State of Hawaii v. Trump

Filing 105

MEMORANDUM in Support re 65 MOTION for Temporary Restraining Order Comprising Brief of Amici Curiae Americans United for Separation of Church and State and the Southern Poverty Law Center in Support of Plaintiffs' Motion for a Temporary Restraining Order filed by American United for Separation of Church and State and Southern Poverty Law Center. (Strauss, Steven)

STEVEN D. STRAUSS
(HI Bar No. 005242)
Post Office Box 11517
Hilo, HI 96721
[phone]

RICHARD B. KATSKEE*
KELLY M. PERCIVAL*
ANDREW L. NELLIS*
Americans United for Separation
of Church and State
1310 L Street NW, Suite 200
Washington, DC 20005
[phone]
* Motions for admission pro hac
vice pending.

Counsel for Amici Curiae

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
STATE OF HAWAI‘I, et al.,
Plaintiffs,
Civil Action
No. 1:17-cv-00050-DKW-KJM

v.
DONALD J. TRUMP, President
of the United States, et al.,
Defendants.

BRIEF OF AMICI CURIAE AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE AND THE
SOUTHERN POVERTY LAW CENTER IN SUPPORT OF PLAINTIFFS’
MOTION FOR A TEMPORARY RESTRAINING ORDER

CORPORATE DISCLOSURE STATEMENT
Amici

are

nonprofit

corporations.

They

have

no

parent

corporations, and no publicly held corporation owns any portion of either
of them.

i

TABLE OF CONTENTS

Interests of the Amici Curiae ..................................................................... 1
Background ................................................................................................. 1
Argument .................................................................................................... 4
A. Plaintiffs Are Likely To Succeed On The Merits Because The
Replacement Executive Order Continues To Violate The
Establishment Clause. ........................................................................ 5
1.

The Executive Order fails the Larson Test. ................................ 6

2.

The Executive Order fails the Endorsement Test. ..................... 9

3.

The Executive Order fails the Lemon Test................................ 20

B. The Balance Of Harms And The Public Interest Favor A
TRO. ................................................................................................... 24
Conclusion ................................................................................................. 26

TABLE OF AUTHORITIES
Page(s)
Cases
Awad v. Ziriax,
670 F.3d 1111 (10th Cir. 2012) .............................................................. 7
Aziz v. Trump,
No. 1:17-cv-116, 2017 WL 580855
(E.D. Va. Feb. 13, 2017) ............................................................... passim
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) .............................................................. 25
County of Allegheny v. ACLU,
492 U.S. 573 (1989) ................................................................................ 9
Edwards v. Aguillard,
482 U.S. 578 (1987) .............................................................................. 21
Elrod v. Burns,
427 U.S. 347 (1976) .......................................................................... 5, 25
Epperson v. Arkansas,
393 U.S. 97 (1968) .................................................................................. 4
Exodus Refugee Immigration, Inc. v. Pence,
838 F.3d 902 (7th Cir. 2016) ................................................................ 19
Gordon v. Holder,
721 F.3d 638 (D.C. Cir. 2013) .............................................................. 24
Green v. Haskell Cty. Bd. of Comm’rs,
568 F.3d 784 (10th Cir. 2009) .............................................................. 11
Hassan v. City of New York,
804 F.3d 277 (3d Cir. 2015) ........................................................... 19, 20
Hernandez v. Comm’r,
490 U.S. 680 (1989) ................................................................................ 6
Kitzmiller v. Dover Area Sch. Dist.,
400 F. Supp. 2d 707 (M.D. Pa. 2005)............................................. 11, 17

TABLE OF AUTHORITIES—continued
Page(s)

Korematsu v. United States,
323 U.S. 214 (1944) .............................................................................. 19
Larson v. Valente,
456 U.S. 228 (1982) ........................................................................ 4, 6, 8
Lemon v. Kurtzman,
403 U.S. 602 (1971) .................................................................... 6, 20, 23
Lynch v. Donnelly,
465 U.S. 668 (1984) .................................................................... 9, 17, 21
McCreary County, Ky. v. ACLU of Ky.,
545 U.S. 844 (2005) ...................................................................... passim
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) .......................................................... 24, 25
Modrovich v. Allegheny County,
385 F.3d 397 (3d Cir. 2004) ................................................................... 6
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) .............................................................. 6, 10, 17, 21
Van Orden v. Perry,
545 U.S. 677 (2005) ............................................................................ 4, 5
Vernon v. City of Los Angeles,
27 F.3d 1385 (9th Cir. 1994) ................................................................ 23
Wallace v. Jaffree,
472 U.S. 38 (1985) ................................................................................ 10
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) .......................................................... 3, 25
Washington v. Trump,
No. 2:17-cv-141, 2017 WL 462040
(W.D. Wash. Feb. 3, 2017) ..................................................................... 3
Weinbaum v. City of Las Cruces,
541 F.3d 1017 (10th Cir. 2008) ............................................................ 10

iv

TABLE OF AUTHORITIES—continued
Page(s)

Constitution

U.S. Const. amend. I......................................................................... passim
Other Authorities
Ronn Blitzer, President Trump Signs
New Travel Ban Executive Order, LAW NEWZ
(Mar. 6, 2017), http://bit.ly/2nesEhE .............................................. 3, 13
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 .......................................................................... 22
Donald J. Trump Statement on Preventing Muslim
Immigration, DONALD J. TRUMP FOR PRESIDENT
(Dec. 7, 2015), http://bit.ly/1jKL2eW ............................................. 12, 22
Donald Trump Remarks in Manchester, New Hampshire,
C-SPAN (June 13, 2016), http://cs.pn/2k7bHGq............................... 1, 2
Emergency Motion, Washington v. Trump,
847 F.3d 1151 (No. 17-35105) .............................................................. 25
Exec. Order No. 13,769,
82 Fed. Reg. 8977 (Jan. 27, 2017) ......................................................... 2
Exec. Order No. 13,780,
82 Fed. Reg. 13,209 (Mar. 6, 2017).............................................. passim
Anna Giaritelli, Conway Explains Why ‘Muslim, Islam’
Not in Trump Refugee Order, WASH. EXAMINER
(Jan. 27, 2017), http://washex.am/2nmZv2Z......................................... 2
Laura Jarrett et al., Trump Delays New Travel Ban
After Well-Reviewed Speech, CNN
(Mar. 1, 2017), http://tinyurl.com/zc9kwcg ................................... 15, 16
Andrew Kaczynski, Steve Bannon in 2010: ‘Islam Is Not a
Religion of Peace. Islam Is a Religion of Submission,’
CNN (Jan. 31, 2017), http://cnn.it/2knpxSE ....................................... 14
v

TABLE OF AUTHORITIES—continued
Page(s)

Jens Manuel Krogstad & Jynnah Radford,
Key Facts About Refugees to the U.S., PEW RES. CTR.
(Jan. 30, 2017), http://pewrsr.ch/2kk7ro8 ........................................... 12
Phil McCausland et al., Donald Trump Expected to
Sign New Immigration Order: A Timeline, NBC News
(Mar. 6, 2017), https://tinyurl.com/hk4zn7m ...................................... 15
Meet the Press, NBC NEWS (July 24, 2016)
http://nbcnews.to/29TqPnp ........................................................... 12, 13
Ellen Nakashima, Domestic Extremists Have Killed
More Americans than Jihadists Since 9/11. How
the Government Is Responding, WASH. POST
(Oct. 15, 2015), http://wapo.st/1Qh8Kft ............................................... 9
Alex Nowrasteh, Where Do Terrorists Come From? Not
the Nations Named in Trump Ban, NEWSWEEK
(Jan. 31, 2017), http://bit.ly/2kWoddx ................................................... 8
Evan Perez et al., Inside the Confusion of the Trump
Executive Order and Travel Ban, CNN
(Jan. 30, 2017), http://cnn.it/2kGdcZy ................................................. 14
PEW RES. CTR., THE GLOBAL RELIGIOUS LANDSCAPE (2012),
http://bit.ly/2k4Us8B............................................................................ 11
Presidential Candidate Donald Trump Town Hall Meeting
in Londonderry, New Hampshire, C-SPAN
(Feb. 8, 2016), http://cs.pn/2kY4f1T ...................................................... 2
The Republican Ticket: Trump and Pence, CBS NEWS
(July 17, 2016), http://cbsn.ws/29NrLqj .......................................... 3, 13
Darlene Superville, Trump Lashes Out at Federal Judge
Over Ruling on Travel Ban, ST. LOUIS POST-DISPATCH
(Feb. 4, 2017), http://bit.ly/2n7zuso ..................................................... 15
Transcripts, Anderson Cooper 360 Degrees,
CNN (Mar. 9, 2016), http://cnn.it/2jJmaEC .......................................... 1
U.S. DEP’T OF STATE, COUNTRY REPORTS ON TERRORISM 2015,
https://tinyurl.com/jap2fpf ..................................................................... 9
vi

TABLE OF AUTHORITIES—continued
Page(s)

Amy B. Wang, Trump Asked for a ‘Muslim Ban,’
Giuliani Says—and Ordered a Commission to
Do It ‘Legally,’ WASH. POST
(Jan. 29, 2017), http://wapo.st/2jLbEO5 ............................................. 13

Matt Zapotosky, DHS Report Casts Doubt on Need for
Trump Travel Ban, WASH. POST
(Feb. 24, 2017), http://wapo.st/2lOkpKW ...................................... 14, 26

vii

INTERESTS OF THE AMICI CURIAE1
As detailed in the accompanying motion, amici curiae are nonprofit
public-interest organizations committed to preserving religious freedom.
Because the challenged Executive Order discriminates against Muslims
based solely on their faith, and because constitutional injuries will accrue
immediately if the Executive Order takes effect, amici have a strong
interest in ensuring that a temporary restraining order is granted.
BACKGROUND
President Trump has spent more than a year promising to ban
Muslims from entering the United States. During that time, he has
repeatedly disparaged and attacked an entire religion and all its
adherents because he says that it is “hard to separate . . . who is who”
between Muslims and terrorists. Transcripts, Anderson Cooper 360
Degrees, CNN (Mar. 9, 2016), http://cnn.it/2jJmaEC. He has insisted that,
without a Muslim ban, “hundreds of thousands of refugees from the
Middle East” will attempt to “take over” and radicalize “our children.”

No counsel for a party authored this brief in whole or in part, and no
party or person other than amici, their members, or their counsel made
a monetary contribution intended to fund the brief’s preparation or
submission. A motion accompanies this brief.
1

1

Donald Trump Remarks in Manchester, New Hampshire, C-SPAN 20:05
(June 13, 2016), http://cs.pn/2k7bHGq. He has warned that Syrian
refugees would “be a better, bigger, more horrible version than the
legendary Trojan Horse.” Id. And when he has “talked about the
Muslims,” he has explained: “we have to have a ban . . . it’s gotta be a
ban.” Presidential Candidate Donald Trump Town Hall Meeting in
Londonderry,

New

Hampshire,

C-SPAN

28:00

(Feb.

8,

2016),

http://cs.pn/2kY4f1T.
One week into his presidency, President Trump made good on these
campaign promises by barring entry to the United States from seven
predominantly Muslim countries and implementing a system to ban even
more Muslims, from other countries, in the months to come. See Exec.
Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017). When called to task
over this unconstitutional discrimination on the basis of religion, the
government insisted that the Executive Order avoided illegality because
it was written to target certain countries rather than expressly naming
Muslims. See, e.g., Anna Giaritelli, Conway Explains Why ‘Muslim,
Islam’ Not in Trump Refugee Order, WASH. EXAMINER (Jan. 27, 2017),
http://washex.am/2nmZv2Z. But President Trump had already explained
2

the point of this linguistic subterfuge: When challenged over the illegality
of banning an entire religion and its adherents, then-candidate Trump
responded: “So you call it territories. OK? We’re gonna do territories.”
The Republican Ticket: Trump and Pence, CBS NEWS (July 17, 2016),
http://cbsn.ws/29NrLqj.
As the Ninth Circuit and the U.S. District Courts for the Western
District of Washington and the Eastern District of Virginia have already
recognized, the artifice does not change the basic fact that the first
Executive Order was the promised Muslim ban, and hence it is
unconstitutional. See Washington v. Trump, 847 F.3d 1151 (9th Cir.
2017); Washington v. Trump, No. 2:17-cv-00141-JLR, 2017 WL 462040
(W.D. Wash. Feb. 3, 2017); Aziz v. Trump, No. 1:17-cv-116, 2017 WL
580855 (E.D. Va., Feb. 13, 2017).
Blocked in court, President Trump promised to continue to litigate
the existing ban and to issue a new Executive Order that would
supplement the first one, explaining that his next attempt would be a
continuation and extension of the previous effort. See Ronn Blitzer,
President Trump Signs New Travel Ban Executive Order, LAW NEWZ
(Mar. 6, 2017), http://bit.ly/2nesEhE. The result was Executive Order No.
3

13,780, 82 Fed. Reg. 13,209, § 13 (Mar. 6, 2017). This replacement
Executive Order continues the ban on entry to the United States of
persons from six of the same seven predominantly Muslim countries,
while creating special enhanced procedures for addressing persons from
the seventh. Id. §§ 1(f), 2(c), 4.
To be sure, the replacement Executive Order purports to address
some concrete failings of the original version that the courts have
identified, such as the exclusion of lawful permanent residents. Id. § 3(b).
But it does not get to the basic defect: The efforts are all designed and
intended to effect President Trump’s promised ban on Muslims. Indeed,
President Trump’s Senior Policy Adviser, Stephen Miller, declared that
the replacement Executive Order will produce the “same basic policy
outcome” as the first. Sec. Am. Compl. ¶ 74.
ARGUMENT
“The First Amendment mandates governmental neutrality between
religion and religion,” forbidding official discrimination. Epperson v.
Arkansas, 393 U.S. 97, 104 (1968); accord, e.g., McCreary County, Ky. v.
ACLU of Ky., 545 U.S. 844, 860 (2005); Larson v. Valente, 456 U.S. 228,
246 (1982). In mandating neutrality, the Religion Clauses “seek to assure
4

the fullest possible scope of religious liberty and tolerance for all [and]
. . . seek to avoid that divisiveness based upon religion that promotes
social conflict, sapping the strength of government and religion alike.”
Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring)
(internal quotation marks and citation omitted).
Ignoring this clear constitutional command, the government has
singled out one religious group—Muslims—for official disfavor and
maltreatment. By instituting a punishing ban on Muslim immigrants,
the government runs roughshod over core First Amendment protections.
Because

the

Executive

Order

violates

fundamental

First

Amendment rights, the injuries that it inflicts are irreparable as a matter
of law. Elrod v. Burns, 427 U.S. 347, 373 (1976). And because the harms
are imminent and extraordinary, a temporary restraining order should
issue.
A.

Plaintiffs Are Likely To Succeed On The Merits Because
The Replacement Executive Order Continues To Violate
The Establishment Clause.
At least three tests apply in determining whether governmental

action violates the Establishment Clause. First, when the government
confers a denominational preference—when it acts to favor or disfavor
5

one faith or denomination over others—its conduct is subject to strict
scrutiny and presumptively does not stand. Larson, 456 U.S. at 246.
Second, the action is reviewed to determine whether the government is
endorsing—placing its stamp of approval on—religion or certain religious
beliefs. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308
(2000). Third, the action is evaluated under Lemon v. Kurtzman, 403 U.S.
602 (1971), to determine, among other considerations, whether the
government acted with a religious purpose and whether the effect of the
government’s action is to favor or disfavor religion or a particular faith.
It is customary to apply all the tests pertinent to the particular facts. See,
e.g., Modrovich v. Allegheny County, 385 F.3d 397, 400–01 (3d Cir. 2004);
see also Hernandez v. Comm’r, 490 U.S. 680, 695 (1989) (courts should
apply Larson when relevant before proceeding to Lemon). Failure to
satisfy any of these tests invalidates the challenged action. The Executive
Order fails them all.
1.

The Executive Order fails the Larson Test.

“The clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over another.”
Larson, 456 U.S. at 244; accord McCreary, 545 U.S. at 875 (“the
6

government may not favor one religion over another, or religion over
irreligion, religious choice being the prerogative of individuals”). Thus,
when the government designates one denomination for different
treatment—favorable or unfavorable—its action is subject to strict
scrutiny under Larson. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1129–30
(10th Cir. 2012) (applying strict scrutiny to and invalidating state law
disfavoring Islam).
a. The replacement Executive Order continues to single out six
countries that are almost entirely Muslim and subjects those who were
born in or come from those countries—i.e., Muslims—to harsh legal
disabilities. Exec. Order 13,780 §§ 1(f), 2(c). The disfavored status is not
limited to people abroad; many within the United States will be harmed.
For example, citizens of any of the six targeted countries who are lawfully
residing in this country on a single-entry visa will be unable to leave the
country for fear of being denied reentry. And U.S. citizens with relatives
in the targeted countries will be separated from their loved ones. See Sec.
Am. Compl. ¶¶ 24–27.

7

Such straightforward religious favoritism is “suspect” and calls for
“strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at
246.
b. For purposes of the strict-scrutiny analysis, the government has
asserted an interest in “protect[ing] its citizens from terrorist attacks,
including those committed by foreign nationals.” Exec. Order 13,780
§ 1(a). Preventing terrorism is a compelling interest. But the Executive
Order must be “closely fitted to further the interest.” Larson, 456 U.S. at
248. It isn’t.
A policy of suddenly, flatly, and universally excluding Muslims
without regard to whether they have any connection whatever to
terrorism is not the least restrictive means to fight terrorism. People from
the countries listed in the Executive Order have, collectively, killed zero
people in terrorist attacks in the United States since 1975. Alex
Nowrasteh, Where Do Terrorists Come From? Not the Nations Named in
Trump Ban, NEWSWEEK (Jan. 31, 2017), http://bit.ly/2kWoddx. Not a
single one of the top five countries of origin for foreign-born perpetrators
of terrorism in the United States is listed in or covered by the Executive
Order. See id. Homegrown terrorism—by non-Muslims—is a far greater
8

threat and causes significantly more deaths, yet the Executive Order
leaves that problem entirely unaddressed. See, e.g., Ellen Nakashima,
Domestic Extremists Have Killed More Americans than Jihadists Since
9/11. How the Government Is Responding, WASH. POST (Oct. 15, 2015),
http://wapo.st/1Qh8Kft. And the Executive Order does not cover any of
the non-Muslim countries that the U.S. Department of State has
identified as “Terrorist Safe Havens.” Cf. U.S. DEP’T OF STATE, COUNTRY
REPORTS

ON

TERRORISM 2015, https://tinyurl.com/jap2fpf. Hence, the

policy’s fit with the government’s asserted interest is not merely loose; it
is nonexistent. See Aziz, 2017 WL 580855, at *3.
2.

The Executive Order fails the Endorsement Test.

The Establishment Clause forbids government to “discriminate
among persons on the basis of their religious beliefs and practices” and
hence “prohibits government from appearing to take a position on
questions of religious belief or from ‘making adherence to a religion
relevant in any way to a person’s standing in the political community.’ ”
County of Allegheny v. ACLU, 492 U.S. 573, 590, 594 (1989) (quoting
Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring)).
“[T]he government may not favor one religion over another” by endorsing
9

the one or condemning the other. McCreary, 545 U.S. at 875. Yet the
Executive Order does exactly that.
a. The Establishment Clause is violated by “both perceived and
actual endorsement of religion.” Santa Fe, 530 U.S. at 305. Hence the
question under the Endorsement Test is “ ‘whether an objective observer
. . . would perceive” the government to have placed its stamp of approval
or disapproval on religion or on a particular faith. Id. at 308 (quoting
Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring in the
judgment)). This hypothetical “ ‘objective observer’ is presumed to know
far more than most actual members of a given community.” Weinbaum v.
City of Las Cruces, 541 F.3d 1017, 1031 n.16 (10th Cir. 2008). Most
notably, the objective observer is “presumed to be familiar with the
history of the government’s actions and competent to learn what history
has to show.” McCreary, 545 U.S. at 866. What is more, even officially
repudiated past acts are not “dead and buried” but remain in the
reasonable observer’s memory, affecting how the final governmental
action is viewed. Id. at 870.
Hence, as a matter of law, the public’s view and understanding of
the challenged policy here and the entire history of publicly available
10

information about its genesis and evolution must be considered in
determining

whether

the

replacement

Executive

Order

is

an

unconstitutional religious endorsement. See McCreary, 545 U.S. at 866;
Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 801 (10th Cir. 2009);
Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 734 (M.D. Pa.
2005). If a reasonable observer considering the full history and context of
the policy would perceive governmental endorsement, even if the
government did not intend it, the policy cannot stand. See McCreary, 545
U.S. at 866.
b. Disapproval of Islam and approval of other faiths is apparent
from the bare text of the Executive Order. Sections 1 and 2 single out for
exclusion persons from six overwhelmingly Muslim nations: Iran (99.5%
Muslim), Libya (96.6% Muslim), Somalia (99.8% Muslim), Sudan (90.7%
Muslim), Syria (92.8% Muslim), and Yemen (99.1% Muslim). See Exec.
Order 13,780 §§ 1(f), 2(c); PEW RES. CTR., THE GLOBAL RELIGIOUS
LANDSCAPE 45–50 (2012), http://bit.ly/2k4Us8B. Section 4 requires
additional screening procedures for persons from Iraq (99.0% Muslim).
PEW RES. CTR., supra, at 47. And Section 6 blocks entry of all refugees
temporarily (Exec. Order 13,780 § 6(a))—disproportionately affecting
11

Muslims because Muslims made up a plurality of all refugees resettled
in the United States last year, the number of Muslim refugees having
increased almost every year over the past decade. Jens Manuel Krogstad
& Jynnah Radford, Key Facts About Refugees to the U.S., PEW RES. CTR.
(Jan. 30, 2017), http://pewrsr.ch/2kk7ro8. The intention to disfavor
Muslims, and only Muslims, is pellucid.
c. Though these features of the Executive Order alone suffice to
communicate official preference for non-Muslims, as a matter of law the
objective observer knows much more.
First, both Executive Orders on immigration are rooted in thencandidate Trump’s public and repeated promises of a “total and complete
shutdown of Muslims entering the United States.” Donald J. Trump
Statement on Preventing Muslim Immigration, DONALD J. TRUMP

FOR

PRESIDENT (Dec. 7, 2015), http://bit.ly/1jKL2eW.
Second, candidate Trump renamed and repackaged his Muslim ban
only after public outcry over its illegality, candidly explaining that
because “[p]eople were so upset when [he] used the word Muslim,” he
would no longer “use the word Muslim” but would now be “talking
territory instead of Muslim.” Meet the Press, NBC NEWS (July 24, 2016)
12

http://nbcnews.to/29TqPnp; see also The Republican Ticket: Trump and
Pence, supra (“[C]all it whatever you want. We’ll call it territories, OK?”).
Third, President Trump publicly described this change as not “a
pull-back” but “an expansion” of his Muslim ban. Meet the Press, supra
(emphasis added).
Fourth, after the election, President-elect Trump asked Rudy
Giuliani (then a vice-chair of the President-elect’s transition team) how
the “Muslim ban” could be implemented “legally.” Amy B. Wang, Trump
Asked for a ‘Muslim Ban,’ Giuliani Says—and Ordered a Commission to
Do It ‘Legally,’ WASH. POST (Jan. 29, 2017), http://wapo.st/2jLbEO5.
Fifth, the President originally announced that he would issue what
would become the replacement Executive Order as a supplement to its
enjoined precursor, while still fighting also to resurrect the earlier effort.
See Blitzer, supra.
Sixth, the replacement Executive Order on its face announces its
purpose to continue the work of the enjoined one. Exec. Order 13,780
§ 1(i).

13

Seventh, as noted above, the President’s Senior Policy Adviser
specifically announced that the replacement Executive Order would have
the “same basic policy outcome” as the earlier one. Sec. Am. Compl. ¶ 74.
Eighth,

the

objective

observer

will

also

be

aware

that,

notwithstanding the President’s insistence that his Muslim ban is
necessary to ensure national security, the first Executive Order was
crafted not by national-security experts but by political advisers, who
themselves have a public record of hostility toward Muslims. Evan Perez
et al., Inside the Confusion of the Trump Executive Order and Travel Ban,
CNN (Jan. 30, 2017), http://cnn.it/2kGdcZy; Andrew Kaczynski, Steve
Bannon in 2010: ‘Islam Is Not a Religion of Peace. Islam Is a Religion of
Submission,’ CNN (Jan. 31, 2017), http://cnn.it/2knpxSE. Although less
is yet known about who may have drafted the replacement Executive
Order, the Department of Homeland Security has determined that
“citizenship is an ‘unreliable’ threat indicator and that people from the
seven [now six] countries have rarely been implicated in U.S.-based
terrorism” (Matt Zapotosky, DHS Report Casts Doubt on Need for Trump
Travel Ban, WASH. POST (Feb. 24, 2017), http://wapo.st/2lOkpKW),
leaving not even a fig leaf of justification for the measure.
14

d. If all of that were not enough, the timing of the issuance of the
replacement Executive Order further belies the government’s attempts
to describe it as anything other than a continuation of the previous
unconstitutional efforts to ban Muslims.
The Western District of Washington issued a nationwide temporary
restraining order on February 3. President Trump immediately began
repeating his declarations from the campaign trail that immediate
measures were urgently needed to prevent imminent threats of terrorist
acts. See, e.g., Darlene Superville, Trump Lashes Out at Federal Judge
Over Ruling on Travel Ban, ST. LOUIS POST-DISPATCH (Feb. 4, 2017),
http://bit.ly/2n7zuso. After several promised dates for a new or
supplemental executive order came and went, an administration official
stated that the President would issue the supplemental executive order
on March 1—the day after the President’s first address to a joint session
of Congress. Phil McCausland & Hallie Jackson, Donald Trump Expected
to Sign New Immigration Order: A Timeline, NBC NEWS (Mar. 6, 2017),
https://tinyurl.com/hk4zn7m.
But then after delivering that speech late on the evening of
February 28, the President “delayed plans to sign a reworked travel ban
15

in the wake of positive reaction to his first address to Congress.” See
Laura Jarrett et al., Trump Delays New Travel Ban After Well-Reviewed
Speech,

CNN

(Mar.

1,

2017),

http://tinyurl.com/zc9kwcg.

The

administration described the resulting delay (of nearly a week, as it
turned out) as intended to let the replacement Executive Order “have its
own ‘moment’ ”—in other words, not disrupt the news cycle and detract
from the favorable press coverage that the President’s speech was
receiving. Id.
If there really were a grave and imminent threat of terrorist attacks
that warranted an immediate and decisive ban on immigration, as the
President and his advisers have been insisting, it is hard to understand
how prolonging the favorable press coverage for a speech could so readily
trump the security of the nation. Hence, the reasonable, objective
observer cannot help but question the genuineness of the stated dire need
for the action here. The inevitable conclusion is that the President was
driven instead by the desire to make good on campaign promises to ban
Muslims—without regard to whether the purported threat of terrorism
is genuine.

16

e. In these and numerous other respects, the acts and public
statements by President Trump, his advisers and surrogates, and the
members of his administration who developed the Executive Orders, as
well as the broader “social context” in which the Executive Orders were
issued (Kitzmiller, 400 F. Supp. 2d at 734), all underscore to the
reasonable observer that the government is continuing to pursue the
President’s promised Muslim ban. An objective observer would notice “a
purposeful change of words . . . effected without any corresponding
change in content.” Id. at 721 (emphasis in original); cf. Sec. Am. Compl.
¶ 74 (quoting Stephen Miller). Thus, the objective observer cannot help
but perceive a strong message of governmental condemnation of Islam
and an accompanying message of official preference for other faiths.
Straightforwardly, the objective observer would thus conclude that the
Executive Order treats Muslims as “outsiders, not full members of the
political community,” and persons of other faiths as “insiders, favored
members of the political community.” Santa Fe, 530 U.S. at 309–10
(quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)).
f. It is of no moment that the six countries targeted in the
replacement Executive Order (and the seven targeted in the first
17

attempt) have previously been subjected to heightened immigration
measures. For the objective observer, “purpose matters.” McCreary, 545
U.S. at 866 n.14. Thus, “the same government action may be
constitutional if taken in the first instance and unconstitutional if it has
a sectarian heritage.” Id. “Just as Holmes’s dog could tell the difference
between being kicked and being stumbled over, it will matter to objective
observers whether [an Executive Order] follows on the heels of
[statements] motivated by sectarianism, or whether it lacks a history
demonstrating that purpose.” Id.
g. Simply put, the government cannot wash away the President’s
statements and the other publicly available information about the history
of the Executive Order by insisting that this most recent iteration “was
not motivated by animus toward any religion.” Exec. Order 13,780
§ 1(b)(iv). The Endorsement Test requires that past information be
considered, as an objective test of how the objective observer in the public
would view the challenged action. And as Judge Brinkema of the U.S.
District Court for the Eastern District of Virginia observed in
preliminarily enjoining the first version of the Executive Order, “a person
is not made brand new simply by taking the oath of office.” Aziz, 2017 WL
18

580855, at *8. As a matter of law, what candidate Trump and Presidentelect Trump promised illuminates what President Trump has now done.
Moreover, the Executive Orders are not “the same government
action” (McCreary, 545 U.S. at 866 n.14) as those that previously
identified the countries as areas of concern. The Executive Order
uniformly bans all immigrants and visitors from the targeted countries.
Cf. Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 904–05 (7th
Cir. 2016) (holding that excluding all Syrian refugees as dangerous per
se is unlawful discrimination). It send the strong message that all
Muslims bear collective responsibility and are under collective suspicion
for what some people—from entirely different countries—have done,
supposedly in the name of Islam. “[T]o infer that examples of individual
disloyalty prove group disloyalty and justify discriminatory action
against the entire group is to deny that under our system of law
individual guilt is the sole basis for deprivation of rights.” Korematsu v.
United States, 323 U.S. 214, 240 (1944) (Murphy, J., dissenting).
Collective maltreatment on the basis of faith sends the strongest possible
message that a religion is disfavored—evoking some of the most sordid
episodes in American history. See Hassan v. City of New York, 804 F.3d
19

277, 309 (3d Cir. 2015) (“We have been down similar roads before.
Jewish-Americans during the Red Scare, African-Americans during the
Civil Rights Movement, and Japanese-Americans during World War II
are examples that readily spring to mind.”).
Simply put, the Executive Order communicates loudly and clearly
that Muslims are a disfavored caste. That is not a message that the
government can or should convey. “When the government associates one
set of religious beliefs with the state and identifies nonadherents as
outsiders, it encroaches upon the individual’s decision about whether and
how to worship.” McCreary, 545 U.S. at 883 (O’Connor, J., concurring).
The violation of the Establishment Clause here is forthright and flagrant.
3.

The Executive Order fails the Lemon Test.

For similar reasons, the Executive Order also fails the Lemon Test,
under which governmental action must have a preeminently secular
purpose (McCreary, 545 U.S. at 864) and must have a “principal or
primary effect . . . that neither advances nor inhibits religion” (Lemon,
403 U.S. at 612)). Failure to satisfy either requirement constitutes an
Establishment Clause violation. See id. at 612–13.

20

a. The secular-purpose requirement is violated if the “government’s
actual purpose is to endorse or disapprove of religion.” Edwards v.
Aguillard, 482 U.S. 578, 585 (1987) (quoting Lynch, 465 U.S. at 690
(O’Connor, J., concurring)). It is not enough for the government merely
to articulate a secular purpose: “the secular purpose required has to be
genuine, not a sham, and not merely secondary to a religious objective.”
McCreary, 545 U.S. at 864. As with the Endorsement Test, “[t]he eyes
that look to purpose belong to an objective observer.” Id. at 862 (internal
quotation marks omitted) (quoting Santa Fe, 530 U.S. at 308). And
because “reasonable observers have reasonable memories,” the Court
must not “turn a blind eye to the context” but must “look to the record of
evidence showing the progression leading up to” the challenged action.
Id. at 866, 868 (quoting Santa Fe, 530 U.S. at 315). In this case, the
context includes President Trump’s and his advisers’ statements and
actions both before and after his inauguration. See Aziz, 2017 WL 580855,
at *8.
President Trump’s clear, unambiguous statements of purpose as a
candidate, as President-elect, and now as President (only a few of which
are detailed above), and the rest of the substantial and very public history
21

leading up to the first and the replacement Executive Orders, all bespeak
the purpose to disfavor Islam—a religious minority in the United States.
The President and his campaign surrogates and policy advisers promised
a “total and complete shutdown of Muslims entering the United States”
and an immigration program that would favor Christians. See Donald J.
Trump Statement, supra; 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. Their first Executive
Order delivered on that promise. See Aziz, 2017 WL 580855, at *9. So
does its replacement.
The incantation of ‘national security’ simply does not explain the
actions actually taken, including, most recently, the administration’s
decision to delay the replacement Executive Order to enjoy a honeymoon
of favorable press coverage following the President’s address to Congress.
Hence, the government’s proffered justification for the Executive Order
must be deemed either a “sham” or “merely secondary” to an
impermissible purpose (McCreary, 545 U.S. at 864) to disfavor, vilify, and
shun Muslims.

22

b. The Executive Order also fails Lemon’s principal-effect
requirement by inhibiting Islam and advancing other faiths for the
reasons explained above. See Section A.2, supra. See generally Lemon,
403 U.S. at 612.
The effect requirement is violated when “it would be objectively
reasonable for the government action to be construed as sending
primarily a message of either endorsement or disapproval of religion.”
Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir. 1994). The fact
that the replacement Executive Order now allows a person from a banned
country to apply for a waiver does not purge the government’s action of
its improper effects. See Exec. Order 13,780 § 3(c). The Executive Order
still directs U.S. customs and immigration officials to subject persons
from overwhelmingly Muslim countries to special, more onerous
procedures in seeking permission to enter the United States. Having to
seek a special waiver from the otherwise strict rule of exclusion, far from
being a boon to these individuals, is just another special burden on
Muslims that others do not face.

23

*

*

*

Rather than undertake a careful examination of existing federal
immigration policy to determine what may be needed to ensure national
security, President Trump did what he has been promising for over a
year: He banned Muslims. Because the Executive Order is grounded in
religious animus, strict scrutiny cannot be satisfied, and the
government’s constitutionally and morally indefensible policy cannot
stand.
B.

The Balance Of Harms And The Public Interest Favor A
TRO.
A TRO is appropriate to protect against imminent and

unconstitutional official discrimination against Muslims. Amici agree
that if the Executive Order goes into effect, Plaintiffs will suffer
irreparable injuries for which there would be no adequate remedy. Mem.
Supp. Pls.’ Mot. TRO 45–49.
What is more, “enforcement of an unconstitutional law is always
contrary to the public interest.” Gordon v. Holder, 721 F.3d 638, 653 (D.C.
Cir. 2013); accord Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.
2012). And because the Executive Order violates First Amendment
rights, the injuries that it inflicts are irreparable as a matter of law.
24

Washington II, 847 F.3d at 1169; Elrod, 427 U.S. at 373; Chaplaincy of
Full Gospel Churches v. England, 454 F.3d 290, 304 (D.C. Cir. 2006) (“We
. . . hold that a party alleging a violation of the Establishment Clause per
se satisfies the irreparable injury requirement of the preliminary
injunction calculus.”).
On the other side of the scales, in the Ninth Circuit proceedings
challenging the original Executive Order the government asserted
unfettered discretion to exclude an entire “class of aliens” whenever it
makes the “predictive judgment[]” that the class threatens national
security, and it argued that judicial review of those decisions offends the
public interest (Emergency Motion at 21–22, Washington II, 847 F.3d
1151 (No. 17-35105)). The replacement Executive Order is, moreover,
explicitly intended to avoid or circumvent judicial scrutiny. See Exec.
Order 13,780 § 1(i). But the government has no legitimate interest, much
less a compelling one, in enforcing unconstitutional policies. See
Melendres, 695 F.3d at 1002. It has no legitimate interest in
discriminating on the basis of religion. It has made no showing that the
challenged measures here are genuinely geared to combatting terrorism.
Cf. Aziz, 2017 WL 580855, at *10. The Department of Homeland Security
25

has, in fact, reached the opposite conclusion. See Zapotosky, supra. And
judicial review is an essential constitutional safeguard against
governmental overreach; to say that it is counter to the public interest
runs directly contrary to the basic principles on which our system of
government is premised.
The harms to the plaintiffs from the Executive Order are imminent
and extreme; the purported harms to the government are not legally
cognizable. All factors favor the entry of a TRO.
CONCLUSION
A Muslim ban by any other name is still a ban on Muslims. The
replacement Executive Order is just that; no amount of rebranding can
change its fundamental purpose and effect. People are prevented from
entering the land of the free for no reason other than their deity and
preferred holy book. The challenged Executive Order is an insult to the
fundamental

principles

of

religious

freedom

enshrined

in

our

Constitution. It cannot stand—even for a day. A temporary restraining
order should be granted.

26

Respectfully submitted,
/s/ Steven D. Strauss
RICHARD B. KATSKEE*
KELLY M. PERCIVAL*†
ANDREW L. NELLIS*††
Americans United for
Separation of Church and
State
1310 L Street, NW
Suite 200
Washington, DC 20005
[phone]

STEVEN D. STRAUSS
(HI Bar No. 005242)
Post Office Box 11517
Hilo, HI 96721
[phone]

*

pro hac vice motion pending

†

Admitted in California only.
Supervised by Richard B. Katskee,
a member of the D.C. bar.

††

Admitted in New York only.
Supervised by Richard B. Katskee,
a member of the D.C. bar.

Counsel for Amici Curiae

Date:

March 10, 2017

27

CERTIFICATE OF SERVICE
I certify that on March 10, 2017, this 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/ Steven D. Strauss