Human rights and liberal values: can religion-targeted immigration bans be justified?

ABSTRACT In Justice for People on the Move (2020), Gillian Brock argues that immigration bans targeting religions run afoul of international human rights agreements and practices concerning equal protection under the law, freedom of conscience, and freedom of religion. Religion-targeted bans are also said to violate ethical requirements for legitimacy by not treating immigration applicants fairly and signalling the acceptability of hatred and intolerance. Brock centres her discussion around the example of the Trump administration’s 2017 Muslim ban, for which she notes additional problems such as the ban’s being motivated by dubious empirical assumptions about the risk of terrorism. I raise two challenges for Brock’s argument. I begin by asking whether banning the immigration of individuals from certain Muslim majority countries could be justified on the grounds that a large portion of the population in those countries appear to reject core liberal values such as the equal rights of women and homosexuals. This leads to my primary challenge, which concerns the practice of treating religion as a morally protected category such that discrimination based on religion is inherently impermissible. I argue that religions should be viewed as more akin to political ideologies than to morally arbitrary categories like race and sex, and that if a given religion is genuinely harmful to liberal values, an immigration ban could in principle be compatible with respect for human rights.

treating immigration applicants fairly and by signalling the acceptability of hatred and intolerance. Brock focuses on the example of bans targeting Muslim majority countries, for which she notes additional problems. One of the major problems is that the commonly stated motivations for such bans (e.g. that Muslim immigrants constitute a significant threat of terrorism) are questionable on empirical grounds.
In this paper, I raise two challenges for Brock's argument. The first concerns the specific case of bans targeting Muslim majority countries. Brock centres much of her discussion around the example of the ban put forth by the Trump administration in 2017, and many of her criticisms are convincing. But to gain full clarity on this issue, we must consider the possibility of a ban that avoids the most problematic features of Trump's policy (e.g. empirically dubious justifications and a bogus waiver process) and ask whether such a policy could ever be justified in principle. I shall specifically focus on the question of whether banning the immigration of individuals from certain Muslim majority countries could conceivably be justified on the grounds that a large portion of the population in those countries appear to reject core liberal values such as the equal rights of women and homosexuals. This leads to my primary challenge, which concerns the practice of treating religion as a morally protected category such that discrimination based on religion is inherently impermissible. While religious identity is often lumped in alongside categories like race and sex as a feature of an individual for which discrimination is never justified, it is far from obvious that this is a sensible practice. I shall suggest some reasons for believing that religions should be viewed as more akin to political ideologies than to morally arbitrary categories like race and sex. If this is right, and if a given religion is genuinely antithetical to liberal values, an immigration ban targeting that religion may be compatible with respect for human rights and hence not undermine a state's legitimacy.

Trump's ban
As mentioned, Brock's discussion of religion-targeted bans centres largely on the ban instituted by the Trump administration in 2017. This policy is claimed to be problematic in multiple respects. The first is that it was developed within a context of hateful rhetoric against Muslims that Trump used both during his campaign and even after taking office. For example, during a 2016 interview, Trump said: 'I think Islam hates us' (Brock 2020, 66). And in a statement from his campaign website that remained several months into his presidency, Pew research indicating anti-American sentiment among Muslim populations is cited and followed by the claim that It is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand the problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks of people that believe only in Jihad, and have no sense of reason or respect for human life. (Brock 2020, 70) These kinds of claims do seem to qualify as 'hateful rhetoric,' insofar as they are broad generalizations that give the impression that all or even most Muslims hate America and endorse violence as part of global Jihad. By making these unqualified statements, Trump stoked general animosity towards all Muslim people, including those who are U.S. citizens. Indeed, data shows that anti-Muslim sentiment and incidents of discrimination against Muslim U.S. citizens rose drastically during the time in which Trump was most actively advertising (and eventually enacting) his anti-Muslim platform (Brock 2020, 82-83). 2 A second problematic feature of Trump's ban was its bogus waiver process. One of the general concerns about immigration bans targeting identity groups is that they fail to treat people as individuals. It is grossly unjust to condemn or exclude an individual just because she happens to share superficial characteristics with people who may indeed merit exclusion. In the next section, I shall argue that subscribing to a particular religion is not a superficial characteristic, but that point can be set aside for now. Even if a general ban on immigration from the target countries were justified, there are numerous innocent individuals from those countries who pose no threat and are deserving of immigrant status. Indeed, many individuals may be seeking to immigrate precisely because they are opposed to problematic ideologies that ostensibly provide the grounds for the ban. In order to prevent unjust exclusion of innocent and innocuous people, and to satisfy the ideal of treating human beings as individuals, any targeted immigration policy must include a functioning waiver process.
Trump's ban did include a waiver process, or at least it purported to. In addition to making exemptions for lawful permanent residents of the U.S., case-by-case waivers were to be granted when an alien demonstrates that '(1) denying entry would cause undue hardship; (2) entry would not pose a threat to public safety; and (3) entry would be in the interests of the USA' (Brock 2020, 68). However, the waiver process did not function as it was supposed to. Instead, countless innocent individuals from Muslim majority countries failed to receive exemptions despite meeting the stated criteriaa total of 2 waivers out of 6,555 eligible applicants were granted during the first month (ibid.). 3 The third major problem with Trump's ban is that its purported moral justification is highly dubious. The alleged justification was that such a ban would protect American citizens by decreasing the threat of an Islamic terrorist attack, which was discussed as though it were a major concern. However, data indicate that this is implausible on empirical grounds. The number of Americans killed in terrorist attacks by citizens of one of the banned countries between 1975 and 2015 was zero (Brock 2020, 67). Further, A report compiled by the U.S. Department of Homeland Security Intelligence and Analysis unit concluded that people from the banned countries did not pose an increased terrorism risk (ibid.). Moreover, there is good reason to think that Trump's ban has increased the risk of violence against the U.S. As Brock notes, national security officials submitted a brief advising that Trump's immigration policies 'do not advance the national-security or foreign policy interests of the USA, and in fact do serious harm to those interests' (Brock 2020, 72). Trump's ban, with its associated rhetoric, fostered the perception that the U.S. is a nation that hates Muslims. This in turn led to animosity and distrust towards the U.S. on the part of Muslims around the world, and it may serve as fodder for the recruitment of individuals into radicalized Islamic groups who aim to harm the USA.
Taking all this into account, it is clear that Trump's ban was problematic. However, it does not follow from this that religion-based immigration restrictions are inherently unjustifiable. Since Trump's ban is merely one example, it is worth considering whether religiously-based immigration restrictions that avoid the pitfalls of Trump's ban could conceivably be justified. I will begin by focusing on the question of whether restrictions targeted at Muslim majority countries could be justified and then turn to the question of whether religion-based restrictions could be permissible in general.
For an immigration ban to have a chance of being ethically justified, it will have to have a motivation that is not empirically dubious like the stated motivation for Trump's ban (i.e. serious threat of terrorist attacks). If plausible grounds for restricting immigration from Muslim majority countries are to be found, the most likely candidate is concern over some of the illiberal beliefs and practices found within those countries. The desire to protect and promote liberal values, including respect for human rights, seems like an adequate motivation for restricting the immigration of those who have worldviews and beliefs that are antithetical to those values. And there is evidence that the general culture within certain Muslim majority countries is highly problematic along these lines.
According to a 2013 Pew survey on the views of Muslims worldwide, high proportions of Muslims in the Middle East and North Africa both support making Sharia the law of the land and adopt strict interpretations of Sharia. 4 For example, 74% of Egyptians support making Sharia the law of the land, and 81% of those think that that implies stoning as the appropriate punishment for adulterers. That's 59.94% who support both Sharia and the stoning of adulterers. Another troubling example concerns the general attitude towards women in Muslim majority countries in those same regions. Among Muslims living in the Middle East and North Africa, the median percentage who completely or mostly agree that a wife must obey her husband is 87. Further, the median percentage who believe that a woman should have the right to choose if she veils is 53, and it's a mere 25% for the belief that sons and daughters should have equal inheritance rights. The numbers are also worrisome when it comes to attitudes towards homosexuals, as the median percentage of Muslims from the regions in question who believe that homosexuality is morally wrong is 93. At least on the surface, it does not seem obviously objectionable for a state to restrict the immigration of people who hold such illiberal beliefs.
The problems indicated by survey data are corroborated by specific events that illustrate truly reprehensible attitudes among large portions of the populations within certain Muslim majority countries. To take just one example, consider the case of Aasiya Noreen Bibi, a Punjabi farmworker commonly known as Asia Bibi. In 2010, Bibi was convicted of blasphemy by a Pakistani court and sentenced to death by hanging. The blasphemy charges arose after Bibi argued with co-workers while harvesting berries. In 2018, the Supreme Court of Pakistan overturned the ruling due to insufficient evidence. Following the acquittal, thousands of Pakistani citizens took to the streets to protest, with groups of protestors blocking at least 10 key roads in the country demanding that she be publicly hanged (Williams 2018). 5 It bears mentioning that illiberal Islam-inspired views are not limited to Muslims living in Muslim majority countries. These views have also been found in high numbers of Muslims living in non-Muslim societies. For example, polls done in Britain following the 7/7 London bombings found that 30% wanted to live under Sharia and 68% believed that British citizens who insult Islam should be arrested and prosecuted (Basham 2006). This shows that the illiberal beliefs and attitudes found among Muslims living in Muslim majority countries do not necessarily disappear when they migrate to non-Muslim countries. The question, then, is whether the desire to minimize the prevalence of illiberal ideas within a state's borders could be plausible grounds for an immigration ban targeted at countries where those ideas appear deeply entrenched. If a state has a right to self-determination (within certain limits), should this include the right to exclude immigration from people who hold illiberal and morally abhorrent beliefs? And if so, could this permissibly be accomplished by a ban targeting countries where the beliefs in question, which are associated with a particular religion, are widely held? While this is not an easy question to answer, what's important for present purposes is that the purported justification cannot be easily dismissed on empirical grounds the way concerns about terrorist attacks can. Brock's argument would thus be strengthened by considering a possible ban with this more credible motivation.
One factor to consider is that not everyone who comes from the countries in question, or who identifies as Muslim, holds the illiberal and immoral attitudes in question. Hence, a waiver system would need to make it possible for those people to gain entry. And there is certainly no shortage of practical difficulties in administering such a system. But supposing a fully functioning waiver process were feasible, the burden of argument would be on those who maintain that a ban against immigration from Muslim majority countries could not be justified. Do states not have the right to deny immigration to people who have highly immoral attitudes regarding e.g. the rights of women and homosexuals? If not, why not?
As we have seen, both during his campaign and after taking office, Trump frequently made broad criticisms of Islam that fuelled anti-Muslim sentiment and led to an increase in discrimination against Muslims within the U.S. But it seems possible to propose and enact a Muslim majority country immigration restriction without engaging in hateful rhetoric and while being careful to mitigate against increasing hatred and discrimination towards all people who identify as Muslim or hail from Muslim majority countries. The first step would be for the government leaders promulgating the policy 5 The recent beheading incident and subsequent terrorism in France further illustrates these concerns ('France teacher attack' 2020). Following the beheading of a French schoolteacher who showed cartoons of the Prophet Muhammad to his students, tens of thousands of people in Muslim majority countries gathered to protest not the murder but rather the printing of the cartoons (Alam 2020 to make it clear that it is only being enacted because a certain percentage of individuals in the targeted countries do not endorse basic liberal values such as freedom of speech and full equality for women and homosexuals. It would also need to be stressed that the relevant concerns do not apply to the large numbers of Muslims who do believe in things like equal rights for all human beings. As a further preventative measure, the government could enact a PR campaign promoting religious tolerance and disparaging all forms of hatred and bigotry. Of course, these measures would not eliminate the problem of ignorance and bigotry directed towards Muslims, but it may be enough to prevent these problems from being exacerbated by the proposed restrictions. One relevant concern about this seemingly more well-grounded ban is that it would likely increase animosity and distrust towards the USA among Muslims living abroad (even without the hateful rhetoric of Trump's ban). While this may increase the likelihood of violence directed towards the U.S., it is not sufficient to undermine the legitimacy of the hypothetical ban. Unlike Trump's ban, the ban in question would not be motivated by an appeal to national security but rather a desire to prevent the immigration of individuals who subscribe to worldviews and ethical beliefs that are antithetical to liberal values. Hence, even if it would increase the small risk of a terrorist attack, the primary aims of the ban could still be achieved.
I should clarify that I am not arguing for an immigration ban targeted at Muslim majority countries. The issues here are incredibly complex, including the myriad practical effects that such a ban would have. One reason why I am inclined to oppose such a policy is that the immigration of Muslims into free and liberal societies seems like a necessary part of the project of bringing about much-needed reforms within the Muslim world. My aim in this section has been only to show that a case for the impermissibility of restricting immigration from Muslim majority countries needs to address the best conceivable version of such a policy -one that avoids the most problematic features of Trump's ban. In some parts of chapter 4, Brock raises considerations that would ostensibly tell against more carefully constructed and wellfounded immigration bans. These arguments centre on the idea that religion-targeted bans are objectionable in principle because they necessarily involve religious discrimination and intolerance that run counter to human rights practices. This leads to my primary aim in this paper, which is to challenge the idea that religion should be a protected category such that discriminating against members of a particular religion could never be morally justified.

Religion and human rights
Much of Brock's case against religion-targeted immigration bans centres on the idea that such bans violate core tenets of central human rights doctrine. Since compliance with human rights doctrine is a prerequisite for state legitimacy and the right to selfdetermination, those seeking to exercise power legitimately cannot implement such policies. While respect for human rights is certainly a plausible requirement for legitimacy, we should not assume that every tenet of extant human rights doctrines is unassailable. Indeed, the possibility of revision and evolution is an inherent feature of the practice-based conception of human rights to which Brock appeals. Hence, before deeming a state illegitimate due to violating human rights doctrine, we must consider the particular doctrine to see if it holds up to scrutiny.
In the case of religion-targeted immigration bans, the most relevant tenets of human rights doctrine concern freedom of religion, especially freedom from intolerance and discrimination based on one's religion. It might seem as though these tenets are on solid normative grounds. As Brock notes, 'Combating religious intolerance and discrimination has been one of the top priorities of our international human rights regime since its founding. Genuine freedom to practice one's religion has been one of the most fundamental and internationally accepted human rights ' (2020, 77). The fact that religious freedom has been a point of emphasis in human rights practices is unsurprising. Many of the worst atrocities in history have been committed against innocent people solely because of their religious beliefs. But that doesn't mean that this aspect of the human rights practice is entirely unproblematic. It is always possible for wellintentioned policies that are beneficial in many ways to nonetheless have serious shortcomings and lead to moral pitfalls.
In order to determine the normative status of extant religious protections within human rights doctrine, we must consider their fundamental normative grounds. Why should we consider freedom of religion, including freedom from discrimination based on one's religion, to be a basic human right? Part of the answer is that the freedom to follow one's conscience and choose one's own ethical and spiritual outlook seems essential for the flourishing of rational beings who derive their sense of meaning and purpose largely from such things. Living in fear of being discriminated against for one's most sacred beliefs and having one's options for the formation of those beliefs restricted are obviously detrimental to autonomy and well-being.
Another part of the answer is that it is inherently unjust to discriminate against people based on superficial characteristics. All human beings merit equal respect, and to exclude someone or treat them as less worthy solely due to morally irrelevant features like skin colour or biological sex is a failure of respect and a violation of justice. And it is commonly held that one's religious beliefs fall into the same category as race and sex -to discriminate against someone because they happen to pray to a different god than you do seems no more rational or ethical than discriminating against them because they happen to look different from you. Brock follows this common assumption as she frequently places religion alongside other features of one's identity such as race and ethnicity: 'And for those who claim it is difficult to find an argument for the impermissibility of policies prohibiting those of certain races or religions from being admitted to a country, the arguments I present should address the perceived difficulty' (2020, 66 emphasis added). Later in the chapter, Brock writes, 'Banning people by religion, race, or country of origin fails this minimal test of treating each person as an individual whose claims deserve fair consideration . . . ' (2020, 84 emphasis added). The assumption appears to be that discriminating based on religion is just as objectionable as discriminating on race, sex, sexual orientation, etc., and for similar reasons.
These justifications for the religious protections within human rights doctrines are initially credible. It is indeed important to allow people the freedom to follow their conscience and adhere to their preferred spiritual practices (including abstention from such practices) without fear of persecution or discrimination. And generally speaking, the fact that someone happens to belong to a different faith is a completely arbitrary and unjustifiable grounds for discrimination. But is this always the case?
Like virtually every important freedom, the ideal of religious freedom cannot legitimately be upheld without at least some qualifications. A person's religious beliefs are importantly different from other identifying features such as race, ethnicity, and biological sex. The latter categories tell us nothing of moral relevance about a particular individual. In contrast, religious identity can tell us quite a bit about a person's values, moral principles, goals, and general worldview. This is obvious given that religions comprise explicit ethical rules and views about the general aims of human existence and the goals that individuals should pursue. In this respect, religion is more akin to a political ideology than to categories like race or sex. And while the general freedom to subscribe to one's preferred ideology should be protected, certain instances of discrimination based on ethical or political views are clearly permissible. For instance, while it would be objectionable for a corporation in the USA to have a policy of hiring only members of their preferred political party, it would not be objectionable to refuse to hire neo-Nazis, communists, or members of ISIS. The reason this would not be objectionable is that members of these groups subscribe to ideologies and hold ethical commitments that are antithetical to liberal values that are central to the flourishing of society. Further, sincere adherents to these radical ideologies are more likely than not to act in accordance with their principles, and this might include actions that are a direct threat to the safety and well-being of others.
Just as it seems legitimate for a company to not hire an avowed neo-Nazi, it likewise seems permissible for a state to ban the immigration of avowed neo-Nazis. Indeed, this holds for anyone who has been a member of a fascist or communist party in a country where that party has been empowered and behaved repressively. Now, there may be individual members of those parties who aren't true believers-there are all sorts of pressures for joining such groups. And yet it still seems that a blanket ban on immigration could be justifiable, despite the collateral damage to the innocent party members. Ideally, the extent of the collateral damage would be reduced by a properly functioning waiver process.
If the idea of a state's right to self-determination is to have any significance, this must include the right to establish its own general moral-political framework and fundamental guiding principles. Of course, in order to maintain legitimacy, the relevant framework and principles need to fall within certain constraints. For instance, a legitimate state cannot be organized around a doctrine of hatred, intolerance, and unjustified violence. But the reasons why a state founded on such principles would be illegitimate are the same reasons why it is legitimate for a state to deny entry to those who subscribe to such doctrines.
In general, if a state's legitimacy depends on its commitment to liberal values and the protection of human rights, then it must be legitimate for the state to exclude people who subscribe to an ideology (whether as part of an organized religion or a political group) predicated on illiberal values and antithetical to basic human rights. Such exclusions are sometimes necessary for the state to defend itself against pernicious forces that threaten to destroy it and for the protection of citizens who may be targeted by individuals who subscribe to hateful, illiberal ideologies.
Here one might object that the comparison between religion and illiberal political ideology is faulty because the major world religions do not centre on pernicious ethical commitments or foster goals that are a threat to the safety and well-being of citizens. The first thing to note in response to this objection is that the empirical claim behind it is not obviously true. The illiberal and immoral ethical beliefs and practices that have widespread support within Muslim majority countries are not unconnected to Islam. Indeed, those who wish to uphold these views and practices always have recourse to appeal to seemingly straightforward interpretations of the sacred texts. 6 Whether illiberal attitudes and practices are essential to Islam is a complicated question, and I do not wish to take a stand on it here. But even taking it for granted that Islam is not an inherently misogynistic and generally illiberal religion, this wouldn't undermine the general claim that religion-targeted immigration bans can be justifiable in principle. We certainly can conceive of a religion that is unquestionably centred on principles of hatred, violence, and a desire to undermine liberal ideals. To clarify things, let us consider an imaginary religion called Z-ism. Adherents of Z-ism worship a god called 'Z', and they subscribe to the following core tenets, which are written explicitly in the sacred texts: (1) All non-adherents of Z-ism are morally and intellectually inferior, and they should be viewed with contempt; (2) Women must never speak unless spoken to; (3) The appropriate punishment for leaving Z-ism is death by hanging. Further, following the statements of these tenets within the sacred texts is an explicit instruction: 'Interpret these tenets literally -they are not in any way metaphorical or contextual -they apply to all human beings for all time.' Although this is a fictional religion that most everyone would find reprehensible, there are countless examples of religious cults and sub-denominations of major world religions that have adhered to reprehensible ethical views. 7 And it is not inconceivable that a perverse religion such as Z-ism (or something equally barbaric) could one day gain wide acceptance. Because such circumstances are possible, it is important to establish the idea that while religious identity is generally not the sort of characteristic for which one can justifiably be discriminated against, this is not an exceptionless principle.
Of course, the idea of restricting or banning the immigration of individuals who subscribe to a particular political ideology or religion raises numerous practical questions. Perhaps the most obvious difficulty is that any given individual can simply deny that they subscribe to the problematic doctrines or worldviews. While this raises doubts about whether such a policy could be feasible in practice, what is perhaps more worrisome is the fact that, as Brock observes, the boundaries between religious identity, race, and ethnicity can be fuzzy. If, for example, the vast majority of adherents of Z-ism were of a particular race, then there is a risk of people associating every person of that race with the problematic religion and discriminating against them.
These are legitimate concerns that must be taken into account when deciding whether a particular immigration restriction is justified. But I do not think they undermine the general claim that such immigration policies can in principle be morally defensible. Numerous steps would have to be taken on the part of the state to make sure that the policy does not lead to the unjust treatment of individuals who do not actually subscribe to the problematic religion or ideology but happen to share superficial features such as race or ethnicity. But in general, we should not assume that any discrimination based on religion, whether in immigration policy or other important matters, is inherently impermissible in the way that discrimination based on race, sex, and ethnicity is.

Conclusion
Justice for People on the Move is forcefully argued and well-researched, and the chapter on religion-targeted immigration bans is no exception. Brock's case against Trump's ban is persuasive, and many of the concerns she raises create a strong burden of justification for any proposed immigration ban targeting a specific religion. However, I believe more needs to be done to show that religion-targeted bans could not be justified in principle. Adherence to a religion is not a morally arbitrary feature of an individual, and so it should not be classified as inherently illegitimate grounds for discrimination alongside race, sex, ethnicity, and sexual orientation. If the central doctrines, beliefs, and practices of a religion are overtly antithetical to liberal values and respect for human rights, then a state could be within its rights to deny immigration from those who adhere to the religion in question. At the very least, more needs to be said as to why such a policy, which would be motivated by the aim of promoting and protecting human rights and liberal values, would undermine a state's claim to legitimacy.

Disclosure of potential conflicts of interest
No potential conflict of interest was reported by the author(s).