Amicus Curiae Brief — Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 50 (2017) (No. 16-1436)

Nos. 16-1436, 16A1190, 16A1191

IN THE

JUN 1 = ieee Gourt of the Hnited States

DONALD J. TRUMP, et ai.,

Petitioners-Applicants,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,

Respondents.

DONALD J. TRUMP, et ai.,

Applicants,

v.

STATE OF HAWAU, et ai.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit and Applications for a Stay

to the U.S. Courts of Appeals for the

Fourth and Ninth Circuits

MOTION FOR LEAVE TO FILE AMICUS BRIEF

IN THREE RELATED PROCEEDINGS AND

BRIEF OF CONSTITUTIONAL LAW SCHOLARS

AS AMICI CURIAE* OPPOSING THE

GOVERNMENT'S APPLICATION FOR STAY

Roberta A. Kaplan

COUNSEL OF RECORD

Jaren Janghorbani

Joshua D. Kaye

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019

(212) 373-3000

rkaplan@paulweiss.com

Counsel for Amici Curiae

* See Appendix for a complete list of Amici.

MOTION FOR LEAVE TO FILE

BRIEF AS AMICI CURIAE

Pursuant to this Court’s Rule 21.2(b) and

37.2(b), Amici, constitutional law _ scholars,

respectfully move this Court for leave to file the

accompanying brief amicus curiae in opposition to the

Government’s application for a stay.' A full list of

Amici is attached as an appendix to the

accompanying brief.

As set forth in the accompanying brief, the

Amici identify a distinct legal principle compelling

the conclusion that the revised executive order is

unconstitutional: the long-settled prohibition on

governmental acts based on animus toward a

particular religious group.

This distinct legal principal is relevant to

whether this Court will grant the Government’s stay

applications. Accordingly, the Court should grant

amici curiae leave to file the attac brief in

opposition to the stay applications.

For the above reasons, Amici constitutional

law scholars respectfully request that the Court

grant this motion for leave to file the accompanying

amicus brief in each of these matters.

1 Counsel for Respondents in 16-1436, 16A1190, and 16A1191

have consented to the filing of this brief amicus curiae in

writing. In No. 16-1436, petitioners lodged their blanket

consent to amicus briefs with the Clerk; and in Nos. 16A1190

and 16A1191, counsel for Applicants has directed Amici to seek

leave to file from the Court.

ii

Dated: June 13, 2017

Respectfully submitted,

Roberta A. Kaplan

COUNSEL OF RECORD

Jaren Janghorbani

Joshua D. Kaye

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019

(212) 373-3000

rkaplan@paulweiss.com

Counsel for Amici Curiae

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I.

Il.

TABLE OF CONTENTS

THE CONSTITUTION PROHIBITS

GOVERNMENTAL ACTION BASED

ON ANIMUS TOWARD

DISFAVORED RELIGIONS ...................

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

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

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

THE ORDER VIOLATES THE

CONSTITUTION BECAUSE IT IS

BASED ON ANIMUS AGAINST

A. Evidence of Animus—Including

But Not Limited to Campaign

Statements—Is Overwhelming ....

B. Invalidating the Second Order

SE TR Ee hl ee

C. The Order Is Unlawful Even if

Animus Was Not Its Sole

STE ae Gon ee 9 LA

ere reece eee eee eee ee eee ee ee

SCTE OPER ORR CCCP eee eee eee ee eee eee eee eee

iv

Ill. A FINDING OF ANIMUS WOULD

ONLY HEIGHTEN THE NEED FOR

THE PRELIMINARY INJUNCTION

FF Ey BEB EIIID sc ccctcccrncssencssensvesses oece 24

IT hi. cicidl hs caitietnediennnnbivelinnnvensheuneedbcassaiatetaiion 26

I NE PR iiviciniedecsdccscconsnsesnnvarcantancueindniel la

Vv

TABLE OF AUTHORITIES

Page(s)

CASES

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

iced languhirisedesennenpies passim

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

Ne i Cis csaeetivoitessnnetenauseynnte 12

Bowen v. Roy,

I I criss occncertsousasccsoussuecnounsmnimisesanioss 9

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

Hialeah,

Ce icsccessccssccsssrsccssersesossnessense passim

City of Cleburne v. Cleburne Living Ctr.,

i SI a iciicdcnisesebcpidensinnepesnecishepreninepesets 3

City of New Orleans v. Dukes,

I I I I vec hocioipnensenseninensonndndubesenonensin 11

Dep’t of Agric. v. Moreno,

SO ee IE os inciac nuncenedossvnesttnbeperonenarsasetne 12

Edwards v. Aguillard,

I oc ccsndiieuueepenitacion sivisacesinnensce 13

Engel v. Vitale,

eS i hapeenatagnsaieineuecetaeit )

Epperson v. Arkansas,

J del arlinaiiiebeeninctasiinadenannn 6

vi

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

EE. BO IUD, 5. evcesepddovaagusdvanciinanessvesspecosessesess 8

Hassan v. City of N.Y.,

BS FOS BIT CHE Cle. BOIB) «00000 0cccccsseccccressccsscevcees 23

Kleindienst v. Mandel,

III... vnnnsncontsocsbacnexepsecebonsanpeees 15

Korematsu v. United States,

AT RE Ce osksscckevesesvsncincrcecnsesencccoccesosessesss 23

Larson v. Valente,

456 U.S. 228 (1982)............sccccceeeeeeseeeeeeeeenees passim

Lemon v. Kurtzman,

BE TF BD CIF) vcncsnncnccsesncscessesosccsecascsrcosessscseveees 1

Locke v. Davey,

ee IID... nonescsuvacennvinsscstninstavseeses 2,6, 15

Lynch v. Donnelly,

Se Be i Ridccoscnersiccsovvicssesseoceseesenavensunsersaces 6

Maryland v. King,

> | oo |. || ener 20

McCreary Cnty. v. ACLU of Ky.,

NS eS I .. ccinsdénmsccudanpeonpnenentinns 1, 18, 23

Morrison v. Olson,

B,C ID cs ccccncccvnysecnsseccesncséqsocnsconessoesesests 4

Palmore v. Sidoti,

BE EE BO once cecscccenescncceccansessescsscccconssosesees 12

Powers v. Ohio, 499 U.S. 400 (1991).........:cccceccereeeees 22

vil

Romer v. Evans,

ee Sy I ED cccccsicccncssscccatsoneces 12, 15, 18, 22

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

i ics chcelscadldenevbiiebosaoe’ 9

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

Se ns ccriceticcscsbhdskssnieestetonseodesasouss 5

Shaw v. Reno,

BY ne Me ID scng cise cdsnidevesnedcbusvscesiacoacsoneccnts ll

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

Communities Project, Inc.,

135 S. Ct. 2507 (2015)......... siiesdinidegsutsaauaiedescannis 12

Town of Greece v. Galloway,

Ms MID III i isch unioccsdrisessrensonchesivasssovensntess 2

United States v. Windsor,

133 SB. Ct. BB7E (BOUB)...........0cccccccrcccocsesceesones passim

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

EE MII F Pebetcsecarécrinesacsccochasssdensane 11, 18, 21

Washington v. Trump,

No. 17-35105 (9th Cir. Mar. 17, 2017) ......00000000.... 20

OTHER AUTHORITIES

Jon Meacham, American Gospel: God, the Founding

Fathers, and the Making of a Nation 101 (2006)....8

Leah Litman & Ian Samuel, No Peeking?: Korematsu

and Judicial Credulity,

TAKE CARE (Mar. 22, 2017)..........ccccccccccceceneseneeeeees 23

vill

Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

HARV. L. REV. 1409, 1421 (1990) ...............cccc cece eee 8

Peter Irons, Justice At War: The Story of the

Japanese-Internment Cases (1993)..............0cccc000 23

INTEREST OF AMICI CURIAE

Amici are constitutional law scholars. They

submit this brief to identify a distinct legal principle

compelling the conclusion that the revised executive

order 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.!

SUMMARY OF ARGUMENT

The court of appeals safeguarded the religious

liberty guaranteed by the Constitution by finding

Executive Order No. 13,780, 82 Fed. Reg. 13,209

(Mar. 9, 2017) (the “Order”) unconstitutional and

affirming the preliminary injunction granted by the

district court. That liberty should not be imperiled

by granting the Government’s motion for a stay. The

Fourth Circuit relied on McCreary County v. ACLU of

Ky., 545 U.S. 844 (2005), and Lemon -. Kurtzman,

403 U.S. 602 (1971), to find that the Order lacked a

secular purpose—that, instead, its “primary purpose

is religious,” namely effectuating President Trump’s

stated intent to “ban Muslims from the United

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

counsel authored the brief in whole or in part; nu 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 that was intended to fund

preparing or submitting the brief.

States.” App. 48a-49a.2 Under settled precedent,

that conclusion was correct and should be affirmed.

But the Fourth Circuit’s conclusion is also

supported by an independent line of Establishment

Clause precedent—repeatedly confirmed in Religion

Clause cases—that forbids the government from

acting on the basis of animus toward any particular

religion. See, e.g., Town of Greece v. Galloway, 134 8.

Ct. 1811, 1822 (2014); id. at 1831 (Alito, J.,

concurring); Bd. of Educ. 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 longstanding, fundamental

principle has been adopted by judges of many

different persuasions in cases arising under the

Establishment Clause. And it is directly applicable

here. This Court should vindicate this core principle

by denying the Government’s request for a stay of the

preliminary injunction.

While the courts below focused on whether the

Order lacked a secular purpose under Lemon, the

same facts even more clearly demonstrate anti-

Islamic 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 a/o, e.g.,

United States v. Windsor, 133 S. Ct. 2675, 2693-94

(2013); City of Cleburne vy. Cleburne Living Ctr., 473

2 References to the Petition (“Pet.”) and the Appendix thereto

(“App.”) are to those filed in Donald J. Trump, et al. v.

International Refugee Assistance Project, et al., No. 16-1436.

U.S. 432, 447 (1985). That conclusion is compelling

even without consideration of President Trump’s

admissions of animus prior to his inauguration. But

it is even more forcefully confirmed by a careful

review of those remarks, which, as a matter of

precedent, must be considered as part of the

constitutional analysis, and which are reiterated in

the President’s most recent statements.

The extraordinary record in this. case

demonstrates that President Trump’s principal

motive in issuing the Order was anti-Islamic animus.

After repeatedly promising voters during the

campaign that he would ban Muslims from entering

the United States, upon taking office, President

Trump promptly issued a sweeping, unprecedented,

and bizarrely-structured Order with no discernible

connection to an actual national security threat.

While not explicitly denominated a “Muslim Ban,”

that order (even as subsequently revised) came close

enough to realizing that goal to satisfy his campaign

promise. And in case the point somehow remained

unclear, President Trump has since made numerous

statements—as recently as a series of tweets on June

5, 2017—to the effect that excluding Muslims was the

Order’s true purpose. The extensive public record

thus establishes that in issuing the Order, President

Trump was following through on his animus-laden

campaign promise, rather than acting for any

constitutionally legitimate reason.

Even if national security concerns played some

role, that would still not save the Order. Animus

may co-exist with legitimate motives. As this Court

has explained, where the government acts on the

basis of mixed motives, courts do not hesitate to

4

invalidate official acts when animus was a primary or

essential motive, as it plainly was here. See Windsor,

133 S. Ct. at 2693; Lukumi, 508 U.S. at 535; Larson,

456 U.S. at 248.

The animus presented in this case does not

require the Court to peer into the “veiled psyche of

government officers[.!” McCreary, 545 U.S. at 863.

“(T}his wolf comes as a wolf.” Morrison v. Olson, 487

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

President Trump has repeatedly and ostentatiously

expressed the animus that motivated his promises,

and subsequent acts, to ban persons of a single faith

from entering the United States. For religious liberty

to endure, the Order must never go into effect.

ARGUMENT

I. THE CONSTITUTION PROHIBITS

GOVERNMENTAL ACTION BASED ON

ANIMUS TOWARD DISFAVORED

RELIGIONS

“In 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 anti-animus rule rests

upon an abiding national 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 clearest command of the Establishment

Clause is that one religious denomination cannot be

officially preferred over another.” Larson, 456 U.S. at

244. This rule is “inextricably connected with the

continuing vitality of the Free Exercise Clause.” Jd.

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.” Jd. 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.

This principle transcends many of the familiar

divisions in Establishment Clause jurisprudence, and

has been embraced by strict separationists, devotees

of the endorsement test, those who believe that the

Clause targets coercion, and jurists who see a very

6

broad role for religion in public life. See, e.g., Locke,

540 U.S. at 725 (Rehnquist, C.J.) (upholding a

scholarship program against Establishment Clause

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, 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

jurisprudential consensus that government may not

act on the basis of animus toward disfavored religious

groups.

This 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 circumstance would present

a different case than the one presently

before the Court.

Id. at 1823. The Court explained 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, because practices

serving to “denigrate, proselytize, or betray an

impermissible government purpose” would violate the

Constitution. Jd. 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 toward a disfavored religion.

He noted that the town’s lack of non-Christian prayer

leaders “was at worst careless,”—adding, “I would

view this case very differently if the omission of these

synagogues were intentiona].” Town of Greece, 134 8.

Ct. at 1831. Similarly, Justice Breyer made clear

that he would have viewed the case differently had

8

there been proof of discriminatory intent. See id. at

1840 (Breyer, J., dissenting) (“The plaintiffs do not

argue that thetown 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

longstanding prohibition against animus enjoys wide

support among jurists of all methodological

persuasions. The 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 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).

Governmental acts based on animus toward a

disfavored religious group are thus at war with the

Establishment Clause, as a matter of history,

principle, and precedent. 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 (or endorse) religious belief

or practice, neither can it take action based on a

desire to harm or suppress any faith.

This does not mean that government is unable

to recognize the importance of religion—including

majority religions—in our nation. Far from it: this

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 essential to religious liberty in America.

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 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 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

10

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.” Jd.

Governmental acts based on_ religious

animosity are accordingly forbidden by the Free

Exercise Clause. Jd. 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, “[flacial

neutrality is not determinative” because the “Free

Exercise Clause, like the Establishment Clause,

extends beyond facial discrimination.” Jd. at 534.

Rather, when government classifies on religious

lines, courts guard against “impermissible attempt[s]

to target [religious people) and their religious

practices.” Id. at 535.

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 must also 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.” Jd. at 540 (opinion of

Kennedy, J.).

11

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 Religion Clause rule

against animus is grounded in equal treatment for all

religions, Justice Kennedy has explained that it

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 race with religion as reasons for

discrimination inimical to our constitutional order.

See, e.g., City of New Orleans v. Dukes, 427 U.S. 297,

303-04 (1976). This principle has been invoked in a

wide array of circumstances: “Just as the

government may not 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, equa! protection jurisprudence offers a

nuanced account of 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,

12

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).

Finally, equal protection cases shed additional

light on how to recognize animus. Several objective

factors are often considered relevant here: the text of

an act; its novelty in our constitutional tradition; the

full context leading up to and following enactment;

the act’s real-world effects; and the degree of fit

between an acts stated purpose and its actual

structure. See Windsor, 133 S. Ct. at 2693-95;

Romer, 517 U.S. at 634-35; Cleburne, 473 U.S. at 448;

Village of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265-67 (1977); United States

Dep’t of Agric. v. Moreno, 413 U.S. 528, 536-38 (1973).

The Religion Clause precedents consider the same

13

factors, including those addressing official acts based

on animus toward specific religious denominations.

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

be unconstitutional because it functioned 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 official animus toward religion.

Il, THE ORDER VIOLATES THE

CONSTITUTION BECAUSE IT IS BASED

ON ANIMUS AGAINST ISLAM

“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). Yet the President

has issued an Order targeting six Muslim-majority

nations—while maintaining a campaign website that,

for months following his inauguration, included his

statement supporting “a total and complete shutdown

of Muslims entering the United States.” App. 10a.

Even acknowledging the deference due to the

President in matters of immigration and national

security, it is hard to imagine a clearer case of

governmental action motived by animus toward a

single religion.

14

A. Evidence of Animus—Including But Not

Limited to Campaign Statements—Is

Overwhelming

In upholding the preliminary injunction, the

Fourth Circuit relied on myriad statements by Mr.

Trump expressing “anti-Muslim sentiments that

animated his desire to ban Muslims from the United

States.” App. 49a. Among the evidence it considered

was a “Statement on Preventing Muslim

Immigration” posted by then-candidate Trump on his

campaign website—and maintained there until

shortly before oral argument in the Fourth Circuit on

May 8—calling for a “total and complete shutdown of

Muslims entering the United States.” App. 10a-1lla.

The Fourth Circuit also considered statements by

President Trump coinciding with entry of the Order,

including: “Islam hates us”; “[wle can’t allow people

coming into this country who have this hatred”; and

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

having problems with Muslims coming into the

country.” App. 49a. Such voluminous evidence,

standing on its own, overwhelmingly supports the

Fourth Circuit’s finding that the Order “cannot be

divorced from the cohesive narrative linking it to the

animus that inspired it|.]” App. 64a.

And while the Fourth Circuit relied on this

evidence of animus primarily to determine that the

Order did not satisfy the Lemon test, the same facts

illustrate anti-Islamic animus even more clearly:

President Trump’s Order and the oft-repeated

campaign promise it fulfilled are based on a desire to

exclude Muslims from the United States. Indeed, as

explained above, this kind of evidence—the text of an

order, its novelty, its real-world effects, the full

15

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

634-35; Cleburne, 473 U.S. at 448. And as the Fourth

Circuit and many others have concluded, the

immigration and national security context of this

litigation does not alter that bottom line. See App.

64a-65a. While 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), here the improper anti-Muslim

animus means that the Order was not bona fide and

was not issued in good faith.

While the Government repeatedly asserts that

the Fourth Circuit’s decision was “based on

speculation about officials’ subjective motivations

drawn from campaign-trail statements by a political

candidate,” which should not be considered, Pet. 13,

28-30, that is not correct.

First, setting aside the campaign, a review of

only post-election and post-inauguration statements

by the President and his_ senior advisors

demonstrates that the Order is based on anti-Islamic

animus. Some of the more notable statements from

this period include:

(1) More than a month after the election,

President Trump was asked whether he would

reevaluate his intention to ban

16

Muslims. He responded: “You know my plans

all along, and I’ve been proven to be right.”8

(2) Upon signing the initial Executive

Order, 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.”

(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.””®

(4) When President Trump’s_ second

Order was enjoined, he said he \vould rather

“go all the way, which is what I wanted to do in

the first place.”6

(5) On June 5, 2017, five days after the

Government filed this Petition, 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

3 Trump: “You’ve Known My Plans” On Proposed Muslim Ban,

WASH. Post (Dec. 21, 2016).

4 Trump Signs Executive Orders at Pentagon, ABC NEWS (Jan.

27, 2017).

5 Amy B. Wang, Trump Asked for a “Muslim Ban,’ Giuliani

Says, WASH. Post (Jan. 29, 2017).

6 Bob Van Voris & Erik Larson, Trump on Travel Ban Ruling:

“Go Back To the First One,” BLOOMBERG (Mar. 15, 2016).

17

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 S.C.”8

These statements alone reveal the President’s

motives. Neither the adjudication of the

Government’s request for a stay nor the ultimate

resolution of this case turns on whether the Court

considers pre-election expressions of animus.

Second, as a matter of law, this Court has

never suggested that campaign statements are

uniquely irrelevant to motive analysis. To the

contrary, 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.) (citing Arlington Heights,

? @realDonaldTrump, TWITTER (Jun. 5, 2017, 3:25 AM),

https://twitter.com/realDonaldTrump/status/87 16742 143564840

96. President Trump’s tweets are properly among the “readily

discoverable fact[s]” in which the “official objective’ of a

government order may be discerned.” App. 48a (citing

McCreary, 545 U.S. at 862.). As Deputy White House Press

Secretary Sarah Sanders explained, Twitter “gives [President

Trump] the ability to speak directly to the people without the

bias of the media filtering those types of communications.”

Callum Borchers, Kellyanne Conway had a lousy Monday. Sean

Spicer’s wasn’t much better. WASH. POST (Jun. 5, 2017).

8 @realDonaldTrump, TWITTER (Jun. 5, 2017, 3:29 AM),

https://twitter.com/realDonaldTrump/status/87 1675245043888 1

28.

18

429 U.S. at 268).° These considerations reflect simple

common sense: “|T]he world is not made brand new

every morning.” McCreary, 545 U.S. at 866.

Here, where President Trump issued this

policy almost immediately upon taking office, the

“series of events leading to the . . . official policy,” and

the “contemporaneous statements made by members

of the decisionmaking body,” necessarily include

statements made by President Trump while he was

crafting the policy—a process that unquestionably

began during the campaign and pre-inauguration

period. Cf. Romer, 517 U.S. at 623 (emphasizing “the

contentious campaign that preceded” the adoption of

a state constitutional amendment). Indeed, the

connection in time, subject matter, scope, and

substance between the President’s campaign

statements and the Order’ under review

is extraordinarily tight.

The Government’s attempt to disassociate the

second Order from the first by asserting that the

Order was revised to “address the Ninth Circuit’s

concerns” and that these revisions “demonstrate good

faith” (Pet. 6, 25) is futile. Any material distinction

in the motivation behind the orders is belied by the

President’s own words, including a tweet in which he

stated that the Order is merely “the watered down,

politically correct version” of the original order. 1°

®° Unlike in Lukumi, where the Court determined a multi-

member body’s purpose, here the only question is why one man

(President Trump) undertook one official act (issuing the Order).

10 @realDonaldTrump, TWITTER (Jun. 5, 2017, 3:29 AM),

https://twitter.com/realDonaldTrump/status/87 16742143564840

96. The continuity of the orders has been reaffirmed by

President Trump’s top advisors. See App. 14a; see also Chris

19

The President’s own prior statements—which often

explicitly tied his refusal to be “politically correct”

with his pledge to ban Muslim immigration!!—leave

no doubt that the “political correct|ness]” of the Order

lies in its use of nationality as a pretext for religion.

Third, excluding President Trump’s pre-

inauguration statements would render unintelligible

many of his post-inauguration statements which

explicitly reference his earlier remarks. For example,

on the morning of June 5, 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!”!2 Thus, contrary to

the Government’s characterization of the second

Order as a facially neutral executive action distinct

from the prior order or campaign promises (see Pet. 2,

29), the President’s statements make clear the

continuity between his call for a “total and complete

shutdown of Muslims entering the United States”

and the Order he enacted. App. 10a.

Cuomo, Trump aide tangle _ ‘travel ban’ tweets, CNN:

POLITICS (Jun. 5, 2017), 7 iti

minha (Sebastian Gorka, Deputy

Assistant to the President, stating: “The fact is, it’s been the

same since the beginning—from the first EO to the second EO,

it’s one thing.”).

11 Donald Trump, Remarks at Saint Anselm College in

Manchester, NH (Jun. 13, 2016), in Gerhard Peters & John

Woolley, THE AMERICAN PRESIDENCY PROJECT,

http://www.presidency.ucsb.edu/ws/index. php?pid=117775;

Donald Trump, Address at a Rally in Manchester, NH (Aug. 25,

2016), video available,

http://www.dailymotion.com/video/x4qli4h.

12 @realDonaldTrump, TWITTER (Jun. 5, 2017, 3:25 AM),

https://twitter.com/realDonaldTrump/status/87 16742143564840

96. .

20

Fourth, protected speech would not be chilled

by consideration of the President’s campaign

statements. Washington v. Trump, No. 17-35105 (9th

Cir. Mar. 17, 2017), Slip. Op. at 9-14 (Kozinski, J.,

dissenting from denial of reconsideration en banc).

Could a candidate run an explicitly racist campaign,

win an election, enact facially neutral measures that

distinctively injure the racial minority he had

attacked for months, and then prevail against an

equal protection challenge? Surely not. The First

Amendment protects speech, but it does not allow

politicians to evade all accountability if their words

reveal that an unconstitutional purpose motivated

their actions.

That is true throughout a politician’s career.

The Government’s bizarre insistence that Donald J.

Trump was a mere private citizen on January 19,

2017—one whose promises to the electorate meant

nothing at all—“taxes the credulity of the credulous.”

Maryland v. King, 133 8S. Ct. 1958, 1980 (2013)

(Scalia, J., dissenting).

Finally, the Government's analysis is

unworkable. If an incumbent were running for office,

how would campaign statements be distinguished

from others? The Government’s proposed rule is at

odds with precedent and arbitrary in application.

B. Invalidating the Second Order Is Not

Novel

The Government’s assertion that the decision

below is “novel” because it is “based on speculation

about its drafters’ supposedly implicit purpose,” Pet.

27, is mistaken. The purpose of the Order is not

“implicit”; it is clear from its express terms and

21

operation. The Order makes express reference to

honor killings—an anti-Islamic dog whistle that, as

the Fourth Circuit found, underscores its lack of a

secular purpose. (See App. 53a n.17.) The Order also

by its terms applies to six majority-Muslim nations.

Put simply, the Order has a recognized meaning that

“denigrate|s|” Islam. See Town of Greece, 134 S. Ct.

at 1823-26.

Nor would it be novel for the Order to be

struck down based on a finding of animus. After all,

if this were the rule, a similar objection could have

been raised each time the Court has identified

animus in an Establishment Clause challenge. See,

e.g., Kiryas Joel, 512 U.S. at 722, 728 (Kennedy, J.,

concurring in the judgment); Larson, 456 U.S. at 246.

And the prohibition on animus is familiar in Free

Exercise or Equal Protection challenges, where the

Court has repeatedly invalidated state action based

on a finding of animus. See, e.g., Lukumi, 508 U.S. at

542; Cleburne, 473 U.S. at 450; Windsor, 133 S. Ct. at

2693; Romer, 517 U.S. at 634.

C. The Order Is Unlawful Even if Animus

Was Not Its Sole Motive

Given the exceptional record in this case—and,

in particular, the utter lack of any serious national

security justification for a travel ban structured like

the Order—there is compelling reason to believe that

the Order was motivated solely by anti-Islamic

animus or, at the very least, by a decision to follow

through on avowedly and explicitly anti-Islamic

campaign promises. From that perspective, the

Order—whose scope and structure do not match even

its own professed purposes—is analogous to the

22

constitutional amendment invalidated in Romer: “Its

sheer breadth is so discontinuous with the reasons

offered for it that the [Order] 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 this regard, it is important to recognize that

animus can co-exist with other motives. 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; see also Larson, 456 U.S. at 248

(Minnesota’s interest in “protecting its citizens from

abusive practices in the solicitation of funds for

charity” could not explain its de facto denominational

line-drawing).

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 and stereotype.

When otherwise valid motives are mixed with

forbidden animus, inevitably the legitimate

justification is itself corrupted and distorted. See

Powers v. Ohio, 499 U.S. 400, 416 (1991) (warning

that “race prejudice stems from various causes and

may manifest itself in different forms.”). In short,

where the government acts on the basis of mixed

23

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

invalidate governmental 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.

Ultimately, perhaps the most instructive

precedent is Korematsu v. United States, 323 U.S.

214 (1944). There, too, an executive order built on

animus was presented to courts as justified by

national security concerns, which courts were

forcefully urged to take at face value. There, too, the

President acted on the basis of various motives, some

legitimate and others (the decisive ones)

emphatically not so. And there, too, internal

executive branch evidence undercut much of the

Government’s factual argument to the Judiciary—

but, unlike in this case, that evidence was not

available to the Court in 1944. See Peter Irons,

Justice At War: The Story of the Japanese-Internment

Cases (1993); Leah Litman & lan Samuel, No

Peeking?: Korematsu and Judicial Credulity,

TAKE CARE (Mar. 22, 2017).

Of course, in Korematsu, the Court went along

with a presidential demand for boundless deference

over a courageous and strongly-worded dissent from

Justice Murphy. 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.”). For good reason, Korematsu is now

taught as one of the most painful cases in our

nation’s history. See Hassan v. City of N.Y., 804 F.3d

277, 307 (38d Cir. 2015) (“Given that unconditional

deference to [the] government|’s] . . . invocation of

‘emergency ... has a lamentable place in our history,

24

the 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 Petition tests the lesson of Korematsu in

our own time. One of the very reasons this country

was founded was to welcome people of all faiths and

to reject religious intolerance. Issuing an Order to

keep Muslims out is inconsistent with that principle

as expressed through the First and Fourteenth

Amendments. Nor can the President’s Order be

saved by a pretextual, after-the-fact appeal to

national security. Respectfully, this Court should not

abide an Order widely—and correctly—understood to

flow from anti-Islamic animus.

ii. AFINDING OF ANIMUS WOULD ONLY

HEIGHTEN THE NEED FOR THE

PRELIMINARY INJUNCTION TO

REMAIN IN FORCE

The Order’s grounding in religious animus

deepens both the irreparable injury that Plaintiffs

would suffer in the absence of the preliminary

injunction and the public’s interest in keeping the

stay in force. As the Fourth Circuit explained, “the

risk of |irreparable] harms is particularly acute here,

where from the highest elected office in the nation

has come an Executive Order steeped in animus and

directed at a single religious group.” App. 7la. The

President’s continued underscoring of the animus

motivating the Order through tweets and other

public statements, even as contrary arguments are

being made to this Court, only reaffirms the need for

a stay to remain in place to preserve the essential

25

rights guaranteed by the Constitution. Given the

extraordinary risk of irreparable harm and the fact

that “upholding the Constitution undeniably

promotes the public interest|,)” the preliminary

injunction should remain in effect. App. 70a.

26

CONCLUSION

For the foregoing reasons, Amici respectfully

submit that this Court should deny the Government’s

motion to stay the preliminary injunction.

Dated: June 13, 2017

Respectfully submitted,

Roberta A. Kaplan

COUNSEL OF RECORD

Jaren Janghorbani

Joshua D. Kaye

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019

(212) 373-3000

rkaplan@paulweiss.com

Counsel for Amici Curiae

APPENDIX

me ae

la

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

Brooklyn Law School

Thomas C. Berg

James L. Oberstar Professor of Law and Public Policy

University of St. Thomas School of Law

Ashutosh Bhagwat

Martin Luther King Jr. Professor of Law

UC Davis School of Law

Vincent A. Blasi

Corliss Lamont Professor of Civil Liberties

Columbia Law School

Michael C. Dorf

Robert S. Stevens Professor of Law

Cornell Law School

2a

Justin Driver

Harry N. Wyatt Professor of Law

University of Chicago Law School

Peter Edelman

Carmack Waterhouse Professor of

Law and Social! Policy

Georgetown 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

Chad Flanders

Associate Professor

Saint Louis University School of Law

David Fontana

Associate Professor of Law

George Washington University School of Law

Katherine Franke

Sulzbacher Professor of Law

Columbia Law School

Frederick Mark Gedicks

Guy Anderson Chair & Professor of Law

Brigham Young University Law School

3a

Sarah Barringer Gordon

Arlin M. Adams Professor of Constitutional Law

Professor of History

University of Pennsylvania School 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 Schoo) of Law

B. Jessie Hill

Associate Dean for Academic Affairs

Judge Ben C. Green Professor of Law

Case Western Reserve University School of Law

Jeremy Kessler

Associate Professor of Law

Columbia 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 V. Levinson

W. St. John Garwood and W. St. John Garwood, Jr.

Centennial Chair

Professor of Government

University of Texas School of Law

4a

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 School of Law

Frank I. Michelman

Robert Walmsley University Professor, Emeritus

Harvard Law School

Michael Perry

Robert W. Woodruff Professor of Law

Emory University School of Law

Catherine Powell

Associate Professor of Law

Fordham University School of Law

Richard Primus

Theodore J. St. Antoine Collegiate Professor

University of Michigan Law School

Sa

K. Sabeel Rahman

Assistant Professor Law

Brooklyn Law School

Zoé Robinson

Professor of Law

DePaul] University College of Law

Lawrence Sager

Alice Jane Drysdale Sheffield Regents Chair

University of Texas School of Law

Richard Schragger

Perre Bowen Professor of Law

Joseph C. Carter, Jr. Research Professor of Law

University of Virginia School of Law

Elizabeth Sepper

Associate Professor of Law

Washington University School of Law

Seana Shiffrin

Pete Kameron Professor of Law and Social Justice

and Professor of Philosophy

UCLA School of Law

Steven H. Shiffrin

Charles Frank Reavis Sr. Professor of Law, Emeritus

Cornell Law School

Reva Siegel

Nicholas DeB. Katzenbach Professor of Law

Yale Law School

6a

Peter J. Smith

Professor of Law

George Washington University School of Law

Ilya Somin

Professor of Law

George Mason University

Nomi M. Stolzenberg

Nathan and Lilly Shapell Chair in Law

USC Gould School of Law

Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor

University of Chicago Law School

David A. Strauss

Gerald Ratner Distinguished Service

Professor of Law

Faculty Director, Supreme Court and

Appellate Clinic

University of Chicago Law School

Laurence H. Tribe

Carl M. Loeb University Professor

Harvard Law School

Robert Tuttle

David R. and Sherry Kirschner Berz

Research Professor of Law and Religion

The George Washington University School of Law