Today, the U.S. Supreme Court decided Trump v. Hawaii, a challenge to the President's "travel ban." The majority upheld the ban 5-4, ruling that banning individuals from certain countries was within his statutory power under the Immigration and Nationality Act.
For the most part, the decision does not touch on the extraterritorial application of the Constitution. But I wanted to briefly address a statement by Justice Thomas in his concurring opinion.
The plaintiffs had challenged the travel ban on both statutory and constitutional grounds. They argued that the ban violated the First Amendment's protection against the establishment of religion, because it was the policy implementation of the President's long-promised "Muslim Ban."
The majority found standing to address this question based on the First Amendment rights of the plaintiffs, U.S. citizens, to associate with their relatives. (Slip op. at 25-26).
Justice Thomas, in his concurrence, notes that the Establishment Clause does not create a right to be free from all laws that a "reasonable observer" views as religious or antireligious. He then states: "The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. See United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990)."
However, he provides no further rationale or explanation for his view that the plaintiffs are not in a position to raise a First Amendment challenge on behalf of the aliens being rejected based on their religion. There is simply no basis in Verdugo-Urquidez for holding that the Establishment Clause does not protect aliens seeking entry to the United States.
Justice Thomas's citation to Verdugo-Urquidez cites to the Court's discussion of the term "the people" and notes that it is used in the Fourth, First, Second, Ninth, and Tenth Amendments. But this does not answer the question. First of all, the term "the people," while appearing in the First Amendment, does not appear until discussing the right of the people to peaceably assemble and petition their government for a redress of grievances. There is nothing in the text to limit the right to free exercise to be limited to the people. Indeed, the plain language of the Amendment makes clear it is a limit on Congress: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...." Nothing here implies any limit to "the people" of the United States.
Only one Court of Appeals has ever addressed the question of whether the Establishment Clause applies outside the United States - the Second Circuit in Lamont v. Woods, 948 F.2d. 825 (2nd Cir. 1991). Decided the year after Verdugo-Urquidez, Lamont involved a challenge to the State Department's use of public funds to build religious schools in foreign countries. There, the Court relied on the Verdugo-Urquidez framework to strike down the expense of the money. Unlike the Fourth Amendment, the court found that any violation of the Establishment Clause occured in the United States, when the money was granted by Appellants, not once it was spent.
Furthermore, an in support of the textual argument above, the court noted that "The Establishment Clause, unlike the Fourth Amendment, contains no limiting language. Indeed, the basic structure of the Establishment Clause, which imposes a restriction on Congress, differs markedly from that of the Fourth Amendment, which confers a right on the people." 948 F.2d at 835. The Second Circuit then relied on the Supreme Court's holding in one of the first Insular Cases, Downes v. Bidwell, which held that:
When the Constitution declares that "no bill of attainder or ex post facto law shall be passed," and that "no title of nobility shall be granted by the United States," it goes to the competency of Congress to pass a bill of that description. Perhaps, the same remark may apply to the First Amendment, that "Congress shall make no law respecting an establishment of religion. . . ." We do not wish, however, to be understood as expressing an opinion how far the bill of rights contained in the first eight amendments is of general and how far of local application. 182 U.S. 244, 277 (1901). Thus, the Court itself had previously held that the Establishment Clause goes to the very root of Congress to act at all.
The court also looked to the history of the Establishment Clause and found it telling that both the drafting committee and the full House refused Madison's suggestion that the Clause address establishment of a "national" religion.
Finally, the court addressed whether there would be negative policy implications of applying the clause abroad. There is likely a better argument from a policy perspective in finding application of the clause to be problematic in this case. However, this alone is not enough to overcome the presumption that the Establishment Clause limits Congress's (and the Executive's) power to discriminate based on religion. At the very least, if one wants to argue that the policy implications mitigate against the extraterritorial application of the Constitution, one need do more than make a passing citation to Verdugo-Urquidez as if the case definitively answered the question.