Noted: The striking similarity — and, ultimately, the striking difference — between a ruling last week on a Harford County housing matter by a federal judge in Baltimore and this week’s ruling on executive power and immigration by the Supreme Court. Both cases involved anti-Muslim expression and the actions of government officials.
On Tuesday, by a 5-4 vote, the Supreme Court upheld President Donald Trump’s ban on travel from five predominantly Muslim countries, with the court’s conservative majority completely dismissing the president’s irrational and prejudiced motivation for the ban.
The record is clear, from Trump’s public statements, that his executive orders were grounded in religious prejudice — that is, his assertions that followers of Islam generally pose a threat to the country and need to be stopped from coming here.
During the campaign, Trump called for a “total and complete shutdown of Muslims entering the United States.”
Here’s what he said in December 2015: “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.” Last November, Trump famously retweeted inflammatory anti-Muslim videos from a British extremist group. He has generally, and frequently, associated immigration with criminality.
The president’s bigotry — and his sibilant immigration whisperer, Stephen Miller — surely informed his decision to issue the travel ban after he took office.
But, while the court supposedly weighed Trump’s inflammatory statements, the majority ultimately dismissed them and ruled strictly on executive power, finding Trump’s ban within presidential authority on national security — and this despite no evidence of terrorist attacks from any of the countries under the ban, or of any new threat. Dozens of former intelligence and military officials, who had served both Republican and Democratic presidents, strongly condemned Trump’s ban in amicus briefs.
The court’s ruling was a victory for a president whose animosity toward immigrants, particularly Muslims and Mexicans, has been made clear by his words and actions.
As Justice Sonia Sotomayor noted in her stinging dissent, "a reasonable observer would conclude that the [travel ban] was motivated by anti-Muslim animus."
You can find similar language, but a strikingly different finding, in a June 22 opinion from Judge George L. Russell III of the U.S. District Court in Baltimore. He found that government action had, indeed, been influenced by religious prejudice.
After hearing testimony in a lawsuit brought by a Harford County builder, Russell ruled that county officials had delayed the completion of a 48-home development along Trails Way in Joppatowne because of community pressure based in "active and vile religious animus."
The judge did not accuse county officials of prejudice; rather, he suggested that community sentiment heavily influenced their decision to hold occupancy permits for what became known as the “Muslim development.”
A Muslim-American group had once promoted the townhomes for members of a specific sect. Though that promotion went away, people who live in the area expressed concerns that the development would become a Muslim-only enclave with a mosque. The county executive’s office received angry phone calls. Flyers were printed, town halls held. Russell heard evidence of “heated and hateful Islamophobic rhetoric” about the project on social media. County officials received complaints they characterized as anti-Muslim hate speech.
"Some town hall attendees expressed inflammatory rhetoric towards the prospective Muslim purchasers that was active and vile religious animus,” Russell said. “This select group of residents rallied various politicians and leaders and demanded that the construction project be halted."
Three Republican state delegates — Rick Impallaria, Kathy Szeliga and Pat McDonough — urged the county to stop issuing permits for the homes “until a full investigation has been completed.”
I spoke to the builder, Bill Luther, president of Gemcraft Homes, last year, and met him inside one of his purchased-but-empty houses in January. He was convinced that anti-Muslim bias had been behind the county’s decision to withhold permits needed for occupancy of the 14 homes he already had built.
“I have never seen anything like this,” Luther said. “I’ve never had any county refuse move-in permits.” In his long experience, Luther had seen issues about stormwater management and the bonding of infrastructure resolved without affecting use-and-occupancy permitting.
The judge noted this in his ruling. Luther’s project, Russell said, had received “more scrutiny as a result of pressure from some residents that prospective purchasers were Muslim.”
The judged added: “But for the religion of the prospective Muslim purchasers, the county would have granted the sewer, water hookup permits and use and occupancy permits for the 14 homes constructed.”
Russell ordered the county to issue the permits.
Hopefully, this ends the dispute. But you never know. In upholding Trump’s travel ban, the Supreme Court dismissed the argument that clear expressions of bigotry and hostility — religious animus, specifically — prove discriminatory intent and undermine any claim of credible government action. If a president can get away with that, why not a county?