Elizabeth Shakman Hurd writes: President Trump’s executive order on immigration has a clause that is supposed to protect religious minorities. Trump has made clear he has in mind primarily Christians from the Middle East. If implemented, individuals who can show evidence of being persecuted as Christian will qualify for a fast lane into the United States.

It would also mean that immigration officials would have to hone their theological skills — because they will be in charge of determining who belongs to what religion. Many commentators have noted the constitutional problems with administering a “religious test.” But the practical and theological problems are equally daunting.

Would U.S. definitions for “real” membership in each religion violate the Establishment Clause?

The order says that the United States will “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”

In practice, this means that every immigration officer must know how to tell if the person before them is a Christian or a member of another minority religious community — or is merely claiming to escape persecution for other reasons. The Department of Homeland Security will have to issue guidelines to standardize decisions.

To effect this, the government will have to come up with definitive answers to long-standing religious questions. For instance, what is the religion of the child of a Muslim father and Jewish mother, since Islam is inherited through the father and Judaism through the mother? Does baptism make one a Christian, as some believe, or does it also require good works and faith in Jesus, as others maintain? Who decides whether a person truly belongs to a particular religion: the individual or the institution? Is Shiism in Saudi Arabia a minority religion — or is it, as the Saudi government maintains, a deviant sect of Sunni orthodoxy? What about those who claim a religion but do not pay the fees or adhere to the guidance of its central institutions? What about religions without centralized institutions?

House Speaker Paul D. Ryan (R-Wis.) has sought to reassure donors that the executive order does not impose a “religious test.” But there’s no avoiding it: The bureaucratization of religious categories cannot happen otherwise. [Continue reading…]