Three judges filed compelling dissents that will prove quite useful when, as Trump promises, the case proceeds to the Supreme Court. The continuation of the litigation is an unfortunate outcome, even if conservatives and other rule-of-law types, buoyed by Justice Neil Gorsuch’s appointment, may be right that the EO has a better shot in the High Court.
That’s because the EO doesn’t matter. You may not have noticed, but sharia supremacism has already won, regardless of what the Supreme Court does.
See, the EO was never an end in and of itself. It is a means — a fatally flawed one — to a vital end. That end is a vetting system that enables our security services to distinguish pro-Western Muslims from sharia supremacists. That’s the goal. The EO was conceived as a temporary pause while the vetting system took shape.The problem with Islam has always been that it is a political theory hiding inside of, and disguised as, a religion. Both Christians and Jews hold that to be successful (as they define success) one must surrender one's will to God's will. One must use one's will in the furtherance of God's objectives. We learn about God's objectives by reading sacred Scripture. To the extent that Islam requires the same thing, Christians have no problem. However, their Scripture is not the same as our Scripture. Our Scripture describes a God who loves us and all creation, while theirs describes a god who hates most of his creation, but there is no explanation why that is. He apparently hates dogs, pigs, Jews, Christians, Pagans, Shinto, Hindus, and on and on in a litany of hatred that causes a thinking man to suspect that the two different texts were inspired by to different beings. Furthermore, the god of Islam demands respect and obedience. To enforce these things, there is Sharia. Sharia makes the Pilgrims look like pikers. The Pilgrims sailing to America and setting up a theocracy seem in light of Sharia like liberal hippies.
There is a single battle that must be won. American culture must be convinced that Islam, while it has plenty of diversity, has a mainstream strain — sharia supremacism — that is not a religion but a totalitarian political ideology hiding under a religious veneer.
Intellectually, this should not be a difficult thing to do. Sharia supremacism does not accept the separation of religion from political life (which is why it is lethally hostile to reform Muslims). It requires the imposition of classical, ancient sharia law, which crushes individual liberty (particularly freedom — of conscience, of speech, and in economic affairs). It systematically discriminates against women and non-Muslims. It is cruel in its enforcement. It endorses violent jihad to settle political disputes (since such disputes boil down to whether sharia is being undermined — a capital offense)....snip...
Nevertheless, what should be easy to establish intellectually is difficult as a practical matter. Sharia supremacists and their progressive allies maintain that Islam may not be parsed into different strains. For legal purposes, they insist it is a monolith that is protected by religious-liberty principles — notwithstanding that a) progressives are generally hostile to religious liberty and b) sharia supremacists themselves would destroy religious liberty. Perversely, then, they argue that the First Amendment is offended by national-security measures against anti-American radicals who would, given the chance, deep-six the First Amendment in favor of sharia.
It is essential to win this debate over the political nature of sharia supremacism. Our law has a long constitutional tradition, rooted in the natural and international law of self-defense, of excluding aliens on the basis of radical, anti-American political ideology. Thus, if sharia supremacism is deemed a political ideology, we can keep out alien adherents of a cause that both inspires the terrorists of today and, wherever it is allowed to take root, produces the terrorists of tomorrow.And so we see that these judges are out of touch with the American people. They do not live in what Rush Limbaugh might call "Realville."
And the judges’ values tend not to be your values. You value American national security. They value a new, aggressive, and indiscriminate protection of religion — provided that the religion is Islam. Your value is a trifle. Their value is transformed into a right of Muslim immigration, derived from the new, judicially manufactured right of America-based Muslims not to have their self-esteem bruised.
Sharia supremacism and judicial imperialism: a combination that is breaking our will in a way no previous challengers ever could.