Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Hawaii, et al.

Supreme Court briefFeb 22, 2018

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NO. 17-965

In the Supreme Court of the United States

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, et al.,

HAWAII, et al.,

Petitioners,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF GREAT LAKES JUSTICE CENTER AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

William Wagner

Counsel of Record

John S. Kane

Erin Elizabeth Mersino

GREAT LAKES JUSTICE CENTER

5600 W. Mount Hope Hwy

Lansing, MI 48917

(517) 322-3207

Contact@GreatLakesJC.org

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTIONS PRESENTED

This case presents four questions concerning

Presidential Proclamation No. 9645, 82 Fed. Reg.

45,161, issued by the President on September 27, 2017:

(1) Whether Respondents’ challenge to the President’s

suspension of entry of aliens abroad is justiciable;

(2) Whether the Proclamation is a lawful exercise of the

President's authority to suspend entry of aliens abroad;

(3) Whether the global injunction is impermissibly

overbroad; and (4) Whether Proclamation No. 9645

violates the Establishment Clause? This Amicus

Curiae brief addresses the last question.

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

STATEMENT OF IDENTITY

AND INTERESTS OF AMICUS CURIAE . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. THE PRESIDENT’S PROCLAMATION

BANNING CERTAIN TRAVELERS FROM

NATIONS POSING A THREAT TO OUR

NATIONAL SECURITY DOES NOT VIOLATE

THE ESTABLISHMENT CLAUSE. . . . . . . . . . . 6

A. The Court Should Apply the Plain Meaning

of the Words in the Establishment Clause to

the President’s Proclamation. . . . . . . . . . . . . 6

B. The Court Should Abandon the Lemon Test.

..................................... 9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF AUTHORITIES

CASES

Allegheny Co v. Greater Pittsburgh ACLU,

492 U.S. 573 (1989) . . . . . . . . . . . . . . 8, 17, 21, 22

Am Atheists, Inc v. Duncan,

616 F.3d 1145 (10th Cir 2010) . . . . . . . . . . . . . . 20

Capitol Square Review and Advisory Board v.

Pinette,

515 U.S. 753 (1995) . . . . . . . . . . . . . . . . . . . 10, 11

Edwards v. Aguillard,

482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . 19, 20

Epperson v. Arkansas,

393 U.S. 97 (1968) . . . . . . . . . . . . . . . . . . . . 19, 20

Gibbons v. Ogden,

9 Wheat. 1, 6 L.Ed. 23 (1824) . . . . . . . . . . . . . . 13

Hawaii v. Trump,

No. 17-17168 (9th Cir. Dec. 22, 2017) . . . . . . . . . . 4

Lee v. Weisman,

505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . 7, 9

Lemon v. Kurtzman,

403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . passim

Lynch v. Donnelly,

465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . 17

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . 13

Marsh v. Chambers,

463 U.S. 783 (1983) . . . . . . . . . . . . . . . . . . . . . . . 7

McCreary County v. ACLU,

545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . . 17, 20

McCulloch v. Maryland,

17 U.S. 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . 13

Nat’l Fed’n of Indep. Bus. v. Sebelius,

132 S. Ct. 2566 (2012) . . . . . . . . . . . . . . . . . . . . 13

Obergefell v. Hodges,

135 S. Ct. 2071 (2015) . . . . . . . . . . . . . . . . . . . . 22

Santa Fe Independent School District v. Doe,

530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . 20, 21

State of Hawaii v. Trump,

1:17-cv-00050 (D. Hi. Oct. 17, 2017) . . . . . . . . . . 3

Van Orden v. Perry,

545 U.S. 677 (2005) . . . . . . . . . . . . . . . . . . . . . . 17

Wallace v. Jaffree,

472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . 10, 19, 20

CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . 5, 6, 24

U.S. Const., art. I § 8, cls. 5, 7, 12 . . . . . . . . . . . . . 13

U.S. Const., art III, § 2 . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Const., art. V . . . . . . . . . . . . . . . . . . . . . . . . . . 14

STATUTES AND RULES

8 U.S.C. § 1101, et seq. . . . . . . . . . . . . . . . . . . . . . 3, 4

Sup. Ct. R. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

Brief in Opposition, Trump v. Hawaii, No. 17-965

(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Brief of Respondents, Trump v. International

Refugee Assistance Project, 16-1436 (2017) . . . . . 4

Executive Order No. 13780, “Protecting the Nation

from Foreign Entry into the United States”, 82

Fed. Reg. 13209 . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Proclamation No. 9645, 82 Fed. Reg. 45,161

(Sept. 27, 2017) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Georgia Seniors Told They Can't Pray Before Meals,

ASSOCIATED PRESS, (May 10, 2010) . . . . . . . . . . 20

http://webstersdictionary1828.com/Dictionary/

respecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

http://webstersdictionary1828.com/Dictionary/

establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

https://www.archives.gov/exhibits/featuredd oc um e n t s / e m a n c i p a t i o n - p r o c l am at i o n/

transcript.html . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Oral Argument, as reported in the American

Thinker, available at http://www.american

thinker.com/blog/2017/05/aclu_lawyer_admits_

trump_ travel_ban_would_be_constitutional_

if_hillary_issued_it.html#ixzz4o56hdFvM . . . . 16

M. W. McConnell, Religion and its Relation to

Limited Government, 34 Harvard J. of Law and

Pub. Pol. 943 (2010) . . . . . . . . . . . . . . . . . . . . . . . 8

G. Moens, The Menace of Neutrality in Religion,

2004 BYU L. Rev. 535 (2004) . . . . . . . . . . . . . . 19

STATEMENT OF IDENTITY

AND INTERESTS OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Amicus

Curiae, Great Lakes Justice Center, submits this brief.1

Amicus Curiae is a non-profit 501(c)(3) organization

that promotes principles of good governance under the

Rule of Law. Most pertinent to the matter before this

Court, Amicus Curiae supports the principle that

elected officials, politically accountable to the citizenry,

ought to promulgate public policy—not unelected

members of the judiciary. Amicus Curiae cares deeply

about the social and legal impact of politicallyunaccountable judicial decisions that improperly usurp

the legislative prerogative. This is especially so when

unelected judicial bodies invalidate state action

because the action was informed by a moral purpose.

Our lawyers’ experience includes representing

national religious organizations as Amici Curiae before

this Court, as well as in the highest levels of

government in other nations. Recently, we represented

state and federal legislators as Amici Curiae

encouraging this Court to: 1) look to the plain meaning

of the words in the Establishment Clause; and

2) reverse Lemon v. Kurtzman, 403 U.S. 602 (1971).

Petitioners granted blanket consent for the filing of Amicus Curiae

in this matter. Amicus Curiae sought consent from Respondents,

and received consent from the Respondents’ counsel of record.

Amicus Curiae further states that no counsel for any party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation or

submission of this brief. No person or entity, other than the Great

Lakes Justice Center, made a monetary contribution to the

preparation or submission of this Amicus Curiae brief.

Amicus Curiae maintains that Lemon and its progeny

extra-constitutionally permit changeable political

preferences of unelected judges to substitute their

politically unaccountable will for politically accountable

governance.

Amicus Curiae works with legislative, executive,

and judicial bodies, as well as with citizen groups, to

further good governance practices. With experience in

all three branches of government, Amicus Curiae

understands the proper scope of the Article III judicial

power and the proper role of the federal judiciary in our

constitutional republic. From its experience, it holds

special knowledge helpful to this Court about the

importance of properly applying constitutional

provisions, like the Establishment Clause, that limit

the exercise of governmental power.

Amicus Curiae files this brief to encourage this

Honorable Court to guide the American judiciary, and

other branches of government, to return to a sound

constitutional basis for state-church relations.

BACKGROUND

On September 27, 2017, the President of the United

States promulgated the Proclamation now before this

Court: “Enhancing Vetting Capabilities and Processes

for Detecting Attempted Entry into the United States by

Terrorists or Other Public-Safety Threats.”

Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 27,

2017), Pet. App. 121a-148a.

A predecessor Executive Order required the

Secretary of Homeland Security to determine whether

foreign governments provide adequate information

about individuals applying for U.S. visas, and then

report to the President.

See Executive Order

No. 13780, “Protecting the Nation from Foreign Entry

into the United States” (hereinafter “EO”), 82 Fed. Reg.

13209. Several agencies of the government engaged in

an extensive, global review process. The review process

determined whether the United States could properly

screen aliens seeking entry from foreign countries.

Proclamation No. 9645. This examination ascertained

whether foreign governments: 1) had adequate

practices in place, and 2) provided sufficient

information about individuals applying for U.S. visas.

Id.

Upon completion of the global review process, and

receiving the Acting Secretary’s recommendation, the

President of the United States issued the Proclamation.

Id. The Proclamation suspended entry of certain

foreign nationals from eight countries. Id.2 According to

the Proclamation, these countries fail to share

adequate information with the United States to assess

the risks posed by nationals from those countries, or

they present other heightened risk factors. Id. The

government reached this conclusion based on the global

review process. Id.

The district court found that the Proclamation likely

violated the Immigration and Nationality Act (INA),

8 U.S.C. § 1101, et seq. It, therefore, enjoined the

government from enforcing the Proclamation, except as

to aliens from two countries. State of Hawaii v. Trump,

1:17-cv-00050 (D. Hi. Oct. 17, 2017); Pet. App. 68a-69a;

70a-106a. The district court declined to reach the

Plaintiffs’ constitutional claims. Id.

The ban was subject to some exceptions and case-by-case waivers.

The court of appeals affirmed, concluding that the

Proclamation likely violates the (INA), 8 U.S.C. § 1101,

et seq. Hawaii v. Trump, No. 17-17168 (9th Cir. Dec. 22,

2017); Pet. App. 2a-65a.3 Because the appellate court

decided the case on statutory grounds, it did not reach

the issue of whether the Proclamation violates the

Establishment Clause. Id.

Those challenging the President’s Proclamation

(like those who challenged the predecessor EO4)

contend, inter alia, that the travel ban violates the

Establishment Clause because the President’s purpose

in issuing the Proclamation was not primarily secular.

See, e.g., Brief in Opposition, Trump v. Hawaii, No. 17965 (2018).

Except as to individuals lacking a credible claim of a bona fide

relationship with a person or entity in the United States.

See, e.g., Brief of Respondents, Trump v. International Refugee

Assistance Project, 16-1436 (2017).

SUMMARY OF THE ARGUMENT

The President’s Proclamation banning certain

travelers, from nations posing a threat to our national

security, does not violate the Establishment Clause.

This Court should apply the plain meaning of the

words in the Establishment Clause in its review of the

President’s Proclamation. The Establishment Clause

simply prohibits federal laws “respecting an

establishment of religion.” U.S. Const. amend. I. The

Proclamation does not establish a religion. It does not

subject the American citizenry to governance under a

theocracy. It does not coerce the American citizenry, by

force of law and penalty, to practice an official religion.

It does not, therefore, violate the Establishment

Clause.

Amicus additionally urges this Court to reverse

Lemon v. Kurtzman, 403 U.S. 602 (1971) because it

unconstitutionally empowers unelected judges to

supplant our politically accountable system of

governance with their own protean preferences.

Lemon’s judicially contrived “secular purpose” policy:

1) exceeds the scope of judicial power stated in

Article III of the Constitution; 2) bypasses

constitutionally required, politically accountable

processes for amending a Constitutional Rule of Law;

3) undermines the legitimacy of the judiciary;

4) creates substantial unpredictability in the law; and

5) fosters unjustifiable hostility toward the religious

identity and dignity of innumerable U.S. citizens.

ARGUMENT

I. THE

PRESIDENT’S

PROCLAMATION

BANNING CERTAIN TRAVELERS FROM

NATIONS POSING A THREAT TO OUR

NATIONAL SECURITY DOES NOT VIOLATE

THE ESTABLISHMENT CLAUSE.

The First Amendment to the United States

Constitution states: “Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof .…” U.S. Const. amend. I.

A. The Court Should Apply the Plain Meaning

of the Words in the Establishment Clause

to the President’s Proclamation.

The Constitution is not just a set of guidelines. It is

the framework on which the government and our legal

system are constructed. Its words both create this

Court’s authority and give it definition. Those words

were written quite clearly, by highly qualified

draftsmen, to express a simple meaning. Faithful

adherence to those words is the touchstone for

measuring the fulfillment of this Court’s sacred duty.

Every Justice who takes the oath of office in the

nation’s highest Court swears to uphold the

Constitution as it is written, not as he or she would like

it to be written. Discerning and applying the meaning

that the Drafters embodied in the Constitution’s

language is this Court’s high calling.

Resolution of the issue before this Court requires a

correct understanding of what the Establishment

Clause means. This Court has long sought to honor

this duty by understanding those meanings in their

historical context. As Chief Justice Burger observed in

Marsh v. Chambers, “historical evidence sheds light not

only on what the draftsmen intended the

Establishment Clause to mean, but also on how they

thought that Clause applied....” 463 U.S. 783, 790

(1983). Reviewing the history of the Clause and its

application, the Marsh Court held that a chaplain

(employed by the government) did not violate the

Establishment Clause by leading a legislature in

prayer. Id. Similarly, in Lee v. Weisman, 505 U.S. 577,

631 (1992), Justice Scalia, joined by three other

dissenting justices, stated that in this search for truth,

“the meaning of the Clause is to be determined by

reference to historical practices and understandings.”

Webster’s 1828 American Dictionary of the English

Language defined respecting as: “[r]egarding; having

regard to; relating to,”5 and establishment as “[t]he act

of establishing, founding, ratifying or ordaining.”6

Thus, the simple meaning of the Establishment Clause

is that government should not shackle the consciences

of the people, for whose sake it exists, through a state

religion. The experience of our Founders, which the

Establishment Clause reflects and seeks to save us

from, was aptly delineated by Justice Scalia, dissenting

in Lee v. Weisman, 505 U.S. 577, 640-41 (1992)

(internal citations omitted; emphasis added):

(http://webstersdictionary1828.com/Dictionary/respecting, last

visited Feb. 13, 2018).

(http://webstersdictionary1828.com/Dictionary/establishment, last

visited Feb. 13, 2018).

The coercion that was a hallmark of historical

establishments of religion was coercion of

religious orthodoxy and of financial support by

force of law and threat of penalty. Typically,

attendance at the state church was required;

only clergy of the official church could lawfully

perform sacraments; and dissenters, if tolerated,

faced an array of civil disabilities. Thus, for

example, in the colony of Virginia, where the

Church of England had been established,

ministers were required by law to conform to the

doctrine and rites of the Church of England; and

all persons were required to attend church and

observe the Sabbath, were tithed for the public

support of Anglican ministers, and were taxed

for the costs of building and repairing churches.

Numerous government policies supporting,

acknowledging, and accommodating religion are

considered time-honored practices that are a part of

our nation’s heritage. See, e.g., Allegheny Co v. Greater

Pittsburgh ACLU, 492 U.S. 573 (1989) (Justice

Kennedy, joined by Justices Rehnquist, Scalia, and

White, dissenting).

Properly understood, the

“separation of church and state is not a limitation on

churches or religion; it is a limit on the role of

government with respect to churches and religious life

in general.” M. W. McConnell, Religion and its

Relation to Limited Government, 34 Harvard J. of Law

and Pub. Pol. 943, 944 (2010).

The President’s national security Proclamation does

not violate the Establishment Clause because it was

not an action regarding or relating to the act of

establishing or founding of a religion or state church.

The Proclamation does not subject the American

citizenry to governance under a theocracy. Nor does it

coerce the American citizenry, by force of law and

penalty, to practice one official religion to the exclusion

of all others. The President’s action did not, therefore,

violate the Establishment Clause.

B. The Court Should Abandon the Lemon Test.

This Court’s “religion clause jurisprudence has

become bedeviled (so to speak) by reliance on formulaic

abstractions that are not derived from, but positively

conflict with, our long accepted constitutional

traditions. Foremost among these has been the socalled Lemon test.” Weisman, 505 U.S. at 644 (Scalia,

J., joined by three other Justices, dissenting). The test,

often ignored but not yet overruled by this Court,

regularly continues to receive “well-earned criticism.”

Id. at 644.

In Lemon, the Court replaced the test proscribed by

the Constitution – whether government action

“established” a religion – with a test of its own creation,

whether government action had a secular purpose or

“endorsed” religion. Lemon v Kurtzman, 403 U.S. 602,

612-13 (1971).

The Court contrived a three-part test, and then

mandated that government action must satisfy all

three elements to comport with the Establishment

Clause:

First, the [government action] must have a

secular [] purpose; second, its principal or

primary effect must be one that neither

advances nor inhibits religion; finally, the

[government action] must not foster an excessive

government entanglement with religion.

Id. (internal citations omitted)

A few justices addressed the second prong of the

Lemon test by requiring the government action to not

even symbolically endorse religion. No agreement

existed though, even among those justices, on how to

decide when a government action symbolically

endorsed religion.7

For example, Justice O’Connor, concurring in Wallace v. Jaffree

stated:

[W]hether a government activity communicates

endorsement of religion is not a question of simple

historical fact. *** The relevant issue is whether an

objective observer, acquainted with the text, legislative

history, and implementation of the statute, would perceive

it as a state endorsement of [religion].

472 U.S. 38, 76 (1985).

Elsewhere she likewise stated that: “the endorsement test

necessarily focuses upon the perception of a reasonable, informed

observer.” Capitol Square Review and Advisory Board v. Pinette,

515 U.S. 753, 773 (1995) (O’connor, J., concurring). Compare

Justice O’Connor’s measure with that of Justice Souter, who

opined that he “attribute[s] these perceptions of the intelligent

observer to the reasonable observer of Establishment Clause

analysis…, where I believe that such reasonable perceptions

matter.” Id. at 786. Likewise, Justice Stevens articulated a less

informed “reasonable person” standard to determine whether an

endorsement of religion exists when addressing the second prong

in Lemon:

If a reasonable person could perceive a government

endorsement of religion from a private display, then the

State may not allow its property to be used as a forum for

The Lemon Court, in fashioning its test, ignored the

plain meaning of the words in the Clause. When the

Drafters wrote the Establishment Clause, they well

knew the meanings of both “establish” and “endorse.”

They chose “establish” to express their intent. If they

had meant “endorse,” there is no doubt they would

have chosen that word. It was wrong for the Lemon

Court to alter the meaning of the Establishment

Clause, and this Court should correct that error.

Remarkably,

when

determining

the

constitutionality of a government action under Lemon,

the content of the government action is irrelevant.

Instead, the Lemon test requires that a judge make a

subjective assessment as to whether the government

actor had a secular purpose (i.e., the judge may indulge

in relatively unconstrained speculation regarding

another government official’s state of mind, and

subjectively conclude whether the government actor

had a secular purpose). If the judge feels there was not

a secular motive, the judge must hold that the

government action violates the Establishment Clause.

Amicus Curiae urges this Court to reverse Lemon v.

Kurtzman because it extra-constitutionally permits

changeable political preferences of unelected judges to

substitute their politically unaccountable will for the

politically accountable governance guaranteed by the

Constitution.

that display. No less stringent rule can adequately protect

nonadherents from a well-grounded perception that their

sovereign supports a faith to which they do not subscribe.

Id. at 799.

As analyzed below, Lemon’s “secular purpose”

policy: 1) exceeds the scope of judicial power granted in

Article III of the Constitution; 2) bypasses

constitutionally required processes for amending the

Constitution; 3) undermines the legitimacy of the

judiciary; 4) creates substantial unpredictability in the

law; and 5) fosters unjustifiable hostility toward the

religious identity and dignity of numerous United

States citizens.

Lemon’s “secular purpose” test exceeds the scope of

judicial power stated in Article III of the Constitution.

In pertinent part, Article III of the Constitution

provides that:

The judicial Power of the United States, shall be

vested in one supreme Court, and in such

inferior Courts as the Congress may from time

to time ordain and establish.... (Section 1) The

judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made,

or which shall be made, under their Authority.

...

U.S. Const., art III, § 2.

The Lemon Court conspicuously failed to identify

any legitimate source of constitutional authority on

which it relied when amending the meaning of the

Establishment Clause. The simple reason the Lemon

Court failed to do so is that no enumerated judicial

power exists for the judiciary to amend the

constitutional law of the nation.

The Federal Government “is acknowledged by

all, to be one of enumerated powers.” That is,

rather than granting general authority to

perform all the conceivable functions of

government, the Constitution lists, or

enumerates, the Federal Government’s powers.

...

The enumeration of powers is also a limitation of

powers, because “[t]he enumeration presupposes

something not enumerated.” The Constitution’s

express conferral of some powers makes clear

that it does not grant others. And the Federal

Government “can exercise only the powers

granted to it.”

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,

2577 (2012) (internal citations omitted) (quoting

McCulloch v. Maryland, 17 U.S. 316, 404, 405 (1819));

U.S. Const., art. I § 8, cls. 5, 7, 12; Gibbons v. Ogden,

9 Wheat. 1, 194-95, 6 L.Ed. 23 (1824).

Nothing in Article III empowers the Court to change

or “evolve” the Constitution. Moreover, nothing in

Marbury v. Madison’s ubiquitous assertion that it is

the province of the Court to say what the law is,

empowers the Court to say instead what it prefers the

law to be. 5 U.S. (1 Cranch) 137 (1803).

The Lemon Court, wandering far beyond the scope

of its Article III powers, improperly permits changeable

political preferences of unelected judges to amend a

Constitutional Rule of Law (i.e., the Establishment

Clause).

Thus, Lemon amends “make no law

respecting an establishment of religion” to instead

require that “every government action must have a

secular purpose” merely because a panel of unelected

Justices preferred it so.

Moreover, in amending the meaning of the words in

the Establishment Clause, Lemon bypassed

constitutionally required political processes that

specifically require involvement of politicallyaccountable state legislatures. Article V of the

Constitution, in pertinent part, provides:

The Congress, whenever two thirds of both

houses shall deem it necessary, shall propose

amendments to this Constitution, or, on the

application of the legislatures of two thirds of

the several states, shall call a convention for

proposing amendments, which, in either case,

shall be valid to all intents and purposes, as part

of this Constitution, when ratified by the

legislatures of three fourths of the several

states, or by conventions in three fourths

thereof, as the one or the other mode of

ratification may be proposed by the Congress.

...

U.S. Const., art. V.

Although the judicial branch may hold the power to

say what the provisions of the Constitution mean, that

power does not extend to amending or evolving the

meaning of these provisions. That power is delegated

to the politically accountable branches of government

in Article V. Thus, when Lemon amended the meaning

of the Establishment Clause, it usurped legislative

authority in violation of Article V.

When a court steps beyond its limited duty and

usurps legislative authority, as the Court did in Lemon,

it undermines good governance under the Rule of Law

and its own legitimacy. To test the provisions of a

government action against the Constitution is one

thing; judicially imposing a new meaning on the words

of the Constitution to achieve a judicially preferred

outcome or social policy is another.

Those supporting Lemon wrongly see the

Constitution as an evolving organism, the meaning of

which they believe their office empowers them to

actively manipulate.

They become Platonic

Philosopher Kings, ruling by judicial fiat, unbound by

the constraints of the Constitution’s actual language.

Lemon embeds this tyrannical principle in our

constitutional jurisprudence by allowing judges to

make subjective, ad hoc assessments as to whether a

government actor had a secular purpose or motive.

In this case, Respondents contend the President's

action violates Lemon’s distorted version of the

Establishment Clause.

They ask this Court to

subjectively apply Lemon’s judge-made doctrine that all

government actions must have a secular purpose. In

doing so, they ask this Court to ignore the content of

the Proclamation and rely instead on religious

references in Donald Trump’s pre-election campaign

speeches, to hold that the Proclamation violates the

Establishment Clause.8

Lemon’s subjective test makes a litigant’s success in

judge-shopping the best indicator of whether a law will

Contrary to the Respondents’ unsupported suppositions, the

President’s Proclamation, issued after he was elected, survives

even if it must face the judicially-manufactured Lemon test. This

is because, inter alia, the President’s purpose in issuing it was

purely a secular one—preserving national security.

be struck down under the Establishment Clause. This

Court should, therefore, overrule it.

If Lemon’s judicially manufactured doctrine existed

during the Lincoln Administration, the Emancipation

Proclamation would be unconstitutional because

Lincoln expressly invoked “the gracious favor of

Almighty God” – not in a political speech during a

Presidential campaign, but in the text of the

proclamation itself.9 Thus, when Judge Paul Niemeyer

asked an ACLU lawyer whether the predecessor

Executive Order travel ban would be constitutional if

Presidential candidate Hillary Clinton had drafted the

exact same Executive Order, the lawyer reluctantly,

but truthfully, answered in the affirmative—revealing

the absurdity of the doctrine and the potential for its

abuse by a politically motivated judge or activist

lawyer.10

The Lemon test also undermines predictability in

the law, a vital component of good governance under

the Rule of Law. When it comes to judicial review of

government action and the Establishment Clause, the

subjective nature of the Lemon test produces

inconsistent judicial precedents. This inconsistency is

inevitable because judges utilizing Lemon make a

personal subjective assessment as to whether they

Available at (https://www.archives.gov/exhibits/featureddocuments/emancipation-proclamation/transcript.html, last visited

Feb. 13, 2018).

Oral Argument, as reported in the American Thinker, available

at http://www.americanthinker.com/blog/2017/05/aclu_

lawyer_admits_trump_travel_ban_would_be_constitutional_if_

hillary_issued_it.html#ixzz4o56hdFvM, last visited Feb. 13, 2018.

happen to believe a government actor had a secular

motive, rather than looking to the content of the

government action itself.

Inconsistent judicial

precedents lead to unpredictability in the law. The

inconsistent precedents produced by Lemon’s

subjectivist jurisprudence provide no useful guidance

for government officials trying to act constitutionally.

To illustrate, compare two Establishment Clause cases

handed down by this Court on the same day: Van

Orden v. Perry, 545 U.S. 677 (2005) (upholding

government action placing Ten Commandments on

government property as constitutional) and McCreary

County v. ACLU, 545 U.S. 844 (2005) (striking down

government action placing Ten Commandments on

government property as unconstitutional).

Four

justices would have upheld both. Four justices would

have struck down both. One justice upheld one and

struck down the other -- applying Lemon’s subjective

standard, finding one symbolically endorsed religion

and the other did not. Compare also, Lynch v.

Donnelly, 465 U.S. 668 (1984) (upholding baby Jesus in

a manger as constitutional) and Allegheny County v.

Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (striking

down baby Jesus in a manger as unconstitutional).

If Lemon says the Ten Commandments are both

constitutional and unconstitutional; if Lemon says

displaying baby Jesus in a manger is both

constitutional and unconstitutional; if Lemon says

Hillary Clinton issuing an EO is constitutional but

President Trump issuing the same EO is not, then no

predictability exists for those seeking to conform their

conduct to the law. Predictability in the law is a

necessary component of good governance under the Rule

of Law. Lemon replaces predictability in the law with

the evolving political preferences of unelected judges.

Finally, Lemon’s judicially contrived “secular

purpose” test creates unjustifiable hostility toward the

religious identity of numerous United States citizens.

Many United States citizens seek guidance from their

faith in formulating their public policy positions.

Activist lawyers and politically motivated judges

repeatedly use the Lemon doctrine to denigrate a

person’s religious identity. They do so by requiring

religious people to substitute a purpose informed by

their religious conscience for one founded on secular

beliefs or traditions.

Requiring that every government action have a

secular purpose, and not even symbolically endorse

religion, is not only hostile toward a person’s religious

identity, it is an attempt to make that identity

culturally, socially, and politically irrelevant.

Proponents of this secular approach favor it because it

enables judges to nullify unalienable rights. They

assert that everyone can participate in important policy

discussions except those whose identity is informed by

religious viewpoints.

For example, in the State of Louisiana, Darwin’s

theory of evolution was taught in the government

schools. Louisiana passed a law to also accommodate

those with a different theory on the origin of the

universe—creation science.11 On its face, such an effort

The law prohibited the teaching of the theory of evolution in

public schools unless accompanied by the instruction in creation

science.

embodies the very essence of neutrality. The Court,

however, reached an opposite conclusion in Edwards v.

Aguillard, holding the law unconstitutional because it

lacked a secular purpose and symbolically endorsed

religious ideas. 482 U.S. 578, 583, 592 (1987).

According to Lemon’s revisionist test, to be

constitutionally “neutral”, all laws and other

government action must have a secular purpose and

not even symbolically endorse religion.12 Similarly, in

Epperson v. Arkansas, the State of Arkansas passed a

law regulating the teaching of evolution. 393 U.S. 97

(1968). The Court began its analysis by declaring that

“[g]overnment in our democracy ... must be neutral ....”

Id. at 103. The Court nevertheless proceeded to hold

that because the law was motivated by a religious

purpose, it violated the Establishment Clause.

Thus, although often couching its analysis in terms

of neutrality, court decisions utilizing Lemon require

secularly informed purposes while prohibiting

religiously informed ones. Descriptive of such an

analysis is Justice O’Connor’s concurring opinion in

Wallace v. Jaffree:

It is not a trivial matter, however, to require

that the legislature manifest a secular purpose

and omit all sectarian endorsements from its

laws ... It reminds government that when it acts

it should do so without endorsing a particular

For a scholarly discussion of how the neutrality principles

demean religion in the United States, see G. Moens, The Menace of

Neutrality in Religion, 2004 BYU L. Rev. 535, 566-72 (2004).

religious belief or practice that all citizens do not

share.

472 U.S. 38, 75-76 (1985).

It is apparently acceptable, and sufficiently neutral

though, for government to dictate and endorse a

secular belief or practice that all citizens do not share

– even though the secular perspective necessarily

implies a rejection of religious significance.

The implications of decisions like Aguillard and

Epperson are immense. Mandating the irrelevance of

religious identity and God enables judicial

extermination of our unalienable liberty as viewed by

the Framers.

Too many judges and other government authorities

rely on Lemon to diminish religious identity and

conscience. By way of example, senior citizens at a

nursing home in Georgia were prohibited from praying

before they ate their meal. The government said that

because the meals were subsidized by the government,

praying over the meal would be a violation of the

Establishment Clause. Georgia Seniors Told They

Can't Pray Before Meals, ASSOCIATED PRESS, (May 10,

2010).

Likewise, those whose actions are informed by the

sacred rather than the secular have faced

Establishment Clause challenges for erecting the Ten

Commandments, McCreary County v. ACLU, 545 U.S.

844 (2005); raising memorials for the fallen, Am

Atheists, Inc v. Duncan, 616 F.3d 1145 (10th Cir 2010);

engaging in a moment of silence prior to starting

school, Wallace v. Jaffree, 472 U.S. 38 (1985); praying

prior to football games, Santa Fe Independent School

District v. Doe, 530 U.S. 290 (2000); and for displaying

a manger scene at Christmas time. Allegheny County v.

Greater Pittsburgh ACLU, 492 U.S. 573 (1989).

Several Justices on this Court have recognized how,

contrary to the plain meaning of the Establishment

Clause, Lemon’s judicially contrived “secular purpose”

test creates unjustifiable hostility toward the religious

identity of innumerable United States citizens:

Government policies of accommodation,

acknowledgment, and support for religion are an

accepted part of our political and cultural

heritage …. Rather than requiring government

to avoid any action that acknowledges or aids

religion, the Establishment Clause permits

government some latitude in recognizing and

accommodating the central role religion plays in

our society [citation omitted]. Any approach less

sensitive to our heritage would border on latent

hostility toward religion, as it would require

government in all its multifaceted roles to

acknowledge only the secular, to the exclusion

and so to the detriment of the religious ….

When the state encourages religious instruction

. . . it follows the best of our traditions. For it

then respects the religious nature of our people

and accommodates the public service to their

spiritual needs. To hold that it may not would be

to find in the Constitution a requirement that

the government show a callous indifference to

religious groups. That would be preferring those

who believe in no religion over those who do

believe.

***

Neither government nor this Court can or should

ignore the significance of the fact that a vast

portion of our people believe in and worship God

and that many of our legal, political and

personal values derive historically from religious

teachings. Government must inevitably take

cognizance of the existence of religion.

Allegheny, 492 U.S. at 657-659 (Kennedy, J., joined by

Rehnquist, Scalia, and White, J., dissenting). These

Justices correctly recognized that Lemon’s “view of the

Establishment Clause reflects an unjustified hostility

toward religion, a hostility inconsistent with our

history and our precedents.” Id. at 655.

For some legislators viewing the world through

their religious identity, God and his Word are real, and

therefore really matter. Obergefell v. Hodges, 135

S. Ct. 2071 (2015). It is part of who they are. They

understandably oppose devolutionary social

engineering that threatens the health, safety, and

morals of the nation, as viewed through their religious

identity. The government Lemon envisions must shape

public policy informed by secular dogma, without

regard to any religious conscience or moral

considerations. In such a government, wisdom derived

from religious tradition or individual conscience

informed thereby has no place. Under our Constitution

legislators should not have to choose between fidelity to

their religious identity or participating in the

policymaking process. The Lemon test demands that

they do so, invalidating any policy they make that is

informed by their religious identity. Thus, the Lemon

test deprives people of faith of their dignity by telling

them that reliance on their faith while serving in

government is unconstitutional.

Prohibiting a policy simply because it is informed by

ancient sacred tenets prevents thousands of years of

wisdom from informing the public ethic. The idea that

God created humans in His image, and that all human

life has dignity, ended slavery and advanced the rights

of women around the world. Conversely, when

government suppresses religious identity and the free

expression of religious ideals, it often results in tragic

consequences. Secularists such as Stalin murdered

over 42 million people. Mao Zedong murdered over 37

million. Hitler murdered over 20 million. And the list

of atrocities goes on and on where those in power

selectively pick and choose which citizen’s identities it

will arbitrarily censure.

We are, therefore, in the midst of a high-stakes

battle over the character of the American nation. The

extent to which Lemon’s “secular purpose”

jurisprudence prevails over the view that the plain

meaning of a constitutional provision governs will

determine: 1) whether unalienable truth, as envisioned

in the Declaration of Independence, will continue to be

relevant as an objective limit on government action;

and 2) whether the judiciary replaces the Framers’

intent with its own personal social policy views.

Institutional integrity cannot exist without personal

virtue.

Good governance and civic institutional

integrity rest on the virtue of those holding power

within those institutions. Ideas grounded in one’s

religious identity support and nurture this virtue and

should, therefore, always be permitted within the

marketplace of ideas and the policymaking process.

The Lemon test precludes great ideas grounded in one’s

religious identity from entering the policymaking

process. People of faith should not be stripped of their

dignity, religious identity, and conscience in order to

serve in our constitutional republic. That certainly was

not the Framers’ vision.

In summary, judicial crafting of a subjective threeprong “secular purpose” test defining the

Establishment Clause: 1) exceeds the scope of Article

III; 2) bypasses constitutionally required politically

accountable processes for amending a constitutional

rule of law; 3) undercuts the legitimacy of the judicial

power; 4) creates substantial unpredictability in the

law; and 5) fosters unjustifiable hostility toward the

religious identity and dignity of numerous U.S.

citizens. This Court should, therefore, overrule Lemon

and no longer apply its “secular purpose” test to

government action.

CONCLUSION

Because the President’s Proclamation was not a law

establishing a national religion, the Proclamation did

not violate the Establishment Clause of the First

Amendment. This Honorable Court should, therefore,

reverse the decision of the appellate court.

Respectfully submitted,