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

NO. 17-965

In the Supreme Court of the United States

DONALD J. TRUMP, et al.,

v.

Petitioners,

STATE OF HAWAII, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF CONSTITUTIONAL LAW SCHOLARS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

ROBERTA A. KAPLAN

Counsel of Record

JOSHUA MATZ

350 Fifth Avenue

Suite 7110

New York, NY 10118

(212) 763-0883

rkaplan@kaplanandcompany.com

Counsel for Amici Curiae

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

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I.

THE

CONSTITUTION

PROHIBITS

GOVERNMENTAL ACTION BASED ON

ANIMUS TOWARD RELIGIONS . . . . . . . . . 9

A. The Establishment Clause . . . . . . . . . . . . 9

B. The Free Exercise Clause . . . . . . . . . . . . 14

C. The Equal Protection Clause . . . . . . . . . 16

II.

THE PROCLAMATION VIOLATES THE

CONSTITUTION BECAUSE IT IS BASED

ON ANIMUS AGAINST MUSLIMS . . . . . . 19

A. The Evidence of Animus Is Overwhelming . 19

B. The Review Process Did Not Rid the

Proclamation of Animus or Render the

President’s Statements Irrelevant . . . . . 26

III.

THE PROCLAMATION IS INVALID EVEN IF

ANIMUS WAS NOT ITS SOLE MOTIVE . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

APPENDIX - List of Amici Curiae . . . . . . . . . . App. 1

ii

TABLE OF AUTHORITIES

CASES

Am. Commc’ns Ass’n, C.I.O. v. Douds,

339 U.S. 382 (1950) . . . . . . . . . . . . . . . . . . . . . . 14

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v.

Grumet, 512 U.S. 687 (1994) . . . . . . . . . . . passim

Bd. of Trustees of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) . . . . . . . . . . . . . . . . . . . . . . 17

Bowen v. Roy,

476 U.S. 693 (1986) . . . . . . . . . . . . . . . . . . . . . . 15

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

Hialeah, 508 U.S. 520 (1993) . . . . . . . . . . passim

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . 2, 18, 20

City of New Orleans v. Dukes,

427 U.S. 297 (1976) . . . . . . . . . . . . . . . . . . . . . . 16

Edwards v. Aguillard,

482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . 18, 25

Engel v. Vitale,

370 U.S. 421 (1962) . . . . . . . . . . . . . . . . . . . . . . 14

Epperson v. Arkansas,

393 U.S. 97 (1968) . . . . . . . . . . . . . . . . . . . . . . . 11

Everson v. Bd. of Ed. of Ewing Twp.,

330 U.S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . . . . 13

Free Enterprise Fund v. Public Company Accounting

Oversight Board, 561 U.S. 477 (2010) . . . . . . 5, 26

iii

Hassan v. City of N.Y.,

804 F.3d 277 (3d Cir. 2015) . . . . . . . . . . . . . . . . 30

Hunter v. Underwood,

471 U.S. 222 (1985) . . . . . . . . . . . . . . . . . . . . . . 27

IRAP v. Trump,

883 F.3d 233 (4th Cir. 2018) . . . . . . . . . . . passim

Kleindienst v. Mandel,

408 U.S. 753 (1972) . . . . . . . . . . . . . . . . . . . . . . 20

Korematsu v. United States,

323 U.S. 214 (1944) . . . . . . . . . . . . . . . . . . . 29, 30

Larson v. Valente,

456 U.S. 228 (1982) . . . . . . . . . . . . . 2, 7, 9, 10, 29

Lemon v. Kurtzman,

403 U.S. 602 (1971) . . . . . . . . . . . . . . . . . . 1, 2, 20

Locke v. Davey,

540 U.S. 712 (2004) . . . . . . . . . . . . . . . . . 2, 10, 20

Lynch v. Donnelly,

465 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . . . . 11

Maryland v. King,

133 S. Ct. 1958 (2013) . . . . . . . . . . . . . . . . . . . . 24

McCreary County v. ACLU of Ky.,

545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . passim

Morrison v. Olson,

487 U.S. 654 (1988) . . . . . . . . . . . . . . . . . . . . . . . 8

Obergefell v. Hodges,

135 S. Ct. 2584 (2015) . . . . . . . . . . . . . . . . . . . . 14

iv

Palmore v. Sidoti,

466 U.S. 429 (1984) . . . . . . . . . . . . . . . . . . . . . . 17

Powers v. Ohio,

499 U.S. 400 (1991) . . . . . . . . . . . . . . . . . . . . . . 30

Romer v. Evans,

517 U.S. 620 (1996) . . . . . . . . . . . 2, 17, 18, 20, 28

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

530 U.S. 290 (2000) . . . . . . . . . . . . . . 5, 14, 22, 26

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . . . . 10

Shaw v. Reno,

509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . . . . 17

Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive

Communities Project, Inc.,

135 S. Ct. 2507 (2015) . . . . . . . . . . . . . . . . . . . . 17

Town of Greece v. Galloway,

134 S. Ct. 1811 (2014) . . . . . . . . . . . . . . . . passim

United States Dep’t of Agric. v. Moreno,

413 U.S. 528 (1973) . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Windsor,

133 S. Ct. 2675 (2013) . . . . . . . . . . . . . . . . passim

Village of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252 (1977) . . . . . . . . . . . . . 18

CONSTITUTION

U.S. Const. art. II, § 1 . . . . . . . . . . . . . . . . . . . . . . . . 5

v

OTHER AUTHORITIES

Chris Cillizza, Donald Trump’s Explanation of His

Wire-Tapping Tweets Will Shock and Amaze

You, Wash. Post (March 16, 2017) . . . . . . . . . . 23

Thomas Jefferson, Writings 40 (Merrill D. Peterson

ed., Library of Am. 1984) . . . . . . . . . . . . . . . . . . 13

Letter from George Washington to the Jews (Aug.

18, 1790), in The Separation of Church and

State: Writings on a Fundamental Freedom by

America’s Founders 110 (Forrest Church ed.,

2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Leah Litman and Ian Samuel, No Peeking?:

Korematsu and Judicial Credulity, TAKE CARE

(Mar. 22, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

James Madison, Memorial and Remonstrance

Against Religious Assessments (1785) . . . . . . . . . 8

Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

HARV. L. REV. 1409 (1990) . . . . . . . . . . . . . . . . . 13

Jon Meacham, American Gospel: God, the Founding

Fathers, and the Making of a Nation 101

(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Richard Primus, Motive Matters in Assessing the

Travel Ban, Take Care (March 20, 2017) . . . . . 25

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

24, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

1

INTEREST OF AMICI CURIAE

Amici are constitutional law scholars. They submit

this brief to identify a distinct legal principle

compelling the conclusion that the President’s travel

ban proclamation is unconstitutional: the long-settled

prohibition on governmental acts based on animus

toward a particular religious group. A full list of Amici

is attached as an appendix to this brief.1

SUMMARY OF ARGUMENT

I. In its decision affirming a preliminary injunction

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

(Sept. 24, 2017), the Fourth Circuit relied on McCreary

County v. ACLU of Ky., 545 U.S. 844 (2005), and the

secular purpose prong of Lemon v. Kurtzman, 403 U.S.

602 (1971), to hold that the Proclamation is invalid

because a “reasonable observer” would conclude that it

rests on “anti-Muslim bias.” IRAP v. Trump (“IRAP

II”), 883 F.3d 233, 267 (4th Cir. 2018). That ruling was

correct.

But the Fourth Circuit also held that the

Proclamation must be invalidated under a distinct

legal principle: the prohibition on official action based

on animus toward any particular religious group. See,

e.g., Town of Greece v. Galloway, 134 S. Ct. 1811, 1822

(2014); id. at 1831 (Alito, J., concurring); Bd. of Educ.

1

Pursuant to Sup. Ct. R. 37.6, Amici state that no party’s counsel

authored the brief in whole or in part; no party’s counsel

contributed money that was intended to fund preparing or

submitting the brief; and no person—other than Amici and their

counsel—contributed money intended to fund preparing or

submitting the brief. Petitioners have filed a blanket letter of

consent. Respondents have consented to the filing of this brief.

2

of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687,

722, 728 (1994) (Kennedy, J., concurring in the

judgment); Larson v. Valente, 456 U.S. 228, 244 (1982);

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

of Hialeah, 508 U.S. 520, 532 (1993); Romer v. Evans,

517 U.S. 620, 632-35 (1996). This rule has been

recognized as fundamental under the Establishment

Clause. And it is directly applicable here. See IRAP II,

883 F.3d at 256-57 (“Examining official statements

from President Trump and other executive branch

officials . . . we conclude that the Proclamation is

unconstitutionally tainted with animus toward

Islam.”).

Indeed, while the Fourth Circuit focused mainly on

Lemon’s secular purpose prong, the facts that it

considered even more clearly demonstrate anti-Muslim

animus under familiar means of discerning improper

motive. See, e.g., Town of Greece, 134 S. Ct. at 1824-26;

Locke v. Davey, 540 U.S. 712, 724-25 (2004); Lukumi,

508 U.S. at 534-36; see also, e.g., United States v.

Windsor, 133 S. Ct. 2675, 2693-94 (2013); City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447

(1985) . As the Fourth Circuit observed, “Plaintiffs offer

undisputed evidence that the President of the United

States has openly and often expressed his desire to ban

those of Islamic faith from entering the United States.”

IRAP II, 883 F.3d at 269.

II.A. The extraordinary record in this case

confirms that President Trump’s motive in issuing the

Proclamation was anti-Muslim animus. During the

campaign, Mr. Trump repeatedly promised voters that

he would ban Muslims from entering the United

States. When his “Statement on Preventing Muslim

3

Immigration” was criticized on constitutional grounds,

Mr. Trump switched his rhetoric and began referring to

“territory.” Upon taking office, President Trump

promptly made good on his animus-laden promise by

issuing a sweeping executive order (“EO-1”) that lacked

any discernible connection to a recognized security

threat. While not explicitly denominated a “Muslim

Ban,” EO-1 was widely seen as fulfilling that campaign

promise. Dispelling any doubt, President Trump and

his advisors made numerous statements confirming

that EO-1 was intended to serve as his long-promised

“Muslim Ban.” See J.A. 228-29, 377-79.

After EO-1 was enjoined, President Trump issued a

second executive order (“EO-2”) similar to the first. At

that time, the President’s campaign website still called

for a “total and complete shutdown of Muslims entering

the United States.” J.A. 400. When asked about the

basis for EO-2, the President’s senior advisors assured

the public that it involved the same “basic policies” and

“policy outcome” as EO-1, and addressed only

“technical issues.” J.A. 127, 401. The President, in turn,

warned that he resented this “watered down Travel

Ban.” J.A. 132. The President later added that he

preferred a “larger” and “more specific” travel ban, but

knew that would not be “politically correct.” J.A. 133.

Then, as now, the President had only ever identified a

single class as meriting a “larger” and “more specific”

ban: Muslims.

Like EO-1, EO-2 was designed to exclude and

demean Muslims. On that basis, multiple courts

enjoined it in whole or in part. Nonetheless, they

allowed the review process required by EO-2 to

proceed. During that review, the President made a

4

series of statements about the policy he preferred. See

J.A. 133. Consistent with his unequivocal and

unchanged position on prohibiting Muslims from

entering the country, the President then issued the

Proclamation, which tracks EO-2 in all material

respects. Although the Proclamation seeks to obfuscate

its targeting of Muslims by adding North Korea and

Venezuela, its actual effect on entry from those nations

is marginal. See J.A. 355-56. Moreover, “the criteria

allegedly used in the review . . . lie at odds with the list

of countries actually included in the Proclamation.”

IRAP II, 883 F.3d at 269.

On November 29, 2017, the President again

confirmed that his underlying “travel ban” policy and

his choice to make anti-Muslim statements are closely

linked. That day, he retweeted (and thus endorsed)

three anti-Muslim hate videos produced by a foreign

extremist group: (1) “Muslim destroys a Statue of

Virgin Mary!”; (2) “Islamist mob pushes teenage boy off

roof and beats him to death!”; and (3) “Muslim migrant

beats up Dutch boy on crutches!” See IRAP II, 883 F.3d

at 267. When asked why the President had done so,

Deputy Press Secretary Raj Shah noted that “the

president has been talking about these security issues

for years now” and has “addressed these issues with

the travel order that he issued earlier this year . . . .”

Id.

An extensive public record thus establishes that in

issuing the Proclamation—and its predecessors—

President Trump was adhering to his animus-laden

campaign promise, rather than acting for any

constitutionally legitimate reason.

5

II.B. The President’s lawyers cannot deny that the

Proclamation is invalid if it was issued to harm

Muslims. So, instead, they invoke the inter-agency

review process required by EO-2 to support their claim

that the Proclamation rests only on “neutral criteria.”

Br. 71. There are two basic flaws in this argument.

First, the Proclamation was issued by the President,

who alone holds “the executive Power,” U.S. Const. art.

II, § 1. And here, the President has repeatedly rejected,

criticized, and departed from the various policy

rationales presented to the courts by his unelected

subordinates. See, e.g., IRAP II, 883 F.3d at 264-65. It

would disrespect the Office of the Presidency—and

destroy lines of political and electoral accountability—

for this Court to treat the President as insignificant in

the issuance of his own Proclamation. His statements

about its purpose must be considered authoritative. As

the Court has explained, “The people do not vote for the

‘Officers of the United States.’ They instead look to the

President to guide the ‘assistants or deputies . . .

subject to his superintendence.’” Free Enterprise Fund

v. Public Company Accounting Oversight Board, 561

U.S. 477, 497-98 (2010) (citations omitted).

In the Establishment Clause context, it is

particularly appropriate to hold the President

accountable for his statements when he has used them

to shape public understanding of his policy. By virtue

of the President’s anti-Muslim remarks, millions of

people comprehend that the Proclamation targets

Muslims for stigma and exclusion. See Santa Fe Indep.

Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000) (“We refuse

to turn a blind eye to the context in which this policy

arose.”). If the President’s words mean nothing for

6

constitutional purposes—even as they mean everything

to those affected by his Proclamation—then the rule of

law will suffer. It would be anomalous for this Court to

ignore presidential statements broadcast to the world,

while embracing litigation-oriented rationales offered

by the President’s advisors.

This Court’s decision will reverberate throughout

American life. It will teach the people of this

nation—and migrants worldwide—about the meaning

of the Constitution. And as a result of the President’s

harmful statements, any decision by this Court that

upholds the Proclamation will send a message that the

Constitution allows the President to ban people

because he disapproves of their faith.

Second, the question here is not whether the interagency review process cured lingering animus from

EO-1 and EO-2. Put differently, this case is not about

whether the Proclamation is tainted by past illicit

intentions that are now extinguished. Rather, the

ultimate question is whether the Proclamation—and

the “travel ban” policy that it implements—would exist

at all in the absence of continuing anti-Muslim animus.

See McCreary, 545 U.S. at 872-73.

The Proclamation cannot be understood in isolation.

The President has repeatedly promised to ban Muslims

from entering the United States. Since taking office, he

has never disavowed that promise. Instead, he has

tacitly reaffirmed it, while grudgingly switching to a

ban based on territories. The President has also made

many openly anti-Muslim statements, and has linked

these “politically incorrect” remarks to his calls for a

ban that is simultaneously “larger” and “more specific.”

J.A. 133. The rationales contained in the Proclamation

7

itself appear nowhere in these statements. The only

common thread in the President’s remarks about his

travel ban—from EO-1 to the Proclamation—is a

pejorative view of Muslims and a desire to keep a large

number of them out.

Accordingly, the adequacy and neutrality of the

inter-agency review process are beside the point,

although there is ample reason to doubt both. That

review did not precede the travel ban. Rather, it

occurred after the essential policy determination had

already been made. And it functioned primarily to

legitimize a presidential command that was born of

animus, persists in animus, and seeks to make animus

the law of the land. No matter how many officials affix

their names to it, the Proclamation rests on a rotten

foundation. And rather than seek to cure that animus,

the President has only continued to espouse it in public

statements. Because no version of the “travel ban”

would exist in the absence of improper motives, it is

irrelevant that multiple agencies participated in

drafting the latest instrument implementing it.

III. Even if this Court were to conclude that

national security concerns played some role in the

Proclamation’s enactment, that still would not save it.

Animus may co-exist with legitimate motives. Where

the government acts on the basis of mixed motives,

courts do not hesitate to invalidate official acts when

animus was an essential or primary motive—as it most

certainly was here. See Windsor, 133 S. Ct. at 2693;

Lukumi, 508 U.S. at 535; Larson, 456 U.S. at 248.

8

The importance of that principle is confirmed by

reference to original understanding. This country was

founded to welcome people of all faiths and to reject

religious intolerance. In 1785, James Madison warned

against any law departing “from that generous policy,

which, offering an Asylum to the persecuted and

oppressed of every Nation and Religion, promised a

lustre to our country, and an accession to the number

of its citizens.” James Madison, Memorial and

Remonstrance Against Religious Assessments ¶ 9

(1785). He added:

Instead of holding forth an Asylum to the

persecuted, [the Bill] is itself a signal of

persecution. It degrades from the equal rank of

Citizens all those whose opinions in Religion do

not bend to those of the Legislative authority.

Distant as it may be in its present form from the

Inquisition, it differs from it only in degree. The

one is the first step, the other the last in the

career of intolerance . . . .

Id.

The bill against which Madison remonstrated has

been consigned to the dustbin of history. But the

underlying evils against which Madison warned are

still with us. This case does not present them in

disguise. No, “this wolf comes as a wolf.” Morrison v.

Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting).

President Trump has repeatedly espoused the animus

that motivated his promises—and his subsequent

acts—to ban a large number of Muslims from entering

the United States. As a result of his statements, a

decision by this Court upholding the Proclamation

would deliver a powerful blow to popular faith in the

9

First Amendment as a shield against official religious

prejudice. Respectfully, for freedom to endure, the

Proclamation must be enjoined.

ARGUMENT

I.

THE

CONSTITUTION

PROHIBITS

GOVERNMENTAL ACTION BASED ON

ANIMUS TOWARD RELIGIONS

As Justice Kennedy has explained, “[i]n our

Establishment Clause cases we have often stated the

principle that the First Amendment forbids an official

purpose to disapprove of a particular religion or of

religion in general.” Lukumi, 508 U.S. at 532. This

prohibition against governmental action motivated by

animus toward a religious group is so fundamental that

it has been expressed not only in Establishment Clause

doctrine, but also in cases arising under the Free

Exercise and Equal Protection Clauses.

Together, these precedents teach that the antianimus rule rests upon an abiding commitment to

equal treatment and religious freedom. Indeed, “the

Free Exercise Clause, the Establishment Clause, the

Religious Test Clause, Art. VI, cl. 3, and the Equal

Protection Clause as applied to religion [] all speak

with one voice on this point: Absent the most unusual

circumstances, one’s religion ought not affect one’s

legal rights or duties or benefits.” Kiryas Joel, 512 U.S.

at 715 (O’Connor, J., concurring).

A. The Establishment Clause

The Establishment Clause ensures that government

shall not establish any religious orthodoxy, or favor or

disfavor one religion over another. See Larson, 456 U.S.

10

at 244 (“The clearest command of the Establishment

Clause is that one religious denomination cannot be

officially preferred over another.”). This rule is

“inextricably connected with the continuing vitality of

the Free Exercise Clause.” Id. at 245. Religious

freedom “can be guaranteed only when legislators—and

voters—are required to accord to their own religions

the very same treatment given to small, new, or

unpopular denominations.” Id. As Justice Goldberg

explained, the Religion Clauses recognize that “[t]he

fullest realization of true religious liberty requires that

government neither engage in nor compel religious

practices, that it effect no favoritism among sects or

between religion and nonreligion, and that it work

deterrence of no religious belief.” Sch. Dist. of Abington

Twp. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg,

J., concurring).

This Court has thus held time and again that the

Establishment Clause forbids official acts based on

animus toward any particular religious group. That

principle transcends many of the familiar divisions in

Establishment Clause jurisprudence, and has been

embraced by strict separationists, proponents of the

endorsement test, those who believe that the Clause

targets coercion, and jurists who see a very broad role

for religion in public life. See, e.g., Locke, 540 U.S. at

725 (Rehnquist, C.J.) (upholding a scholarship program

against constitutional attack because “we find neither

in the history or text of [the state law], nor in the

operation of the [program], anything that

suggests animus toward religion”); Kiryas Joel, 512

U.S. at 703 (holding courts must safeguard “a principle

at the heart of the Establishment Clause, that

government should not prefer one religion to another,

11

or religion to irreligion”); id. at 714 (O’Connor, J.,

concurring) (“[T]he government generally may not treat

people differently based on the God or gods they

worship, or do not worship.”); Lynch v. Donnelly, 465

U.S. 668, 673 (1984) (holding the Establishment

Clause “forbids hostility toward any [religion]”);

Epperson v. Arkansas, 393 U.S. 97, 106 (1968) (holding

that “[t]he State may not adopt programs or practices

. . . which ‘aid or oppose’ any religion”). There is a

judicial consensus that government may not act on the

basis of animus toward disfavored religious groups.

The Court recently reaffirmed the rule against

governmental animus toward religion in Town of

Greece, which upheld a town’s practice of holding a

prayer program at the start of monthly board meetings.

134 S. Ct. 1811 (2014). A crucial issue in Town of

Greece was whether the town had established

Christianity by adopting a rotational policy that led to

mostly Christian prayers. The Court upheld the town’s

policy, concluding that some sectarian prayer is

consistent with the nation’s historical traditions, and

that the town’s prayer program did not result in

religious coercion. See id. at 1819-25.

However, the Court’s opinion contained a critical

limitation:

If the course and practice over time shows that

the invocations denigrate nonbelievers or

religious minorities, threaten damnation, or

preach conversion, many present may consider

the prayer to fall short of the desire to elevate

the purpose of the occasion and to unite

lawmakers in their common effort. That

12

circumstance would present a different case

than the one presently before the Court.

Id. at 1823. The Court thus made clear that the town

could not “signal disfavor toward nonparticipants or

suggest that their stature in the community was in any

way diminished.” Id. at 1826. Practices serving to

“denigrate, proselytize, or betray an impermissible

government purpose” would violate the Constitution

and demean adherents of disfavored faiths. Id. at 1824;

accord Kiryas Joel, 512 U.S. at 722 (Kennedy, J.,

concurring) (stating religious accommodations would

violate the Establishment Clause if they “discriminate

against other religions”).

In a concurrence in Town of Greece, Justice Alito

echoed the majority’s warning against official acts

based on animus. He noted that the town’s lack of nonChristian prayer leaders “was at worst careless”—

adding, “I would view this case very differently if the

omission of these synagogues were intentional.” 134 S.

Ct. at 1831. Similarly, Justice Breyer emphasized the

absence of evidence suggesting discriminatory intent.

See id. at 1840 (Breyer, J., dissenting) (“The plaintiffs

do not argue that the town intentionally discriminated

against non-Christians when choosing whom to

invite[.]”).

As Town of Greece showed, and as many other

precedents confirm, the Establishment Clause’s

prohibition against animus enjoys wide support among

jurists of all methodological persuasions. This rule is

also supported by historical evidence concerning the

original understanding of the First Amendment. “A

large proportion of the early settlers of this country

came here from Europe to escape [religious

13

persecution].” Everson v. Bd. of Ed. of Ewing Twp., 330

U.S. 1, 8 (1947). By the time the Bill of Rights was

ratified, “the American states had already experienced

150 years of a higher degree of religious diversity than

had existed anywhere else in the world.” Michael W.

McConnell, The Origins and Historical Understanding

of Free Exercise of Religion, 103 HARV. L. REV. 1409,

1421 (1990).

The Framers thus understood that their task was to

design a “government for a pluralistic nation—a

country in which people of different faiths had to live

together.” Jon Meacham, American Gospel: God, the

Founding Fathers, and the Making of a Nation 101

(2006). As George Washington wrote, “the government

of the United States . . . gives to [religious] bigotry no

sanction, to persecution no assistance.” Letter from

George Washington to the Jews (Aug. 18, 1790), in The

Separation of Church and State: Writings on a

Fundamental Freedom by America’s Founders 110

(Forrest Church ed., 2004). Thomas Jefferson, in turn,

saw the Establishment Clause as “proof that [the

people] meant to comprehend, within the mantle of [the

law’s] protection, the Jew and the Gentile, the

Christian and Mahometan, the Hindoo and infidel of

every denomination.” Thomas Jefferson, Writings 40

(Merrill D. Peterson ed., Library of Am. 1984).

Governmental acts based on animus toward a

disfavored religious group are thus at war with the

Establishment Clause, as a matter of principle,

precedent, and history. This anti-animus rule follows

directly from the Clause’s purpose of protecting

religious freedom for those sects not favored by the

political majority: just as the government cannot coerce

14

(or endorse) religious belief or practice, neither can it

take action based on a desire to harm or suppress any

faith. Given the centrality of religion in many people’s

lives, courts look with the utmost suspicion upon

official acts based on hostility to any particular

religion. See Obergefell v. Hodges, 135 S. Ct. 2584, 2607

(2015) (“The First Amendment ensures that religious

organizations and persons are given proper protection

as they seek to teach the principles that are so fulfilling

and so central to their lives and faiths.”).

This does not mean that government is unable to

recognize the importance of religion—including

majority religions—in our nation. Far from it: the antianimus rule is perfectly consistent with broad views of

religion’s permissible role in public life. Rather, the

Establishment Clause forbids officials from exercising

governmental power on the basis of a desire to

suppress, harm, or denigrate any particular religious

sect or denomination. This limit, though narrow, is

vital to religious liberty. See Am. Commc’ns Ass’n,

C.I.O. v. Douds, 339 U.S. 382, 448 (1950) (Black, J.,

dissenting) (“Centuries of experience testify that laws

aimed at one . . . religious group . . . generate hatreds

and prejudices which rapidly spread beyond control.”).

B. The Free Exercise Clause

The Free Exercise and Establishment Clauses

speak as one against laws designed to oppress

disfavored faiths. This reflects “the common purpose of

the Religion Clauses,” which is “‘to secure religious

liberty.’” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 313 (2000) (quoting Engel v. Vitale, 370 U.S. 421,

430 (1962)). Indeed, it was “historical instances of

religious persecution and intolerance that gave concern

15

to those who drafted the Free Exercise Clause.” Bowen

v. Roy, 476 U.S. 693, 703 (1986) (opinion of Burger,

C.J.).

This principle received its fullest elaboration in

Lukumi, where the Court struck down a facially

neutral local ordinance on the ground that it was based

on animosity toward Santeria religious practices. See

508 U.S. at 542. The Court explained that “[t]he Free

Exercise Clause commits government itself to religious

tolerance, and upon even slight suspicion that

proposals for state intervention stem from animosity to

religion or distrust of its practices, all officials must

pause to remember their own high duty to the

Constitution and to the rights it secures.” Id. at 547.

Thus, “Legislators may not devise mechanisms, overt

or disguised, designed to persecute or oppress a religion

or its practices.” Id.

Governmental acts based on religious animosity are

wholly forbidden by the Free Exercise Clause. Id. That

is true even if officials “did not understand, failed to

perceive, or chose to ignore the fact that their official

actions violated the Nation’s essential commitment to

religious freedom.” Id. at 524.

Furthermore, in discerning animus, “[f]acial

neutrality is not determinative” because the “Free

Exercise Clause, like the Establishment Clause,

extends beyond facial discrimination.” Id. at 534.

Rather, when government effectively classifies on

religious lines, courts guard against “impermissible

attempt[s] to target [religious people] and their

religious practices.” Id. at 535.

16

Under Lukumi, evidence of improper purpose may

come from the text and structure of an order, the

order’s real-world effect, or the degree to which the

order is tailored to achieve legitimate ends. See id. at

533-38. Courts also assess “the historical background

of the decision under challenge, the specific series of

events leading to the enactment or official policy in

question, and the legislative or administrative history,

including contemporaneous statements made by

members of the decisionmaking body.” Id. at 540

(opinion of Kennedy, J.).

Thus, if the full circumstances of an official act

disclose that it was based on animus toward a religious

group, that act must be invalidated.

C. The Equal Protection Clause

Precisely because the rule against anti-religious

animus is grounded in the principle of equal treatment

for all faiths, Justice Kennedy has explained that

application of that rule should be informed by insights

from equal protection doctrine. See Lukumi, 508 U.S.

at 540 (opinion of Kennedy, J.) (“In determining if the

object of a law is a neutral one under the Free Exercise

Clause, we can also find guidance in our equal

protection cases.”).

The Equal Protection Clause is instructive in the

Establishment Clause context in at least three

respects. First, on many occasions, this Court has

equated religion and race as bases of discrimination

inimical to our constitutional order. See, e.g., City of

New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976).

That principle has been invoked in a wide array of

circumstances: “Just as the government may not

17

segregate people on account of their race, so too it may

not segregate on the basis of religion. The danger of

stigma and stirred animosities is no less acute for

religious line-drawing than for racial.” Kiryas Joel, 512

U.S. at 728 (Kennedy, J., concurring in the judgment);

see also Shaw v. Reno, 509 U.S. 630, 648 (1993).

Second, equal protection jurisprudence offers a

nuanced account of what constitutes impermissible

animus. In many cases, the Court has invalidated acts

on animus grounds without any finding that particular

individuals were subjectively motivated by bigotry. See,

e.g., Windsor, 133 S. Ct. at 2693; Romer, 517 U.S. at

634. Rather, as Justice Kennedy has explained:

“Prejudice, we are beginning to understand, rises not

from malice or hostile animus alone. It may result as

well from insensitivity caused by simple want of

careful, rational reflection or from some instinctive

mechanism to guard against people who appear to be

different in some respects from ourselves.” Bd. of

Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374

(2001) (Kennedy, J., concurring); accord Lukumi, 508

U.S. at 524 (recognizing the possibility that officials

“did not understand” or “failed to perceive” their

animus toward Santeria).

Thus, the Court has remained sensitive to the

subtle dangers posed by “unconscious prejudices and

disguised animus,” as well as the social harms of

“covert and illicit stereotyping.” Texas Dep’t of Hous. &

Cmty. Affairs v. Inclusive Communities Project, Inc.,

135 S. Ct. 2507, 2522 (2015). “Private biases may be

outside the reach of the law, but the law cannot,

directly or indirectly, give them effect.” Palmore v.

Sidoti, 466 U.S. 429, 433 (1984).

18

Finally, equal protection cases shed additional light

on how to recognize animus. Several objective factors

are often considered relevant: the text of an act; its

novelty in our constitutional tradition; the full context

leading up to and following enactment; the act’s realworld effects; and the degree of fit between an act’s

stated purpose and its actual structure. See Windsor,

133 S. Ct. at 2693-95; Romer, 517 U.S. at 63435; Cleburne, 473 U.S. at 448; Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 26567 (1977); United States Dep’t of Agric. v. Moreno, 413

U.S. 528, 536-38 (1973). Religion Clause precedents,

including those addressing official acts based on

animus toward specific religious denominations,

consider the same factors. See Kiryas Joel, 512 U.S. at

698-705; Lukumi, 508 U.S. at 534-36; Edwards v.

Aguillard, 482 U.S. 578, 594-95 (1987); see also Town

of Greece, 134 S. Ct. at 1824-26 (describing when a

pattern of prayers would impermissibly function to

“denigrate” or “betray an impermissible government

purpose”).

The link between the Religion Clauses and the

Equal Protection Clause thus promotes a more refined

application of the Establishment Clause’s ban on

governmental animus toward religion.

19

II.

THE PROCLAMATION VIOLATES THE

CONSTITUTION BECAUSE IT IS BASED

ON ANIMUS AGAINST MUSLIMS

“For centuries now, people have come to this

country from every corner of the world to share in the

blessing of religious freedom.” Town of Greece, 134 S.

Ct. at 1841 (Kagan, J., dissenting). But here, the

President issued the Proclamation in defiance of that

tradition. Even acknowledging that he is entitled to

deference on matters of immigration and national

security, it is hard to imagine a clearer instance of

official action motivated by animus toward a religion.

As Judge Harris has observed, this unusual case

features “a governmental decisionmaker using his own

direct communications with the public to

broadcast—repeatedly, and throughout the course of

[the] litigation—an anti-Muslim purpose tied

specifically to the challenged action.” IRAP II, 883 F.3d

at 352 (Harris, J., concurring).

A. The Evidence of Animus Is

Overwhelming

In its decision addressing the Proclamation, the

Fourth Circuit relied on statements by the President

concerning his view of Muslims and his desire to ban

them from the United States. This evidence included

“President Trump’s disparaging comments and tweets

regarding Muslims; his repeated proposals to ban

Muslims from entering the United States; his

subsequent explanation that he would effectuate this

‘Muslim’ ban by targeting ‘territories’ instead of

Muslims directly; the issuance of EO-1 and EO-2,

addressed only to majority-Muslim nations; and finally

the issuance of the Proclamation, which not only closely

20

tracks EO-1 and EO-2, but which President Trump and

his advisors described as having the same goal as EO-1

and EO-2.” Id. at 264.

While the Fourth Circuit discussed these facts in

relation to Lemon’s reasonable observer test, the same

evidence also reveals animus: President Trump’s

Proclamation and the oft-repeated campaign promise

it fulfilled were based on a desire to exclude Muslims

from this nation. While the Proclamation does not

exclude all Muslims, and does not single out Muslims

by name, the clear and widely-noted goal of the

Proclamation is to ban a large number of Muslims from

the United States in satisfaction of President Trump’s

promise to do just that.

Indeed, as explained above, this kind of

evidence—the text of an order, its novelty, its realworld effects, the context of its enactment, statements

made by decisionmakers, and the degree of fit between

an order’s stated purpose and actual structure—is the

standard fare of courts engaged in animus analysis. See

Town of Greece, 134 S. Ct. 1824-26; Locke, 540 U.S. at

725; Lukumi, 508 U.S. at 534-36; see also, e.g.,

Windsor, 133 S. Ct. at 2693-95; Romer, 517 U.S. at 63435; Cleburne, 473 U.S. at 448. And as the Fourth

Circuit properly held, the immigration and national

security contexts of this litigation do not require that

the Court close its eyes to the facts. See IRAP II, 883

F.3d at 267-69.2

2

To be sure, the Court in Kleindienst v. Mandel deferred to a

decision to exclude aliens based on “a facially legitimate and bona

fide reason.” 408 U.S. 753, 770 (1972). But here the President’s

improper anti-Muslim motive means that the Proclamation was

not “bona fide” under Mandel. See id.

21

Evaluated through the lens of animus doctrine, the

factual record in this case permits only a single

conclusion: that the Proclamation and its underlying

“travel ban” policy were designed with an anti-Muslim

purpose. This conclusion follows from a remarkably

consistent series of statements made by the President

and his senior advisors starting shortly after the

election and continuing to the present:

(1) More than a month after the election, President

Trump was asked whether he would revisit his

intention to ban Muslims. He replied: “You know

my plans all along, and I’ve been proven to be

right.” J.A. 123.

(2) Upon signing EO-1, President Trump read its

oblique title—“Protecting The Nation From Foreign

Terrorist Entry Into The United States”—

and said, “We all know what that means.” J.A. 124.

(3) On January 28, 2017, Rudy Giuliani stated,

“When [President Trump] first announced it, he

said ‘Muslim ban.’ He called me up, he said, ‘Put a

commission together, show me the right way to do

it legally.’” J.A. 125.

(4) When EO-2 was enjoined, the President said he

would rather “go all the way, which is what [he]

wanted to do in the first place.” J.A. 131.

(5) Throughout this period—and until the eve of the

Fourth Circuit’s oral argument on EO-2—President

Trump’s regularly-updated campaign website

included his call for a “total and complete shutdown

of Muslims entering the United States.” J.A. 130131.

22

(6) On June 5, 2017, the President tweeted: “People,

the lawyers and the courts can call it whatever they

want, but I am calling it what we need and what it

is, a TRAVEL BAN!” He continued: “The Justice

Dept. should have stayed with the original Travel

Ban, not the watered down, politically correct

version they submitted to the [Supreme Court]” J.A.

132-133.

(7) On September 25, 2017, the President stated

that the “travel ban . . . should be far larger,

tougher, and more specific,” but “stupidly that

would not be politically correct.” J.A. 133.

(8) When the Proclamation became public, the

President told reporters, “The travel ban: The

tougher, the better.” J.A. 136.

These statements reveal President Trump’s

consistent and animus-laden motives concerning the

“travel ban” policy, leading up to and including the

Proclamation. They also confirm that the President has

never publicly expressed any change of heart regarding

the ultimate basis for imposing a “tougher,” “larger,”

and “politically incorrect” ban on entry.

These public statements, moreover, must be

considered in the context of President Trump’s other

comments about Muslims. See, e.g., Santa Fe, 530 U.S.

at 315-316. And those remarks dispel any conceivable

doubt that the travel ban policy is born of animus.

It is helpful to begin with Mr. Trump’s remarks

shortly before being sworn into office. See McCreary,

545 U.S. at 866 (“The world is not made brand new

every morning.”). In that period, he stated that “Islam

hates us,” J.A. 399; called for excluding Muslims

23

because “we’re having problems with the Muslims, and

we’re having problems with Muslims coming into the

country,” J.A. 121; explained that he would seek to

evade scrutiny of the proposed “Muslim Ban” by

formulating it in terms of nationality, rather than

religion, J.A. 399; and refused to deny that he proposed

“to create a Muslim registry or ban Muslim

immigration into the United States,” J.A. 123.

These statements continued after Inauguration Day

2017. For example, on March 16, 2017—the day that

EO-2 was due to go into effect—President Trump

sweepingly asserted that “the assimilation [of Muslims

in the U.S.] has been very, very hard.” Chris Cillizza,

Donald Trump’s Explanation of His Wire-Tapping

Tweets Will Shock and Amaze You, Wash. Post (March

16, 2017). Five months later, invoking a false story

about General John Pershing, he implied in a tweet

that “Radical Islamic” terrorists should be executed

with bullets dipped in pig’s blood. IRAP II, 883 F.3d at

267. Notably, the President has not suggested

committing such atrocities against terrorists of any of

other faith.

More recently, on November 29, 2017, President

Trump retweeted three anti-Muslim videos produced

by Britain First—a group whose mission is to oppose

“all alien and destructive politic[al] or religious

doctrines, including . . . Islam.” Id. These incendiary

videos depicted purported Muslims attacking people

and brazenly smashing Christian religious statues.

When questioned by reporters, Deputy Press Secretary

Raj Shah drew a straight line from President Trump’s

discriminatory campaign statements to his latest

Proclamation: “The President has been talking about

24

these security issues for years now, from the campaign

trail to the White House,” and “the President has

addressed these issues with the travel order that he

issued earlier this year and the companion

proclamation.” Id.3

The Government raises a variety of objections to

considering these statements. See Br. 64-71. But this

Court has never suggested that statements by the

President—including those made pre-inauguration—

are uniquely irrelevant to motive analysis. To the

contrary, it is well-established that courts must

consider “the historical background of the decision

under challenge, the specific series of events leading to

the enactment or official policy in question, and the

legislative or administrative history, including

contemporaneous statements made by members of the

decisionmaking body.” Lukumi, 508 U.S. at 540

(opinion of Kennedy, J.) (citation omitted).

These considerations reflect simple common sense:

it “taxes the credulity of the credulous” to assert that

the President’s own statements shed no light on the

purpose of his order. Maryland v. King, 133 S. Ct.

1958, 1980 (2013) (Scalia, J., dissenting). That is

particularly true here, as the connection in time,

subject, scope, and substance between the President’s

statements and each iteration of his travel ban is

extraordinarily clear. And so, too, is the President’s

pattern of using coded rhetoric to convey a desire to

3

This statement exemplifies the oddity of arguments against any

consideration of President Trump’s campaign statements. Since

taking office, he and his advisors have repeatedly and explicitly

incorporated them by reference to explain the travel ban policy.

25

ban entry by Muslims—e.g., targeting “territories” and

favoring a “politically incorrect” policy.

There is no reason to fear that the free speech rights

of candidates, or politicians, would be chilled by

consideration of President Trump’s public remarks.

The First Amendment protects speech, but it does not

allow candidates or politicians to evade accountability

if their words reveal that an unconstitutional purpose

motivated their official actions. To the contrary, courts

regularly rely on statements by governmental actors to

discern improper intent. See McCreary, 545 U.S. at

869; Edwards, 482 U.S. at 583; see also Richard

Primus, Motive Matters in Assessing the Travel Ban,

Take Care (March 20, 2017) (“If the Administration

doesn’t want its orders to be struck down, it shouldn’t

act on the basis of discriminatory motives.”).4

It is therefore necessary and appropriate to consider

President Trump’s statements about the travel ban in

assessing whether the latest iteration of that policy

complies with the Constitution. And those statements

make clear that the Proclamation, like its predecessors,

rests primarily on forbidden animus.

4

If anything, the Government’s argument is especially weak

compared to similar objections in analogous cases. Usually, this

Court seeks to discern the motives of a multi-member body, such

as a legislature, and faces hard questions about identifying group

motive. Here, in contrast, the Court need only consider the motives

of a single man who has made dozens of statements directly

explaining his actions.

26

B. The Review Process Did Not Rid the

Proclamation of Animus or Render the

President’s Statements Irrelevant

If President Trump’s public statements reflect the

true basis for the Proclamation, there can be no doubt

about its invalidity. The Government therefore seeks to

reframe the analysis, insisting that any animus in EO2 was cured by the inter-agency review process

preceding the Proclamation. See Br. 65-66. But this

argument suffers from two separate flaws.

First, faced with strong evidence of animus in a

policy issued personally by the President, it is no

solution to respond that the chief executive’s unelected

subordinates acted with pure intentions. That line of

reasoning threatens to destroy political accountability.

See Free Enterprise Fund, 561 U.S. at 497-98. As Judge

Wynn has explained, “Voters would be confused as to

whether the Proclamation advances the President’s

promise to ban entry of Muslims, as the President has

proclaimed, or is intended to prevent entry of aliens

from countries that fail to maintain or share adequate

information regarding their nationals, as the

Government and the Proclamation claims. Voters,

therefore, would not know which policy to hold the

President accountable for at the polls.” IRAP II, 883

F.3d at 347 (Wynn, J., concurring).

It would be particularly imprudent to separate the

Proclamation from its author when the President is

directly responsible for the global perception that his

travel ban exists to subordinate Muslims. In

Establishment Clause cases, this Court has refused “to

pretend that we do not recognize what [everyone]

understands clearly.” See Santa Fe, 530 U.S. at 315.

27

Here, the President originated the idea of a Muslim

Ban; he campaigned on an animus-laden promise to

implement it; he openly explained his strategy for

disguising that ban through an order just like the

Proclamation; he made numerous public statements

linking the travel ban to anti-Muslim animus; and he

persisted in seeking this policy despite the absence of

any credible need for it. He should not now be

permitted to hide behind an administrative review

process, or to claim that his own words are irrelevant.

Second, the Government errs in asking whether any

animus that tainted EO-2 has been cured by the

internal review process. See Br. 66. The question here

is not whether the Proclamation must fall because

animus motivated the creation of EO-1 and EO-2.

Rather, it is whether the “travel ban” policy that the

Proclamation implements would exist at all without

continuing anti-Muslim animus. At the very least, a

governmental action that would not have occurred in

the absence of improper intent is unconstitutional. See,

e.g., McCreary, 545 U.S. at 873-74; see also Hunter v.

Underwood, 471 U.S. 222, 232 (1985) (holding that a

statute is undoubtedly invalid when it would not have

been enacted “but-for” discriminatory intent). Here, the

only question that needs answering is this: was the

Proclamation itself motivated by animus?

The answer to that question is “yes.” From EO-1

through the present day, President Trump has issued

an unbroken series of public statements expressing his

desire to impose a single policy: the travel ban. While

the President has denounced certain versions of his

own ban as too weak—or too politically correct—he has

never suggested that they resulted from distinct

28

motivations. To the contrary, he has been strikingly

consistent in connecting his preference for a travel ban

to whichever version of that policy exists at the time of

his remarks. Much like EO-1 and EO-2, the

Proclamation thus exists only to implement the travel

ban policy. And as shown above, that policy itself was

born of anti-Muslim animus and remains mired in it.

It is of little moment that the Proclamation was

crafted through an inter-agency process that identified

other potential reasons for such a policy. That review

would never have occurred if the President had not

already decided to create a travel ban—and to do so for

improper, discriminatory reasons. Because this policy

is shot through with animus, and would not exist but

for animus, it cannot survive constitutional review.

III.

THE PROCLAMATION IS INVALID EVEN

IF ANIMUS WAS NOT ITS SOLE MOTIVE

Given the exceptional record in this case, it is

reasonable to conclude that the Proclamation and its

underlying travel ban policy were motivated solely by

anti-Muslim animus (or by a decision to follow through

on anti-Muslim campaign promises). Viewed that way,

the Proclamation—whose scope and structure do not

match even its own professed security purposes—is

analogous to the amendment invalidated in Romer v.

Evans: “Its sheer breadth is so discontinuous with the

reasons offered for it that the [Proclamation] seems

inexplicable by anything but animus toward the class

it affects; it lacks a rational relationship to legitimate

state interests.” 517 U.S. at 632.

In the alternative, it might be concluded that the

animus documented by the Fourth Circuit co-exists

29

with other motives. That is often true in cases evoking

the animus principle. Thus, in Lukumi, the Court

recognized that the subject did implicate “multiple

concerns unrelated to religious animosity.” 508 U.S. at

535. But those concerns were so “remote” from the

ordinance under review that they could not save it. Id.

So, too, in Windsor, where the Court acknowledged

other legislative purposes, but nevertheless concluded

that the Defense of Marriage Act’s “principal effect”

and “principal purpose” were to “impose inequality, not

for other reasons like governmental efficiency.” 133 S.

Ct. at 2694. And again in Larson, where Minnesota had

a valid interest in “protecting its citizens from abusive

practices in the solicitation of funds for charity,” but

where that interest could not explain the State’s de

facto denominational line-drawing. 456 U.S. at 248.

In short, where the government acts on the basis of

mixed motives—as it often does—courts do not hesitate

to invalidate official action when animus was a primary

or essential motive. Cf. McCreary, 535 U.S. at 865. And

here, for reasons well stated by the Fourth Circuit, that

conclusion is inevitable: both with respect to the

existence of a travel ban in general, and with respect to

the Proclamation’s peculiar structure.

Perhaps the most instructive precedent on this

point is Korematsu v. United States, 323 U.S. 214

(1944). There, too, an order built on animus was

presented to courts as required by national security

concerns, which judges were forcefully urged to take at

face value. There, too, the President acted on the basis

of various motives, some of them legitimate and

others—the decisive ones—emphatically not so. And

there, too, evidence about the true motivations of the

30

Executive Branch undercut the Government’s factual

argument to the Judiciary—though whereas that

evidence remained buried in 1944, here the President

has stated his motives explicitly. See Leah Litman and

Ian Samuel, No Peeking?: Korematsu and Judicial

Credulity, TAKE CARE (Mar. 22, 2017).

In Korematsu, the Supreme Court acceded to a

presidential demand for boundless deference, over a

dissent that refused to uphold bigotry. See 323 U.S. at

233 (Murphy, J., dissenting) (“Such exclusion goes over

‘the very brink of constitutional power’ and falls into

the ugly abyss of racism.”). The mere facade of a

national security justification, even if actually in the

mix of presidential motives, should not have saved an

order that rested ultimately on prejudice. As

Korematsu teaches, when otherwise-valid motives are

mixed with animus, the legitimate justification is itself

corrupted. See Powers v. Ohio, 499 U.S. 400, 416

(1991). For good reason, Korematsu is now seen as a

warning against reflexive deference to the

President—even in cases involving sensitive subjects.

See Hassan v. City of N.Y., 804 F.3d 277, 307 (3d Cir.

2015) (“[T]he past should not preface yet again bending

our constitutional principles merely because an interest

in national security is invoked.” (citing Korematsu, 323

U.S. at 223)).

This case tests the lesson of Korematsu in our own

time. Through his statements, the President has

demonstrated to the American people—and to a global

audience—that the Proclamation exists to stigmatize

and denigrate Muslims. That understanding is now

widely shared, unlike the security rationales that the

President’s lawyers have emphasized in their court

31

filings. If this Court were to uphold the President’s

travel ban, it would teach an entire generation that

principles of religious liberty do not prohibit the

President from exercising his vast powers on the basis

of a desire to harm a religious minority. That is wrong

as a matter of constitutional law, and it would be a

disastrous message to send at this moment in history.

Respectfully, the Court should not abide a

Proclamation universally—and correctly—understood

to flow from the President’s anti-Muslim animus.

CONCLUSION

For the foregoing reasons, Amici respectfully submit

that this Court should affirm the judgment below.

Dated: March 30, 2018

Respectfully submitted,

ROBERTA A. KAPLAN

Counsel of Record

JOSHUA MATZ

350 Fifth Avenue

Suite 7110

New York, New NY 10118

(212) 763-0883

rkaplan@kaplanandcompany.com

Counsel for Amici Curiae

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

List of Amici Curiae . . . . . . . . . . . . . . . . . . . . . App. 1

App. 1

APPENDIX

Amici Curiae are constitutional law scholars. Their

titles and institutional affiliations are listed for

identification purposes only.

Corey Brettschneider

Professor of Political Science and Public Policy

Brown University

Micah Schwartzman

Professor of Law

University of Virginia School of Law

Nelson Tebbe

Professor of Law

Cornell Law School

William Araiza

Professor of Law

Brooklyn Law School

Thomas C. Berg

James L. Oberstar Professor of Law and Public Policy

University of St. Thomas School of Law (Minnesota)

Ashutosh Bhagwat

Martin Luther King Jr. Professor of Law

UC Davis School of Law

Alan E. Brownstein

Professor of Law Emeritus, UC Davis School of Law

Caroline Mala Corbin

Professor of Law

University of Miami School of Law

App. 2

Michael C. Dorf

Robert S. Stevens Professor of Law

Cornell Law School

Justin Driver

Harry N. Wyatt Professor of Law

University of Chicago Law School

Peter Edelman

Carmack Waterhouse Professor of Law and Public

Policy

Georgetown University Law Center

William Eskridge

John A. Garver Professor of Jurisprudence

Yale Law School

Owen M. Fiss

Sterling Professor Emeritus of Law and

Professorial Lecturer in Law

Yale Law School

David Fontana

Associate Professor of Law

George Washington University School of Law

Frederick M. Gedicks

Guy Anderson Chair and Professor of Law

BYU Law School

Sarah Barringer Gordon

Arlin M. Adams Professor of Constitutional Law

Professor of History

University of Pennsylvania School of Law

App. 3

Steven K. Green

Fred H. Paulus Professor of Law

Affiliated Professor of History

Willamette University College of Law

Abner S. Greene

Leonard F. Manning Professor of Law

Fordam University School of Law

Deborah Hellman

D. Lurton Massee Professor of Law

University of Virginia School of Law

K. Hollyn Hollman

Adjunct Professor of Law

Georgetown University Law Center

Zeba A. Huq

Clinical Supervising Attorney & Lecturer in Law,

Religious Liberty Clinic

Stanford Law School

Christopher Kutz

C. William Maxeiner Distinguished Professor of Law

UC Berkeley School of Law

Ethan J. Leib

Professor of Law

Fordham University School of Law

Sanford Levinson

W. St. John Garwood and W. St. John Garwood

Centennial Chair in Law

University of Texas Law School

Matthew Lindsay

Associate Professor

University of Baltimore School of Law

App. 4

Leah Litman

Assistant Professor of Law

UC Irvine School of Law

Ira C. Lupu

F. Elwood and Eleanor Davis Professor

Emeritus of Law

George Washington University School of Law

Linda McClain

Professor of Law

Paul M. Siskind Research Scholar

Boston University School of Law

Jon D. Michaels

Professor of Law

UCLA Law School

Frank I. Michelman

Robert Walmsley University Professor, Emeritus

Harvard Law School

Michael Perry

Robert W. Woodruff Professor of Law

Emory University School of Law

Richard Primus

Theodore J. St. Antoine Collegiate Professor

University of Michigan Law School

K. Sabeel Rahman

Assistant Professor Law

Brooklyn Law School

Aziz Rana

Professor of Law

Cornell Law School

App. 5

Song Richardson

Dean

UC Irvine School of Law

Zoë Robinson

Professor of Law

DePaul University College of Law

Lawrence Sager

Alice Jane Drysdale Sheffield Regents Chair

University of Texas Law School

Richard Schragger

Perre Bowen Professor of Law

Joseph C. Carter, Jr. Research Professor of Law

University of Virginia School of Law

Elizabeth Sepper

Professor of Law

Washington University School of Law

Reva Siegel

Nicholas deB. Katzenbach Professor of Law

Yale Law School

Peter J. Smith

Professor of Law

George Washington University School of Law

Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor

University of Chicago Law School

Laurence H. Tribe

Carl M. Loeb University Professor

Harvard Law School

App. 6

Robert Tuttle

David R. and Sherry Kirschner Berz

Research Professor of Law and Religion

The George Washington University School of Law