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

Supreme Court briefFeb 27, 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 LIBERTY, LIFE, AND LAW FOUNDATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

Deborah J. Dewart

Counsel of Record

620 E. Sabiston Drive

Swansboro, NC 28584-9674

(910) 326-4554

debcpalaw@earthlink.net

Counsel for Amicus Curiae

Liberty, Life, and Law Foundation

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

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

THIS COURT SHOULD RENDER A

DECISION THAT WILL NOT DIMINISH

THE BROAD RELIGIOUS LIBERTY

AMERICANS TREASURE. . . . . . . . . . . . . . . 2

II.

THE

CONTEXT

THE

PROCLAMATION—FOREIGN AFFAIRS—

IS A CRITICAL DISTINGUISHING

FEATURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III.

National security is an extraordinarily

compelling interest that would satisfy

even the most stringent judicial

review. . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Proclamation is directed outward

toward nonresident, unadmitted

aliens—not inward toward U.S.

citizens with constitutional rights. . . . 9

THE GOVERNMENT’S EFFORT TO

PROTECT THE NATION FROM

TERRORIST ATTACKS IS NOT THE

HOSTILITY TO RELIGION THE

ESTABLISHMENT CLAUSE PROHIBITS. 10

The Government’s “hostility” is not

directed toward religion but rather

toward violent acts of terrorism. . . . 10

The text of the Proclamation is

religiously neutral—a decision against

the Government would allow

challenges far beyond the normal

considerations of legislative history. . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii

TABLE OF AUTHORITIES

Cases

Awad v. Ziriax,

670 F.3d 1111 (10th Cir. 2012) . . . . . . . . . . 10, 11

Brown v. Entm’t Merchs. Ass’n,

564 U.S. 786 (2011) . . . . . . . . . . . . . . . . . . . . . . 11

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014) . . . . . . . . . . . . . . . . . . . . . 3

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . . 7

Dames & Moore v. Regan,

453 U.S. 654 (1981) . . . . . . . . . . . . . . . . . . . . . . . 6

Edwards v. Aguillard,

482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . . . 4, 7

Emp’t Div., Ore. Dep’t of Human Res. v. Smith,

494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . 3

Fiallo v. Bell,

430 U.S. 787 (1977) . . . . . . . . . . . . . . . . . . . . . . . 9

Haig v. Agee,

453 U.S. 280 (1981) . . . . . . . . . . . . . . . . . . . . . . . 4

Hawaii v. Trump,

878 F.3d 662 (9th Cir. 2017) . . . . . . . . . . . . . . . . 4

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Int’l Refugee Assistance Project v. Trump,

857 F.3d 554 (4th Cir. 2017), vacated and

remanded, 138 S. Ct. 353 (2017) . . . . . . . 5, 7, 11

Int’l Refugee Assistance Project v. Trump,

2018 U.S. App. LEXIS 3513 (4th Cir. Feb. 15,

2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12

Kerry v. Din,

135 S. Ct. 2128 (2015) . . . . . . . . . . . . . . . . 6, 9, 10

Kleindienst v. Mandel,

408 U.S. 753 (1972) . . . . . . . . . . . . . . . . . . . 5, 6, 9

Lemon v. Kurtzman,

403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . . . . 6, 7

Lynch v. Donnelly,

465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . 1, 7

Mathews v. Diaz,

426 U.S. 67 (1976)

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

McCreary County v. ACLU,

545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . . . . 6, 8

O’Bannon v. Town Court Nursing Center,

447 U.S. 773 (1980) . . . . . . . . . . . . . . . . . . . . . . . 9

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . . 4, 7

School Dist. of Abington v. Schempp,

374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . . . . . 7

Sherbert v. Verner,

374 U.S. 398 (1963) . . . . . . . . . . . . . . . . . . . . . . . 3

Stone v. Graham,

449 U.S. 39 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Seeger,

380 U.S. 163 (1965) . . . . . . . . . . . . . . . . . . . . . . . 2

Wallace v. Jaffree,

472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 7

Washington v. Trump,

858 F.3d 1168 (9th Cir. 2017) . . . . . . . . . . . . . . 12

Wayte v. United States,

470 U.S. 598 (1985) . . . . . . . . . . . . . . . . . . . . . . . 4

Zorach v. Clauson,

343 U.S. 306 (1952) . . . . . . . . . . . . . . . . . . . . . . . 4

Constitutional Provisions

U.S. Const. Amend. 1 . . . . . . . . . . . . . . . . . . . . . . . . 3

Statutes

8 U.S.C. 1182(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Religious Freedom Restoration Act of 1993, 42

U.S.C. 2000bb et seq., Pub. L. 103-141, 107 Stat.

1488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Other Authorities

Proclamation No. 9645, Enhancing Vetting

Capabilities and Process for Detecting

Attempted Entry Into the United States by

Terrorists or Other Public-Safety Threats, 82

Fed. Reg. 45,161 (Sept. 24, 2017) . . . . . . 2, 8, 11

Fiske Stone (later Chief Justice), The Conscientious

Objector, 21 Col. Univ. Q. 253 (1919) . . . . . . . . . 2

INTEREST OF AMICUS CURIAE1

Liberty, Life and Law Foundation (“LLLF”), as

amicus curiae, respectfully urges this Court to reverse

the decision of the Ninth Circuit.

LLLF is a North Carolina nonprofit corporation

established to defend religious liberty, sanctity of

human life, liberty of conscience, family values, and

other similar principles. LLLF is gravely concerned

about the growing hostility to religious expression in

America and the related threats to liberty and

conscience. LLLF’s counsel, Deborah J. Dewart, is the

author of a book, Death of a Christian Nation, and

many amicus curiae briefs in this Court and the federal

circuits.

Amicus writes solely to address the Establishment

Clause issue, urging this Court to render a decision for

the Government that preserves the nation’s high

regard for religious liberty and in no way sanctions or

sets precedent for the government to act with hostility

toward religion.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

The Constitution requires benevolent government

neutrality toward religion and forbids both hostility

(Lynch v. Donnelly, 465 U.S. 668, 673 (1984)) and

“callous indifference” (Zorach v. Clauson, 343 U.S. 306,

The parties have consented to the filing of this brief. Amicus

curiae certifies that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amicus, its

members, or its counsel, has made a monetary contribution to its

preparation or submission.

314 (1952)). This Court can and should rule in favor of

the Government without disturbing this time–honored

principle or intruding on the religious liberty

Americans treasure.

The Government’s position is compelling. The

exceptional circumstances of this case are far removed

from typical Establishment Clause challenges. The

context is foreign affairs and the Government

documents an extraordinarily compelling interest—

national security. See Proclamation No. 9645,

Enhancing Vetting Capabilities and Process for

Detecting Attempted Entry Into the United States by

Terrorists or Other Public-Safety Threats, 82 Fed. Reg.

45,161 (Sept. 24, 2017) (the “Proclamation”). The

Proclamation is focused outward toward nonresident

aliens, not American citizens seeking to live and

worship according to their religious convictions. The

text is religiously neutral, and the Government’s

hostility is directed toward terrorist acts that threaten

the lives of Americans, not the peaceful exercise of

religion.

ARGUMENT

THIS COURT SHOULD RENDER A

DECISION THAT WILL NOT DIMINISH

THE BROAD RELIGIOUS LIBERTY

AMERICANS TREASURE.

Religious freedom and liberty of conscience have

been highly valued and broadly protected by courts and

legislatures throughout American history. Indeed,

“nothing short of the self-preservation of the state

should warrant its violation.” United States v. Seeger,

380 U.S. 163, 170 (1965), quoting Harlan Fiske Stone

(later Chief Justice), The Conscientious Objector, 21

Col. Univ. Q. 253, 269 (1919). Here, self-preservation is

at stake. Moreover, the Proclamation does not require

anyone to engage in, facilitate, or finance an act

contrary to conscience or religious conviction—unlike

litigants in Burwell v. Hobby Lobby Stores, Inc., 134 S.

Ct. 2751 (2014). Nor does it require anyone to refrain

from a religious exercise—in contrast to the plaintiffs

in Emp’t Div., Ore. Dep’t of Human Res. v. Smith, 494

U.S. 872 (1990).

Religious liberty stretches far and wide, and only in

rare cases is the government’s interest sufficiently

compelling to override it. As this Court once observed,

in cases where religious liberty claimants lose, their

conduct “invariably pose[s] some substantial threat to

public safety, peace or order.” Sherbert v. Verner, 374

U.S. 398, 403 (1963) (emphasis added). The First

Amendment clearly does not protect murder or other

violent acts perpetrated under the banner of religion.

Here, national security is an extraordinarily compelling

interest and the burden falls almost exclusively on

persons who are neither citizens nor residents of the

United States. Moreover, that burden restricts

travel—not religious exercise.

II.

THE

CONTEXT

THE

PROCLAMATION—FOREIGN AFFAIRS—

IS A CRITICAL DISTINGUISHING

FEATURE.

This Court “has never applied the Establishment

Clause to matters of national security, foreign affairs,

and immigration.” Int’l Refugee Assistance Project v.

Trump, 2018 U.S. App. LEXIS 3513, *321 (4th Cir.

Feb. 15, 2018) (Niemeyer, J., dissenting) (“IRAP II”). It

should decline to transport domestic Establishment

Clause jurisprudence into this context, for two

compelling reasons. First, it is imperative that the

nation be able to defend itself. Without an adequate

defense, “constitutional protections of any sort have

little meaning.” Wayte v. United States, 470 U.S. 598,

612 (1985). Second, foreign nationals who have not

been lawfully admitted to the U.S. are not American

citizens with constitutional rights.

National

security

extraordinarily compelling interest

that would satisfy even the most

stringent judicial review.

In Establishment Clause cases, the Court cannot

“turn a blind eye to the context in which [the action]

arose.” Santa Fe Independent School Dist. v. Doe, 530

U.S. 290, 315 (2000). Here, this Court cannot “turn a

blind eye” to the terrorist acts of recent years and

resulting concerns about national security. “[N]o

governmental interest is more compelling than the

security of the Nation.” Haig v. Agee, 453 U.S. 280, 307

(1981). Even under stringent Establishment Clause

standards, “th[is] Court is . . . deferential to a State’s

articulation of a secular purpose,” unless that purpose

is insincere or a sham. Edwards v. Aguillard, 482 U.S.

578, 586 (1987). National security can hardly be

deemed an insincere or sham government purpose. As

the Government explains, the Proclamation’s “tailored

restrictions” were crafted after “a worldwide review of

security risks by multiple agency heads whose motives

have never been questioned.” Op. Br. 58.

The Ninth Circuit case did not delve into the

Establishment Clause claims in this case. See Hawaii

v. Trump, 878 F.3d 662, 702 (9th Cir. 2017). The

Fourth Circuit has twice examined similar claims but

evaded this Court’s decision in Kleindienst v. Mandel,

408 U.S. 753 (1972). Mandel held that courts may not

look behind a “facially legitimate and bona fide reason”

when the Executive exercises discretionary power to

exclude an alien, nor may they balance that

justification against the First Amendment interests of

others. Id. at 770. In its now-vacated first ruling, the

Fourth Circuit admitted that the Government’s

interest in national security is “on its face, a valid

reason” for the Proclamation (Int’l Refugee Assistance

Project v. Trump, 857 F.3d 554, 591 (4th Cir. 2017),

vacated and remanded, 138 S. Ct. 353 (2017) (“IRAP

I”)) but reasoned that rational basis is inapplicable to

Establish Clause challenges, “because that would mean

dispensing with the purpose inquiry that is so central

to Establishment Clause review.” Id. at 589 n. 14.

Then—based primarily on the President’s campaign

statements—the court concluded that the

Government’s facially valid reason was given in bad

faith. Id. at 591–592. In its more recent ruling, the

Fourth Circuit implies—contrary to the “worldwide,

multi-agency review process” described in the

Proclamation (see Op. Br. 60)—that the Government

had no bona fide rationale: “Unlike Din and Mandel, in

which the Government had a ‘bona fide factual basis’

for its actions . . . here the Government’s proffered

rationale for the Proclamation lies at odds with the

statements of the President himself.” IRAP II, 2018

U.S. App. LEXIS 3513, *48. The court bypasses the

Government’s evidentiary review and concludes that

national security is merely a “pretext for an antiMuslim religious purpose.” Id.

Courts owe the government significant deference

where national security is at stake. See Holder v.

Humanitarian Law Project, 561 U.S. 1, 33-34 (2010).

Where the President acts according to “an express or

implied authorization from Congress”—as he has done

in this case (8 U.S.C. 1182(f ))—such action is entitled

to “the strongest of presumptions and the widest

latitude of judicial interpretation, and the burden of

persuasion . . . rest[s] heavily upon any who might

attack it.” Dames & Moore v. Regan, 453 U.S. 654, 668

(1981). In Mandel, even though national security was

not involved, this Court held that deference is due

when the Executive exercises conditional authority

granted by Congress to exclude an alien, based on “a

facially legitimate and bona fide reason.” Mandel, 408

U.S. at 770. That same deference “has particular force

in the area of national security . . . .” Kerry v. Din, 135

S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring).

Governmental purpose is a key element in

Establishment Clause analysis. The “secular purpose”

requirement of Lemon v. Kurtzman, 403 U.S. 602

(1971) is “a common, albeit seldom dispositive,

element.” McCreary County v. ACLU, 545 U.S. 844, 859

(2005). The Fourth Circuit relied heavily on this factor.

But this is not a typical Establishment Clause case.

Under Mandel, the Proclamation’s facially legitimate

purpose is sufficient, and in light of the urgent national

security concerns it should not be subjected to a more

stringent analysis. But even if it were, it would easily

pass constitutional muster. “Th[is] Court has

invalidated legislation or governmental action on the

ground that a secular purpose was lacking, but only

when it has concluded there was no question that the

statute or activity was motivated wholly by religious

considerations.” Lynch v. Donnelly, 465 U.S. at 680.

Moreover, this Court has never held “that political

divisiveness alone can serve to invalidate otherwise

permissible conduct.” Id. at 684. Just as this Court

“decline[d] to so hold” in Lynch (id.), it should decline

this latest invitation.

In cases where Lemon’s purpose prong is

controlling, this Court has found the government action

“inexplicable but for a religious purpose, and it looked

to extrinsic evidence only to confirm its suspicion,

prompted by the face of the action, that it had religious

origins.” IRAP I, 857 F.3d at 652 (Niemeyer, J.,

dissenting. Sometimes the government’s religious

purpose is transparent: School Dist. of Abington v.

Schempp, 374 U.S. 203, 223, 224 (1963) (required Bible

study in public schools); Stone v. Graham, 449 U.S. 39,

41 (1980) (per curiam) (Kentucky statute requiring that

Ten Commandments be posted in public school rooms

had “no secular legislative purpose”); Edwards v.

Aguillard, 482 U.S. at 585 (law requiring teaching of

creation science had “no clear secular purpose”); Santa

Fe, 530 U.S. 290 (school policy allowing student-led

invocations before football games revealed preference

for prayer). In rare cases, this Court has uncovered an

impermissible religious purpose in the absence of a

facial reference to religion. The moment of silence

statute in Wallace v. Jaffree was admittedly an effort

to return voluntary prayer to public schools and had

“no secular purpose.” Wallace v. Jaffree, 472 U.S. 38, 56

(1985). In, Church of the Lukumi Babalu, this Court

invalidated a facially neutral law restricting animal

sacrifices because it was designed to suppress “the

central element of the Santeria worship service.”

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 534-535 (1993).2

The Fourth Circuit relied heavily on McCreary, but

in that case the government offered a new secular

purpose “as a litigating position” to justify a facially

religious requirement to display the Ten

Commandments in county courthouses. McCreary, 545

U.S. at 871. Here the Government provides the most

compelling of interests—national security—to support

a Proclamation that is religiously neutral on its face.

This case bears little (if any) resemblance to cases

tainted by religious objectives, either facially or

discernible from the circumstances behind the

legislation. In the Proclamation, the President explains

that key officials determined that “a small number of

countries—out of nearly 200 evaluated—remain

deficient” concerning “their identity-management and

information sharing capabilities, protocols, and

practices,” and some “also have a significant terrorist

presence within their territory.” Procl. §A It is

terrorism—not religion—that motivated the

Proclamation.

Lukumi Babalu was not an Establishment Clause, but rather a

case involving free exercise rights under the Religious Freedom

Restoration Act of 1993, 42 U.S.C. 2000bb et seq., Pub. L. 103-141,

107 Stat. 1488. However, it illustrates the potential for an

improper government purpose to hide behind a facially neutral

statute.

The Proclamation is directed

outward toward nonresident,

unadmitted aliens—not inward

toward U.S. citizens with

constitutional rights.

As this Court observed in Mandel, “an unadmitted

and nonresident alien[] ha[s] no constitutional right of

entry to this country as a nonimmigrant or otherwise.”

Mandel, 408 U.S. at 762. Citing the Government’s

brief, this Court explained that “the power to exclude

aliens is inherent in sovereignty, necessary for

maintaining normal international relations and

defending the country against foreign encroachments

and dangers – a power to be exercised exclusively by

the political branches of government.” Id. at 765

(internal quotation marks omitted). In this domain,

“Congress regularly makes rules that would be

unacceptable if applied to citizens.” Mathews v. Diaz,

426 U.S. 67, 80 (1976). In Fiallo, this Court upheld a

federal statute that granted preferential immigration

status based on the relationship between a child and

the child’s natural mother—but not the child’s natural

father. This transparent inequality would normally be

constitutionally suspect, but this Court reasoned that

the statute was intended “to afford rights not to aliens

but to United States citizens and legal permanent

residents.” Fiallo v. Bell, 430 U.S. 787, 793 (1977).

Here, the Proclamation does not “directly affect[] a

citizen’s legal rights, or impose[] a direct restraint on

his liberty,” but rather is action “directed against a

third party [that] affects the citizen only indirectly or

incidentally.” Din, 135 S. Ct. at 2138, quoting

O’Bannon v. Town Court Nursing Center, 447 U.S. 773,

788 (1980). In Din, the alien husband of a citizen was

inadmissible because of his terrorist activities—the

same type of concern that motivated the Proclamation

in this case.

III.

THE GOVERNMENT’S EFFORT TO

PROTECT THE NATION FROM

TERRORIST ATTACKS IS NOT THE

HOSTILITY TO RELIGION THE

ESTABLISHMENT CLAUSE PROHIBITS.

The Government must be free to protect both the

safety and the religious liberty of the American people.

It would be frightening to think the nation must

sacrifice either of these. This case is an opportunity for

this Court to ensure that the Executive is not placed in

such a Catch-22.

The Government’s “hostility” is not

directed toward religion but rather

toward violent acts of terrorism.

The Government’s “hostility” does not target

religion, but violent acts of terrorism that threaten the

lives of citizens and residents of the nation. The

Proclamation was not drafted to “ban Muslims” but to

“ban terrorism” through adequate vetting procedures.

This case is not comparable to domestic Establishment

Clause cases, even those that hinge on government

hostility to religion. Awad v. Ziriax, 670 F.3d 1111

(10th Cir. 2012) illustrates the difference. In Awad, the

Muslim plaintiff challenged a proposed state

constitutional amendment that “expressly condemn[ed]

his religion” (id. at 1123) by prohibiting the use of

Sharia law in state courts. The amendment failed strict

scrutiny because the State of Oklahoma could not

“identify an actual concrete problem.” Id. at 1129. See

Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799

(2011) (“the State must specifically identify an actual

problem in need of solving”). In Awad, the state

admittedly “did not know of even a single instance

where an Oklahoma court had applied Sharia law”

(Awad, 670 F.3d at 1130)—let alone created any actual

problems by doing so.

Awad stands in stark contrast to this case. Nowhere

does the Proclamation “expressly condemn” the Islamic

faith or any other religion. Nowhere does it mention

Muslims. In two places the Proclamation uses the word

“Islamic.” First, it notes “Iraq’s commitment to

combating the Islamic State of Iraq and Syria (ISIS).”

Procl. § 1(c)(iii)(g). Second, it observes that “several

terrorist groups are active within Chad or in the

surrounding region, including elements of Boko Haram,

ISIS-West Africa, and al-Qa’ida in the Islamic

Maghreb.” Procl. § 2(a)(i). In context, these references

relate to specific groups that actively promote

terrorism—not religion and not all Muslims.

The text of the Proclamation is

religiously neutral—a decision

against the Government would allow

challenges far beyond the normal

considerations of legislative history.

The Proclamation is facially neutral. In fact,

“plaintiffs conceded during oral argument” in the

Fourth Circuit that the Proclamation would have been

acceptable “if another candidate had won the

presidential election in November 2016 and thereafter

entered this same Executive Order.” IRAP I, 857 F.3d

at 649 (Niemeyer, J., dissenting). It would set

dangerous precedent, “completely strange to judicial

analysis,” to infuse new meaning into an unambiguous

text based on statements made during a heated

campaign or other informal context. IRAP II, 2018 U.S.

App. LEXIS 3513, *317 (Niemeyer, J., dissenting).

There is no clear limiting principle as to how far back

a court might look in order to construe—or even

reconstruct—a text. The use of such unbounded

analysis “to yield a specific constitutional violation”

would wreak havoc with the legal system, allowing “the

policies of an elected official” to “be forever held

hostage by the unguarded declarations of a candidate.”

Washington v. Trump, 858 F.3d 1168, 1174 (9th Cir.

2017) (Kozinski, J., dissenting from the denial of

reconsideration en banc). Such judicial revision would

not only violate basic separation of powers principles,

but drastically chill the political speech of candidates

and deprive voters of information.

CONCLUSION

This Court should reverse the Ninth Circuit

decision and defer to the Executive’s facially valid

purpose, as amply supported by the undisputed facts of

an exhaustive investigation involving multiple

agencies. At the same time, the ruling should reaffirm

the Court’s support for religious liberty and foreclose

any potential use as precedent for government hostility