Amicus Curiae Brief — Trump v. Hawaii, 138 S. Ct. 923 (2018) (No. 17-965)

No. 17-965

3n The

Supreme Court of the Anited States

¢

DONALD J. TRUMP, PRESIDENT

OF THE UNITED STATES, et al.,

Petitioners,

V.

STATE OF HAWAIL, et al.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF CHRISTIAN LEGAL SOCIETY AND

NATIONAL ASSOCIATION OF EVANGELICALS AS

AMICI CURIAE IN SUPPORT OF NEITHER PARTY

S

KIMBERLEE WOOD COLBY

Counsel ef Record

CHRISTIAN |. SGAL SOCIETY

8001 Braddock Rd., Ste. 302

Springfield, VA 22151

703-894-1087

kcolby@clsnet.org

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

This brief addresses only the question whether

Proclamation No. 9645 violates the Establishment

Clause.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .......2..:0ccccccceccsescocccesees i

ee CO BAT Bee BO voce cccccecoseccsesceseceveesess ili

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

SUMMARY OF ARGUMENT ............................4. 2

IIIT stint ichiainasedenionsesndanenesoeesersonerseseces 4

I. Respondents must properly match the Es-

tablishment and Free Exercise Clauses to

the nature of each plaintiff’s harm and

the scope of the remedy sought................. 5

A. The nature of the harms ..................... 5

B. The scope of the remedy...................... 10

C. Care must be exercised to avoid con-

flating the elements of a claim under

the Establishment Clause with the re-

quirements of standing ..................... . 12

Il. The principles of law under the Establish-

ment Clause relevant to the claims in the

instant case make actionable intentional]

discrimination among religions................. 14

Ill. Although the Lemon test has not been uti-

lized by this Court for over a decade, the

lower courts continue to rely upon it to

I oo Cli nea caiecemnnsepentenometiseee 00s 20

cel deptiedsebendsesesserehsenteesvcdsercescone se . oe

ill

TABLE OF AUTHORITIES

Page

CASES:

Bd. of Educ. v. Grumet, 512 U.S. 687 (1994) .............. 22

Bowen v. Kendrick, 487 U.S. 589 (1988)..................... 21

Corp. of the Presiding Bishop v. Amos, 483 U.S.

ts AERIS SEAS Ae Severe thea POY br erat SOMO Lee 21

Edwards v. Aguillard, 482 U.S. 578 (1987).............. 7,8

Engel v. Vitale, 370 U.S. 421 (1962)............ 8,10, 11,17

Epperson v. Arkansas, 393 U.S. 97 (1968).............. 7,19

Estate of Thornton v. Caldor, Inc., 472 U.S. 703

Fie cnnnsenscijawssmenennnanienuetinadacniatieaianies 7, 8,19

Fowler v. Rhode Island, 345 U.S. 67 (1953)................ 15

Frazee v. Illinois Dep’t of Empl. Sec., 489 U.S. 829

INU ssKinseisvcrinscpicktclsesitciaesbastpcbbtectebi tain paataadieiaaibacaaleescninliioiiias 5

Gillette v. United States, 401 U.S. 437 (1971) ...... 15, 16

Good News Club v. Milford Central Sch., 533

iy Get RITE icuressiesienrodttadcenligtienstnlebuinbicieninbbidenteeinduenmediss 10

Hunt v. Washington State Apple Advertising

oe Ws ey , : een 12

Int'l Refugee Assistance Project v. Trump, 265 F.

Supp. 3d 570 (D. Md. 2017), F. 3d__, 2018

WL 894413 (4th Cir. Feb. 15, 2018)...... 12, 13, 14, 20

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495

Gi cnncrenibndiasbehecncesssnizmhstacoiciasakadsnsndniabiatdantindatatnaabbiasiiasbiadastia 6

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94

| ___ EEESEA A STE OS Ue A a Re a eee? 6

iv

TABLE OF AUTHORITIES — Continued

Page

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982)....7, 19

Larson v. Valente, 456 U.S. 228 (1982) ............... passim

Lemon v. Kurtzman, 403 U.S. 602 (1971)....... 16, 20, 22

McCollum v. Bd. of Educ., 333 U.S. 203

Ce eaictainsancceincacmnmithideussnenicatucbidecsadeinisiacatit 8,10, 11,17

McCreary County v. ACLU, 545 U.S. 844 (2005)........ 20

McGowan v. Maryland, 366 U.S. 420 (1961)................ 7

Niemotko v. Maryland, 340 U.S. 268 (1951)............... 15

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S.

ee icessitiniciachadacuinisnisautdiisidalinisasaiinhteainnadusia 6, 10, 11

Sherbert v. Verner, 374 U.S. 398 (1963) ..................000 16

Stone v. Graham, 449 U.S. 39 (1980).................02.000 21

Thomas v. Review Bd., 450 U.S. 707 (1981) ................. 5

Torcaso v. Watkins, 367 U.S. 488 (1961)................... 7,8

Two Guys from Harrison Allentown, Inc. v.

McGinley, 366 U.S. 582 (1961) .............ccccecceeeeeeseeeeeee 7

Wallace v. Jaffree, 472 U.S. 38 (1985)............c cece 21

Widmar v. Vincent, 454 U.S. 263 (1981) ..................... 22

Wisconsin v. Yoder, 406 U.S. 205 (1972) .............0..ccc0ee 5

Zorach v. Clauson, 343 U.S. 306 (1952).................0000. 21

CONSTITUTIONAL PROVISIONS:

ee ON a ae oa passim

Vv

TABLE OF AUTHORITIES — Continued

Page

EXECUTIVE ACTION:

Proclamation No. 9645, Enhancing Vetting Ca-

pabilities and Process for Detecting Attempted

Entry Into the United States by Terrorists or

Other Public-Safety Threats, 82 Fep. Rea.

a ee es Bi BS icartdincinstectcrrctnnictvniccemmineni passim

OTHER AUTHORITIES:

Thomas J. Curry, The First Freedoms: Church

and State in America to the Passage of the

First Amendment (Oxford, 1986) .........................64. 18

Carl! H. Esbeck, Do Discretionary Religious Ex-

emptions Violate the Establishment Clause?,

106 Kentucky L. J. no. 4 (forthcoming May

2018), http://ssrn.com/abstract=2952370 ............... 14

Carl H. Esbeck, Unwanted Exposure to Reli-

gious Expression by Government: Standing

and the Establishment Clause, 7 Charleston

ins Ne I iste hin is rctnsenerentiicnadeatiedantbihpeianieiticniaians 13

Carl H. Esbeck, Uses and Abuses of Textualism

and Originalism in Establishment Clause In-

terpretation, 2011 Utah L. Rev. 489 (2011).....6, 10, 19

Steven Smith, Symbols, Perceptions, and Doctri-

nal Illusions: Establishment Neutrality and

the “No Endorsement” Test, 86 Mich. L. Rev.

Nira tscaricnsieckeitcataschenetesniiiesnssothaneetnassiabiniasaniosde 22

Anson Phelps Stokes, Church and States in the

United States (Harper, 1950) .................ccc0cseeeeeeeeees 18

1

INTEREST OF AMICI CURIAE'

Christian Legal Society (“CLS”) is an associa-

tion of Christian attorneys, law students, and law pro-

fessors, founded in 1963 and dedicated to the defense

of religious freedom. CLS works to protect all citizens’

free exercise and free speech rights, both in this Court

and Congress. The freedoms of religious exercise, ex-

pression, and association are essential to a free society.

Our Republic will prosper only if the First Amendment

rights of all Americans are protected, regardless of the

current popularity of their religious exercise and ex-

pression. For that reason, CLS was instrumental in

passage of landmark federal legislation to protect per-

sons of all faiths, including: 1) the Equal Access Act of

1984, 98 Stat. 1302, 20 U.S.C. § 4071 et seqg., which pro-

tects the right of all students to meet for “religious,

political, philosophical or other” speech on public sec-

ondary school campuses; 2) the Religious Freedom

Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C.

§ 2000bb et seg., which protects the religious freedom

of persons of all faiths; and 3) the Religious Land Use

and Institutionalized Persons Act of 2000, 114 Stat.

803, 42 U.S.C. § 2000cc et seg., which protects religious

freedom for congregations and institutionalized per-

sons of all faiths.

The National Association of Evangelicals

(“NAE”) is the largest network of evangelical churches,

' This brief was prepared entirely by amici and their counsel.

No other person made any financial contribution to its prepara-

tion or submission. The consent of Petitioners is on file with the

Clerk; the consent of Respondents is submitted with the brief.

2

denominations, colleges, and independent ministries

in the United States. It serves 40 member denomina-

tions, as well as numerous evangelical associations,

missions, nonprofits, colleges, seminaries, and inde-

pendent churches. NAE serves as the collective voice of

evangelical churches, their religious ministries, and

separately organized evangelical ministries. It believes

that religious freedom is God-given and thereby unal-

ienable, that it is a right prior to the state that is rec-

ognized in and protected by the First Amendment and

other federal laws, and that the proper ordering of

church-state relations places a restraint on govern-

mental authority that ensures the autonomy of reli-

gious organizations. NAE believes’ that civil

government has a high duty to protect the religious

freedom of peoples of all faiths.

Sf

SUMMARY OF ARGUMENT

This brief addresses only the question whether

Proclamation No. 9645 violates the Establishment

Clause. Further, it addresses only the principles of law

under the Establishment Clause relevant to under-

standing this case. Amici do not take the next step and

apply these principles of law to Petitioners’ actions, nor

do Amici urge upon the Court suggested findings of

fact concerning whether or not Petitioners did violate

the Establishment Clause in issuing Proclamation No.

9645.

3

The Establishment Clause prohibits government

from intentionally discriminating among religions.

Proof of animus is not required.

The State of Hawaii was correct to invoke the Es-

tablishment Clause rather than the Free Exercise

Clause. The Establishment Clause is a means of re-

dress for nonreligious injury such as proprietary

harms and economic loss.

The Religion Clauses claims by the individual Re-

spondents (Dr. Ismail Elshikh and John Does 1 and 2)

and the associational Respondent (Muslim Association

of Hawaii, Inc.) are different from those brought by the

State of Hawaii. These Respondents are Muslim, and

they allege religious injury as a result of Proclamation

No. 9645. These Respondents were correct to invoke

the Free Exercise Clause as a remedy for their reli-

gious harm. Having decided the case on statutory

grounds, the court below did not reach these free-

exercise claims. And the Free Exercise Clause claims

are not before this Court because of the limited scope

of the grant of the petition for writ of certiorari. The

claims are not abandoned, however, and should there

be a remand for further consideration on the merits,

the Free Exercise Clause claims remain as a possible

basis for granting a remedy personal to the individual

and associational Respondents.

The individual and associational Respondents

also have sought relief under the Establishment

Clause for their alleged religious harm. That claim is

within the scope of the grant of the petition for

4

certiorari and thus properly a question now before this

Court. The statement of the claim is that Proclamation

No. 9645, by intentionally targeting Muslims, has dam-

aged the immigration status of these individual and

associational Respondents or that of a close family

member, or hampered the ability to travel over inter-

national borders. This is one of those instances where

the Establishment and Free Exercise Clauses partly

overlap. However, if there is a successful claim under

the Establishment Clause, it will warrant an injunc-

tion of broader scope than is available under the Free

Exercise Clause. namely that Proclamation No. 9645 is

facially unconstitutional.

°

ARGUMENT

This brief addresses only the question whether

Proclamation No. 9645* violates the Establishment

Clause. Further, this brief addresses only the princi-

ples of law under the Establishment Clause relevant

to understanding this case, and in doing so it corrects

a few misstatements of law by the courts below. Amici

do not take the next step and apply these principles of

law to Petitioners’ actions, nor do Amici urge upon the

Court suggested findings of fact concerning whether or

* Proclamation No. 9645, Enhancing Vetting Capabilities

and Process for Detecting Attempted Entry Into the United States

by Terrorists or Other Public-Safety Threats, 82 Fev. Rec. 45,161

(Sept. 24, 2017).

5

not Petitioners did violate the Establishment Clause

in issuing Proclamation No. 9645.

I. Respondents must properly match the Es-

tablishment and Free Exercise Clauses to

the nature of each plaintiff’s harm and the

scope of the remedy sought.

A. The nature of the harms.

The State of Hawaii was correct to invoke the Es-

tablishment Clause rather than the Free Exercise

Clause. The Free Exercise Clause’ only safeguards par-

ties from religious harm, and the State of Hawaii has

no religion and, therefore, cannot have suffered a reli-

gious harm. The text of the Free Exercise Clause re-

quires that a person or organization first have a

religion before that religion can be exercised. This

means that there is no claim under the Free Exercise

Clause for the nonreligious. Frazee v. Illinois Dep’t of

Empl. Security, 489 U.S. 829, 833 (1989) (noting that

only beliefs rooted in religion are protected by the Free

Exercise Clause; secular views will not suffice);

Thomas v. Review Bd., 450 U.S. 707, 713-14 (1981) (not-

ing that only beliefs rooted in religion are protected by

the Free Exercise Clause); Wisconsin v. Yoder, 406 U.S.

205, 215-16 (1972) (identifying religious claims that

are “personal” and “philosophical” and those “merely a

matter of personal preference” as not protected by free

* “Congress shall make no law ... prohibiting the free exer-

cise lof religion].” U.S. Const., Amend. I.

6

exercise). This understanding aligns with the drafting

history of the Free Exercise Clause in the First Federal

Congress of 1789. See Carl H. Esbeck, Uses and Abuses

of Textualism and Originalism in Establishment

Clause Interpretation, 2011 Utah L. Rev. 489, 525-67

(2011) [hereinafter “Esbeck, 2011 Utah L. Rev.”]. See

id. at 563."

By way of contrast, the Establishment Clause can

be a means of redress for both religious harms and

nonreligious harms.° This is so because the text of the

Establishment Clause is a two-way clause®: It some-

times acts to prevent government from wrongfully in-

terfering with religion (e.g., co-opting the church for

ends of the state’), and the clause sometimes acts to

restrain government in a misguided attempt to aid or

advance a religion (e.g., law against teaching evolution

* A person who does not profess a religion, including an athe-

ist or agnostic, can state a claim under the Free Speech Clause.

See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) (striking

down law permitting censorship of films because deemed “sacri-

legious”).

® School Dist. of Abington Township v. Schempp, 374 U.S. 203,

224 n.9 (1963) (Establishment Clause does not require “proof that

particular religious freedoms are infringed”).

®* “Congress shall make no law respecting an establishment

of religion.” U.S. Const., Amend. I. Government can make a law

about religion that wrongly seeks to advance religion but that

ends up causing harm to religion or to others. And government

can make a law about religion that wrongly seeks to co-opt reli-

gion to the purposes of the state. Hence, it is a two-way clause.

” See, eg., Kedroff v. St. Nicholas Cathedral, 344 U.S. 94

(1952) (undertaking by state to transfer control of Russian Ortho-

dox Church from its governing hierarchy in the U.S.S.R. to church

officials in the U.S. is unconstitutional).

7

in public schools"). As to the latter, this Court has en-

tertained lawsuits by plaintiffs claiming violations of

the Establishment Clause where there has been eco-

nomic harm or loss of property,’ constraints on aca-

demic inquiry by teachers uud students,’ and a

hindrance to atheists."'

* See, e.g., Epperson v. Arkansas, 393 U.S. 97 (1968) (striking

down law prohibiting teaching the theory of evolution in public

schools as a violation of the Establishment Clause).

* See Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985)

(upholding claim by department store against Sabbath labor law);

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) (upholding claim

of tavern seeking issuance of a liquor license); cf McGowan v.

Maryland, 366 U.S. 420, 430-31 (1961) (permitting claim of eco-

nomic harm by retail stores to be free of Sunday-closing law, but

ultimately ruling against the stores on the merits); Two Guys

from Harrison Allentown, Inc. v. McGinley, 366 U.S. 582 (1961)

(same).

” See Edwards v. Aguillard, 482 U.S. 578 (1987) (striking

down a state law that required teaching of creation in public

school science classes if evolution is taught); Epperson v. Arkan-

sas, 393 U.S. 97 (1968) (striking down a state prohibition on teach-

ing evolution in public school science classes).

"! See Torcaso v. Watkins, 367 U.S. 488 (1961). In Torcaso, an

atheist who otherwise qualified for a public office refused to take

a required oath that professed belief in God. The Court held the

oath requirement was in violation of the First Amendment with-

out specifying either Religion Clause. If an individual objects to

the oath out of a religious belief that forbids taking oaths, then he

has a valid claim under the Free Exercise Clause. As an atheist,

however, the claimant in Torcaso did not (indeed, by definition

could not) suffer a religious injury as he professed to have no re-

ligion. Nevertheless, for a state to mandate taking of the oath

would be a violation of the Establishment Clause as to all office

seekers, including atheists, because confession of belief in God is

a subject that remains in the sphere of religion, not the state.

8

The State of Hawaii alleges proprietary harm to

its own offices, including hindering the operation of the

state university, and tourism losses as a result of Proc-

lamation No. 9645. Tr. 79a-80a. Relief for these types

of injuries is cognizable under the Establishment

Clause. Such injuries are consequential to the opera-

tion of the Establishment Clause as it works to struc-

ture relations between church and state. This ordering

function, illustrated by the three cases of Caldor, Ed-

wards, and Torcaso (see supra notes 9-11), is to restrain

government from preferring religion over secular con-

cerns in the spheres of, respectively, commerce, teach-

ing science, and delineating qualifications for public

office. These economic and other temporal injuries are

within the range of harms that are consequential when

there is a failure to keep in proper relationship these

two centers of authority: government and religion.'* In

such instances, the task of the Establishment Clause

is not rights-based and personal, but to police the

boundary between church and state much like a sepa-

ration-of-powers clause. This is why in popular dis-

course there are sometimes contexts in which it is

“ As this Court wrote in McCollum v. Board of Educ., 333

U.S. 203 (1948), “[T)he First Amendment rests upon the premise

that both religion and government can best work to achieve their

lofty aims if each is left free from the other within its respective

sphere.” Jd. at 212. In reference to the Establishment Clause, this

Court in Engel v. Vitale, 370 U.S. 421 (1962), said that the clause’s

“first and most immediate purpose rested on the belief that a un-

ion of government and religion tends to destroy government and

to degrade religion.” Jd. at 431.

9

useful to speak in terms of the “separation of church

and state” in referring to the Establishment Clause.

The individual Respondents (Dr. Ismail Elshikh

and John Does 1 and 2) and the associational Respond-

ent (Muslim Association of Hawaii, Inc.) are adherents

to Islam. In the Third Amended Complaint (Tr. 72a

n.4), these Respondents stated a claim under the Free

Exercise Clause for religious harm. Tr. 76a-77a n.8.

However, neither the district court nor the Ninth Cir-

cuit Court of Appeals reached these free-exercise

claims. Tr. 92a-99a (district court finding likelihood of

success on secs. 1182(f) and 1185(a) claims but no oth-

ers); Tr. 99a-101a (district court finding likelihood of

success on sec. 1152(a) claim but no others); and Tr. 65a

(Ninth Circuit disposing of case on statutory grounds,

thus not reaching constitutional claims). And because

of this Court’s limited grant of the petition for writ of

certiorari, the Free Exercise Clause claims are not be-

fore this Court. These claims are not abandoned, how-

ever, and should there be a remand for further

consideration of this case on the merits, the individual

and associational Respondents may continue to pursue

the Free Exercise Clause as a basis for seeking relief

from Proclamation No. 9645.

That said, the individual and associational Re-

spondents also can obtain relief for religious harms un-

der the Establishment Clause. See Larson v. Valente,

456 U.S. 228 (1982). This is one of those instances

where the Free Exercise and Establishment Clauses

10

partly overlap,'’ both provisions affording a remedy to

these individual and associational claimants for reli-

gious injury.

B. The scope of the remedy.

Even when the Religion Clauses overlap with re-

spect to liability, the scope of the remedy available un-

der each clause is not the same. For example, in

archetypal Establishment Clause cases such as those

concerning religion in public schools, Engel v. Vitale,

370 U.S. 421 (1962), and McCollum v. Board of Educa-

tion, 333 U.S. 203 (1948), the Court applied the Estab-

lishment Clause not to relieve individual students of

personal religious coercion, but to keep in proper rela-

tionship two centers of competence: government and

religion.’ In Engel, the Court considered a state

‘® For there to be instances where a single factual setting

gives rise to two violations of the Constitution is not unusual. For

example, both the Free Speech and Free Exercise Clauses are vi-

olated when a public school denies equal access to a student reli-

gious organization to meet on campus. Cf Good News Club v.

Milford Central School, 533 U.S. 98 (2001). What does not make

sense is the occasional dicta that the Establishment Clause and

the Free Exercise Clause are in “tension” and even conflict. That

is not possible. See Esbeck, 2011 Utah L. Rev. at 601-08.

' The key insight to differentiating the two Religion Clauses

came in School Dist. of Abington Township v. Schempp, 37° U.S.

203 (1963):

[I]t is necessary in a free exercise case for one to show

the coercive effect of the enactment as it operates

against him in the practice of his religion. The distinc-

tion between the two clauses is apparent — a violation

of the Free Exercise Clause is predicated on coercion

1]

program of daily classroom prayer in the public

schools. Students not wanting to participate were ex-

cused without penalty. 370 U.S. at 423 n.2. However,

the program was struck down as to all students despite

the absence of religion being imposed on every student.

Id. at 430-31. In McCollum, the Court considered a

program that permitted persons from the community

to come onto the campus of the public school and con-

duct elective classes in religion. Student enrollment

was optional and required parental permission. 333

U.S. at 207 n.2. Yet, the program was struck down as to

all students despite the absence of religion being im-

posed against the will of every student. Jd. at 232-33

(Jackson, J., concurring). The broad school-wide rem-

edy in both cases was to restore the proper ordering of

church and state, not just to make whole the individual

students who sued seeking redress for their personal

religious coercion.

In contrast, relief under the Free Exercise Clause

in Engel and McCollum would have been narrow, with

the injunction giving relief only to those students ob-

jecting to the explicitly religious practices. The reli-

gious practices would have continued in the schools for

those students who wanted to engage in them. As we

will see in Part II, below, this same difference in scope

of remedy under the Establishment Clause in compar-

ison to the Free Exercise Clause is also present in the

while the Establishment Clause violation need not be

so attended.

Id. at 223. See also id. at 224 n.9.

12

instant case with respect to the individual and associ-

ational Respondents.

C. Care must be exercised to avoid con-

flating the elements of a claim under

the Establishment Clause with the re-

quirements of standing.

Amici express no opinion as to whether any of the

Respondents has independently met the requirements

for standing to sue. Nonetheless, care must be exer-

cised to not conflate the elements of a successful claim

under the Establishment Clause with the require-

ments of showing standing to sue.

The individual Respondents claim standing in

their own right. Tr. 20a-2la. To have standing, the

Muslim Association of Hawaii, Inc., also must have suf-

fered its own injury or have associational standing on

behalf of its members. See Hunt v. Washington State

Apple Advertising Comm’n, 432 U.S. 333 (1977). See Tr.

22a (allegations of injury by Association and its mem-

bers). Similarly, the State of Hawaii must have stand-

ing to sue in its own right.

In a case related to this one, the Fourth Circuit

hopelessly intertwined the required showing of partic-

ularized injury-in-fact to have standing, a question

going to the court’s subject matter jurisdiction under

Article II of the U.S. Constitution, with the nature

of injuries redressed by the Establishment Clause.

See Int'l Refugee Assistance Project v. Trump, F.3d

___, 2018 WL 894413, at *7-11 (4th Cir. Feb. 15, 2018)

13

(en banc). Further, the Fourth Circuit confused harm

by the government, for which the Establishment

Clause might be a restraint, with harm done by non-

governmental actors that are not restrained by the Es-

tablishment Clause (or, for that matter, any other

clause of the Bill of Rights).

Similarly, the Fourth Circuit misused cases on

standing where the alleged Establishment Clause

harm is unwanted exposure to the government’s reli-

gious speech. /d. at 2018 WL 894413, at *7-8. Whatever

issues it otherwise presents, Proclamation No. 9645 is

not a situation of unwanted exposure to the govern-

ment’s religious expression, like a courthouse posting

of the Ten Commandments. See Carl H. Esbeck, Un-

wanted Exposure to Religious Expression by Govern-

ment: Standing and the Establishment Clause, 7

Charleston L. Rev. 607 (2013) (collecting all of this

Court’s “unwanted exposure” cases).

Finally, it was a mistake for the Fourth Circuit to

have relied on cases involving federal taxpayer stand-

ing, 2018 WL 894413, at *6-8. For historical reasons

that this Court has tied to Virginia’s disestablishment

in 1784-1786, taxpayer cases depart from standing

norms. See Esbeck, 7 Charleston L. Rev. at 610-16.

14

Il. The principles of law under the Establish-

ment Clause relevant to the claims in the

instant case make actionable intentional

discrimination among religions.

The Establishment Clause prohibits government

from intentionally discriminating among religions.

Larson v. Valente, 456 U.S. 228 (1982).'° That is the

heart of the claim here, namely: Petitioners are alleged

to have targeted Muslim immigrants from certain

countries because the nations are majority Muslim.

There need be no showing of malice or animus, only

proof that the government intended to discriminate

among religions. In a related case, the Fourth Circuit

was mistaken when it said plaintiffs similarly situated

to Respondents here had to show animus to prove a

violation of the Establishment Clause. /nt’l Refugee

Assistance Project v. Trump, F.3d __, 2018 WL

8944134 *6, *7, *17 (4th Cir. Feb. 15, 2018) (en banc).

In Larson, a state charitable solicitation act that

intentionally favored well-known churches and

'° Where the government is alleged to violate the Establish-

ment Clause by favoring religion over the secular, this Court has

rightly distinguished between religious preferences and religious

exemptions. The Establishment Clause will generally strike down

a religious preference. Religious exemptions are altogether differ-

ent, however, and have been consistently upheld by this Court be-

cause exemptions do not entail “state action” that causes harm to

others. See Carl H. Esbeck, Do Discretionary Religious Exemp-

tions Violate the Establishment Clause?, 106 Kentucky L. J. no. 4

(forthcoming May 2018), http://ssrn.com/abstract=2952370.

15

societies with longevity in the community, while im-

posing regulatory burdens on new religious move-

ments, was found at odds with the Establishment

Clause. The Larson Court relied on direct evidence

that the discrimination was intentional. 456 U.S. at

246 n.23.

The Larson Court’s review was not merely of the

text or face of the state legislation, but examined the

whole set of circumstances in a search for evidence of

intentional discrimination. /d. at 254-55. Similarly,

this Court has struck down municipal practices and or-

dinances that upon a full review of the evidence were

found to intentionally discriminate among religions

based on the local churches involved having different

ways of conducting their worship meetings. See Fowler

v. Rhode Island, 345 U.S. 67 (1953) (finding First

Amendment violated by ordinance that permitted

church worship services in city park but disallowed

other religious meetings as intentionally preferring

some religions over others based on a given sect’s type

of religious gathering); Niemotko v. Maryland, 340 U.S.

268 (1951) (finding that freedom of religion, freedom of

speech, and equal protection all violated when munic-

ipality denied use of a city park to conduct Bible talks

but permitted gatherings by other religious organiza-

tions and for Sunday-school picnics).

The only other Supreme Court case utilizing the

Establishment Clause as a source of redress for reli-

gious injury is Gillette v. United States, 401 U.S. 437

(1971). In Gillette, the Court held that an exemption

from the military draft for those religiously opposed to

16

all war, but not for those willing to fight in a “just war,”

was not intentionally discriminatory on the basis of re-

ligious affiliation and thus did not violate the Estab-

lishment Clause. Jd. at 450-54. Hence, Gillette

acknowledged the Establishment Clause as a potential

source of redress for religious harm, but the Court then

went on to hold that this particular claim was without

merit. Larson is thus the only Supreme Court case

where religious injury was redressed pursuant to the

Establishment Clause.

Although Larson is the leading case for the princi-

ple that government is prohibited by the Establish-

ment Clause from discriminating among religions, it

must be conceded that conceptually it is an awkward

decision. It would have been more straightforward to

argue that the state’s intentional discrimination

among religious groups was injurious to the disfavored

religion. If that had been done in Larson, the Court

could have decided the case under the Free Exercise

Clause.'® The relief granted, moreover, would have

been as applied, that is, the injunctive relief would

have been specific to the plaintiff, Holy Spirit Associa-

tion for the Unification of World Christianity (“Unifi-

cation Church”). This is because an as-applied remedy

is all that would be required to relieve the Unification

© The oddity of deciding Larson under the Establishment

Clause is further evidenced by the Court using the compelling-

interest test rather than the three-prong Lemon test. Larson, 456

U.S. at 246, 251, 255. Of course, if the case had been resolved un-

der the Free Exercise Clause, the Court’s standard at the time

would have been the compelling-interest test of Sherbert v. Verner,

374 U.S. 398 (1963).

17

Church of religious coercion. See supra note 14 (one dif-

ference between the Free Exercise and Establishment

Clauses is that the former requires a showing of coer-

cion). Compare text accompanying supra note 14 (dis-

cussing how Engel and McCollum illustrate that the

Establishment Clause warrants striking down the of-

fending law on its face, a remedy broader in scope than

the remedy available under the Free Exercise Clause).

Again, it initially seems awkward to resolve Lar-

son under the Establishment Clause, as the Court did.

The text of the Establishment Clause negates the gov-

ernment’s power to make a law about “an establish-

ment of religion,” which sets one in search of an

offending law aiding or advancing a religion. That sug-

gests conceptualizing the State of Minnesota’s inten-

tional discrimination as “an establishment” not

because it hindered the disfavored religion, but be-

cause the discrimination brought about an establish-

ment by enhancing the fortunes of other religions.

Tracking the facts in Larson, the paradigm is that by

putting regulatory barriers before new religious move-

ments, the State of Minnesota was establishing

churches that were well known and long-standing in

the community. But it is speculative whether hinder-

ing the Unification Church had the actual effect of aid-

ing Minnesota’s Protestants, Catholics, and Jews.

Discrimination against a religion does have the theo-

retical potential of helping other religions, but then

again it may turn out to be of no discernable benefit to

the religious competition.

The Establishment Clause claims by the Respond-

ents here are conceptually awkward in the same

18

manner as Larson, namely: The targeting of the indi-

vidual and associational Respondents because they are

Muslim might be said to have the consequential effect

of establishing — that is, aiding — other religions. Of

course, it is speculative that Proclamation No. 9645

has positive consequences for other religions in the

United States, such as Christianity and Judaism. In

the absence of evidence to the contrary, it is just as

likely that Proclamation No. 9645 has no impact on the

fortunes of Christianity, Judaism, or any other religion

that operates in America.

To think of “an establishment” as generally aiding

or advancing long-standing religions is not, however,

the only meaning of “an establishment.” For example,

in the late eighteenth-century, as thirteen British col-

onies in North America declared their independence,

most of the new state constitutions had a religious test

for public office. See Thomas J. Curry, The First Free-

doms: Church and State in America to the Passage of

the First Amendment 34, 50, 60, 64, 71, 73, 75, 78-80,

81, 150-51, 153, 158, 160, 162, 170-71, 184, 186, 188-89,

210, 212, 222 (Oxford, 1986) (discussing religious tests

or oaths); Anson Phelps Stokes, Church and State in

the United States 358-446 (Harper, 1950) (disestablish-

ment process from 1776 to 1833 in th‘ ‘teen states and

Vermont). Some required that office-..olders subscribe

to a religious creed or be a Protestant. Other states,

thought progressive for the day, required that office-

holders be Christian, thus allowing Catholics to serve

as well. As the process of state-by-state disestablish-

ment gained momentum, these religious tests were

19

slowly liberalized or dropped altogether as constitu-

tions were amended or states adopted new ones.

All of which is to say, there is more to the forbidden

“make no law respecting an establishment” than the

setting up of a full-fledged national church. Lesser,

more subtle, laws in time were regarded as “an estab-

lishment.” Indeed, this Court already tacitly reached

this conclusion when it recognized “an establishment”

in a case like Larkin where granting churches an ab-

solute veto over issuance of a liquor license to nearby

taverns was found to be a form of “establishment”; in a

case like Ca/dor where the conferring on employees of

an absolute right to their Sabbath off no matter the

burden on the employer or fellow employees was found

to be “an establishment”; and in Epperson where a pro-

hibition on the teaching of evolution in public-school

science class was also found to be a form of “establish-

ment.”'’ Accordingly, it is an easy step to find that gov-

ernment, by intentionally imposing a _ regulatory

burden on a wide class of Muslims, as Proclamation

No. 9645 is alleged to do, is “an establishment” as that

term appeared in the First Amendment.

In light of the above, the individual and associa-

tional Respondents state a claim under the Establish-

ment Clause for religious injury when they allege that

‘’ In order to help define “an establishment,” scholars have

composed lists of the several elements that historically supported

the established church in Great Britain and here in the American

colonies turned states. Religious tests for public office were just

one of the collection of elements that together comprised an es-

tablishment. For two such lists, see Carl H. Esbeck, 2011 Utah L.

Rev. at 533-34 n.185.

20

Proclamation No. 9645 was issued by Petitioners with

the intent of discriminating against Muslims. As

stated previously, Amici do not take the next step and

apply this principle of law to Petitioners’ actions, nor

do Amici urge upon the Court suggested findings of

fact concerning whether or not Petitioners did violate

the Establishment Clause in issuing Proclamation No.

9645.

Ill. Although the Lemon test has not been uti-

lized by this Court for over a decade, the

lower courts continue to rely upon it to

their detriment.

The collective three-prongs of the Lemon test, sec-

ular purpose, primary effect, and excessive entangle-

ment, were first set forth in Lemon v. Kurtzman, 403

U.S. 602, 612-13 (1971). The Lemon test has not been

utilized by this Court for over twelve years. See

McCreary County v. ACLU, 545 U.S. 844 (2005) (Ten

Commandments posted in two Kentucky county court-

houses were unconstitutional because the displays

were mounted with the purpose of advancing religion).

Yet, the lower courts continue to rely upon it to their

detriment. See, e.g., the district court’s wrestling with

the Lemon test in Intl Refugee Assistance Project v.

Trump, 265 F. Supp. 3d 570 (D. Md. 2017) (holding im-

migration ban unconstitutional on multiple bases, in-

cluding the Establishment Clause), aff’d., Int'l Refugee

Assistance Project v. Trump, __ F.3d __, 2018 WL

894413 (4th Cir. Feb. 15, 2018) (en banc). The district

21

judge is not just struggling with the meaning of the

purpose prong, but ignoring this Court’s narrow appli-

cation (see infra note 18) in favor of a purpose prong of

broad scope. 265 F. Supp. 3d at 618-19.

The Lemon one-size-fits-all verbal map is not only

divorced from historical considerations, but it is too

crude a template to resolve the full range of cases that

arise under the Establishment Clause. Barrels of

printer’s ink have been spilt explaining that the vari-

ous words of Lemon’s prongs are not to be taken liter-

ally, but that they mean something other than what

the words mean in plain English. Thus, for example,

“secular purpose” does not mean secular purpose. Ra-

ther, secular purpose means a purpose other than a

purpose that cannot be explained except by using

words that are explicitly religious.

The reality is that Establishment Clause cases are

resolved by application of a series of principles or rules

‘* Under this Court’s current application of the “secular pur-

pose” prong, a law will be invalidated “only if it is motivated

wholly by an impermissible purpose,” or when it cannot be said

that “on the whole, religious concerns were not the sole motiva-

tion.” Bowen v. Kendrick, 487 U.S. 589, 602 (1988). Likewise, there

is not the required secular purpose only when it can be said that

the law’s “pre-eminent purpose . . . is plainly religious in nature.”

Stone v. Graham, 449 U.S. 39, 41 (1980) (per curium). Conversely,

this Court has said that “a statute that is motivated in part by a

religious purpose” does not violate the prong (Wallace v. Jaffree,

472 U.S. 38, 56 (1985)), nor is it required that a “law’s purpose

must be unrelated to religion,” for that would require government

to “‘show a callous indifference to religious groups.’” Corp. of the

Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987) (quoting Zor-

ach v. Clauson, 343 U.S. 306, 314 (1952)).

22

worked out over the years in this Court’s cases. A given

set of circumstances calls for the application of a cer-

tain principle of law.'* The Lemon test is not only of

little assistance to the lower courts in this task, it is

often detrimental. At best, it wastes the resources of

petty officials and the lower courts as they try to be

faithful to the “test.” At worst, Lemon muddles the pub-

lic’s understanding of the Court’s rationale and under-

mines confidence in the rule of law. It is an open secret,

moreover, that Lemon’s accretion, the no-endorsement

test, is an invitation to read into the Establishment

Clause one’s cultural bias. See Steven Smith, Symbols,

Perceptions, and Doctrinal Illusions: Establishment

Neutrality and the “No Endorsement” Test, 86 Mich. L.

Rev. 266 (1987). It would be useful, accordingly, for this

Court to note in its opinion that the Lemon test, in all

its iterations, has fallen into disuse.

. —_

'* In addition to the principle of law stated in Larson and ap-

plicable to this case, a second example is: Government may not

utilize classifications based on denominational or sectarian affili-

ation to umpose burdens or extend benefits. See Bd. of Educ. v.

Grumet, 512 U.S. 687, 702-08 (1994) (plurality opinion). The ra-

tionale is that the Court wants to avoid making membership in a

religious denomination more or less attractive. A third example is

the rule that civil authorities are not to probe the validity, mean-

ing, or importance of religious events, practices, and teachings.

See Widmar v. Vincent, 454 U.S. 263, 269 n.6, 271 n.9, 272 n.11

(1981). There are another half dozen principles of law well known

to those who practice in this area. Following these principles is

far more surefooted than Lemon’s guesswork, the latter leaving

too much discretionary power in the hands of the federal judiciary.

23

CONCLUSION

Amici urge that the Court apply the following

principle of law: The Establishment Clause prohibits

government from intentionally discriminating among

religions. Amici urge that this Court hold that the

State of Hawaii can properly invoke the Establishment

Clause as a means of redress for its alleged nonreli-

gious harms such as pecuniary injury, damage to prop-

erty, and loss of economic opportunities. Amici also

urge that this Court hold that the Establishment

Clause claims by the individual (Dr. Ismail Elshikh

and John Does 1 and 2) and the associational (Muslim

Association of Hawaii, Inc.) Respondents seeking relief

from alleged religious harms are cognizable. Should

any of the Respondents succeed in proving a violation

of the Establishment Clause, then the proper scope of

the remedy is that the offending law is facially uncon-

stitutional.

Respectfully submitted,

KIMBERLEE Woop COLBY

Counsel of Record

CHRISTIAN LEGAL SOCIETY

8001 Braddock Rd., Ste. 302

Springfield, VA 22151

703-894-1087

kcolby@clsnet.org

February 23, 2018