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

PILED

SEP 18 2017 |

OFFICE OF THF CLER

eme Goon iS |

Nos. 16-1436 & 16-1540

IN THE

Supreme Court of the Anited States

DONALD J. TRUMP, et ai.,

Petitioners,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et ai.,

Respondents.

DONALD J. TRUMP, et ai.,

Petitioners,

Vv.

STATE OF HAWAIL, et al.,

Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Fourth and Ninth Circuits

BRIEF OF CONSTITUTIONAL LAW SCHOLARS

AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

ROBERTA A. KAPLAN

Counsel of Record

JOSHUA MATZ

KAPLAN & COMPANY, LLP

350 Fifth Avenue

Suite 7110

New York, NY 10118

(212) 763-0883

rkaplan@kaplanandcompany.com

Counsel for Amici Curiae

Le

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

ad

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT .........................2064 1

FSR RRR a ot mee PE OF 6

I THE CONSTITUTION PROHIBITS

GOVERNMENTAL ACTION BASED ON

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

A. The Establishment Clause.................. 7

B. The Free Exercise Clause.................... 12

C. The Equal Protection Clause .............. 13

Il. THE ORDER VIOLATES THE CONSTI-

TUTION BECAUSE IT IS BASED ON

ANIMUS AGAINST MUSLIMG............... 15

A. Evidence of Animus—Including But

Not Limited to Campaign State-

ments—Is Overwhelming.................... 16

B. Invalidating the Order Is Not Novel .. 23

C. The Order Is Unlawful Even if

Animus Was Not Its Sole Motive........ 24

LE ARTS a EE Ga Tie Se Pr ae 28

APPENDIX

APPENDIX: List of Amici Curiae................. la

(i)

li

TABLE OF AUTHORITIES

CASES Page(s)

Am. Commce’ns Ass’n, C.I.O. v. Douds,

I on arccicecngadovspeasennnet 11

Bd. of Educ. of Kiryas Joel Vili.

Sch. Dist. v. Grumet,

ey ME CID sccnccocesscccecsosscsensessocens passim

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

Se Ss SE TE occncccéndnnecscncenneseontasosbens 14

Bowen v. Roy,

cas cicctnudbindaconctes 12

Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah,

ee Ss NE Gi incccssccsscensccscoseccosasessees passim

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985)...............:00.ee ee 2,15, 17, 24

City of New Orleans v. Dukes,

ee Ce Be Ei rccctcdevcesccvsaccsestecsasionces 13-14

Edwards vy. Aguillard,

Se es PF GRID Prcccceccncccceseesensseccscnsscoocs 15

Engel v. Vitale,

is caccsccensvescsiessnvieonsvageas 12

Epperson v. Arkansas,

Oe I ictccesaccscacionaceunsetesseccessses 8

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

I, Mi is ce dnsdaleridanpenunensanersnees 10

Hassan v. City of N.Y.,

804 F.3d 277 (3d Cir. 2015)... 27

Kleindienst v. Mandel,

GD Es FR Ce etrec ec ccccsncessccccscescsccceveves 17

ill

TABLE OF AUTHORITIES—Continued

Page(s)

Korematsu v. United States,

es Be ive cccccicccctvecevvecoctsenes 4, 26, 27

Larson v. Valente,

es I aititsccinsatasidantaciicensecees passim

Lemon v. Kurtzman,

ee ee I vciseidedesccsvsssoscceseenscees 3. 37

Locke v. Davey,

Be Pe PE i censcvcsescsesdosenscosocosesvens 2, 8,17

Lynch v. Donnelly,

ey ID ininisitcscssccedsinesttavonenevie 8

Maryland v. King,

SED Ws Sree BD Ce Bi ecdcctccnccscessccccceseseneses 23

McCreary County v. ACLU of Ky.,

ee es MEE PE cccsecsesecisnssccecesnisceses 1, 20, 25

Morrison v. Olson,

cn cinineiiedsioscniinatedestéinnse 6

Obergefell v. Hodges,

Be Oe Gs Be Ce cccscccccccserevecsecesscsceces 11

Palmore v. Sidoti,

ee ID dcisconinsvesuscsaesapetesivesunens 15

Powers v. Ohio,

Rs I TEP iivecs senncsccccncscnsentansnsenses 27

Romer v. Evans,

ee Sele CN A i ccsccnisevsesccvererscovessescons passim

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

I OF ie Be i iicicrecneccssicecesevesscesess 5, 12,19

iv

TABLE OF AUTHORITIES—Continued

Page(s)

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

ee PE I cccisessstcccevecevesconentanecses 7

Shaw v. Reno,

SE A BID ccnctoncoserbactesscosesesesseenes 14

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

Inclusive Communities Project, Inc.,

ee Ie Css crenssvescesssessncesesesess 14

Town of Greece v. Galloway,

Bs ey Be etc esccvcseesesccnescncesesse4 passim

United States v. Windsor,

Pe i Gre ee Ries vncce recs cocsccesesccceesns passim

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

ae ey ia rctevectcisctcccccncesecsesneness 15

Village of Arlington Heights v.

Metro. Hous. Dev. Corp.,

ee ee wnicnicusestnicasnaieoonseess 15, 20

Washington v. Trump,

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

aio a lgtenemnmeontosinkeancnieeitis 22

CONSTITUTION

ee IIIS WTR OI, Oo 2c veccceovdcencossdeunsesocs 7

Br IIS sc cicesnenntoncminonconeens passim

SR MINI, TEIN cocccccodsrcsocessectonesentes passim

Vv

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES Page(s)

@realDonaldTrump, TWITTER (Jun. 5, 2017,

3:25 AM), https://twitter.com/realDonald

Trump/status/87 1674214356484096........ 19, 22

@realDonaldTrump, TWITTER (Jun. 5, 2017,

3:29 AM), https://twitter.com/realDonald

Trump/status/87 1675245043888128......... 19, 21

Chris Cuomo, Trump aide tangle over

‘travel ban’ tweets, CNN: POLITICS (Jun.

5, 2017), http:/Awww.cnn.com/2017/06/05/

politics/cuomo-and-gorka-spar-cnntv/....... 21

Nora Ellingsen, Leaked DHS Report Con-

tradicts White House Claims on Travel

Ban, Lawfare (Feb. 27, 2017)................... 26

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

CI. HG MIE Pivecctencccncccescccsccsenccsced passim

Peter Irons, Justice At War: The Story of the

Japanese-Interment Cases (1993)............. 26

Thomas Jefferson, Writings (Merrill D.

Peterson ed., Library of Am. 1984) .......... 11

Elizabeth Landers, White House: Trump’s

tweets are “official statements,” CNN

ON REE CAR Coe NRE iy eee 19

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 (Forrest Church ed., 2004)....... 10

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Leah Litman and Ian Samuel, No Peeking?:

Korematsu and Judicial Credulity, Take

SR ee aa

James Madison, Memorial and Remon-

strance Against Religious Assessments

BRE Sa AEG RES a, SP oes eh ad pe

Michael W. McConnell, The Origins and

Historical Understanding of Free

Exercise of Religion, 103 HARV. L. REV.

ia ionec caibinieacichadunsinhcanisabesinnedeneoses

Jon Meacham, American Gospel: God, the

Founding Fathers, and the Making of a

IGE cisssenicshpadetetaidunes-tainipeipearipminie

Katie Reilly, President Trump Praises Fake

Story About Shooting Muslims With Pig’s

Blood-Soaked Bullets, TIME (Aug. 17,

Ge ate sae rm Pe A ole

Nahal Toosi, ‘Honor Killings’ Highlighted

Under Trump’s New Travel Ban, Politico

SR a aeioaiasees

Donald Trump, Address at a Rally in

Manchester, NH (Aug. 25, 2016), video

available, http:/Awww.dailymotion.com/

i ie

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 .......................

10

10

20

24

21

21

vil

TABLE OF AUTHORITIES—Continued

Page(s)

Trump Signs Executive Orders at Penta-

gon, ABC NEWS (Jan. 27, 2017)................ 18

Trump: “You’ve Known My Plans” On Pro-

posed Muslim Ban, WASH. POST (Dec. 21,

Rasa RRR Rape RESET SE RR areas ee So re 18

Bob Van Voris & Erik Larson, Trump on

Travel Ban Ruling: “Go Back To the First

One,” BLOOMBERG (Mar. 15, 2016)........... 19

Amy B. Wang, Trump Asked for a “Muslim

Ban,’ Giuliani Says, WASH. POST (Jan.

Eiichi ccticntininhentasdensindhetedinceicntemninbens 18

INTEREST OF AMICI CURIAE

Amici are constitutional law scholars. They submit

this brief to identify a distinct legal principle compel-

ling the conclusion that the revised executive order is

unconstitutional: the long-settled prohibition on gov-

ernmental 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 Fourth Circuit properly protected religious lib-

erty by affirming a preliminary injunction against

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

9, 2017) (the “Order”). Relying on McCreary County

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

Kurtzman, 403 U.S. 602 (1971), it held that the Order

is unconstitutional because a “reasonable observer

would likely conclude that [its] primary purpose is to

exclude persons from the United States on the basis of

their religious beliefs.” J.A. 236. Under settled law,

that ruling should be affirmed.

But the Fourth Circuit also concluded that the

Order cannot stand under a distinct legal principle—

repeatedly confirmed in Religion Clause cases—that

forbids the government from acting on the basis of

animus toward any particular religious group. See,

e.g., Town of Greece v. Galloway, 134 8. Ct. 1811, 1822

' 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 sub-

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

counsel—contributed money intended to fund preparing or sub-

mitting the brief. Petitioners have filed a blanket letter of con-

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

2

(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 judg-

ment); 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 fundamental rule

has been recognized by jurists of many different per-

suasions in Establishment Clause cases. And as the

Fourth Circuit concluded, it is directly applicable here.

See J.A. 236 n.22 (“There is simply too much evidence

that [the Order] was motivated by religious animus for

it to survive any measure of constitutional review.”).

Indeed, while the Fourth Circuit focused on Lemon’s

secular purpose requirement, the facts that it con-

sidered 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). That conclusion is compelling based solely on

President Trump’s post-inauguration statements. But

it is even more forcefully confirmed by a careful review

of his pre-inauguration admissions of anti-Muslim

animus—which, under precedent, must be considered

as part of the legal analysis, and which are necessarily

incorporated by reference into more recent presiden-

tial statements.

The extraordinary record in this case demonstrates

that President Trump’s principal motive in issuing the

Order—and in gerrymandering it in peculiar ways—

was anti-Muslim animus. After repeatedly promising

3

voters during the campaign that he would ban Mus-

lims 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 secu-

rity threat. While not explicitly denominated a “Mus-

lim Ban,” the Order (even as subsequently revised)

came close enough to realizing that goal to satisfy his

anti-Muslim election-season 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. An

extensive public record thus establishes that in issu-

ing the Order, President Trump was following through

on his animus-laden campaign promise, rather than

acting for any constitutionally legitimate reason.

While the Government appears keen to distance

itself from the President’s troubling statements over

the past year, the purpose of an Executive Order

directed by the President can hardly be deemed spec-

ulative when the President himself has traveled the

country telling us why he issued it. As the Fourth

Circuit found, time and again President Trump has

told the public that the Order exists to ban Muslims

because they are a problem and they are not welcome

here. Even as that message has come through loud and

clear, on Twitter and at political rallies, virtually none

of his statements have evinced concern for supposedly

unique threats from the six Muslim-majority nations

covered by the Order. His motives here are not inscrut-

able, as his lawyers have repeatedly (but implausibly)

insisted.

Great mischief could follow from a holding that

allowed the President to speak about the nature and

4

purpose of his own executive orders without any legal

consequence. If the President’s words mean nothing

to this Court—even as they mean everything to mil-

lions of people affected by his Order—then the rule of

law may suffer. Indeed, if the Judiciary were to disre-

gard President Trump’s statements, the gap between

lived reality and constitutional law would grow intol-

erably vast. As a matter of law and public legitimacy,

it would be anomalous for this Court to test the con-

stitutionality of the Order in a parallel reality, where

statements broadcast (and tweeted) on a global stage

are treated as non-existent.

This Court’s decision will reverberate throughout

American life. It will teach the people of this Nation—

and migrants worldwide—about the meaning of free-

dom and the Constitution. If this Court upholds the

Order, people of all faiths, but especially Muslims, will

learn that the First Amendment permits the President

to ban people from this Nation because he disapproves

of their faith. Respectfully, that is not the law and this

Court should not make it so.

Further, even if this Court were to conclude that

national security concerns played some role in the

Order’s original enactment (and its baffling continua-

tion over eight months later), that still would not save

it. 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

invalidate official acts when animus was a primary

or essential motive, as it was here. See Windsor, 133

S. Ct. at 2693; Lukumi, 508 U.S. at 535; Larson, 456

U.S. at 248.

In that respect, Korematsu v. United States, 323

U.S. 214 (1944), is instructive. As Korematsu teaches,

5

the combination of animus and an actual (or per-

ceived) national security threat is uniquely toxic: a

veneer of noble motive can be invoked to justify the

most horrid abuses. Even if an official begins with

some good intentions, animus corrupts and distorts

any motive it touches. Here, only by ignoring months

of clear and consistent statements by the President

could it be thought that he did not act on the basis of

animus toward Muslims in following through on his

promise to ban them from entering the United States.

Not only did he ban many Muslims from entering the

nation, but he has also repeatedly made anti-Muslim

claims inflicting stigma and disability on Muslims

nationwide. 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... .”). While the

President often enjoys a presumption of regularity,

here that presumption is rebutted by myriad instances

of irregularity that comprise an assault on religious

liberty in America.

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.” Madison,

Memorial and Remonstrance Against Religious Assess-

ments { 9 (1785). He added:

Instead of holding forth an Asylum to the

persecuted, [the Bill] is itself a signal of per-

secution. It degrades from the equal rank of

Citizens all those whose opinions in Religion

do not bend to those of the Legislative author-

ity. 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

6

last in the career of intolerance. The magnan-

imous sufferer under this cruel scourge in for-

eign Regions, must view the Bill as a Beacon

on our Coast, warning him to seek some other

haven, where liberty and philanthropy in

their due extent, may offer a more certain

repose from his Troubles.

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 dis-

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

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

President Trump has repeatedly expressed the ani-

mus 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 be enjoined.

ARGUMENT

I. THE CONSTITUTION PROHIBITS GOV-

ERNMENTAL ACTION BASED ON ANIMUS

TOWARD RELIGIONS

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

lishment Clause cases we have often stated the princi-

ple that the First Amendment forbids an official pur-

pose 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 doc-

trine, but also in cases arising under the Free Exercise

and Equal Protection Clauses.

7

Together, these precedents teach that the anti-

animus rule rests upon an abiding national com-

mitment 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

“(T]he Establishment Clause... [protects] one of our

most cherished founding principles—that government

shall not establish any religious orthodoxy, or favor

or disfavor one religion over another.” J.A. 171-72;

see also Larson, 456 U.S. at 244 (“The clearest com-

mand of the Establishment Clause is that one reli-

gious 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.” Jd. As

Justice Goldberg explained, the Religion Clauses

recognize that “(t]he fullest realization of true reli-

gious liberty requires that government neither engage

in nor compel religious practices, that it effect no

favoritism among sects or between religion and non-

religion, 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

8

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 broad role

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

725 (Rehnquist, C.J.) (upholding a scholarship pro-

gram 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, or religion

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

(“[T]he governneent generally may not treat people

differently basea 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 hos-

tility 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 gov-

ernmental 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 Chris-

tian prayers. The Court upheld the town’s policy,

concluding that some sectarian prayer is consistent

with the nation’s historical traditions, and that the

9

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 con-

sider 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 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.” /d. 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 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 intentional.” Town of Greece, 134

S. Ct. at 1831. Similarly, Justice Breyer stated that

he would have viewed the case differently had there

been proof of discriminatory intent. See id. at 1840

10

(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 pre-

cedents confirm, the Establishment Clause’s prohibi-

tion against animus enjoys wide support among jurists

of all methodological persuasions. This rule is also

supported by historical evidence concerning the origi-

nal 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). As George Washington wrote, “the govern-

ment of the United States . . . gives to [religious] big-

otry 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

11

every denomination.” Thomas Jefferson, Writings 40

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

Governmental acts based on animus toward a disfa-

vored religious group are thus at war with the Estab-

lishment Clause, as a matter of principle, precedent,

and history. This anti-animus rule follows directly

from the Clause’s purpose of protecting religious free-

dom for those sects not favored by the political major-

ity: 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. Given

the centrality of religion in many peoples’ lives—to

their identity, social relations, and concept of the uni-

verse—courts look with the utmost doubt 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 organi-

zations 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 major-

ity religions—in our nation. Far from it: the anti-

animus 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 sup-

press, harm, or denigrate any particular religious sect

or denomination. This limit, though narrow, is vital to

religious liberty. See Am. Comme’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.”).

12

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 Reli-

gion 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 reli-

gious 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 ordi-

nance 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 toler-

ance, 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. ld.

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 neu-

trality is not determinative” because the “Free Exer-

cise Clause, like the Establishment Clause, extends

13

beyond facial discrimination.” Jd. at 534. Rather,

when government effectively classifies on religious

lines, courts guard against “impermissible attempt(s]

to target [religious people] and their religious prac-

tices.” 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 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 mem-

bers of the decisionmaking body.” Jd. 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 Religion Clause rule against

animus is grounded in the principle of equal treatment

for all religions, 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 protec-

tion 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

14

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 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 (Ken-

nedy, 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 particu-

lar 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 ani-

mus toward Santeria).

Thus, the Court has remained sensitive to the subtle

dangers posed by “unconscious prejudices and dis-

guised 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

15

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: 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 act’s

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). Religion Clause precedents,

including those addressing official acts based on ani-

mus 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 gov-

ernmental animus toward religion.

Il. THE ORDER VIOLATES THE CONSTI-

TUTION 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). In defiance of that tradi-

tion, the President of the United States issued the

16

Order while maintaining a campaign website that—

until May 2017—included his statement seeking “a

total and complete shutdown of Muslims entering the

United States.” J.A. 219. Even acknowledging the

deference due to the President in matters of immigra-

tion and national security, it is hard to imagine a

clearer case of governmental action motived by ani-

mus toward a single religion. See J.A. 171 (concluding

that the Order “speaks with vague words of national

security, but in context drips with religious intoler-

ance, animus, and discrimination”).

A. Evidence of Animus—Including But Not

Limited to Campaign Statements—Is

Overwhelming

In upholding the preliminary injunction, the Fourth

Circuit relied in large part on public remarks by the

President expressing anti-Muslim sentiments that

animated his desire to ban Muslims from the United

States. This evidence included a “Statement on

Preventing Muslim Immigration,” posted by then-

candidate Trump on his campaign website, calling for

a “total and complete shutdown of Muslims entering

the United States.” J.A. 219. (That statement was not

removed until the eve of argument below.) The Fourth

Circuit also considered statements by President Trump

coinciding with entry of the Order, including: “Islam

hates us”; “[w]le can’t allow people coming into this

country who have this hatred”; and “we’re having

problems with the Muslims, and we’re having prob-

lems with Muslims coming into the country.” J.A. 220.

Such voluminous evidence, on its own, supports the

Fourth Circuit’s finding that the Order “cannot be

divorced from the cohesive narrative linking it to the

animus that inspired it[.]” J.A. 236.

17

While the Fourth Circuit discussed these facts in

relation to the Lemon test, the same evidence also

reveals improper anti-Muslim animus: President

Trump’s Order and the oft-repeated campaign promise

it fulfilled were based on a desire to exclude Muslims

from the United States. While the Order does not

exclude all Muslims, and does not single out Muslims

by name, the unsubtle (and widely-noted) goal of the

Order is to ban a large number of Muslims from the

United States in satisfaction of President Trump’s

well-known promise to do just that.

Indeed, as explained above, this kind of evidence—

the text of an order, its novelty, its real-world effects,

the full 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, 1348S. 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 immigra-

tion and national security context of this litigation

does not alter that bottom line. See J.A. 206. To be

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

decision to exclude aliens based on “a facially legiti-

mate and bona fide reason.” 408 U.S. 753, 770 (1972).

But here the President’s improper anti-Muslim motive

means that the Order was not “bona fide.” See id.

The Government has asserted that the Fourth Cir-

cuit’s decision was “based on speculation about offi-

cials’ subjective motivations drawn from campaign-

trail statements by a political candidate,” which should

not be considered. Pet. 13, 28-30. To be clear, that

18

contention is a red herring. It is also incorrect as a

matter of law and logic.

First, setting aside campaign statements, 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-Muslim 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 Mus-

lims. He responded: “You know my plans all

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

(2)Upon signing the initial Executive

Order, President Trump read its oblique title

“Protecting The Nation From Foreign Terror-

ist 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 would rather “go all

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

WASH. PosT (Dec. 21, 2016).

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

27, 2017).

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

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

19

the way, which is what I wanted to do in the

first place.”

(5) 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 S.C.”

These statements alone reveal the President’s

motives concerning the Order. And they must be

considered in the context of other remarks by the

President about Muslims. See Santa Fe, 530 U.S. at

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

the Order was due to go into effect—President Trump

sweepingly asserted that “the assimilation [of Mus-

lims in the U.S.] has been very, very hard.” More

recently, invoking a false story about General John

Pershing, he implied in a tweet that “Radical Islamic”

terrorists should be executed with bullets dipped in

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

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

® @realDonaldTrump, TWITTER (Jun. 5, 2017, 3:25 AM), https://

twitter.com/real DonaldTrump/status/87 16742 14356484096. As

then-White House Press Secretary Sean Spicer explained, Presi-

dent Trump’s tweets are “considered official statements by the

President of the United States.” Elizabeth Landers, White

House: Trump’s tweets are “official statements,” CNN (Jun. 6,

2017).

7 @realDonaldTrump, TWITTER (Jun. 5, 2017, 3:29 AM), https://

twitter.com/real DonaldTrump/status/87 1675245043888 128.

20

pig’s blood.” The President has not suggested com-

mitting such atrocities against terrorists—foreign or

domestic—of any of other faith.

Accordingly, the resolution of this case does not turn

on whether the Court considers pre-election expres-

sions of animus. An assessment of the post-election

record suffices to establish improper motive.

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 deci-

sion under challenge, the specific series of events lead-

ing 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 (opin-

ion of Kennedy, J.) (citing Arlington Heights, 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 “con-

temporaneous 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 cam-

paign that preceded” the adoption of a state consti-

tutional amendment). Indeed, the connection in time,

® Katie Reilly, President Trump Praises Fake Story About

Shooting Muslims With Pig’s Blood-Soaked Bullets, TIME (Aug.

17, 2017).

21

subject, scope, and substance between the President's

campaign statements and the Order he then issued is

extraordinarily tight.

As the Fourth Circuit properly concluded, 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—is

futile. Any distinction in the motivation behind the

orders is belied by the President’s own words, includ-

ing a tweet in which he stated that the Order is merely

“the watered down, politically correct version” of the

original order.’ 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. See J.A. 232-33 (“[T]here is a direct link

between the President’s numerous campaign state-

ments promising a Muslim ban that targets territo-

ries, the discrete action he took only one week into

office executing that exact plan, and EO-2, the

® @realDonaldTrump, TWITTER (Jun. 5, 2017, 3:29 AM), https://

twitter.com/realDonaldTrump/status/87 16742 14356484096. The

continuity of the orders has been reaffirmed by President

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

aide tangle over ‘travel ban’ tweets, CNN: POLITICS (Jun. 5, 2017),

http//Awww_.cnn.com/20 17/06/05/politics/cuomo-and-gorka-spar-cn

ntv/. (Sebastian Gorka, then-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.”).

® Donald Trump, Remarks at Saint Anselm College in Man-

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

THE AMERICAN PRESIDENCY PROJECT, http://Awww.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.

22

‘watered down’ version of that plan that ‘get[s) just

about everything,’ and ‘in some ways, more.”).

Third, it would be improper to ignore President

Trump’s pre-inauguration statements because doing

so would render unintelligible his post-inauguration

statements that explicitly reference 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!”!' Thus, con-

trary to the Government’s characterization of the

second Order as a facially neutral executive action

distinct from the prior order or campaign promises,

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.

Fourth, political speech protected by the First Amend-

ment would not be chilled by consideration of the

President’s campaign statements. Contra Washington

v. Trump, No. 17-35105 (9th Cir. Mar. 1 _ 2017), Slip.

Op. at 9-14 (Kozinski, J., dissenting trom denial

of reconsideration en banc). What if a candidate

announced a day before being sworn in that she

planned to implement three policies for the sole

purpose of harming Catholics—would that evidence be

excluded in a subsequent lawsuit challenging policies

apparently targeted at Catholics? 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.

" @realDonaldTrump, TWITTER (Jun. 5, 2017, 3:25 AM), https://

twitter.com/real DonaldTrump/status/87 1674214356484096.

23

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 about how he would wield governmen-

tal power 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?

That concern is not hypothetical in this age of the

permanent presidential campaign. Indeed, the current

president regularly holds assemblies that he describes

as campaign rallies; are remarks made there uniquely

off-limits to any future constitutional analysis? The

Government’s proposed rule is at odds with precedent

and arbitrary in application.

It is therefore necessary and appropriate to consider

all of President Trump’s statements relating to the

Order in assessing its constitutionality.

B. Invalidating the Order Is Not Novel

The Government asserts that the decision below is

“novel” because it is “based on speculation about its

drafters’ supposedly illicit purpose.” Petr. Br. at 27.

That is mistaken.

To start, the animus motivating the Order is

reflected on the very face of the document: for example,

the Order calls on federal agencies to publicize so-

called “honor killings” committed “in the United

States by foreij a nationals.” As the Fourth Circuit

concluded, this provision amounts to little more than

an anti-Muslim dog whistle. See J.A. 224 n.17. Some

context is important here: although “honor killings’

are believed to be rare in the U.S.,” they are most often

24

invoked by extremist groups to warn against “the

potential ‘Islamization’ of America posed by allowing

Muslim immigrants into the U.S.” Nahal Toosi,

‘Honor Killings’ Highlighted Under Trump’s New

Travel Ban, Politico (Mar. 3, 2017).

Nor would it be novel for the Order to be struck

down based on a finding of animus. Indeed, 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 and 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.

If anything, the Government’s argument is espe-

cially weak compared to similar objections in analo-

gous cases. Usually this Court seeks to discern the

motives of a multi-member body, such as a town coun-

cil or legislature, and faces hard questions about iden-

tifying group motive. Here, in contrast, the Court need

only consider the motives of a single man who has

made dozens of statements explaining his actions—

none of which display a unique concern for distinct

threats from the six covered nations, but all of which

cohere into a narrative about excluding Muslims

because they are not wanted here.

C. The Order Is Unlawful Even if Animus

Was Not Its Sole Motive

Given the exceptional record in this case, it is

reasonable to conclude that the Order was motivated

solely by anti-Muslim animus (or, at the very least, by

25

a decision to follow through on anti-Muslim campaign

promises). Viewed from that perspective, the Order—

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 [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 the alternative, it might be concluded that the

animus documented by the Fourth Circuit co-exists

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 citi-

zens 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 hesi-

tate to invalidate governmental action when animus

was a primary or essential motive. Cf. McCreary, 535

U.S. at 865; see also J.A. 236 n.22 (“[Wle think EO-2

26

would likely fail any purpose test, for whether reli-

gious animus motivates a government action is a fun-

damental part of our Establishment Clause inquiry no

matter the degree of scrutiny that applies.”). And

here, for reasons well stated by the District Court and

the Fourth Circuit, that conclusion is inevitable: both

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

and with respect to the strange way that the Order is

structured.

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 of them legitimate and others

(the decisive ones) emphatically not so. And there, too,

evidence about the true motivations of the Executive

Branch undercut much of the Government’s factual

argument to the Judiciary—though in 1944 that

evidence remained buried, whereas here the President

has admitted his motives and his own agencies have

undercut his lawyers’ claims. See Nora Ellingsen,

Leakea DHS Report Contradicts White House Claims

on Travel Ban, Lawfare (Feb. 27, 2017); Peter Irons,

Justice At War: The Story of the Japanrese-Interment

Cases (1993); Leah Litman and Ian Samuel, No

Peeking?: Korematsu and Judicial Credulity, Take

Care (Mar. 22, 2017).

In Korematsu, the Supreme Court went along with

a presidential demand for boundless deference, over

a courageous dissent that called out the Court for

upholding 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

27

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 and stereotype. As that case

teaches, when otherwise valid motives are mixed with

forbidden animus, inevitably the legitimate justifica-

tion is itself corrupted and distorted. See also Powers

v. Ohio, 499 U.S. 400, 416 (1991) (warning that “race

prejudice stems from various causes and may manifest

itself in different forms”). For good reason, Korematsu

is now taught as one of the most painful lessons in our

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

(3d Cir. 2015) (“[T]he past should not preface yet

against 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. One of the most important reasons this country

was founded was to welcome people of all faiths and

to reject religious intolerance. Issuing an order with

the primary purpose of keeping a large number of

Muslims locked out is inconsistent with that principle

as expressed through the First and Fourteenth Amend-

ments. The President’s Order cannot be saved by

a post hoc (and ever-shifting) appeal to national

security—particularly now that over eight months

have passed since he first sought to justify this policy

as a brief pause on entry pending review. It is now

apparent that the President’s many public statements

about this Order’s purpose, rather than the delicate

veneer spun by his lawyers, explain why this Order

was issued. Respectfully, the Court should not abide

an Order widely—and correctly—understood to flow

from anti-Muslim animus.

28

CONCLUSION

For the foregoing reasons, Amici respectfully submit

that this Court should affirm the judgment below.

Respectfully submitted,

ROBERTA A. KAPLAN

Counsel of Record

JOSHUA MATZ

KAPLAN & COMPANY, LLP

350 Fifth Avenue

Suite 7110

New York, NY 10118

(212) 763-0883

rkaplan@kaplanandcompany.com

Counsel for Amici Curiae

September 18, 2017

APPENDIX

la

APPENDIX

Amici Curiae are constitutional law scholars. Their

titles and institutional affiliations are listed for iden-

tification 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 Schoo!

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

Erwin Chemerinsky

Jesse H. Choper Distinguished Professor of Law

UC Berkeley School of Law

Caroline Mala Corbin

Professor of Law

University of Miami School of Law

Seth Davis

Assistant Professor of Law

UC Irvine School of Law

2a

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 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

Sarah Barringer Gordon

Arlin M. Adams Professor of Constitutional Law

Professor of History

University of Pennsylvania School of Law

3a

Abner S. Greene

Leonard F. Manning Professor of Law

Fordam University School of Law

B. Jessie Hill

Judge Ben C. Green Professor of Law

Case Western Reserve University School of Law

Deborah Hellman

D. Lurton Massee Professor of Law

University of Virginia School of Law

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

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

4a

Jon D. Michaels

Professor of Law

UCLA School of Law

Frank I. Michelman

Robert Walmsley University Professor, Emeritus

Harvard Law School

Gerald L. Neuman

J. Sinclair Armstrong Professor of International,

Foreign, and Comparative Law

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

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

5a

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

Reva Siegel

Nicholas DeB. Katzenbach Professor of Law

Yale Law School

Peter J. Smith

Professor of Law

George Washington University Schoo] 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 & 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