State of Washington, et al v. Donald J. Trump, et al

Filing 195

COURT DELETED INCORRECT ENTRY. Per counsel's request (entered in incorrect case). Notice about deletion sent to case participants registered for electronic filing. Original Text: Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Brief of Muslim Civil Rights Activists in Support of Appellees, and in Opposition to Appellants Motion for a Stay and on the Merits. Date of service: 04/21/2017. [10407166] [17-35105] (Masri, Lena) [Entered: 04/21/2017 05:50 PM]

No. 17-35105
IN THE

United States Court of Appeals
for the Ninth Circuit
_____________________
STATE OF WASHINGTON, ET AL.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, ET AL.,
Defendants-Appellants.
_____________________
On Appeal from an Entry of a Temporary Restraining Order by the
United States District Court for the Western District of Washington
Case No. 17-cv-141, Hon. James L. Robart
_____________________
Brief of Muslim Civil Rights Activists Linda Sarsour, Rashida Tlaib, Zahra
Billoo, Basim Elkarra, Hussam Ayloush, Alia Salem, Adam Soltani, Imraan
Siddiqi, Namira Islam, Karen Dabdoub, Jim Sues, Hanif Mohebi and
Jaylani Hussein as Amici Curiae, in Support of Appellees, and in Opposition
to Appellants’ Motion for a Stay and on the Merits
_____________________
LENA F. MASRI
GADEIR I. ABBAS
National Litigation Director
The Law Office of Gadeir Abbas
Council on American-Islamic
1155 F Street NW, Suite 1050
Relations (CAIR)
Washington, D.C. 20004
453 New Jersey Avenue SE
[phone]
Washington, D.C. 20003
Licensed in Virginia, not in D.C.
[phone]
Practice limited to federal matters
Attorneys for Amici Curiae

1

CONSENT OF THE PARTIES
Counsel for both Appellees and Appellants have consented to the filing of this
amicus curiae brief.
Respectfully submitted,
COUNCIL ON AMERICANISLAMIC RELATIONS
BY: /s/ Lena Masri
LENA F. MASRI (P73461)
National Litigation Director
453 New Jersey Ave, SE
Washington, DC 20003
Phone: [phone]
THE LAW OFFICE OF GADEIR
ABBAS
BY: /s/ Gadeir Abbas
GADEIR I. ABBAS
1155 F Street NW, Suite 1050
Washington, D.C. 20004
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Licensed in Virginia, not in D.C.
Practice limited to federal matters
Counsel for Amici Curiae
Dated: April 21, 2017

2

TABLE OF CONTENTS

Consent of the Parties ................................................................................................2
Table of Contents .......................................................................................................3
Table of Authorities ...................................................................................................4
Interest of Amici Curiae.............................................................................................5
Introduction ..............................................................................................................12
Argument..................................................................................................................13
I.

Like Ishmail Elshikh and the Sarsour United States citizen plaintiffs, all

American Muslims have standing to seek from federal courts a remedy to the
Trump Administration’s attempt to disfavor Islam. ............................................13
Conclusion ...............................................................................................................18
Certificate of Compliance ........................................................................................20
Certificate of Service ...............................................................................................21

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TABLE OF AUTHORITIES
Cases
Catholic League for Religious & Civ. Rights v. City & County of San Francisco, 567
F.3d 595 (9th Cir. 2009) ......................................................................................16
Cooper v. U.S. Postal Service, 577 F.3d 479 (2d Cir. 2009) ...................................16
Engel v. Vitale, 370 U.S. 421 (1962) .......................................................................16
Lynch v Donnelly, 465 U.S. 668 (1984) ..................................................................14
McCreary Cnty. v. ACLU, 545 U.S. 844 (2005) ......................................................16
Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599 (4th Cir. 2012) ...... 15, 16
Sarsour v. Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30, 2017) .............................14
Suhre v. Haywood Cty., 131 F.3d 1083 (4th Cir. 1997) ..........................................15
Van Orden v. Perry, 545 U.S. 677 (2005) ...............................................................16
Vasquez v. Los Angeles Cty., 487 F. 3d 1246 (9th Cir. 2007) ..................................15

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INTEREST OF AMICI CURIAE1
This amici curiae brief is submitted on behalf of the amici described below in
support of Appellees, and in Opposition to Appellants’ Motion for a Stay and on the
Merits. The amici, all of whom are prominent civil rights and grassroots activists,
have suffered and will continue to suffer an ongoing, concrete and irreparable harm,
in addition to psychological and spiritual consequences, since the initial
announcement of the “Muslim Ban” as a result of the defendants sending a message
of (1) disfavor and condemnation of their religion of Islam, (2) marginalization and
exclusion of Muslims, including themselves, based on the false messaging that
Muslims are prone to commit terrorism, (3) the endorsement of all religions over
their own, (4) Muslims are outsiders, dangerous, and not full members of the
political community, and (5) all non-adherents of Islam are insiders and therefore
favored. In fact, the amici have had to change their conduct adversely in that they
have been required to assist and advocate on behalf of Muslims targeted by
Executive Order 13780 entitled “Protecting the Nation from Foreign Terrorist Entry
into the United States,” issued on March 6, 2017 (hereinafter “EO-2” or “Revised

1

No counsel for a party authored this brief in whole or in part, and no party or
counsel for a party made a monetary contribution intended to fund the preparation
or submission of the brief. No person other than amici curiae or their counsel made
a monetary contribution to the preparation or submission of this brief. Fed. R. App.
P. 29(c)(5).
5

Muslim Ban”) and defend their religion as a religion of peace on national media
outlets and through grassroots efforts.
Linda Sarsour is an American Muslim residing in Kings County, New York.
Sarsour is a Palestinian activist and Executive Director of the Arab American
Association of New York. In 2016, she served as spokesperson for Presidential
Candidate Senator Bernie Sanders, and was one of three national co-chairs for the
2017 Women’s March held the day after the inauguration of Donald Trump as
President of the United States. Sarsour has appeared in “The Hijabi Monologues”
and has her own show, The Linda Sarsour Show. Sarsour is a plaintiff in Sarsour v.
Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30, 2017).
Rashida Tlaib is a Muslim American residing in Wayne County, Michigan.
Tlaib is a former Democratic member of the Michigan House of Representatives and
an attorney at the Sugar Law Center for Economic and Social Justice. Upon her
swearing in on January 1, 2009, Tlaib became the first Muslim-American woman to
serve in the Michigan Legislature, and only the second Muslim woman in history to
be elected to any state legislature in America. Tlaib is a plaintiff in Sarsour v.
Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30, 2017).
Zahra Billoo is a Muslim American residing in Santa Clara County,
California. Billoo is a civil rights attorney and the Executive Director of the Council
on American-Islamic Relations, San Francisco Bay Area (CAIR-SFBA), a chapter
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of the nation’s largest Muslim civil rights and civil liberties advocacy organization,
and a prominent civil rights activist. Billoo is frequently seen at mosques and
universities facilitating trainings and workshops as a part of CAIR’s grassroots
efforts to empower the American Muslim community and build bridges with allies
on civil rights issues. Billoo is a plaintiff in Sarsour v. Trump, No. 1:17-cv-00120
(E.D. Va. Jan. 30, 2017).
Basim Elkarra is a Muslim American residing in Sacramento County,
California. Elkarra is the Executive Director of the Council on American-Islamic
Relations, Sacramento Valley (CAIR-SAC), a chapter of the nation’s largest Muslim
civil rights and civil liberties advocacy organization, and a prominent civil rights
activist. Elkarra is a former board member of the Sacramento chapter of the
American Civil Liberties Union, and serves on the Executive Board of the California
Democratic Party. He also serves on the City of Sacramento Community Police
Commission. In 2011, the United States Embassy in London sent Elkarra to England
to meet young British Muslims as part of a strategy to promote civic engagement.
Elkarra is a plaintiff in Sarsour v. Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30,
2017).
Hussam Ayloush is a Muslim American residing in Riverside County,
California. Ayloush is the Executive Director of the Council on American-Islamic
Relations, Los Angeles (CAIR-LA), a chapter of the nation’s largest Muslim civil
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rights and civil liberties advocacy organization, and a prominent civil rights activist
and community organizer.

Ayloush is a fourth-term elected Delegate to the

California Democratic Party (CDP). He also serves on the board of the Muslim
American Homeland Security Congress (MAHSC). Ayloush is a plaintiff in Sarsour
v. Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30, 2017).
Alia Salem is a Muslim American residing in Dallas County, Texas. Salem
is the former Executive Director of the Council on American-Islamic Relations,
Dallas/Fort Worth (CAIR-DFW), a chapter of the nation’s largest Muslim civil
rights and civil liberties advocacy organization, and a prominent civil rights activist
working for social justice, understanding and empowerment in her community.
Salem’s work with CAIR-DFW has been featured on local, national and
international media outlets. Salem is a plaintiff in Sarsour v. Trump, No. 1:17-cv00120 (E.D. Va. Jan. 30, 2017).
Adam Soltani is a Muslim American residing in Oklahoma County,
Oklahoma. Soltani is the Executive Director of the Council on American-Islamic
Relations, Oklahoma (CAIR-OK), a chapter of the nation’s largest Muslim civil
rights and civil liberties advocacy organization, and a prominent civil rights activist.
Soltani currently serves as the chair of the Oklahoma Conference of Churches’
Religions United Committee and planning committee member for OKC’s JewishMuslim Film Institute. He is also a former member of the Oklahoma Democratic
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Party Religious Education Committee, former board member of the Interfaith
Alliance of Oklahoma, and a former member of Islamic Society of Greater
Oklahoma City Executive Committee. Soltani is a plaintiff in Sarsour v. Trump, No.
1:17-cv-00120 (E.D. Va. Jan. 30, 2017).
Imraan Siddiqi is a Muslim American residing in Maricopa County, Arizona.
Siddiqi is the Executive Director of the Council on American-Islamic Relations,
Oklahoma (CAIR-AZ), a chapter of the nation’s largest Muslim civil rights and civil
liberties advocacy organization. Siddiqi is a writer and prominent civil rights
activist. He has written extensively on Islamophobia, Middle East Affairs, and
issues affecting American Muslims. Siddiqi is a plaintiff in Sarsour v. Trump, No.
1:17-cv-00120 (E.D. Va. Jan. 30, 2017).
Namira Islam is a Muslim American residing in Oakland County, Michigan.
Islam is the Co-Founder and Executive Director of the Muslim Anti-Racism
Collaborative (MuslimARC), a faith-based human rights education organization
which focuses on racial justice. Islam has worked in the areas of prisoner rights, and
on international law and war crimes at the United Nations in The Hague,
Netherlands. Islam is a plaintiff in Sarsour v. Trump, No. 1:17-cv-00120 (E.D. Va.
Jan. 30, 2017).
Karen Dabdoub is a Muslim American residing in Hamilton County, Ohio.
Dabdoub is the Executive Director of the Cincinnati chapter of the Council on
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American-Islamic Relations, Ohio (CAIR-OH), a chapter of the nation’s largest
Muslim civil rights and civil liberties advocacy organization, and a prominent civil
rights activist. Dabdoub has served the community since 2006 as a commissioner
with the Cincinnati Human Relations Commission and was the president of CHRC
from 2009 - 2011. She is a founding member of Muslim Mothers Against Violence,
a local group founded in 2005 by Muslim women to take a stand against violence,
abroad and at home. She has been a member of the Martin Luther King Coalition of
Cincinnati since 2006. She is a former member of the FBI Multi-Cultural Advisory
Council and the Kentucky Commission on Human Rights Community Advisory
Committee. She was a member of Friends of Open House – Cincinnati Chapter, an
international organization that worked to bring about peace and understanding
between Palestinians and Israelis. Dabdoub appears in the documentary “A Visit to
a Mosque in America,” an educational documentary, filmed locally, that has
received national recognition and commendation. Dabdoub is a plaintiff in Sarsour
v. Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30, 2017).
Jim Sues is a Muslim American residing in Bucks County, Pennsylvania.
Sues is the Executive Director of the New Jersey chapter of the Council on
American-Islamic Relations, New Jersey (CAIR-NJ), a chapter of the nation’s
largest Muslim civil rights and civil liberties advocacy organization, and a prominent
civil rights and interfaith relations activist. Sues is also a Marketing Professional in
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the field of Telecommunications. Besides launching start-ups and acting as a
Telecommunications Consultant, he spent 20 years at IBM filling various Marketing
roles such as Product Manager, Solutions Manager, and Strategy Team Lead. Sues
is guest lecturer for Comparative Religion courses at Drew University and multiple
community colleges. He also provides diversity training for corporations and local
churches. Sues is a member of the south Orange – Maplewood Clergy Association
and has served on the Board of Directors of various Muslim organizations including
Majlis Ash-Shoora of New Jersey and the NIA Masjid in Newark, NJ. Sues is a
plaintiff in Sarsour v. Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30, 2017).
Hanif Mohebi is a Muslim American residing in San Diego County,
California. Mohebi is the Executive Director of the San Diego chapter of the Council
on American-Islamic Relations, San Diego (CAIR-SD), a chapter of the nation’s
largest Muslim civil rights and civil liberties advocacy organization, and a prominent
civil rights activist. He has appeared in both local and national media outlets and
has worked to bridge the gap between minorities and the American public. He has
emerged as a guest speaker at high schools, universities, companies and community
events on variety of topics ranging from Concepts of World Citizenship to The Cycle
of Love, to History of Anti-Civil Liberties Legislations. Mohebi is a plaintiff in
Sarsour v. Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30, 2017).

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Jaylani Hussein is a Muslim American residing in Ramsey County,
Minnesota. Hussein is the Executive Director of the San Diego chapter of the
Council on American-Islamic Relations, Minnesota (CAIR-MN), a chapter of the
nation’s largest Muslim civil rights and civil liberties advocacy organization, and a
prominent civil rights activist. Hussein worked as the Community Liaison Officer
at Metro State University and as a Planner for the Minnesota Department of
Agriculture. In 2013, he created Zeila Consultants to develop and offer crosscultural training workshops on East African cultures. He has presented on the Somali
Culture to diverse public and private organizations across the US. He specializes in
the areas of urban planning, community development, youth development (with over
8 years of experience in working in juvenile treatment centers for court adjudicated
youth), legal and civil rights. Hussein is a plaintiff in Sarsour v. Trump, No. 1:17cv-00120 (E.D. Va. Jan. 30, 2017).
INTRODUCTION
This brief is being filed to bring to the Court’s attention the 18 United States
citizen plaintiffs—all of them Muslim—in Sarsour v. Trump who, because they are
prominent Muslim activists and community leaders, accentuate the reasons why the
Establishment Clause confers Ishmail Elshikh standing. Those reasons, outlined
below, can be summarized simply. Because the Establishment Clause protects
12

against government disfavoring Islam, those who are Muslim are all affected and all
Muslim Americans can seek to prevent or end that government action that amounts
to disfavor.
ARGUMENT
I.

Like Ishmail Elshikh and the Sarsour United States citizen plaintiffs, all
American Muslims have standing to seek from federal courts a remedy
to the Trump Administration’s attempt to disfavor Islam.
For the same reasons that Ishmail Elshikh can bring his claims, all other

American Muslims have standing to challenge EO-2, which, in the final analysis, is
nothing more than a transparent attempt to disseminate a message that stigmatizes
Islam and Muslims. This contention—that all American Muslims are injured by the
executive order—is a key pillar upon which more than a dozen United States citizens
who are challenging the executive order in Sarsour v. Trump rely upon.
This broad conception of standing reflects the shocking scope of the injury
inflicted. Because the executive order disfavors Islam itself, it affects the practice
of Islam in America and impacts the religious life of this country’s Muslim
communities.

The State of Hawaii court, confronted with this situation and the

challenge of characterizing the abstract freedoms that the Establishment Clause is
aimed to protect, saw that standing for such injuries is “particularly elusive.” Hawaii
Court Decision, Dkt. 219 at Page ID 4379. But in actuality, it is not at all elusive:
when government action amounts to an endorsement of a particular faith, that action
13

“sends a message to nonadherents that they are outsiders.” Lynch v Donnelly, 465
U.S. 668, 688 (1984) (O’Connor, J., concurring). And when government action
broadcasts a message of disapproval of a particular faith, that action “sends the
opposite message.” Id. The novel question of who has standing to bring this type
of stigma-based Establishment Clause claim, then, is merged with the much simpler
question of who is affected when a particular faith is disfavored. The question
answers itself: because every American Muslim is affected by the status of Islam
and Muslims in America, a government-disseminated message disfavoring their
faith affects each of them individually as well as the collective life they all, as a
religious community share. All American Muslims are injured, so all American
Muslims have standing.
The court in Sarsour confronted this question more directly. In Sarsour,
beyond the John and Jane Doe plaintiffs with various visa-related issues, there are
18 United States citizen plaintiffs that sought to challenge the executive order on the
basis that the official disfavor that EO-2 broadcasts. The court there reasoned that
the “nature of [these types of]… constitutional claims” allows them to base their
standing on “subjective, non-economic, or intangible injuries. Order at 9, Sarsour
v. Trump, No. 1:17-cv-00120 (E.D. Va. Jan. 30, 2017), ECF No. 36. Specifically,
Sarsour identified as a basis of American Muslim standing the fact that the executive
order imposes on Muslims “the need to combat the pernicious effects of [the
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executive order] through religious advocacy and outreach.” Id. at 10. This “need to
combat the pernicious effects” of the Trump Administration’s actions belongs to not
only to the prominent American Muslim activists in Sarsour, but also to each and
every American Muslim across the country.
This jurisprudential outcome highlights a distinctive wrinkle to standing
doctrine as it pertains to Establishment Clause claims. Simply put, First Amendment
standing is unique. The courts are willing to recognize intangible harms due to the
spiritual nature of the claims. In the Fourth Circuit, where a district court judge
found standing for the Muslim citizen plaintiffs in Sarsour, “plaintiffs have been
found to possess standing when they are ‘spiritual[ly] affront[ed]’ as a result of
‘direct’ and ‘unwelcome’ contact with [alleged religious symbolism] within their
community.” Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 605 (4th
Cir. 2012) (quoting Suhre v. Haywood Cty., 131 F.3d 1083, 1086–87 (4th Cir.
1997)). The Ninth Circuit’s Establishment Clause precedent, in some ways, is even
more expansive. The Ninth Circuit determined that “adherents to a religion have
standing to challenge an official condemnation by their government of their religious
views.” Vasquez v. Los Angeles Cty., 487 F. 3d 1246, 1250 (9th Cir. 2007). Indeed,
even when the legal instrument at issue was a non-binding city council resolution
that only expressed disfavor, the Ninth Circuit has found standing. See also,
Catholic League for Religious & Civ. Rights v. City & County of San Francisco, 567
15

F.3d 595 (9th Cir. 2009). Thus, there can be no other outcome here, because to
construe Establishment Clause standing in some narrower manner would thwart the
ability of religious adherents to protect via the First Amendment their religious
liberty from government disfavor.
The desire to protect the broad constellation of freedoms which underpin
religious liberty, while abstract, animates the entirety of the canon of Establishment
Clause jurisprudence. “Feelings of marginalization and exclusion are cognizable
forms of injury, particularly in the Establishment Clause context, because one of the
core objectives of modern Establishment Clause jurisprudence has been to prevent
the State from sending a message to non-adherents of a particular religion ‘that they
are outsiders, not full members of the political community.’” Moss, 683 F.3d at 607
(quoting McCreary Cnty. v. ACLU, 545 U.S. 844, 860 (2005) (emphasis added). In
the context of alleged Establishment Clause violations, “[t]he injury often occurs
when a plaintiff comes into contact with, or is exposed to, a government-promoted
expression of religion.”

See Van Orden v. Perry, 545 U.S. 677, 682 (2005)

(plurality op.) (plaintiff challenging a display of the Ten Commandments outside the
Texas State Capitol), or in public schools, see Engel v. Vitale, 370 U.S. 421, 423
(1962) (plaintiff challenging a state program of daily classroom prayer). The injury
in an “expression” case is simply exposure to a state-sponsored religious message.
Cooper v. U.S. Postal Service, 577 F.3d 479, 489 (2d Cir. 2009). In short, the
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abstract injuries alleged by Elshikh and Sarsour’s citizen plaintiffs are exactly the
types of injuries that the Establishment Clause is aimed at eliminating.
And though such injuries are more abstract than money damages, they are still
tangible. The United States citizen plaintiffs in Sarsour, for instance, are all
prominent civil rights activists who have had to spend a significant amount of their
time after the First Muslim Ban was issued assisting and advocating on behalf of
Muslims targeted by that order and pushing back against the anti-Muslim sentiment
that the defendants have fomented and legitimized through their actions. Moreover,
some are no longer able to bring their family members from Syria and Iran to visit
them in the United States to facilitate relationships between their children and their
foreign national relatives, and the Revised Muslim Ban would subject their family
to a segregated, more onerous visa process that diminishes the prospects of their
children knowing their foreign national relatives. Each of the Sarsour citizen
plaintiffs have suffered and will continue to suffer an ongoing concrete and
irreparable harm, in addition to psychological and spiritual consequences, since the
initial announcement of the “Muslim Ban” as a result of the Defendants sending a
message of (1) disfavor and condemnation of their religion of Islam, (2)
marginalization and exclusion of Muslims, including themselves, based on the false
messaging that Muslims are prone to commit terrorism, (3) the endorsement of all
religions over their own, (4) Muslims are outsiders, dangerous, and not full members
17

of the political community, and (5) all non-adherents of Islam are insiders and
therefore favored.

They have been personally confronted with a government-

sponsored religious expression that directly touches their religious sensibilities. It
is precisely their interaction with and exposure to Defendants’ conduct that gives
rise to their injury.
CONCLUSION
For the foregoing reasons, amici respectfully request this Honorable Court
affirm the District Court’s decision.
Respectfully submitted,
COUNCIL ON AMERICANISLAMIC RELATIONS
BY: /s/ Lena Masri
LENA F. MASRI (P73461)
National Litigation Director
453 New Jersey Ave, SE
Washington, DC 20003
Phone: [phone]

18

THE LAW OFFICE OF GADEIR
ABBAS
BY: /s/ Gadeir Abbas
GADEIR I. ABBAS
1155 F Street NW, Suite 1050
Washington, D.C. 20004
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Licensed in Virginia, not in D.C.
Practice limited to federal matters
Attorneys for Amici Curiae
Dated: April 21, 2017

19

CERTIFICATE OF COMPLIANCE
I certify that the text of this brief, as electronically filed, is identical to the
paper copies submitted to the Clerk of the Court.
I further certify that pursuant to Circuit Rule 35-4 that the Brief of Muslim
Civil Rights Activists Brief of Muslim Civil Rights Activists Linda Sarsour, Rashida
Tlaib, Zahra Billoo, Basim Elkarra, Hussam Ayloush, Alia Salem, Adam Soltani,
Imraan Siddiqi, Namira Islam, Karen Dabdoub, Jim Sues, Hanif Mohebi and Jaylani
Hussein as Amici Curiae, in Support of Appellees, and in Opposition to Appellants’
Motion for a Stay and on the Merits as Amici Curiae, in Support of Appellees, and
in Opposition to Appellants’ Motion for a Stay and on the Merits is proportionately
spaced, has a typeface of 14 points or more, and contains 3,127 words of text.

Dated: April 21, 2017

/s/ Lena Masri
Lena F. Masri, Esq.

20

CERTIFICATE OF SERVICE
I certify that on April 21, 2017, the foregoing Brief of Muslim Civil Rights
Activists as Amici Curiae, in Support of Appellees, and in Opposition to Appellants’
Motion for a Stay and on the Merits was filed using the Court’s CM/ECF system.
All participants in the case are registered CM/ECF users and will be served
electronically via that system.
Dated: April 21, 2017

/s/ Lena Masri
Lena F. Masri, Esq.

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