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

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No. 17-965

In the Supreme Court of the United States

DONALD J. TRUMP, et al.,

Petitioners,

STATE OF HAWAI'I, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF PLAINTIFFS IN IRANIAN ALLIANCES

ACROSS BORDERS V. TRUMP AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

JOHNATHAN SMITH RICHARD B. KATSKEE

SIRINE SHEBAYA Counsel of Record

Muslim Advocates ERIC ROTHSCHILD

P.O. Box 66408 KELLY M. PERCIVAL

Washington, DC 20005 ANDREW L. NELLIS*

(202) 897-2662 Americans United for

MARK H. LYNCH Separation of Church

MARK W. MOSIER and State

KARUN TILAK 1310 L St. NW, Ste. 200

JOHN W. SORRENT! Washington, DC 20005

JOSE E. ARVELO (202) 466-3234

KATHRYN CAHOY katskee@au.org

REBECCA G. VAN TASSELL

Covington & Burling, LLP

One City Center

850 10th St. NW

Washington, DC 20001

(202) 662-6000

Counsel for Amici Curiae

eae

* Admitted in New York; supervised by Richard B. Katskee of the D.C. Bar

TABLE OF CONTENTS

Page

pF EERE ee RCUR Sea Ge MAMET, WT as ii

Fenbowmnt OF Cie Amnbel CII nnciecccccccccccssccccccecccccscseesees 1

Introduction and Summary of Argument................... 2

f EEE RS ENCE Ree aces ee ee a ae MC 3

I. The Proclamation Violates The First

PEER RIMS TUTE apse Sena ee ETE mR 3

A. The First Amendment forbids the

government to disfavor and denigrate

RARE RE Se ie RE On RLS Aa eno 4

B. The Proclamation unconstitutionally

disfavors and denigrates Muslims. .................. 8

1. The Proclamation is the

government's latest in a series of

unconstitutional attempts to ban

I Sictisscttedechien dthachatunatiiaeiiiatitanitniglasssiqnsmes 8

2. The governmental review process

does not cure the constitutional

RENE AER CM So EERE ESSA apace ener oper 18

Il. The Public Interest Favors Enjoining The

RI ERATE SRRIEEES GAT Cece ne ice SB. EASY Coat ees 23

EE <n os aeeetateinitendaienetaisiaiaieaetubalaedl 32

TABLE OF AUTHORITIES

Page(s)

CASES

Ariz. Free Enter. Club’s Freedom

Club PAC v. Bennett,

I csi 20

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

AR ae re SN a ee a 7

Aziz v. Trump,

234 F. Supp. 3d 724 (E.D. Va. 2017).............. 8,11

Bd. of Educ. v. Grumet,

TR ace ee 2, 7, 32

Bd. of Educ. v. Mergens,

ne I cniataseniiopenneeien 5, 6

Bowen v. Roy,

| RR SEER a i nt enna 6

Brennan Ctr. for Justice v. U.S. Dep't of State,

Bie, BT Fe GIIIS, TP eisicinsnccccccccccncsscvcncccseescs 21

Burson v. Freeman,

I I iensbeenniieabinbebenes 19

Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah,

Rat EE ATLL AAAS IDRC Pa passim

Edwards vy. Aguillard,

I i cet want 13, 19

Engel v. Vitale,

eo steidesiesuniaion 2, 32

Epperson v. Arkansas,

I a icemveamiinn 6, 17

Everson v. Bd. of Educ.,

SE: © Ce crcsenscetsoticsvsanscasisansnessiteins 4, 5,6

ili

TABLE OF AUTHORITIES—continued

Page(s)

Felix v. City of Bloomfield,

841 F.3d 848 (10th Cir. 2016)....................... 13, 21

Gillette v. United States,

ee aN ITI acs ncacis caciinnsienssesinimbnenetaascsntabe 6

Hassan v. City of N-Y.,

a se 23

Hawaii v. Trump,

859 F.3d 741 (9th Cir. 2017)..................... 9, 13, 17

Heart of Atlanta Motel v. United States,

I I iad raat esioindennlaenmeneni 24

IAAB v. Trump,

I a icbeiaounen l

Int'l Refugee Assistance Project v. Trump,

857 F.3d 554 (4th Cir. 2017)............... 9, 11, 13, 17

Int'l Refugee Assistance Project v. Trump,

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

Int'l Refugee Assistance Project v. Trump,

265 F. Supp. 3d 570 (D. Md. 2017)......... 14, 21, 32

Kleindienst v. Mandel,

I acs csescnteniierinininiioesiessivoeeinesiaition 15

Korematsu v. United States,

RE ie eae a 23

Larson v. Valente,

II anti cnccsccoennestediobsiensnseane passim

Lee v. Weisman,

Be ET CI i ccceniesicicndssceneatntasimennstnans 4,5,7

McCreary Cty. v. ACLU of Ky.,

RR RIE EAE U3 passim

TABLE OF AUTHORITIES—continued

Page(s)

McDaniel v. Paty,

ee OD osienicccencscecccccchtccceccececseenees 18, 19

Mitchell v. Forsyth,

I I I II ciiccciicinciinsdonnnoegenebnenieonennpetiieds 19

Nat'l Treasury Emps. Union v. Von Raab,

I es I I cccncevescsicnsceccescccsessesocensees 19, 20

Obergefell v. Hodges,

I te I no. cc cnscccceesnisneincieadecseeans 26

Pers. Adm’r v. Feeney,

ERIE ER ine EER es aR op ow 7

Romer v. Evans,

ES eae 8, 32

Sable Commce'ns of Cal., Inc. v. FCC,

isin crnccapesncishicestinseustineiesesnies 20

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

TE Fs a CD ccd vscccccecsnescccscctsccosesessesse 6, 23

Sch. Dist. v. Ball,

I ial ca ae 6

Sch. Dist. v. Schempp,

ES EE Pe ae ne 6

Shaw v. Hunt,

Be ee I aint scnedenscapsentnedscmmnesecnseonecee 19

U.S. Dep’t of Agric. v. Moreno,

I es peeibbcbioneinien 32

Wallace v. Jaffree,

I i, cs ceertiineterigtagusenennantiainnsh 5, 6

Walz v. Tax Comm’n,

ne er _euceueestinuiadagusnbicnheusuen 7

TABLE OF AUTHORITIES—continued

Page(s)

Washington v. Trump,

No. C17-0141JLR, 2017 WL 462040

(W.D. Wash. Feb. 3, 2017)..........................006 8, 11

W. Va. State Bd. of Educ. v. Barnette,

Sa a 2 eneubeueenaewins 2

Ziglar v. Abbasi,

Se ee Oo elmeemneniionsunines 19

EXECUTIVE ORDERS AND OFFICIAL STATEMENTS

Exec. Order No. 13,769,

82 Fed. Reg. 8977 (Jan. 27, 2017) .................. 8, 10

@realDonaldTrump, TWITTER

(Jan. 30, 2017, 5:31 AM),

http://bit.ly/2Zokbtwe ............................00+ 12, 13

(Feb. 4, 2017, 5:06 AM),

http://bit.ly/2xP334e .......... cece ecececeee cee eeees 12

(Feb. 4, 2017, 1:44 PM),

http:// bit.ly/2f3F 9tQ.....................cccccccceeeee ees 12

(Apr. 26, 2017, 3:20 AM),

http://bit.ly/2od NjKB ........... 0 ...oce ccc cecececeee seen 12

(Apr. 26, 2017, 3:30 AM),

http://it.ly/2gN 1HDe .......................ccceceeeeee es 12

(June 3, 2017, 4:17 PM),

http:// bit.ly/2rzYrw ....................ccccc0eeeeeeeeees 12

(June 5, 2017, 3:29 AM),

| 12

(June 5, 2017, 3:37 AM),

Se EITEPED ‘cxccscscenssicchseseticeboupecessas 12

TABLE OF AUTHORITIES—continued

Page(s)

(June 13, 2017, 3:44 AM),

http://bit. ly/AvdIj4Lw ....... 2... ccc ee cc eece eee eeeeeee eee 12

(Sept. 15, 2017, 3:54 AM),

https://bit. ly/2zjLHzQ ......... 20... eccccecc cence eees 14

MISCELLANEOUS

@ACLUVA, TWITTER (Dec. 8, 2017, 12:13 PM),

https://tinyurl.com/ydgjrt4b................................. 30

David Brody, Brody File Exclusive: President

Trump Says Persecuted Christians Will Be

Given Priority As Refugees, CBN NEWS

(Jan. 27, 2017), http://bit.ly/2kCqG8M.......... 10, 11

CAIR Report Shows 2017 on Track to

Becoming One of Worst Years Ever for Anti-

Muslim Hate Crimes, COUNCIL ON

AM.—ISLAMIC RELATIONS (July 17, 2017),

http://bit.ly/2uCpF QR ...................ccccccceccce ec eeeeeeees 29

Kathryn Casteel & Andrea Jones-Rooy,

Trump’s Latest Travel Order Still.

Looks a Lot Like a Muslim Ban,

FIVETHIRTYEIGHT (Sept. 28, 2017),

https://tinyurl.com/ybvvz3ct ............................66 16

Declarations filed in JAAB v. Trump,

No. 8:17-cv-02921 (D. Md.)

Decl. of Jane Doe #1 (Oct. 6, 2017),

ian eesnramuavensbans 25

Decl. of Jane Doe #2 (Oct. 6, 2017),

ERE ee ere ae 27

Decl. of Jane Doe #3 (Oct. 6, 2017),

CAS Sats i ea Ee re ee 27

vil

TABLE OF AUTHORITIES—continued

Page(s)

Decl. of Jane Doe #5 (Oct. 6, 2017),

ne a ieienene 25, 27

Decl. of John Doe #6 (Oct. 6, 2017),

En AS SIDER a a PP As ERE ope 26

Decl. of Mana Kharrazi (Oct. 6, 2017),

EERE A SEE Set RO el aera 29, 30

Decl. of Wallace Loh, President of the

University of Maryland at College

Park, (Oct. 13, 2017),

I a uendameanh 31

Decl. of Naseem Pashai (Oct. 13, 2017),

i sahil 30, 31

Jeremy Diamond, Trump Rails Against Court

Ruling Blocking Travel Ban, CNN

(Mar. 15, 2017), http://cenn.it/2rG30GD.............. 12

Full Transcript and Video: Trump News

Conference, N.Y. TIMES (Feb. 16, 2017),

http://nyti.ma/2ZKXcFW 4..............csccccccseerserees 11, 18

William Gallo & Victoria Macchi, Trump

Signs New Travel Ban Order, VOA

(Mar. 6, 2017), http://bit.ly/2rZksTy................... 12

Michael Edison Hayden & Benjamin Siegel,

Green Card Holders Fall Under Trump's

Executive Order, ABC NEWS

(Jan. 28, 2017), http://aben.ws/2kzvW4dV ........... 10

Patrick Healy, ‘President Trump?’ Here’s How

He Says It Would Look, N.Y. TIMES

(May 4, 2016), http://nyti.ms/2uFaEmg............. 10

Vili

TABLE OF AUTHORITIES—continued

Page(s)

Jessie Hellmann, Trump to Stick with

Muslim Ban, HILL (May 4, 2016),

TIO sicicctecincesseskeveevenciccesesesveeesecs 15

Esther Honig, Hate Group Demonstrates

Outside Columbus Mosque: ‘We Love Don-

ald Trump,’ WOSU PUBLIC MEDIA (Sept. 15,

2017), https://tinyurl.com/y7wrxced ................... 28

Christopher Ingraham, American Mosques—

and American Muslims—Are Being

Targeted for Hate Like Never Before, WASH.

Post (Aug. 8, 2017), http://wapo.st/2x3nCty ..... 29

International Refugee Assistance Project v.

Trump, C-SPAN 30:29 (May 8, 2017),

ee sicisbecerscaccincsiansticnistessssecsecsese 15

Investigator: Suspect in Texas Mosque Fire

Feared Muslims, U.S. NEWS & WORLD REP.

(Mar. 10, 2017), http://bit.ly/2vJp8jk ................. 28

Elizabeth Landers, White House: Trump's

Tweets Are ‘Official Statemen's,’ CNN

(June 6, 2017),

https://tinyurl.com/yc99uhy9 .................ccceeeees 13

Jason Le Miere, Trump Will Do to Muslims

‘What Hitler Did to the Jews,’ Claims

Hate Crime Note Sent to lowa Mosque,

NEWSWEEK (Mar. 20, 2017),

I ein catcesecssleneisenaasedenonuiis 28

Adam Liptak, Trump Will Issue New Travel

Order Instead of Fighting Case in Court,

N.Y. TIMES (Feb. 16, 2017),

III II csc cicecccnsenceccensssccsnessaisasees ll

TABLE OF AUTHORITIES—continued

Page(s)

Man Indicted for Hate Crime for Texas

Mosque Fire, CBS NEws (June 23, 2017),

http://cbsn.ws/2wcTtWP; Investigator:

Suspect in Texas Mosque Fire Feared

Muslims, U.S. NEWS & WORLD REP. (Mar.

10, 2017), http://bit.ly/2vJp8jk........................

Meet the Press, NBC NEWS (July 24, 2016),

http://nbcnews.to/29TqPnp ...................:0ccceeeee

Alex Nowrasteh, Where Do Terrorists Come

From? Not the Nations Named in Trump

Ban, NEWSWEEK (Jan. 31, 2017),

NE OP ccsicisivcccnsésccceccssccescesenesss

PEW REs. CTR., THE GLOBAL RELIGIOUS

LANDSCAPE 45—50 (2012),

I IIE ctctspnidcctnccccarsexssssesessesesenss

Pls.-Appellees’ Notice Regarding Pls., JRAP v.

Trump, Nos. 17-2231, 17-2232, 17-2233,

17-2240 (4th Cir. Dec. 6, 2017),

TR TE REESE ce en Oa

Presidential Candidate Donald Trump Town

Hall Meeting in Londonderry, New

Hampshire, C-SPAN 28:00 (Feb. 8, 2016),

IT tstrsetedicccincnnccnceiesenscescensees

Racism and Mental Health, AM.

PSYCHIATRIC ASS’N, (Oct. 6, 2017),

https://tinyurl.com/y72wj29x ..............c.c.c0cceeees

Report: Communities on Fire: Confronting

Hate Violence and Xenophobic Political

Rhetoric, South Asian Americans

Leading Together (SAALT),

https://tinyurl.com/yellxzd2 ....................c:c008

TABLE OF AUTHORITIES—continued

Page(s)

The Republican Ticket: Trump and Pence,

CBS NEWS (July 17, 2016),

Rttp eden. WO/BONELGD..0....0ccccsseccveccsssescsssseseees

Responses to the Increase in Religious Hate

Crimes: Hearing Before the S. Comm.

on the Judiciary, 115th Cong. 5 (2017)

(statement of Vanita Gupta, President,

Leadership Conference on Civil and

Human Rights), http://bit.ly/2xa29Bp.............

Theodore Schleifer, Donald Trump: ‘T Think

Islam Hates Us,’ CNN (Mar. 10, 2016),

DORR BIT RIO cvccccecccvcccsccsccescncessesosseess

Cogan Schneier, Removal of Trump’s Muslim

Comments Raises Travel Ban Questions,

NATL L.J. (May 11, 2017),

https://tinyurl.com/yclzehgl ............................

Amy Davidson Sorkin, Donald Trump’s First,

Ugly TV Ad, NEW YORKER (Jan. 4, 2016),

Ey CI ccincencsseccocsarcesactscséncencesnsees

Transcript of Motions Hearing,

Int'l Refugee Assistance Project v. Trump,

265 F. Supp. 3d 570 (No. TDC-17-00361).......

Trump Signs Executive Orders at Pentagon,

ABC NEws (Jan. 27, 2017),

http:Maben. we/BRDeGPw...............0000c0seseeeeeeeeess

Visa Denial Letter, JAAB v. Trump,

No. 8:17-cv-02921 (D. Md. Feb. 2, 2018),

NO Cente ee A ERR ERIE TE Arena

TABLE OF AUTHORITIES—continued

Page(s)

George Washington, To the Jews (August 18,

1790), in THE SEPARATION OF CHURCH AND

STATE: WRITINGS ON A FUNDAMENTAL

FREEDOM BY AMERICA’S FOUNDERS 110

(Forrest Church ed., 2004)...............0cccccccccceeeceeeees 5

Sarah Wildman & Jen Kirby, Trump

Retweeted Anti-Muslim Propaganda Videos

from a British Hate Group, VOX (Nov. 30,

2017), https://tinyurl.com/y73n2749 .................. 14

Matt Zapotosky, A New Travel Ban with

‘Mostly Minor Technical Differences’?

That Probably Won't Cut It, Analysts Say,

WASH. Post (Feb. 22, 2017),

http://wapo.st/2mmmECm.........................65 11,12

BRIEF OF PLAINTIFFS IN [IRANIAN ALLIANCES

ACROSS BORDERS V. TRUMP AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE'

Amici are the plaintiffs—appellees in JAAB v.

Trump, No. 17-2232 (4th Cir.). They, along with the

plaintiffs in two companion cases, successfully chal-

lenged Presidential Proclamation No. 9645, obtaining

a preliminary injunction from the U.S. District Court

for the District of Maryland and affirmance of that in-

junction from the en banc U.S. Court of Appeals for

the Fourth Circuit on the ground that the Proclama-

tion likely violates the Establishment Clause of the

First Amendment to the U.S. Constitution.

The issues presented in this case directly affect

amici and countless other individuals and organiza-

tions throughout the United States and around the

world. If the challenged Proclamation is upheld, fam-

ilies will be kept apart, and all Americans will know

that our government officially denigrates and ex-

cludes Muslims by virtue of their faith.

Amici thus have a strong interest in preserving

the injunction here, both to avoid the harms that the

Proclamation inflicts on them, and to ensure that this

Nation remains true to its constitutional commit-

ments to religious freedom, equal rights, and equal

dignity for all without regard to faith or belief.

| Amici affirm that no counsel for a party authored this brief in

whole or in part and that no person other than amici, their mem-

bers, or their counsel made a monetary contribution to fund the

briefs preparation or submission. The parties’ consents to the fil-

ing of this brief are on file with the Clerk's office.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Our constitutional order strictly forbids the offi-

cial disfavoring of anyone based on faith or belief. “If

there is any fixed star in our constitutional constella-

tion, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, reli-

gion, or other matters of opinion * * *.” W. Va. State

Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

Hence, the Religion Clauses of the First Amendment

and the Fifth and Fourteenth Amendments’ guaran-

tees of equal protection “all speak with one voice on

this point: Absent the most unusual circumstances,

one’s religion ought not affect one’s legal rights or du-

ties or benefits.” Bd. of Educ. v. Grumet, 512 U.S. 687,

715 (1994) (O’Connor, J., concurring in part and con-

curring in the judgment).

This “essential commitment to religious freedom”

(Church of the Lukumi Babalu Aye, Inc. v. City of Hi-

aleah, 508 U.S. 520, 524 (1993)) was no accident. “The

history of governmentally established religion, both in

England and in this country, showed that whenever

government had allied itself with one particular form

of religion, the inevitable result had been that it had

incurred the hatred, disrespect and even contempt of

those who held contrary beliefs.” Engel v. Vitale, 3° »

U.S. 421, 431 (1962). Accordingly, the Framers

drafted the First Amendment with “awareness of the

historical fact that governmentally established reli-

gions and religious persecutions go hand in hand.” /d.

at 432. Hence, “the Establishment Clause forbids the

government to use religion as a line-drawing criterion.

In this respect, the Establishment Clause mirrors the

Equal Protection Clause.” Grumet, 512 U.S. at 728

(Kennedy, J., concurring in the judgment).

Proclamation No. 9645 reneges on our Nation’s

commitment to religious freedom by targeting Mus-

lims for denigration and discrimination based solely

on their faith. This marking of one religion for exclu-

sion—this ban on Muslims—cannot be justified by the

government's asserted interest in national security:

The ban is woefully ill-suited to achieving that inter-

est; and the government has made no meaningful

changes that sever the policy from the hostility toward

Islam that spawned it.

Amici’s personal experiences and the increased vi-

olence and threats of violence that American Muslims

across the country have faced since the ban first is-

sued underscore why the public interest overwhelm-

ingly favors enjoining the ban. Otherwise, amici and

countless other Americans will have their lives and

their intimate relationships disrupted—perhaps per-

manently—for reasons completely outside their con-

trol.

Casting one group as the object of fear, disrespect,

and maltreatment based on religion is invidious dis-

crimination and an unconstitutional denominational

preference that cannot withstand scrutiny. This Court

should affirm the preliminary injunction to preserve

the “profound commitment to religious liberty” “that

has served [this Nation] so well” (McCreary Cty. v.

ACLU of Ky., 545 U.S. 844, 882, 884 (2005) (O’Connor,

J., concurring)).

ARGUMENT

I. THE PROCLAMATION VIOLATES THE FIRST

AMENDMENT.

“The clearest command of the Establishment

Clause is that one religious denomination cannot be

officially preferred over another.” Larson v. Valente,

456 U.S. 228, 244 (1982). Yet by design and in actual

effect the Proclamation denigrates, maltreats, and

fuels discrimination against American Muslirf¥s—and

deprives them of the connections to family and com-

munity that other Americans take for granted. This

official disfavor toward one religion cannot be squared

with the First Amendment's guarantees of religious

freedom.

A. The First Amendment forbids the gov-

ernment to disfavor and denigrate one

faith.

“(T]he Framers of the First Amendment forbade”

any “official denominational preference,” mandating

instead the strict “principle of denominational neu-

trality.” Larson, 456 U.S. at 246, 255 (state statute vi-

olated Establishment Clause by treating some reli-

gious denominations more favorably than others); see

also Everson v. Bd. of Educ., 330 U.S. 1, 15—16 (1947)

(“[T]he First Amendment means at least this: * * * No

person can be punished for entertaining or professing

religious beliefs * * *.”). Hence, while “the * * * typi-

cal Establishment Clause case” involves preferential

treatment of one faith or of religion generally, the Es-

tablishment Clause also serves an even “more deeply

rooted principle: that the government may not act on

the basis of animus toward a disfavored religious mi-

nority.” Intl Refugee Assistance Project v. Trump

(“IRAP IT’), 883 F.3d 233, 352 (4th Cir. 2018) (Harris,

J., concurring).

2 See, e.g., Larson, 456 U.S. at 244; Lee v. Weisman, 505 U.S.

577, 641 (1992) (Scalia, J., dissenting) (“[O]ur constitutional tra-

dition, from the Declaration of Independence and the first inau-

gural address of Washington * * * down to the present day,

has * * * ruled out of order government-sponsored endorsement

1. The Framers crafted the First Amendment's

Religion Clauses against the backdrop of “centuries

* * * filled with turmoil, civil strife, and persecutions,

generated in large part by established sects deter-

mined to maintain their absolute political and reli-

gious supremacy.” Everson, 330 U.S. at 8-9. “These

practices of the old world were transplanted to and be-

gan to thrive in the soil of the new America,” with

members of disfavored denominations being “jail[ed],”

“hounded,” and “persecuted.” Jd. at 9-10. The oppres-

sion “became so commonplace as to shock the freedom-

loving colonials into a feeling of abhorrence.” /d. at 11.

“It was these feelings which found expression in

the First Amendment.” /bid_; accord Lukumi, 508 U.S.

at 532-533. The Framers “emphatically disclaimed

thfe] European legacy” of “official denominational

preference” that had denied religious freedom and

equal standing as citizens to persecuted religious mi-

norities. Larson, 456 U.S. at 244—245; see, e.g., George

Washington, To the Jews (August 18, 1790), in THE

SEPARATION OF CHURCH AND STATE: WRITINGS ON A

FUNDAMENTAL FREEDOM BY AMERICA’S FOUNDERS 110

(Forrest Church ed., 2004) (“the government of the

United States * * * gives to bigotry no sanction, to

persecution no assistance”).

As a consequence, this Court’s “Establishment

Clause cases * * * have often stated the principle that

the First Amendment forbids an official purpose to

disapprove of a particular religion.” Lukumi, 508 U.S.

at 532 (citing Bd. of Educ. v. Mergens, 496 U.S. 226,

of religion * * * where the endorsement is sectarian * * *.”); Wal-

lace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting)

(“The [Establishment] Clause was * * * designed to stop the Fed-

eral Government from asserting a preference for one religious

denomination or sect over others.”).

248 (1990) (plurality opinion); Sch. Dist. v. Ball, 473

U.S. 373, 389 (1985); Wallace, 472 U.S. at 56; Epper-

son v. Arkansas, 393 U.S. 97, 106-107 (1968); Sch.

Dist. v. Schempp, 374 U.S. 203, 225 (1963); Everson,

330 U.S. at 15-16).

2. So fundamental is the prohibition against offi-

cial actions disfavoring particular denominations that

courts “apply strict scrutiny in adjudging [their] con-

stitutionality.” Larson, 456 U.S. at 246. On this score,

the Establishment and Free Exercise Clauses speak

with one voice. See Lukumi, 508 U.S. at 546.

Nor may the government skirt the prohibition by

mere assertion of a secular rationale, for “the Estab-

lishment Clause[] extends beyond facial discrimina-

tion” to ““forbid[] subtle departures from neutrality

and ‘covert suppression of particular religious be-

liefs.” Lukumi, 508 U.S. at 534 (quoting Bowen v. Roy,

476 U.S. 693, 703 (1986) (opinion of Burger, C.J.); Gil-

lette v. United States, 401 U.S. 437, 452 (1971)). “Fa-

cial neutrality is not determinative,” because the First

Amendment bars “governmental hostility which is

masked, as well as overt.” [bid. Hence, official disfavor

toward any religion requires a nonreligious justifica-

tion that is “genuine, not a sham, and not merely sec-

ondary to a religious objective.” McCreary, 545 U.S. at

864; accord Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290, 308 (2000) (“it is * * * the duty of the courts to

‘distinguish a sham secular purpose from a sincere

one”’) (brackets omitted) (quoting Wallace, 472 U.S. at

75 (O'Connor, J., concurring in the judgment)); Lar-

son, 456 U.S. at 254 (invalidating law “drafted with

the explicit intention of including particular religious

denominations and excluding others”).

3.The Establishment and Equal Protection

Clauses “mirror|]” and reinforce each other in safe-

guarding against governmental targeting of minori-

ties based on religion or belief. Grumet, 512 U.S. at

728 (Kennedy, J., concurring in the judgment); see

also id. at 715 (O'Connor, J., concurring in part and

concurring in the judgment). The Clauses thus share

the common objective of prohibiting government from

denigrating religious minorities or otherwise promot-

ing or coercing adherence to any “state-created ortho-

doxy.” Lee, 505 U.S. at 592.

“In determining if the object of a law is a neutral

one” under either the Establishment or the Free Ex-

ercise Clause, therefore, this Court employs an “equal

protection mode of analysis.” Lukumi, 508 U.S. at 540

(plurality opinion) (quoting Walz v. Tax Comm'n, 397

U.S. 664, 696 (1970) (Harlan, J., concurring)). The

Court evaluates governmental action by considering

“both direct and circumstantial evidence,” including,

“among other things, 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, includ-

ing contemporaneous statements made by * * * the

decisionmak{er].” /bid. (citing Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 266-268

(1977)). “These objective factors bear on the question

of discriminatory object.” /bid. (citing Pers. Adm’r v.

Feeney, 442 U.S. 256, 279 n.24 (1979)); see also

McCreary, 545 U.S. at 862-863 (determination of dis-

criminatory object turns on “readily discoverable fact”

and “openly available data supportling] a com-

monsense conclusion that a _ religious objective

permeated the government’s action”).

Simply put, official targeting of disfavored reli-

gious groups cannot be reconciled with the fundamen-

tal constitutional principle of equal treatment man-

dated by both the Establishment and Equal Protec-

tion Clauses, “Respect for this principle explains why

laws singling out a certain class * * * for disfavored le-

gal status or general hardships are rare.” Romer v. Ev-

ans, 517 U.S. 620, 633 (1996); see Lukumi, 508 U.S.

at 532.

B. The Proclamation unconstitutionally

disfavors and denigrates Muslims.

The Proclamation cannot be squared with the fun-

damental constitutional guarantee of equal treatment

regardiess of religion. The measure “not only [is] a

likely Establishment Clause violation, but also strikes

at the basic notion that the government may not act

based on ‘religious animosity.” JRAP I], 883 F.3d at

269 (citing Lukumi, 508 U.S. at 532, 535).

1. The Proclamation is the government’s lat-

est in a series of unconstitutional attempts

to ban Muslims.

Born as a political maneuver to spark and capital-

ize on religious and racial animus, a ban on Muslims

was entrenched into law at the first opportunity after

the Administration took office in January 2017 (see

Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27,

2017)). That first ban was quickly enjoined. See Wash-

ington v. Trump, No. C17-0141JLR, 2017 WL 462040

(W.D. Wash. Feb. 3, 2017), stay pending appeal de-

nied, 847 F.3d 1151 (9th Cir. 2017); Aziz v. Trump,

234 F. Supp. 3d 724 (F 9. Va. 2017). So the admin-

istration issued a second Executive Order with cos-

metic alterations. See Pet. App. 148a—172a. But the

courts concluded that it was merely a continuation of

the first ban, and enjoined it, too. See Hawaii v.

Trump, 859 F.3d 741 (9th Cir. 2017); Int'l Refugee As-

sistance Project v. Trump (“IRAP 1”), 857 F.3d 554 (4th

Cir. 2017) (en banc).

The government is now trying once again. But the

policy remains tainted in both root and branch.

a. From the very beginning, a pledge to ban Mus-

lims was central to Mr. Trump’s presidential cam-

paign. See, eg., Amy Davidson Sorkin, Donald

Trump’s First, Ugly TV Ad, NEW YORKER (Jan. 4,

2016), http://bit.ly/1PH9tp5. Beginning in December

2015, Mr. Trump consistently called for the “total and

complete shutdown of Muslims entering the United

States.” J.A. 162. That message remained on the

Trump website long after the election and inaugura-

tion, and even after the first and second Executive Or-

ders were enjoined. See Cogan Schneier, Removal of

Trump’s Muslim Comments Raises Travel Ban Ques-

tions, NATL L.d. (May 11, 2017), https://tinyurl.com/

yclzehgl.*

Mr. Trump explained: “we’re having problems

with Muslims coming into the country.” J.A. 164. “Is-

lam hates us, * * * [a]nd we can’t allow people coming

into this country who have this hatred * * *.” Theo-

dore Schleifer, Donald Trump: 1 Think Islam Hates

Us,’ CNN (Mar. 10, 2016), http://cnn.it/IRBk6Z4. So

“we have to have a ban. * * * It’s gotta be a ban.” Pres-

idential Candidate Donald Trump Town Hall Meeting

in Londonderry, New Hampshire, C-SPAN 28:00 (Feb.

8, 2016), http://cs.pn/2kY4f1T.

*’ The message was abruptly removed on the day of the en banc

argument in the Fourth Circuit in JRAP I. See Schneier, supra.

Mr. Trump thus pledged that, if elected, he would

act during his first 100 days in office to ban Muslims

from entering the United States. See, e.g., Patrick

Healy, ‘President Trump?’ Here’s How He Says It

Would Look, N.Y. TIMES (May 4, 2016), http://nyti.ms

/2uFaEmg. He made good on that pledge just seven

days after taking office. See Exec. Order No. 13,769

§ 3(c).

The initial Executive Order immediately and cat-

egorically banned all travel to the United States by

nationals of seven countries with populations that are

overwhelmingly (most more than 99%) Muslim. See

Exec. Order No. 13,769 § 3(c); see also PEW RES. CTR.,

THE GLOBAL RELIGIOUS LANDSCAPE 45—50 (2012),

http://bit.ly/2k4Us8B (reporting population statis-

tics). It banned all non-U.S. citizens from the seven

countries, be they students, workers, or tourists; and

it applied even to legal permanent residents whose

only home is the United States is their only home. See

Exec. Order No. 13,769 § 3(c); Michael Edison Hayden

& Benjamin Siegel, Green Card Holders Fall Under

Trump's Executive Order, ABC NEWS (Jan. 28, 2017),

http://aben.ws/2kzvWdV.

At the signing ceremony, the President publicly

announced the Order's title, “Protectir. “he Nation

from Foreign Terrorist Entry into the United States,”

remarking, “we all know what that means.” Trump

Signs Executive Orders at Pentagon, ABC NEWS Wan.

27, 2017), http://aben.ws/2kbeqPu. Later that day, he

further underscored the policy objective to ban Mus-

lims, announcing that the government would hence-

forth give Christian refugees priority over Muslim ref-

ugees. See David Brody, Brody File Exclusive: Presi-

dent Trump Says Persecuted Christians Will Be Given

Priority As Refugees, CBN NEWS (Wan. 27, 2017),

http://bit.ly/2kCqG8M. And Rudolph Giuliani, vice

chair of the President's transition team, confirmed

that the Executive Order was the implementation of

the President's directive to “do” a “Muslim ban” “le-

gally.” J.A. 228.

The federal courts recognized, however, that the

Order was not “do[ne]}” “legally’—that it was the prod-

uct not of “rational national security concerns” but of

“Trump's desire for a Muslim ban” (Aziz, 234 F. Supp.

3d at 736; accord JRAP I, 857 F.3d at 576—577 (Presi-

dent did not avail himself of national-security appa-

ratus or expertise in developing the ban)). And they

enjoined it accordingly. See JRAP I, 857 F.3d at 601;

Aziz, 234 F. Supp. 3d at 736; Washington, 2017 WL

462040, at *2.

b. The first Order having been enjoined, the ad-

ministration endeavored to revise it (Adam Liptak,

Trump Will Issue New Travel Order Instead of

Fighting Case in Court, N.Y. TIMES (Feb. 16, 2017),

http://nyti.ms/2kPO0qso), updating the lyrics without

changing the tune. Declaring, “I keep my campaign

promises,” the President announced that the redraft

would be “very much tailored to what I consider to be

a very bad decision” from the Ninth Circuit in Wash-

ington v. Trump, supra, explaining: “[W]e can tailor

the order to that decision and get just about every-

thing, in some ways, more.” Full Transcript and

Video: Trump News Conference, N.Y. TIMES (Feb. 16,

2017), http://nyti.ms/2kXcFW4.

Other administration officials involved in the ef-

fort confirmed this ongoing commitment. For exam-

ple, White House Senior Policy Adviser Stephen Mil-

ler stated that the revised Executive Order would in-

clude only “minor technical differences” while produc-

ing the “same basic policy outcome.” Matt Zapotosky,

A New Travel Ban with ‘Mostly Minor Technical Dif-

ferences’? That Probably Won't Cut It, Analysts Say,

WASH. POST (Feb. 22, 2017), http://wapo.st/2mmm

ECm.

The revised Order, issued in March 2017, thus

sought to sidestep court rulings by “expressly ex-

clud[ing] * * * categories of aliens that have prompted

judicial concerns.” Pet. App. 157a; see, e.g., Jeremy Di-

amond, Trump Rails Against Court Ruling Blocking

Travel Ban, CNN (Mar. 15, 2017), http://cnn.it/2rG

30GD (quoting President's statement that “[t]his new

order was tailored to the dictates of the 9th Circuit’s—

in my opinion—flawed ruling”). Otherwise, “[t]he

principles of the executive order remain[ed] the

same.” William Gallo & Victoria Macchi, Trump

Signs New Travel Ban Order, VOA (Mar. 6, 2017),

http://bit.ly/2rZksTy (quoting White House Press Sec-

retary). And lest anyone miss the point, the President

stated repeatedly that the revised Order was: “a wa-

tered-down version of the first one,” “the Travel Ban,”

“the TRAVEL BAN,” “the watered down Travel Ban,”

and a “watered down, politically correct version” of his

original ban.‘

* @realDonaldTrump, TWITTER (June 3, 2017, 4:17 PM), http://

bit.ly/2rzYrwd; @realDonaldTrump, TWITTER (June 13, 2017,

3:44 AM), http://bit.ly/2vJj4Lw; @realDonaldTrump, TWITTER

(June 5, 2017, 3:37 AM), http:/it.ly/2uKjVYU; @real

DonaldTrump, TWITTER (June 5, 2017, 3:29 AM), http://bit.ly

/2svraEu; see also @realDonaldTrump, TWITTER (Apr. 26, 2017,

3:30 AM), http://it.ly/2gN1HDe (calling Case No. 16-1540 “the

‘ban’ case"); @realDonaldTrump, TWITTER (Apr. 26, 2017, 3:20

AM), http://it.ly/20JNjK8 (calling original Order “the ban’);

@realDonaldTrump, TWITTER (Feb. 4, 2017, 1:44 PM), http://

bit.ly/2f38F9tQ (same); @realDonaldTrump, TWITTER (Feb. 4,

2017, 5:06 AM), http://it.ly/2xP334e (‘the ban"); @real

DonaldTrump, TWITTER (Jan. 30, 2017, 5:31 AM), http://bit.ly

The Fourth and Ninth Circuits recognized that

the revised Order was not meaningfully different from

the first, and enjoined it, too. See Hawaii, 859 F.3d at

789; IRAP I, 857 F.3d at 604-605.

So the President issued a third iteration—the

Proclamation—which continues the ban on all immi-

grants and most visitors from six overwhelmingly

Muslim countries (see Pet. App. 131la—137a).

c. By its own terms, the Proclamation implements

the second Executive Order. See Pet. App. 124a. And

it applies to virtually the same list of Muslim coun-

tries. Compare Pet. App. 13la—137a, with Pet. App.

153a—155a. The Proclamation thus “cannot be di-

vorced from” its forebears or from “the cohesive nar-

rative linking it to the animus that inspired it.” JRAP

1, 857 F.3d at 601; see, e.g., Edwards v. Aguillard, 482

U.S. 578, 595 (1987) (Establishment Clause inquiry

looks to “the historical context of the statute * * * and

the specific sequence of events leading to [its] pas-

sage”). As the Fourth Circuit held, “the Proclamation

is unconstitutionally tainted with animus toward Is-

lam.” IRAP IT, 883 F.3d at 257.

To be sure, past actions do not “forever taint” new

ones. McCreary, 545 U.S. at 874. But as the Tenth Cir-

cuit has explained, curative efforts “should be (1) pur-

poseful, (2) public, and (3) at least as persuasive as the

initial endorsement of religion.” Felix v. City of Bloom-

field, 841 F.3d 848, 863 (10th Cir. 2016); see also

McCreary, 545 U.S. at 871-872 (“new statements of

/2okbtwe (same). The President's tweets are official U.S. policy.

See Elizabeth Landers, White House: Trump's Tweets Are ‘Offi-

cial Statements," CNN (June 6, 2017), https://tinyurl.com/yc9

Suhy9.

purpose” deemed mere “litigating position” where ear-

lier acts “were not repealed or otherwise repudiated”).

Here, the President’s insistence on a “total and

complete shutdown of Muslims” (J.A. 162) is not read-

ily forgotten. Indeed, the President does not want us

to forget.

He regularly complains that his current ban is not

“far larger, tougher and more specific” because, “stu-

pidly, that would not be politically correct!” @real

DonaldTrump, TWITTER (Sept. 15, 2017, 3:54 AM),

https://bit.ly/2zjLHzQ. And he continues to trumpet

anti-Muslim animus, including tweeting that “a

method hostile to Islam—shooting Muslims with bul-

lets dipped in pig’s [sic] blood—should be used to deter

future terrorism.” Int'l Refugee Assistance Project v.

Trump, 265 F. Supp. 3d 570, 627 (D. Md. 2017); see

also Sarah Wildman & Jen Kirby, Trump Retweeted

Anti-Muslim Propaganda Videos from a British Hate

Group, VOX (Nov. 30, 2017), https://tinyurl.com/y73

n2749.

Meanwhile, the Proclamation does not repudiate,

but instead makes permanent, the unconstitutional

and previously enjoined policy. As the Fourth Circuit

noted, “President Trump could have removed the taint

of his prior troubling statements; for a start he could

have ceased publicly disparaging Muslims.

But * * * instead of taking any actions to cure the

‘taint’ that we found infected EO-2, President Trump

continued to disparage Muslims and the Islamic

faith.” JRAP II, 883 F.3d at 268. Hence, “[n]o reason-

able observer could swallow the claim that the” Presi-

dent, as the issuer of the Proclamation, “ha[s] cast off

the objective so unmistakable in the earlier” Execu-

tive Orders. McCreary, 545 U.S. at 872.

d. The government has conceded: “If a president

* * * came in and had an executive order that actually

did ban Muslims and he said ‘I’m doing it for national-

security purposes,” that would not be “a facially legit-

imate reason under [Kleindienst v.] Mandel,” 408 U.S.

753 (1972), for official action. International Refugee

Assistance Project v. Trump, C-SPAN 30:29 (May 8,

2017), http://cs.pn/2j4kM4h (oral argument of the Act-

ing Solicitor General on second Executive Order). But

the government insists that the Proclamation does not

fall for that reason—and indeed that it should not be

subject to judicial review—because its “text says noth-

ing about religion, and its restrictions draw no distinc-

tions based on religion.” Br. 65.

The Proclamation, of course, reads that way by de-

sign: When the President’s calls on the campaign trail

for a Muslim ban were roundly and almost universally

denounced—including being declared “offensive and

unconstitutional” by his future Vice President®—Mr.

Trump responded that because “[pJeople were so upset

when [he] used the word Muslim,” he would begin

“talking territory instead of Muslim” (Meet the Press,

NBC NEws (July 24, 2016), http://nbcnews.to/29Tq

Pnp). But he was unequivocal that the change was se-

mantic, not substantive: “So you call it territories.

OK? We’re gonna do territories. * * * [C]all it what-

ever you want. We'll call it tei.itories.” The Republi-

can Ticket, supra.

& The Republican Ticket: Trump and Pence, CBS NEws (July 17,

2016), http://cbsn.ws/29NrLqj (quoting then-Gov. Pence); see

also Jessie Hellmann, Trump to Stick with Muslim Ban, HILL

(May 4, 2016), http://bit.ly/1OekCvt (reporting strong criticism

by both Republican and Democratic officials).

“Official action that targets religious conduct for

distinctive treatment cannot be shielded by mere com-

pliance with the requirement of facial neutrality.”

Lukumi, 508 U.S. at 534. Though the Proclamation

studiously avoids naming Islam, it, like its predeces-

sor Executive Orders, as a practical matter affects

only immigrants and travelers from Muslim-majority

countries and their families, friends, and colleagues in

the United States, using nationality as a proxy for re-

ligion. See Pet. App. 13la—137a.®

The restrictions that the Proclamation imposes

are also inconsistent with the government’s own prof-

fered ‘baseline’ vetting test for countries, with the con-

sequence that more Muslims and fewer non-Muslims

are excluded than the test would dictate. Somalia, an

overwhelmingly Muslim country, passed the test, yet

Somali immigrants are flatly banned. By contrast, no

limitations are placed on Venezuelan immigrants,

even though Venezuela failed the test. Pet. App. 96a.’

® The Proclamation places restrictions on only two non-Muslim

countries—North Korea and Venezuela—and its real-world ef-

fects on those are negligible. Travel from North Korea is already

essentially nonexistent: In 2016, before the ban, only nine North

Koreans obtained immigrant visas. See Kathryn Casteel & An-

drea Jones-Rooy, Trump's Latest Travel Order Still Looks a Lot

Like a Muslim Ban, FiVETHIRTYEIGHT (Sept. 28, 2017), https://ti-

nyurl.com/ybvvzact. And the restrictions on Venezuela apply

solely to visits by certain government officials and their families,

not to immigration, and not to Venezuelans generally. See Pet.

App. 134a—135a.

’ The Proclamation purports to justify the different treatment

by vaguely invoking “alternative sources for obtaining infor-

mation” from Venezuela (Pet. App. 134a), without explaining

why (or even asserting that) similar arrangements cannot be

made for any of the Muslim-majority countries that are subject

to the ban. And though Iraq also failed the test and yet avoided

Moreover, the Proclamation affords the same dis-

favored status to nationals of the Muslim-majority

countries regardless of where those individuals reside

or whether they have any ongoing connection to a

listed country. Even those who, for example, fled a

listed country as refugees decades ago and have re-

sided peacefully in a country closely allied with the

United States ever since are nonetheless barred. This

lack of fit between the ban and the asserted justifica-

tion of inadequate “information-sharing” and “iden-

tity-management” by the targeted countries (see Ha-

wai'i, 859 F.3d at 773) underscores that the Proclama-

tion excludes Muslims without regard to real or per-

ceived dangers or to the security or information-

sharing practices of their actual home countries.

e. The government treats the evidence that the

Proclamation is the President’s promised Muslim ban

as mere “campaign-trail statements” that may be

brushed aside as “inappropriate” to consider. Br. 66.

But there is nothing improper about relying on cam-

paign promises as objective evidence of the nature of

the official action in fulfillment of those promises—es-

pecially when, as here, the government, in the person

of the official who made the promises, has so faithfully

acted to implement them. See, e.g., Epperson, 393 U.S.

at 107-108 & n.16 (relying on campaign statement to

conclude that “fundamentalist sectarian conviction

was and is the [challenged] law’s reason for exist-

ence”). As the Fourth Circuit explained, “the Presi-

dent’s inauguration did not herald a new day.” JRAP

restrictions, apparently for diplomatic reasons (see Pet. App.

126a—127a; see also Pet. App. 155a—156a), a Muslim ban does

not, as the Fourth Circuit recognized (see JRAP J, 857 F.3d at

597), cease to be what it is just because it does not cover every

Muslim or every Muslim-majority country.

I, 883 F.3d at 266. Instead, the President wrote his

campaign pledge into law, immediately and thrice

over, explaining his actions as effectuating the prom-

ised ban, because “[t]hese are campaign promises”—

“| keep my campaign promises.” Full Transcript and

Video, supra.

For related reasons, the government's warning

against “judicial psychoanalysis” (Br. 67 (quoting

McCreary, 545 U.S. at 862)) has no bearing here. “This

case is remarkable because it features * * * a govern-

mental decisionmaker using his own direct communi-

cations with the public to broadcast—repeatedly, and

throughout the course of this litigation—an anti-Mus-

lim purpose tied specifically to the challenged action.”

IRAP II, 883 F.3d at 352 (Harris, J., concurring).

“(T]he President's own deputy press secretary made

this connection express: he explained that President

Trump tweets extremist anti-Muslim videos as part of

his broader concerns about ‘security,’ which he has

‘addressed ... with... the proclamation.” Jd. at 268

(opinion of the Court). One need not be Sigmund

Freud to recognize what the President is doing, for

“li]t is all out in the open.” Jd. at 352 (Harris, J., con-

curring).

2. The governmental review process does not

cure the constitutional violation.

Because this Court “appl[ies] strict scrutiny in ad-

judging [the] constitutionality” of denominational

preferences, petitioners must demonstrate that the

ban is “justified by a compelling governmental inter-

est” and is “closely fitted to further that interest.” Lar-

son, 456 U.S. at 246-247; accord Lukumi, 508 U.S. at

546 (actions disfavoring one faith must satisfy “the

most rigorous of scrutiny” and are impermissible un-

less they “advance ‘interests of the highest order” that

“could [not] be achieved by narrower’ restrictions

(quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978)).

And the asserted governmental objective must “be sin-

cere and not a sham.” Edwards, 482 U.S. at 587. The

Proclamation fails in all respects.

a. The Proclamation purports “to protect the secu-

rity and interests of the United States * * * and [to]

address both terrorism-related and public-safety

risks.” Pet. App. 122a. While no one doubts that com-

bating terrorism to promote national security would

be a compelling interest if genuinely demonstrated,

the Proclamation’s bald assertion of that objective is

insufficient to justify denigrating and disfavoring one

religion: “To survive strict scrutiny * * * a State must

do more than assert a compelling state interest—it

must [also] demonstrate that its law is necessary to

serve the asserted interest.” Burson v. Freeman, 504

U.S. 191, 199 (1992); see also, e.g., Shaw v. Hunt, 517

U.S. 899, 915 (1996) (under strict scrutiny, “we have

always expected that the [government’s] action would

substantially address, if not achieve, the avowed pur-

pose”).

In other words, the government must show that

its asserted interest here is genuinely served by, and

genuinely requires, the blanket exclusion of all the

persons affected by the ban. Blunt instruments do not

suffice: “national-security concerns must not become

a talisman used to ward off inconvenient claims—a

‘label’ used to ‘cover a multitude of sins.” Ziglar v. Ab-

basi, 137 S. Ct. 1843, 1862 (2017) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 523 (1985)).

Were the rule otherwise, the government could al-

ways defeat strict scrutiny by invoking some vague

phrase—be it ‘preventing terrorism,’ ‘promoting na-

tional security, advancing “public safety” (Nat7

Treasury Emps. Union v. Von Raab, 489 U.S. 656, 677

(1989)), “combating corruption” (Ariz. Free Enter.

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721,

750 (2011)), “protecting children” (Sable Commc’ns of

Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)), or any

other interest that, under some set of conditions,

might be considered compelling.

The Proclamation at issue is wildly over- and un-

der-inclusive as a means to prevent terrorism, be-

cause it does not even try to identify actual or poten-

tial terrorists. In fact, it is so poorly fitted to any gen-

uine national-security objective that the sincerity of

the proffered rationale is suspect on its face.

The government developed and implemented the

first iteration of the policy while willfully excluding

any input from the nation’s considerable national-

security apparatus. Fourteen months later, the gov-

ernment still has not shown that nationals from the

targeted countries have been responsible for even one

fatal terrorist attack in the United States—because

they haven't. See, e.g., Alex Nowrasteh, Where Do Ter-

rorists Come From? Not the Nations Named in Trump

Ban, NEWSWEEK (Jan. 31, 2017), http://bit.ly/2kWo

ddx. But the Department of Homeland Security has

found that restrictions basea on nationality do not ad-

vance national security. J.A. 244. And a bipartisan

group of dozens of national-security officials has con-

cluded that the Proclamation and Executive Orders

“would undermine the national security of the United

States, rather than making us safer.” J.A. 362.

b. The government, however, points to an agency

review-and-recommendation process to bolster its as-

serted national-security rationale. See Br. 64 (“Both

the review process and the end result refute the con-

tention that the Proclamation’s national-security and

foreign-policy conclusions were adopted in bad

faith.”); see also id. at 58, 60, 65, 66, 69, 70—71. But

the government has steadfastly refused to identify the

process or its results—even to the courts, in camera,

much less to the public. Pet. App. 96a (“While the Sep-

tember 15, 2017 DHS report * * * might offer some in-

sight, the Government objected to the Court’s consid-

eration or even viewing of that classified report, mak-

ing it impossible to know.”).* Thus, the only assurance

that the government is now acting lawfully is its own

ipse dixit.

Assertions of secret evidence of a secular rationale

do not override the manifest evidence of hostility to-

ward Muslims that pervades the record in this case.

Cf. IRAP, 265 F. Supp. 3d at 627 (“Purposes that can

be discerned only if one ‘burrows into a difficult-to-ac-

cess’ record do little to ‘assure the public that the gov-

ernment is not endorsing a religious view.” (brackets

omitted) (quoting Felix, 841 F.3d at 863)).

To make matters worse, the government refuses

to offer the courts (or the public) any assurance (or

even a bare assertion) that the Proclamation comports

with the secret agency reports. See Transcript of Mo-

tions Hearing at 48-52, Intl Refugee Assistance

Project v. Trump, 265 F. Supp. 3d 570 (No. TDC-17-

00361) (refusing to say whether there are “material

inconsistencies” between Proclamation and reports).

Hence, and in light of the findings of the Department

of Homeland Security that nationality-based re-

strictions do not advance national security (J.A. 244),

* In separate FOIA litigation (Brennan Ctr. for Justice v. U_S.

Dep't of State, No. 17-civ-7520 (S.D.N.Y.)), the government has

asserted privilege claims over the entirety of the agency reports

on which the Proclamation purports to rely.

there simply is no basis to infer that DHS proposed or

supported what the Proclamation does. The govern-

ment’s bare statement that “[t]he multi-agency review

that produced the Proclamation and its tailored entry

restrictions dispel any contention that it is infused

with religious animus” (Br. 16—17) are thus infirm

ground on which to rest the ban.

Additionally, the means purportedly used by the

agencies to arrive at their hidden results and recom-

mendations are not closely fitted to the national-secu-

rity goal of keeping dangerous individuals out. To the

extent that the government gives any indication how

it evaluated countries, it says that it employed criteria

virtually identical to those that Congress set for par-

ticipation in the national Visa Waiver Program. See

Resp. Br. 11, 46. But a determination under Con-

gress’s established criteria that a country cannot par-

ticipate in the Visa Waiver Program just means that

its nationals are to receive individualized reviews if

they wish to visit the United States. Here, the criteria

are being employed instead to declare that the nation-

als of the banned countries are ineligible for individu-

alized assessments at all and instead are to be treated

categorically—and categorically badly.

What is more, Congress established those criteria

for short-term visitors, not for immigrants, who, as

the government acknowledges, already “receive more

extensive vetting than nonimmigrants” (Pet. App.

129a). In other words, the government has tzken the

test developed for the important but limited purpose

of determining whether visitors should receive indi-

vidualized assessments, and transmogrified it into the

official explanation for ascribing violent anti-Ameri-

can objectives to whole nations of people based on pro-

tected characteristics and then barring them from be-

ing united in this country with their loved ones,

friends, and colleagues. Cf. Korematsu vy. United

States, 323 U.S. 214, 240 (1944) (Murphy, J., dissent-

ing) (“[T]o infer that examples of individual disloyalty

prove group disloyalty and justify discriminatory ac-

tion against the entire group is to deny that under our

system of law individual guilt is the sole basis for dep-

rivation of rights.”).

In making these assertions of dangerousness in

gross based on religion rather than evaluating indi-

viduals, as our immigration laws, constitutional prin-

ciples, and national values require, the government

“asks us to pretend that we do not recognize what

every [American] understands clearly—that this pol-

icy is about [religious animus].” Santa Fe, 530 U.S. at

315. “We have been down similar roads before. Jew-

ish-Americans during the Red Scare, African-Ameri-

cans during the Civil Rights Movement, and Japa-

nese-Americans during World War II are examples

that readily spring to mind.” Hassan v. City of N_Y.,

804 F.3d 277, 309 (3d Cir. 2015) (invalidating police

profiling and surveillance of Muslims based solely on

religion). Our Constitution requires more. And Amer-

ican Muslims, and all Americans, deserve better.

Il. THE PUBLIC INTEREST FAVORS ENJOINING THE

PROCLAMATION.

The public interest weighs heavily in favor of en-

joining the Proclamation. As the Fourth Circuit con-

cluded, the Proclamation inflicts a host of harms on

individuals and communities throughout the United

States, erecting an “invisible yet impenetrable bar-

rier” that “denies the possibility of a complete, intact

family to tens of thousands of Americans.” /RAP I],

883 F.3d at 271.

By separating families indefinitely, the Proclama-

tion “create|s] not only temporary feelings of anxiety

but also lasting strains on the most basic human rela-

tionships cultivated through shared time and experi-

ence.” Jd. Its “categorical treatment of foreign nation-

als as potential threats necessarily overlooks their in-

valuable contributions to our country as individuals,”

“inhibit[ing] the flow of information, ideas, resources,

and talent between the designated countries” and our

schools and communities. Jd. at 271-272 & n.18. And

it stigmatizes U.S. citizens and lawful residents based

on nationality and religion (see id. at 269), inflicting

“the humiliation, frustration, and embarrassment

that a person must surely feel when he is told that he

is unacceptable as a member of the public” (Heart of

Atlanta Motel v. United States, 379 U.S. 241, 292

(1964) (Goldberg, J., concurring)).

Amici’s own experiences exemplify the harms

wrought by the Proclamation.® Amici include five in-

dividual Maryland residents, each of whom is a U.S.

citizen or lawful permanent resident who has been

separated indefinitely from family members as a re-

sult of the Proclamation——even though nothing about

amici or the family members justifies this forced sep-

aration. Amici also include Iranian Alliances Across

Borders and the Iranian Students’ Foundation, two

organizations serving Iranian-American youth and

others in the Iranian diaspora in the United States.

The organizational amici, their members, and the in-

dividual amici have all experienced the divisiveness

® Amici submitted sworn declarations in the district court at-

testing to the facts described here. See JAAB v. Trump, No. 8:17-

ev-02921 (D. Md.), Dkt. Nos. 26-2 to 26-8 (Oct. 6, 2017); Dkt. No.

38-3 (Oct. 13, 2017).

and stigmatization caused by the Proclamation’s

“anti-Muslim bias” (JRAP II, 883 F.3d at 267).

Amicus Jane Doe #5 is a 79-year-old lawful per-

manent resident from Iran who has lived in Maryland

since 2010 with her 90-year-old husband and one of

her two sons.!° She is wheelchair-bound, and she and

her husband are both in poor health. Jane Doe #5’s

other son is in Iran and is indefinitely barred from en-

tering the United States to see his elderly parents as

a result of the Proclamation. Given Doe #5’s age and

infirmity, she will have to remain separated from one

or the other of her two sons because of the Proclama-

tion—through no fault of hers or her sons’.

Amicus Jane Doe #1 is a United States citizen who

came to this country in 2011 as a refugee, fleeing reli-

gious persecution in Iran.'' She lives in Chevy Chase,

Maryland, but her husband, an Iranian national, cur-

rently resides in the United Arab Emirates. Because

of the Proclamation, Doe #1 and her husband cannot

make a life together in the United States. Although

Doe #1 is able to visit the UAE to be with her hus-

band,'2 she cannot obtain permanent residency there

but instead would have to reapply regularly for tem-

porary status. And the couple cannot return to Iran,

where they would be persecuted. Like married couples

throughout the world, “[t]heir hope is not to be con-

(D. Md. Oct. 6, 2017), Dkt. No. 26-7.

\! See Decl. of Jane Doe #1, LAAB v. Trump, No. 8:17-cv-02921

(D. Md. Oct. 6, 2017), Dkt. No. 26-4.

12 When Jane Doe #1 submitted her declaration, she was with

her husband 1n the UAE. She has since returned to the United

States.

demned to live in loneliness, excluded from one of civ-

ilization’s oldest institutions.” Obergefell v. Hodges,

135 S. Ct. 2584, 2608 (2015). But because of the Proc-

lamation, they cannot fulfill that hope in this country,

where Doe #1 is a citizen; and no other place offers

them even the possibility of a safe, permanent home

together.

Amicus John Doe #6 is a lawful permanent resi-

dent from [ran who has lived in the United States for

five years.'® He is an engineer whose company per-

forms major jobs as a contractor for the U.S. govern-

ment. His wife is also Iranian; she works as a re-

searcher at the National Institutes of Health. They

have built their life together in Maryland. Doe #6’s

mother-in-law, who currently resides in Iran, applied

for a visa to visit, but her application was not fully

processed before the Proclamation took effect, and she

has since been denied both a visa and a waiver under

the Proclamation.'* Doe #6’s wife is devastated. The

Proclamation keeps her apart from her mother, while

both she and Doe #6 are contributing their profes-

sional skills to serve their adopted country and the

U.S. government.

18 See Decl. of John Doe #6, LAAB v. Trump, No. 8:17-cv-02921

(D. Md. Oct. 6, 2017), Dkt. No. 26-8.

'¢ When Doe #6 submitted his declaration in the district court,

visa applications for his mother-in-law and sister-in-law had not

been processed. His sister-in-law was granted a visa while the

second ban was enjoined. After the Proclamation went into effect,

however, his mother-in-law was denied a visa under it—showing

the cruel and fickle consequences of the ban. See Pls.-Appellees’

Notice Regarding Pls., JRAP v. Trump, Nos. 17-2231, 17-2232,

17-2233, 17-2240 (4th Cir. Dec. 6, 2017), Dkt. No. 160; Visa De-

nial Letter, LAAB v. Trump, No. 8:17-cv-02921 (D. Md. Feb. 2,

2018), Dkt. No. 65-2.

The other individual amici have similarly been

separated from their loved ones and stigmatized as a

result of the Proclamation. The Proclamation bars

amicus Jane Doe #2, a U.S. citizen who lives and

works in Maryland, from uniting in this country with

her fiancé, an Iranian national. Despite being born

and having lived in the United States her whole life,

Doe #2 now feels that she is treated as an outsider in

her own country.'® Amicus Jane Doe #3 has been a

U.S. citizen since 2004 and is a special-education

teacher in the Montgomery County Public Schools,

where she has worked since 2006.'° Other than her

youngest brother, who lives in Iran, Doe #3’s entire

family lives in the United States as citizens or lawful

permanent residents. As a result of the Proclamation,

however, Doe #3 cannot reunite with her brother in

the United States; he remains in Iran, separated from

the rest of the family.

Several of the individual amici have also ex-

pressed fear of violence.'? And for good reason: As the

former Assistant Attorney General for Civil Rights

testified before Congress: “[P]olicies singling out pro-

tected groups can normalize hate and legitimize hate-

motivated violence directed at Muslims or people per-

ceived to be Muslim.” Responses to the Increase in Re-

ligious Hate Crimes: Hearing Before the S. Comm. on

the Judiciary, 115th Cong. 5 (2017) (statement of Van-

ita Gupta, President, Leadership Conference on Civil

and Human Rights), http://bit.ly/2xa29Bp. Since the

‘8 See Decl. of Jane Doe #2, IAAB v. Trump, No. 8:17-cv-02921

(D. Md. Oct. 6, 2017), Dkt. No. 26-5.

'® See Decl. of Jane Doe #3, LAAB v. Trump, No. 8:17-cv-02921

(D. Md. Oct. 6, 2017), Dkt. No. 26-6.

Muslim ban was first implemented, acts of anti-

Muslim violence have increased, including:

On January 28, 2017, the day after the

President issued the first Executive Order,

an arsonist destroyed a Texas mosque, be-

lieving that the worshippers there were ter-

rorists. See Man Indicted for Hate Crime for

Texas Mosque Fire, CBS NEWS (June 23,

2017), http://cbsn.ws/2wcTtWP; Investiga-

tor: Suspect in Texas Mosque Fire Feared

Muslims, U.S. NEWS & WORLD REP. (Mar.

10, 2017), http://bit.ly/2vJp8jk.

On March 19, two weeks after the Presi-

dent issued the second Executive Order, a

note left at an Islamic Center in lowa

warned that the “new sheriff in town—

President Donald Trump”—was “going to

cleanse America” and would “start with you

Muslims”; the note threatened that the

President was “going to do to you Muslims

what Hitler did to the Jews.” Jason Le

Miere, Trump Will Do to Muslims ‘What

Hitler Did to the Jews,’ Claims Hate Crime

Note Sent to Iowa Mosque, NEWSWEEK

(Mar. 20, 2017), http://bit.ly/2f7XExn.

On September 15, one week before the

President issued the Proclamation, mem-

bers of a hate group shouted “We love Don-

ald Trump, you wicked devil!” outside a

mosque in Ohio while holding signs stating

“Homos and Muslims go to hell.” Esther Ho-

nig, Hate Group Demonstrates Outside Co-

lumbus Mosque: ‘We Love Donald Trump,’

WoOsU PUBLIC MEDIA (Sept. 15, 2017), https

//tinyurl.com/y7wrxccd.

Anti-Muslim hate crimes are not new. But skyrocket-

ing threats and violence coincide with the administra-

tion’s demonization of Muslims.'*

The Proclamation has also harmed the institu-

tional amici and the young people whom they serve

and represent. Amicus IAAB’s primary function is

mentoring and building a community of young Amer-

icans who are part of the Iranian diaspora.'? Amicus

ISF is a student group at the University of Maryland,

affiliated with LAAB, that strives to raise awareness

about Persian culture, dance, tradition, holidays, and

'® A recent study documented 302 incidents of violence or hate

speech directed at Muslim, Arab, and South Asian communities

between November 2016 and November 2017, an over 45% in-

crease from the previous year. Of this number, 248 (82%) were

motivated by anti-Muslim sentiment. Moreover, 213 included ac-

tual violence—a 64% increase over last year. And approximately

1 out of every 5 of these incidents involved perpetrators who spe-

cifically invoked President Trump's name, policies, or campaign

slogans. See Report: Communities on Fire: Confronting Hate Vi-

olence and Xenophobic Political Rhetoric, South Asian Ameri-

cans Leading Together (SAALT), https://tinyurl.com/ycllxzd2;

see also CAIR Report Shows 2017 on Track to Becoming One of

Worst Years Ever for Anti-Muslim Hate Crimes, COUNCIL ON

AM.-ISLAMIC RELATIONS (July 17, 2017), http://it.ly/2uCpFqR

(reporting a 91% increase in the number of anti-Muslim hate

crimes during the first half of 2017); Christopuer Ingraham,

American Mosques—and American Muslims—Are Being Tar-

geted for Hate Like Never Before, WASH. POST (Aug. 8, 2017),

http://wapo.st/2x3nCty (documenting at least 85 anti-Muslim in-

cidents at mosques during the first half of 2017).

'® See Decl. of Mana Kharrazi, IAAB v. Trump, No. 8:17-cv-

02921 (D. Md. Oct. 6, 2017), Dkt. No. 26-3.

history, as well as modern-day [ran and issues facing

lranian-Americans.”

The young people who participate in and rely on

these organizations understandably feel that their

community is under attack.?! And as members of the

Iranian diaspora in the United States, they are con-

fronted with a policy that would potentially bar any

additions to their numbers, meaning they “may well

be the last of their kind.” @ACLUVA, TWITTER (Dec.

8, 2017, 12:13 PM), https://tinyurl.com/ydgjrt4b

(statement of Mana Kharrazi after Fourth Circuit ar-

gument in JRAP IJ).

At summer camps that I[AAB runs for high-school

and middle-school students, the counselors have had

to spend “a considerable amount of time * * * address-

ing [their] campers’ feelings of fear, self-hate and low-

ered self-esteem” arising from the President's anti-

Muslim statements on the campaign trail and his sub-

sequent imposition of the Muslim ban.”? The stress

caused by this kind of discrimination is assoviated

with long-lasting mental-health effects, including de-

pression and post-traumatic stress disorder. See, e.g.,

Racism and Mental Health, AM. PSYCHIATRIC ASS’N,

(Oct. 6, 2017), https://tinyurl.com/y72wj29x.

For college students, the Proclamation has had

numerous disruptive effects on university life, includ-

ing generating feelings of anxiety in the student body,

particularly among students from the countries cov-

ered by the Proclamation, thus impairing students’

®” Decl. of Naseem Pashai, JAAB v. Trump, No. 8:17-cv-02921 (D.

Md. Oct. 13, 2017), Dkt. No. 38-3.

2! Pashai Decl. % 6.

ability to study and learn.2® Some confront the pro-

spect of graduating from college without having their

parents be able to attend commencement to celebrate

with them.”*

The Proclamation also hinders the educational

and cultural interests of our country. Amicus LAAB’s

ability to fulfill its mission of strengthening the Ira-

nian diaspora through leadership and educational

programming is compromised by its inability to bring

scholars from Iran and the broader diaspora commu-

nity to its conferences. And the Proclamation has “im-

pair[ed] the University of Maryland’s ability to carry

out its mission of teaching, research, and support for

the economic development of Maryland as well as the

United States.”25 The Proclamation also threatens the

University’s enrollment by reducing its ability to at-

tract talented students, researchers, and faculty from

abroad.26

These harms to amici, representing only a minute

fraction of the more than three million American Mus-

lims affected by the Proclamation and suffering simi-

lar injury, significantly outweigh any interest that the

government may have in enforcing the President’s un-

constitutional Proclamation. Cf. JRAP IJ, 883 F.3d at

28 See Decl. of Wallace Loh, President of the University of Mary-

land at College Park, JAAB v. Trump, No. 8:17-cv-02921 (D. Md.

Oct. 13, 2017), Dkt. No. 38-4. Dr. Loh filed his declaration sup-

porting the plaintiffs in the district court in JAAB v. Trump to

detail the effects of the Proclamation on the University of Mary-

land and its students.

271 (“We conclude that it cannot be in the public in-

terest for the President to violate the Establishment

Clause.”). As the district court concluded, “[w]hen the

government chooses sides among religions, the ‘inevi-

table result’ is ‘hatred, disrespect, and even contempt’

from those who adhere to different beliefs.” JRAP, 265

F. Supp. 3d at 630 (quoting Engel, 370 U.S. at 432—

433). It surely is not in the government’s interest to

“sow seeds of division in our nation.” Jbid.; see Gru-

met, 512 U.S. at 728 (Kennedy, J., concurring) (“The

danger of stigma and stirred animosities is no less

acute for religious line-drawing than for racial.”).

In sum, the Proclamation has inflicted and will

continue to inflict substantial harm on amici and all

the many similarly situated U.S. citizens and lawful

permanent residents who have family members

barred from entry into this country. Those harms out-

weigh any purported harm to the government from a

preliminary injunction.

CONCLUSION

The government “may not devise mechanisms,

overt or disguised, designed to persecute or oppress a

religion.” Lukumi, 508 U.S. at 547. Declaring a reli-

gion’s adherents categorically unworthy even to visit

this country is “precisely the sort of official denomina-

tional preference that the Framers of the First

Amendment forbade” (Larson, 456 U.S. at 255). This

“bare *** desire to harm a politically unpopular

group cannot constitute a legitimate governmental in-

terest,” much less a compelling one. Romer, 517 U.S.

at 634 (quoting U.S. Dep't of Agric. v. Moreno, 413 U.S.

528, 534 (1973)).

The preliminary injunction should be affirmed.

Respectfully submitted.

JOHNATHAN SMITH RICHARD B. KATSKEE

SIRINE SHEBAYA Counsel of Record

Muslim Advocates ERIC ROTHSCHILD

P.O. Box 66408 KELLY M. PERCIVAL

Washington, DC 20005 ANDREW L. NELLIS*

(202) 897-2662 Americans United for

ion of Church

MARK H. LYNCH a clones

pone gg 1310 L St. NW, Ste. 200

Washington, DC 20005

JOHN W. SORRENTI (202) 466-3234

JOSE E. ARVELO katskee@au.org

KATHRYN CAHOY

REBECCA G. VAN TASSELL

Covington & Burling, LLP

One City Center

850 10th St. NW

Washington, DC 20001

(202) 662-6000

Counsel for Amici Curiae

MARCH 2018

+ Admitted in New York; supervised by Richard B. Katskee of the D.C. Bar

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