, the Executive Order would restrict the freedom of Muslim individuals to associate with family members, would place a chill on participation in the community and would violate the Establishment Clause because its primary purpose is not a secular one.
It is the third in a string of cases on Trump’s Executive Orders, and the decision is likely to be appealed.
The first decision, issued by a District Court in Washington, blocked Trump’s first Executive Order with a temporary restraining order to prevent the Order from taking effect until the constitutional claims could be litigated. The second case was the Ninth Circuit decision upholding the Washington Court’s decision on appeal. After that decision, the Government voluntarily dismissed the pending constitutional claims regarding the first Executive Order and issued a second Executive Order.
The second Order did essentially the same thing as the first, but eliminated some of the most constitutionally problematic language. Like Washington, Hawaii’s federal district appeals to the Ninth Circuit, and as a result, the present case relied on the Ninth Circuit’s reasoning in its decision upholding the Washington case.
The first claim in both the Hawaii and Washington cases–that the travel ban harms state universities by restricting the ability to recruit students and talent–were “virtually indistinguishable”, but the Establishment Clause claim in the Hawaii case was brought directly by an individual, rather than by a state on behalf of its citizens.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Pending appeal, this decision is binding nationwide. The federal government is prohibited from implementing the Executive Order until a decision can be reached on a preliminary injunction, and eventually, on the constitutionality of the Executive Order.
Let us know if you notice errors or if the case analysis needs revision.