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

Filing 26

Filed (ECF) Americans United for Separation of Church and State; Southern Poverty Law Center Second Corrected Motion to become amicus curiae. Date of service: 02/06/2017. [10302890] [17-35105]--[COURT UPDATE: Updated docket text to reflect content of filing, resent notice. 02/06/2017 by LA] (Katskee, Richard) [Entered: 02/06/2017 12:44 AM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.
Plaintiffs-Appellees,
v.
DONALD TRUMP, et al.,
Defendants-Appellants.
On Motion for a Stay Pending Appeal of a Temporary
Restraining Order Issued by the United States District Court
for the Western District of Washington
Case No. 2:17-cv-141, Hon. James L. Robart
MOTION FOR LEAVE TO FILE BRIEF OF AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE, SOUTHERN POVERTY LAW CENTER,
AND AS AMICI CURIAE SUPPORTING APPELLEES AND DENIAL OF A STAY,
AND REQUEST TO FILE 2759-WORD BRIEF
KRISTI L. GRAUNKE
MICHELLE R. LAPOINTE
Southern Poverty Law Center
1989 College Avenue NE
Atlanta, GA 30317
[phone]
ANGELO J. CALFO
KRISTIN W. SILVERMAN
Calfo Eakes & Ostrovsky
PLLC
1301 Second Avenue
Suite 2800
Seattle, WA 98101
[phone]

RICHARD B. KATSKEE
ERIC ROTHSCHILD
ANDREW L. NELLIS
BRADLEY GIRARD
KELLY M. PERCIVAL
Americans United for
Separation of Church and
State
1310 L Street, NW, Suite 200
Washington, DC 20005
[phone]

Counsel for Amici Curiae

INTRODUCTION

Currently before the Court is Defendants’ emergency motion for a
stay of the temporary restraining order issued February 3, 2017, by the
U.S. District Court for the Western District of Washington (Robart, J.).
Pending determination of the State of Washington’s request for a
preliminary injunction, for which the court directed the parties to set a
briefing schedule so that the request could be decided with dispatch, the
court restrained enforcement of Executive Order No. 13,769, 82 Fed. Reg.
8977 (Jan. 27, 2017), which bars immigrants and refugees from
predominantly Muslim countries from entering or remaining in the United
States. Defendants have impermissibly appealed an unappealable
temporary restraining order and have sought a stay of that TRO pending
resolution of their putative appeal.
Americans United for Separation of Church and State and the
Southern Poverty Law Center respectfully request leave to file the
accompanying proposed amicus brief in support of Plaintiffs and against
issuance of the requested stay.
Identity and Interest of Amici Curiae
i. Amicus Americans United for Separation of Church and State is a
national, nonsectarian public-interest organization. Its mission is twofold:
(1) to advance the free-exercise rights of individuals and religious

communities to worship as they see fit, and (2) to preserve the separation
of church and state as a vital component of democratic government.
Americans United represents more than 125,000 members and supporters
across the country. Since its founding in 1947, Americans United has
regularly participated as a party, as counsel, or as an amicus curiae in
leading church–state cases decided by the United States Supreme Court
and by federal and state trial and appellate courts throughout the country.
Americans United has long defended the fundamental rights of
religious minorities in the United States by, among other things, bringing
legal challenges to governmental action that singles out particular
religions for favor or disfavor. See, e.g., Ziglar v. Abbasi, 2016 WL 7473962
(U.S. 2016) (supporting Muslim petitioners who were detained and
tortured after the terror attacks of September 11, 2001); Hassan v. City of
New York, 2014 WL 3572027 (3d Cir. 2015) (supporting challenge to New
York City Police Department’s surveillance of Muslim communities); Awad
v. Ziriax, 2011 WL 2118216 (10th Cir. 2012) (supporting challenge to
Oklahoma law that singled out Islam for official disfavor). Americans
United also advocated for the passage of the Religious Freedom
Restoration Act, 42 U.S.C. §§ 2000bb, under which a claim has been made
in this case, as well as its sister statute, the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq., and routinely

participates as counsel or as an amicus curiae in cases arising under these
statutes. See, e.g., Holt v. Hobbs, 2014 WL 2361896 (2015). Notably,
Americans United filed an amicus brief in Cutter v. Wilkinson, 544 U.S.
709 (2005), proposing the factors for the test of constitutionally
permissible religious accommodations under RFRA and RLUIPA that the
Supreme Court then adopted.
ii. Amicus Southern Poverty Law Center has provided pro bono civilrights representation to low-income persons in the Southeast since 1971,
with particular focus on seeking justice for the most vulnerable people in
society. SPLC has litigated numerous cases to enforce the civil rights of
immigrants and refugees to ensure that they are treated with dignity and
fairness. SPLC monitors and exposes extremists who attack or malign
groups of people based on their immutable characteristics. SPLC is
dedicated to reducing prejudice and improving intergroup relations. SPLC
has a strong interest in opposing governmental action premised on
unlawful discrimination that undermines the promise of civil rights for all.
REASONS WHY THE MOTION SHOULD BE GRANTED

1. The issues in this case have important ramifications for persons
living across the United States and around the world. If the challenged
TRO were to be stayed, families who currently find themselves living in
different countries will be estranged. People fleeing war-torn regions will

be turned away from this nation’s borders and given no opportunity to
seek or obtain refuge from the horrors that they face in their countries of
origin. Children coming to the United States for necessary medical care
will be shunned. People lawfully residing and working in the United
States will be prevented from traveling abroad by the threat that they will
be detained and deported when they try to return home—or if they are
already traveling abroad, they will have no way to avoid that consequence.
And people lawfully in this country and not contemplating travel abroad
are also at risk of being rounded up, detained, and deported. In short,
nothing more than religion (albeit couched in the language of national
origin or one-time residence) will determine whether hundreds of
thousands of people have access (or continued access) to the opportunities
of life in the United States.
2. What is more, it is not only the targeted Muslims who will be
affected by the implementation of the Executive Order. The seismic shift
in this Nation’s treatment of a religious minority will be felt by families,
neighborhoods, houses of worship, local businesses, and, as the district
court recognized, public universities and other public institutions. All will
suffer the loss of valued employees, customers, relatives, and members of
the community.

3. The hardships in this country and around the world that will be
caused by official discrimination against a single, disfavored religious
group highlight the importance of correctly analyzing and deciding
questions of religious-freedom rights—legal issues that amici are uniquely
positioned to assist this Court in assessing. The proposed amicus brief
explains why the Establishment Clause of the First Amendment to the
U.S. Constitution bars enforcement of the anti-Muslim Executive Order,
and hence why Plaintiffs are likely to succeed on the merits and why a
stay of the TRO would be improper. As the brief explains, the government
is forbidden to discriminate against Muslims. And it is forbidden to
endorse or disfavor one religion as compared with others. The Executive
Order does all of this and more.
4. All parties issued blanket consents to the filing of amicus briefs.
At 10:34 p.m. PST (1:34 a.m. EST) on February 5, however, amici were
informed that Defendants altered their position from straightforward
consent to all amicus briefs, now giving consent solely if the amicus briefs
were filed by the deadline for Plaintiffs’ brief of 11:59 p.m. PST (2:59 a.m.
EST)—i.e., less than an hour and a half after the notice. Amici had been
anticipating filing the brief in the morning on February 6. In light of
Defendants’ changed position, amici immediately raced to finish and
finalize their brief and this motion and endeavored to file them. It was

simply not possible, however to do so by 11:59 p.m. PST, so amici filed
very shortly thereafter, as soon as the technical aspects of the file the brief
could be resolved in accordance with the rules. Because of the late notice of
change of position from Defendants, Defendants may now be withholding
consent. Amici request that the Court accept the brief, whether as
uncontested or as contested.
5. Finally, amici respectfully request that the Court also grant leave
to file the possibly overlength proposed brief. Circuit Rule 27-1 provides
that motions may be no longer than twenty pages. Assuming that the
normal rules for amicus briefs apply to amicus briefs supporting or
opposing motions, amici would then have ten pages for their brief. Circuit
Rule 32-3(2) provides that one may comply with the court’s length
requirements by “filing a monospaced or proportionally spaced brief or
other document in which the word count divided by 280 does not exceed
the designated page limit.” Hence, we assume that the Rules allow for
2800-word amicus briefs supporting motions. The proposed brief is 2759
words. If amici have misunderstood the rules and the brief is overlength,
we respectfully request that the Court grant leave to file it regardless.
CONCLUSION

The Court should grant the request to file the proposed amicus brief
and order the Clerk to accept the accompanying brief for filing.

Date: February 6, 2017
Respectfully submitted,

KRISTI L. GRAUNKE
MICHELLE R. LAPOINTE
Southern Poverty Law Center
1989 College Avenue NE
Atlanta, GA 30317
[phone]
ANGELO J. CALFO
KRISTIN W. SILVERMAN
Calfo Eakes & Ostrovsky
PLLC
1301 Second Avenue
Suite 2800
Seattle, WA 98101
[phone]

/s/ Richard B. Katskee
RICHARD B. KATSKEE
ERIC ROTHSCHILD*
ANDREW L. NELLIS**
BRADLEY GIRARD
KELLY M. PERCIVAL***
Americans United for Separation
of Church and State
1310 L Street NW, Suite 200
Washington, D.C. 20005
[phone]
* Admitted only in Pennsylvania.
Supervised by Richard B. Katskee, a
member of the D.C. bar.
** Admitted only in New York.
Supervised by Richard B. Katskee, a
member of the D.C. bar.
*** Admitted only in California.
Supervised by Richard B. Katskee, a
member of the D.C. bar.

Counsel for Amici Curiae
Date:

February 6, 2017

CERTIFICATE OF SERVICE

I certify that on February 6, 2017, the foregoing brief 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.

/s/ Richard B. Katskee
Counsel for Amici Curiae