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

Filing 48

MOTION for Leave to File Amicus Curiae Brief, filed by Amicus Americans United for Separation of Church and State. (Attachments: # 1 Proposed Order, # 2 Exhibit) Noting Date 2/2/2017, (Silverman, Kristin)

Case 2:17-cv-00141-JLR Document 48 Filed 02/02/17 Page 1 of 6

HONORABLE JAMES L. ROBART

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STATE OF WASHINGTON and
STATE OF MINNESOTA,
Plaintiffs,

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v.
DONALD TRUMP, in his official capacity as
President of the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his official
capacity as Secretary of the Department of
Homeland Security; TOM SHANNON, in his
official capacity as Acting Secretary of State;
and the UNITED STATES OF AMERICA,

NO. 2:17-cv-00141 JLR
MOTION FOR LEAVE TO FILE BRIEF OF
AMICUS CURIAE AMERICANS UNITED
FOR SEPARATION OF CHURCH AND
STATE IN SUPPORT OF STATE OF
WASHINGTON’S AMENDED MOTION
FOR TEMPORARY RESTRAINING
ORDER
NOTE ON MOTION CALENDAR:
February 2, 2017

Defendants.

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MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
AMERICANS UNITED FOR SEPARATION OF CHURCH
AND STATE-i
(Case No. 2:17-cv-00141 JLR)

LAW OFFICES
CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:17-cv-00141-JLR Document 48 Filed 02/02/17 Page 2 of 6

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Pending before the Court is the State of Washington’s motion for a temporary restraining

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order to enjoin enforcement of President Trump’s Executive Order banning individuals from

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predominantly Muslim countries from entering the United States. Exec. Order No. 13,769, 82 Fed.

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Reg. 8977 (Jan. 27, 2017). Americans United for Separation of Church and State respectfully

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requests leave to file the accompanying proposed amicus brief in support of the State.

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Identity and Interest of Amicus Curiae
Americans United is a national, nonsectarian public-interest organization. Its mission is

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twofold: (1) to advance the free-exercise rights of individuals and religious communities to

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worship as they see fit, and (2) to preserve the separation of church and state as a vital component

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of democratic government. Americans United represents more than 125,000 members and

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supporters across the country. Since its founding in 1947, Americans United has regularly

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participated as a party, as counsel, or as an amicus curiae in leading church–state cases decided by

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the United States Supreme Court and by federal and state trial and appellate courts throughout the

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country, including many cases involving Washington residents.

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Americans United has long defended the fundamental rights of religious minorities in the

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United States by, among other things, bringing legal challenges to governmental action that singles

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out particular religions for favor or disfavor. See, e.g., Ziglar v. Abbasi, 2016 WL 7473962 (U.S.

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2016) (supporting Muslim petitioners who were detained and tortured after the terror attacks of

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September 11, 2001); Hassan v. City of New York, 2014 WL 3572027 (3d Cir. 2015) (supporting

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challenge to New York City Police Department’s surveillance of Muslim communities); Awad v.

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Ziriax, 2011 WL 2118216 (10th Cir. 2012) (supporting challenge to Oklahoma law that singled out

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Islam for official disfavor). Americans United also advocated for the passage of the Religious

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Freedom Restoration Act, 42 U.S.C. §§ 2000bb, and its sister statute, the Religious Land Use and

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Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq., and routinely participates as counsel or

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as an amicus curiae in cases arising under these statutes. See, e.g., Holt v. Hobbs, 2014 WL

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
AMERICANS UNITED FOR SEPARATION OF CHURCH
AND STATE-1
(Case No. 2:17-cv-00141 JLR)

LAW OFFICES
CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:17-cv-00141-JLR Document 48 Filed 02/02/17 Page 3 of 6

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2361896 (2015). Notably, Americans United filed an amicus brief in Cutter v. Wilkinson, 544 U.S.

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709 (2005), proposing the factors for the test of constitutionally permissible religious

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accommodations under RFRA and RLUIPA that the Supreme Court then adopted.

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Reasons Why the Motion Should Be Granted
This Court “has ‘broad discretion’ to appoint amicus curiae.” Skokomish Indian Tribe v.

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Goldmark, No. C13-5071, 2013 WL 5720053, at *1 (W.D. Wash. Oct. 21, 2013). The district

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courts regularly consider amicus briefs “concerning legal issues that have potential ramifications

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beyond the parties directly involved or if the amicus has ‘unique information or perspective that

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can help the court beyond the help that the lawyers for the parties are able to provide.’” Id.

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(quoting NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D.

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Cal. 2005)).

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The issues in this case, including those that are the subject of the lending TRO motion,

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have important ramifications for persons living not only in Washington but across the United

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States and around the world. If the challenged Executive Order is not enjoined, families who

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currently find themselves living in different countries will be estranged. People fleeing war-torn

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regions will be turned away from borders and given no opportunity to seek or obtain refuge from

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the horrors that they face in their countries of origin. And nothing more than birthplace and

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religion will determine whether millions of people have access to the opportunities of life in the

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United States. What is more, it is not only the targeted Muslims who will be affected the

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implementation of the Executive Order. The seismic shift in this Nation’s treatment of a religious

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minority will be felt by neighborhoods, houses of worship, and local businesses, which will suffer

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the loss of valued members of their communities.

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The hardships in this country and across the world that will be caused by official

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discrimination against a single religious group highlight the importance of correctly analyzing and

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deciding questions of religious–freedom rights—legal issues that Americans United is uniquely

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
AMERICANS UNITED FOR SEPARATION OF CHURCH
AND STATE-2
(Case No. 2:17-cv-00141 JLR)

LAW OFFICES
CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:17-cv-00141-JLR Document 48 Filed 02/02/17 Page 4 of 6

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positioned to assist this Court in parsing. The proposed amicus brief explains why the

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Establishment Clause of the First Amendment to the U.S. Constitution and the Religious Freedom

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Restoration Act both bar enforcement of the anti-Muslim Executive Order. As the brief explains,

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the government is forbidden to discriminate against Muslims. It is forbidden to endorse any

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religion over others. And it is forbidden to impose or apply religious tests in making official

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determinations and taking official actions. The Executive Order does all of this and more.

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Plaintiffs have consented to this motion and the filing of the accompanying amicus brief.

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Defendants have informed counsel for the amicus that they take no position on the filing of the

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brief.

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If the Court grants the motion, Americans United requests that the brief be considered filed
as of the date of this motion.

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For the Court’s benefit, counsel for Americans United will be present in the courtroom for

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the hearing on the motion for a temporary restraining order on February 3, 2017. Should the Court

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wish, counsel is prepared to speak to the issues in the accompanying brief and to answer any

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questions that the Court may have.

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Date: February 2, 2017

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MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
AMERICANS UNITED FOR SEPARATION OF CHURCH
AND STATE-3
(Case No. 2:17-cv-00141 JLR)

LAW OFFICES
CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:17-cv-00141-JLR Document 48 Filed 02/02/17 Page 5 of 6

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AMERICANS UNITED FOR SEPARATION OF
CHURCH AND STATE
By: s/ Richard B. Katskee
Richard B. Katskee, admitted pro hac vice
Eric Rothschild, admitted pro hac vice*
Andrew Nellis, admitted pro hac vice**
Bradley Girard, admitted pro hac vice
Kelly M. Percival, admitted pro hac vice***
1310 L Street NW, Suite 200
Washington, DC 20005
Phone: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

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CALFO EAKES & OSTROVSKY PLLC
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By: s/ Angelo J. Calfo
By: s/ Kristin W. Silverman
Angelo J. Calfo, WSBA #27079
Kristin W. Silverman, WSBA #49421
1301 Second Avenue, Suite 2800
Seattle, WA 98101-3808
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Counsel for Amicus Curiae Americans United
for Separation of Church and State
*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.

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

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MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
AMERICANS UNITED FOR SEPARATION OF CHURCH
AND STATE-4
(Case No. 2:17-cv-00141 JLR)

LAW OFFICES
CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]

Case 2:17-cv-00141-JLR Document 48 Filed 02/02/17 Page 6 of 6

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CERTIFICATE OF SERVICE
I hereby certify that on February 2, 2017, the foregoing document was electronically filed

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with the United States District Court’s CM/ECF system, which will send notification of such filing

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to all attorneys of record.

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Americans United for Separation of Church
and State
By: s/ Richard B. Katskee
Richard B. Katskee, admitted pro hac vice
1310 L Street NW, Suite 200
Washington, DC 20005
Phone: [phone]
Email: [e-mail]
Counsel for Amicus Curiae Americans
United for Separation of Church and State

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MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE
AMERICANS UNITED FOR SEPARATION OF CHURCH
AND STATE-1
(Case No. 2:17-cv-00141 JLR)

LAW OFFICES
CALFO EAKES & OSTROVSKY PLLC
1301 SECOND AVENUE, SUITE 2800
SEATTLE, WASHINGTON 98101
TEL [phone] FAX [phone]