throbber
No. 17-965
`444444444444444444444444444444444444444444
`IN THE
`Supreme Court of the United States
`____________________
`DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
`ET AL., Petitioners,
`v.
`STATE OF HAWAII, ET AL., Respondents.
`____________________
`On Writ of Certiorari to the United States Court of
`Appeals for the Ninth Circuit
`____________________
`Brief Amicus Curiae of Citizens United,
`Citizens United Foundation,
`Conservative Legal Defense and Education
`Fund, Public Advocate of the United States,
`Gun Owners Foundation, Gun Owners of
`America, Inc., English First, English First
`Foundation, Policy Analysis Center, and
`Restoring Liberty Action Committee in
`Support of Petitioners
`____________________
`WILLIAM J. OLSON*
`HERBERT W. TITUS
`ROBERT J. OLSON
`JEREMIAH L. MORGAN
` WILLIAM J. OLSON, P.C.
` 370 Maple Ave. W., Ste. 4
` Vienna, VA 22180
` (703) 356-5070
`wjo@mindspring.com
`Attorneys for Amici Curiae
`
`JOSEPH W. MILLER
` RESTORING LIBERTY
` ACTION COMMITTEE
`P.O. Box 83440
`Fairbanks, AK 99708
`Attorney for Amicus Curiae
` RLAC
`
` *Counsel of Record
` February 28, 2018
`
`444444444444444444444444444444444444444444
`
`

`

`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . iii
`
`INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1
`
`STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2
`
`SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 4
`
`ARGUMENT
`
`I. THE CLAIM THAT THE PRESIDENTIAL
`PROCLAMATION VIOLATES THE
`ESTABLISHMENT CLAUSE IS BOGUS . . . . . . . . . . 7
`
`A. The Establishment Claim Rests Entirely
`Upon the Ground that the Proclamation
`Disfavors the Muslim Religion . . . . . . . . . . 8
`
`B. The Establishment Clause Does Not
`Apply to Laws that Disfavor Religion . . . . 10
`
`C. The Establishment Clause Claim Here
`Should Not Be Appraised by the Lemon
`Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`
`II. THE MATTER BEFORE THIS COURT DOES NOT
`RISE TO THE LEVEL OF AN ARTICLE III CASE
`OR CONTROVERSY . . . . . . . . . . . . . . . . . . . . . . . 16
`
`A. It Is Not the Role of Article III Courts to
`Redress Hurt Feelings . . . . . . . . . . . . . . . . 17
`
`

`

`ii
`B. It Is Not the Role of Courts to Inquire
`into Motivations of a Coordinate Branch. . 21
`
`
`
`C. Article III Courts Do Not Have a Free
`Wheeling Mandate to “Do Justice” . . . . . . 25
`
`III. THE DISTRICT COURT’S INJUNCTION, AS MODIFIED
`BY THE NINTH CIRCUIT, IS CONSTITUTIONALLY
`INFIRM, EXCEEDING THE JUDICIAL POWER OF THE
`FEDERAL COURTS . . . . . . . . . . . . . . . . . . . . . . . 26
`
`A. The District Court’s Global Injunction
`Granted Relief to Persons Not Parties to
`the Litigation . . . . . . . . . . . . . . . . . . . . . . . 26
`
`B. The District Court Global Injunction Was
`Unauthorized by Law. . . . . . . . . . . . . . . . . 28
`
`C. The Ninth Circuit’s Modification of Judge
`Watson’s Injunction Cured Nothing . . . . . 29
`
`D. The Ninth Circuit’s Injunction Does Not
`Arise from a Class Action. . . . . . . . . . . . . . 31
`
`E. The Nationwide Injunction Violates
`United States v. Mendoza . . . . . . . . . . . . . 33
`
`F. The Nationwide Injunction Below
`Exceeded the Judicial Power of the
`United States . . . . . . . . . . . . . . . . . . . . . . . 35
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
`
`

`

`iii
`TABLE OF AUTHORITIES
`
`Page
`
`U.S. CONSTITUTION
`Article III . . . . . . . . . . . . . . . . . . . . . . . . . . 17, passim
`Amendment I . . . . . . . . . . . . . . . . . . . . . . . . 3, passim
`
`STATUTES
`5 U.S.C. § 706(2). . . . . . . . . . . . . . . . . . . . . . . . . . . 29
`
`CASES
`Abington v. Schempp, 374 U.S. 203 (1963). . . . . . 14
`Bowen v. Kendrick, 487 U.S. 589 (1988). . . . . . . . 15
`Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) . . 31
`Califano v. Yamasaki, 442 U.S. 682 (1979). . . 32, 34
`Church of Lukumi Babalu Aye v. City of
`Hialeah, 508 U.S. 520 (1993). . . . . . . . . . . . . . 12
`Committee for Public Educ. and Religious
`Liberty v. Regan, 444 U.S. 646 (1980) . . . . . . 15
`Cooper v. Aaron, 358 U.S. 1 (1958) . . . . . . . . . . . . 37
`County of Allegheny v. A.C.L.U., 492 U.S. 573
`(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`DaimlerChrysler Corp. v. Cuno, 547 U.S. 332
`(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
`Edwards v. Aguillard, 482 U.S. 578 (1987). . . . . . 14
`Epperson v. Arkansas, 393 U.S. 97 (1968) . . . . . . 14
`Everson v. Board of Education, 330 U.S. 1 (1946) 14
`Hawaii v. Trump, 859 F.3d 741 (2017) . . . . . . . . . . 3
`Int’l Refugee Assistance Project v. Trump, 857
`F.3d 554 (4th Cir. 2017). . . . . . . . . . . . . . . . . . . 3
`Int’l Refugee Assistance Project v. Trump, 2018
`U.S. App. LEXIS 3513 (4th Cir. 2018) . 4, passim
`Kleindienst v. Mandel, 408 U.S. 753 (1972) . . . 7, 18
`
`

`

`iv
`Lamb’s Chapel v. Center Moriches Union Free
`Sch. Dist., 508 U.S. 384 (1993) . . . . . . . . . . . . 15
`Larson v. Valente, 456 U.S. 228 (1982). . . . . . . 7, 13
`Lemon v. Kurtzman, 403 U.S. 602
`(1971) . . . . . . . . . . . . . . . . . . . . . . . . 5, 13, 14, 15
`Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . 14
`Madsen v. Women’s Health Ctr., Inc., 512 U.S.
`753 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
`Marbury v. Madison, 5 U.S. 137 (1803) . . . . . 25, 35
`McCreary County v. ACLU of Ky., 545 U.S. 844
`(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14, 24
`McGowan v. Maryland, 366 U.S. 420 (1961). . . . . 12
`Moss v. Spartanburg County School District
`Seven, 683 F.3d 599 (4th Cir. 2012) . . . . . . . . . 19
`Mueller v. Allen, 463 U.S. 388 (1983) . . . . . . . . . . 14
`Muskrat v. United States, 219 U.S. 346 (1911) . . 35
`Texas v. United States, 809 F.3d 134 (5th Cir.
`2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 28, 31
`Trump v. Hawaii, 138 S.Ct. 377 (Oct. 24, 2017) . . . 3
`United States v. Mendoza, 464 U.S. 154
`(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 33, 34
`Valley Forge Christian Coll. v. Americans United
`for Separation of Church & State, 454 U.S.
`464 (1982). . . . . . . . . . . . . . . . . . . . . . . 14, 20, 21
`Wallace v. Jaffree, 472 U.S. 38 (1985). . . . . . . . . . 14
`Zelman v. Simmons-Harris, 536 U.S. 639 (2002) . 15
`Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) . . . . . 33
`
`MISCELLANEOUS
`W. Blackston, Commentaries. . . . . . . . . . . . . . . . . 38
`D. Brody, “Brody File Exclusive: President
`Trump Says Persecuted Christians Will Be
`Given Priority As Refugees,” CBN News
`(Jan. 27, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . 23
`
`

`

`v
`D. Diaz, “Obama: Why I won’t say ‘Islamic
`terrorism,’” CNN (Sept. 29, 2016) . . . . . . . . . . 16
`Executive Order No. 13,769 (Feb. 1, 2017) . . . . 2, 22
`Executive Order No. 13,780 (Mar. 9, 2017). . . . . . . 3
`P. Holley, “‘Radical Islamic terrorism’: Three
`words that separate Trump from most of
`Washington,” The Washington Post (Mar. 1,
`2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
`Presidential Proclamation 9645 . . . . . . . . . 3, passim
`K. Ravishankar, “The Establishment Clause
`Hydra: The Lemon Test in the Circuit
`Courts,” 41 Univ. Dayton L. Rev. 262 (2006) . 15
`A. Scalia & B. Garner, Reading Law (West:
`2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`J. Story, Commentaries on the Constitution,
`(Little, Brown: 5th ed. 1891). . . . . . . . . . . . . . . 11
`N. Webster, Third International Dictionary
`(1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
`
`

`

`INTEREST OF THE AMICI CURIAE1
`
`Citizens United, Public Advocate of the United
`States, Gun Owners of America, Inc., and English
`First are nonprofit social welfare organizations,
`exempt from federal income tax under Internal
`Revenue Code (“IRC”) section 501(c)(4). Citizens
`United Foundation, Conservative Legal Defense and
`Education Fund, Gun Owners Foundation, English
`First Foundation, and Policy Analysis Center are
`nonprofit educational and legal organizations, exempt
`from federal income tax under IRC section 501(c)(3).
`Restoring Liberty Action Committee is an educational
`organization. These organizations were established,
`inter alia, for purposes related to participation in the
`public policy process, including conducting research,
`and informing and educating the public on the proper
`construction of state and federal constitutions, as well
`as statutes related to the rights of citizens, and
`questions related to human and civil rights secured by
`law. These amici filed seven previous amicus briefs in
`this and related cases in the Fourth and Ninth
`Circuits, and in this Court:
`
`• Washington v. Trump, Brief Amicus Curiae of
`U.S. Justice Foundation, et al., Ninth Circuit
`(Feb. 6, 2017);
`• Washington v. Trump, Brief Amicus Curiae of
`U.S. Justice Foundation, et al., Ninth Circuit
`(Feb. 16, 2017);
`
`1 It is hereby certified that counsel for the parties have consented
`to the filing of this brief; that no counsel for a party authored this
`brief in whole or in part; and that no person other than these
`amici curiae, their members, or their counsel made a monetary
`contribution to its preparation or submission.
`
`

`

`2
`• IRAP v. Trump, Brief Amicus Curiae of U.S.
`Justice Foundation, et al., Fourth Circuit (Mar.
`31, 2017);
`• Hawaii v. Trump, Brief Amicus Curiae of U.S.
`Justice Foundation, et al., Ninth Circuit (Apr.
`21, 2017); and
`• Trump v. IRAP, Brief Amicus Curiae of
`Citizens United, et al., U.S. Supreme Court
`(June 12, 2017).
`• Trump v. IRAP, Brief Amicus Curiae of
`Citizens United, et al., U.S. Supreme Court
`(August 17, 2017).
`• Hawaii v. Trump, Brief Amicus Curiae of
`Citizens United, et al., Ninth Circuit
`(November 22, 2017).
`
`STATEMENT OF THE CASE
`
`On February 1, 2017, newly inaugurated President
`Trump issued an Executive Order designed to
`implement a pause in the immigration policies of
`President Obama, as he sought to staff a new
`Administration
`fashioning new and
`improved
`immigration policies and practices as he had promised
`the American people while on the campaign trail.
`That Executive Order triggered much litigation
`primarily in the Ninth and Fourth Circuits.
`
`A. President Trump’s First Two Executive
`Orders.
`
`The First Executive Order (No. 13,769 (Feb. 1,
`2017)) immediately became the subject of litigation
`around the country. It was replaced by the Second
`
`

`

`3
`Executive Order (Executive Order No. 13,780 (Mar. 9,
`2017)), which imposed a temporary suspension (“a
`brief period of 90 days”) of immigration from seven
`specifically named countries, for a specific purpose: to
`review “existing screening and vetting procedures were
`under review.” Id., Sec. 1(b)(ii). In enjoining
`enforcement, both Maryland and Hawaii district court
`judges actually went so far as to enjoin the President
`himself — an almost unprecedented act. The Fourth
`Circuit and the Ninth Circuit removed the injunctions
`against the President, but upheld injunctions as to
`other defendants, the Fourth limiting it to Section 2(c)
`of the Second Executive Order,2 and the Ninth limiting
`it to both Sections 2 and 6.3 This Court granted
`certiorari to review the decisions of both circuits, but
`after the expiration of the Second Executive Order
`ordered the lower courts to vacate the injunctions and
`dismiss those cases as moot . See Trump v. Hawaii,
`138 S.Ct. 377 (Oct. 24, 2017).
`
`B. Presidential Proclamation 9645
`
`On September 24, 2017, the President issued his
`third presidential directive: Proclamation 9645. The
`Ninth Circuit affirmed a nationwide injunction
`imposed by the District Court in Hawaii, on statutory
`grounds, without reaching the Establishment Clause
`claim. Hawaii v. Trump, 878 F.3d 662, 702 (9th Cir.
`2017). The Government filed a petition for certiorari
`
`2 Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 572
`(4th Cir. 2017) (“IRAP”).
`
`3 Hawaii v. Trump, 859 F.3d 741, 755 (9th Cir. 2017).
`
`

`

`4
`and Respondents urged this Court to add the
`Establishment Clause question because the alleged
`Establishment Clause violation “would be sufficient by
`itself to justify the affirmance of the preliminary
`injunction.” Brief in Opposition at 34. On January 19,
`2018, this Court granted certiorari to review the
`decision of the Ninth Circuit and directed the parties
`to address the Establishment Clause question.
`
`On February 15, 2018, the Fourth Circuit upheld
`the Maryland District Court’s nationwide injunction as
`before, on
`the ground
`that
`it violated
`the
`Establishment Clause. See Int’l Refugee Assistance
`Project v. Trump, 2018 U.S. App. LEXIS 3513, *61 (4th
`Cir. 2018). On February 23, 2018, the Maryland
`plaintiffs also filed a petition for certiorari (No. 17-
`1194), seeking review of one question decided against
`it in the Fourth Circuit, and requesting consolidation
`with the Ninth Circuit case. This amicus brief
`addresses, as has the Government, the Establishment
`Clause claim as it was decided by the Fourth Circuit.
`Brief for Petitioners (“Pet. Br.”) at 17, 58.
`
`SUMMARY OF ARGUMENT
`
`The Establishment Clause claim rests entirely
`upon the mistaken assumption that, because the
`Proclamation disfavors the Muslim religion, it is an
`unconstitutional law respecting an establishment of a
`religion. This claim is erroneous both as a matter of
`logic and of history. Logically, to establish is to favor,
`not disfavor, something. Historically, this Court has
`consistently recognized that the Establishment Clause
`was designed to prohibit laws that “prefer” one religion
`
`

`

`5
`over another, not laws that disfavor a religion as
`alleged here. Thus, reliance on the Lemon test – a test
`developed in Establishment Clause cases to appraise
`the constitutionality of a law designed to benefit
`religion – is totally misplaced here. Or “has no place
`here.”
`
`The Fourth Circuit plaintiffs were never able to
`demonstrate they suffered judicially cognizable harm.
`The injuries alleged were expressed in terms of
`feelings and expectations. Efforts to show injury to
`plaintiffs, through assertions that some third parties
`discriminated against Muslims, or that the “facially-
`legitimate” Proclamation itself was offensive, were
`unavailing. To the extent that there was any other
`type of injury alleged, it was to foreign nationals who
`have no protectable First Amendment rights.
`Therefore, the Court should never have reached the
`issues of supposed bias and animus by a coordinate
`branch of government. Candidate Trump repeatedly
`expressed his plan to limit entry into the country from
`certain majority-Muslim countries and, based on that,
`the American people voted him into office. A court
`that imputes animus to the President also levels that
`charge against the American people who elected him,
`and the judiciary has no role to second-guess the
`results of an election. Despite denying it did so, the
`Fourth Circuit conducted precisely what this Court
`has prohibited — a “judicial psychoanalysis of a
`drafter’s heart of hearts.”
`
`The Hawaii and Maryland District Court
`injunctions, as upheld by the Ninth and Fourth
`Circuits, were not limited to granting relief to the
`
`

`

`6
`parties before the court, but purported to bind the
`Trump Administration worldwide from implementing
`its travel restrictions. The extraordinary nature of the
`remedy was given little attention by the courts below,
`as
`illustrated by Judge Watson’s observation
`“[n]ationwide relief seems appropriate in light of the
`likelihood of success” on the merits. The courts below
`relied on the 2015 injunction against President
`Obama’s DAPA program entered in Texas, et al. v.
`United States, but they failed to recognize, or at least
`failed to point out, that case was inapposite, as it
`involved a violation of the Administrative Procedure
`Act which authorized courts to “set aside” illegal
`agency action.
`
`The Ninth Circuit appeared to justify the scope of
`its injunction based on the need to allow “lesbian, gay,
`bisexual,
`transgender, and queer
`(“LGBTQ”)
`individuals “to safely bring their partners home to
`them,” even though this claim was never before the
`Court. And the case cited by the Ninth Circuit as
`authority for a nationwide injunction involved a class
`action, also not involved in this case. The injunctions
`entered below violate this Court’s rule in United
`States v. Mendoza, designed to provide this Court with
`the benefit of multiple, different circuit court decisions.
`Lastly, these injunctions exceeded the judicial power
`of the United States, going beyond resolving disputes
`into making and implementing laws and rules for the
`nation.
`
`

`

`7
`ARGUMENT
`
`I. THE CLAIM THAT THE PRESIDENTIAL
`PROCLAMATION VIOLATES THE
`ESTABLISHMENT CLAUSE IS BOGUS.
`
`In its opening brief, the Government erroneously
`assumes that the Establishment Clause claim
`tendered in this case is genuine, but that it fails on its
`merits — either because the Presidential Proclamation
`(i) “rests on a ‘facially legitimate and bona fide reason’”
`in compliance with this Court’s ruling in Kleindienst
`v. Mandel, 408 U.S. 753 (1972); or (ii) has an “‘official
`objective’ [that] is religion-neutral” in compliance with
`McCreary County v. ACLU of Ky., 545 U.S. 844, 862
`(2005). Pet. Br. at 16, 58-71. In fact, however, the
`Establishment Clause challenge to the Proclamation
`fails without resort to the merits, because it rests upon
`a claim that the Proclamation “disfavors” the Muslim
`religion, whereas the Establishment Clause condemns
`only laws that “prefer” some religion over another. See
`Larson v. Valente, 456 U.S. 228, 244-46 (1982). As
`this Court has explained in Larson:
`
`Since [1947] this Court has adhered to the
`principle, clearly manifested in the history and
`logic of the Establishment Clause, that no
`State can “pass laws which aid one religion” or
`that “prefer one religion over another.” [Id..
`at 246 (emphasis added).]
`
`Because the Establishment Clause claim here, both on
`its face and as a matter of fact, rests on alleged
`“animus” toward the Muslim faith, not on a preference
`
`

`

`8
`for any religion, the claim is not a genuine
`Establishment Clause claim, and thus, fails to
`constitute a claim upon which relief can be granted
`under F.R.Civ.P. Rule 12(b)(6).
`
`A. The Establishment Claim Rests Entirely
`Upon the Ground that the Proclamation
`Disfavors the Muslim Religion.
`
`As Petitioners make clear in their brief, the
`Establishment Clause objection to the Proclamation
`was based on the allegation that it was “infused with
`religious animus
`...
`‘denigrat[ing]’” the Muslim
`religion. Pet. Br. at 17, 28, 65-66. As the Petitioners
`further explained, it was on the basis of this allegation
`that the Fourth Circuit rendered its decision that “EO-
`2 was the product of religious animus, and then
`contend[ing] that the Proclamation failed to ‘cure the
`“taint.”’” Pet. Br. at 65-66. Indeed, the Fourth Circuit
`went to great
`lengths to establish that the
`Proclamation violated the Establishment Clause solely
`on the ground that the Proclamation and its
`predecessor executive orders “disfavored the Muslim
`faith.” IRAP v. Trump, 2018 U.S.App. LEXIS 3513,
`*17-18, *28-29, *32-33 (4th Cir. 2018). See also id. at
`*33, *37. So convinced by its evidentiary survey, the
`Fourth Circuit concluded that “the Proclamation’s
`invocation of national security is a pretext for an anti-
`Muslim religious purpose”:
`
`Plaintiffs here do not just plausibly allege with
`particularity that the Proclamation’s purpose
`is driven by anti-Muslim bias, they offer
`undisputed evidence of such bias: the words of
`
`

`

`9
`includes
` This evidence
`the President.
`President Trump’s disparaging comments and
`tweets regarding Muslims; his repeated
`proposals to ban Muslims from entering the
`United States.... [Id. at *48-49.]
`
`Completely absent from the Fourth Circuit opinion is
`any evidence that the Proclamation purposes to favor
`a religion. To be sure, the Fourth Circuit did note that
`the President had previously stated that “EO-1 would
`give preference to Christian refugees” (id. at *18), but
`it never ruled that the purpose of the Proclamation
`was to “prefer” Christianity over Islam. See id. at *53-
`54. Rather, the Fourth Circuit found only that, as a
`matter of fact, “EO-1 ... provided exemptions for
`Christians,” negating
`“any asserted evidence
`indicating a genuine national security purpose,” but
`rather to reinforce the claim that EO-1’s overarching
`“purpose was to discriminate against Muslims,” not to
`prefer Christians. Indeed, whatever preference that
`EO-1 may have given to “Christian refugees,” that
`provision was entirely removed from subsequent
`iterations of
`the
`travel ban,
`including
`the
`Proclamation. To the contrary, after “[e]xamining
`official statements from President Trump and other
`executive branch officials, along with the Proclamation
`itself,” the Fourth Circuit “conclud[ed] that the
`Proclamation
`is unconstitutionally tainted with
`animus toward Islam.” Id. at *33. If so tainted, it
`taxes one’s credulity how the Proclamation can be a
`law respecting an establishment of religion, when that
`very Proclamation is touted as one that disfavors a
`religion.
` This
`is Alice
`in Wonderland
`logic,
`unsupported either by the plain meaning of the words
`
`

`

`10
`“establishment” and “disfavor,” or by the historical
`context of the Establishment Clause.
`
`B. The Establishment Clause Does Not Apply
`to Laws that Disfavor Religion.
`
`The Fourth Circuit opinion, as it is written, is
`inconsistent. On the one hand, it has stated that the
`plaintiffs have “claimed that the Proclamation violated
`the Establishment Clause’s prohibition on disfavoring
`religion....” Id. at *29. On the other hand, it has
`stated that the “Plaintiffs here have alleged that the
`Proclamation violates the Establishment Clause,
`which bars government action that establishes or
`disfavors religion.” Id. at *36 (emphasis added). See
`also id. at *37. In its first statement, the Fourth
`Circuit appears to have embraced the novel notion that
`the word “establishment” comprehends “disfavor.”
`However, in its second statement, the Fourth Circuit
`makes clear that it understands those two words have
`distinctly different meanings. According to Webster,
`“disfavor” means “the state or fact of not being favored
`or in favor.”4 In contrast, Webster defines “establish”:
`“to assist, nurture so that stability and continuance
`are assured.” Id. at 778. Thus, establishment means
`an “act of bringing into existence, creating, founding,
`originating or setting up so that certain continuance is
`assured.” Id. In contrast “disfavor” means “the
`condition of being deprived of favor or under
`displeasure; or absence of loss of that which favors
`one’s standing or cause.” Id. at 649. Thus, synonyms
`
`4 N. Webster, Third International Dictionary 649 (1982).
`
`

`

`11
`for disfavor are “disadvantage” or “dislike” (id.),
`whereas “establish” calls to mind words like “appoint,”
`“entitle,” or “ordain.” Id. at 778. Rather than the two
`words having compatible meanings, they are quite the
`opposite. The ordinary meaning of the phrase5 — “no
`law respecting an establishment of religion” — would
`preclude only those laws conferring favor on a religion,
`not laws that would disfavor.
`
`The distinction between a government act favoring
`religion, as contrasted with disfavoring religion, is not
`just a semantic one, but also stems from the fact that
`the two religion clauses in the First Amendment were
`designed to protect two quite different rights. As
`Joseph Story has explained, the Establishment Clause
`addresses the “limits to which the government may
`rightfully go in fostering and encouraging religion.”
`Id., 2 J. Story, Commentaries on the Constitution,
`Section 1872, at 628 (Little, Brown: 5th ed. 1891). On
`the other hand, the Free Exercise Clause addresses the
`limits to which the government may rightfully go in
`“excluding” individual religious beliefs and practices.
`Id. at 629. Although the two rights are interrelated,
`Story opined that “the duty of supporting religion,
`especially the Christian religion, is very different from
`the right to force the consciences of other men or to
`punish them for worshiping God in the manner which
`they believe their accountability to him requires.” Id.
`at Section 1876. This reading of the Establishment
`Clause is compatible with the history of the two
`
`5 “The ordinary-meaning rule is the most fundamental semantic
`rule of interpretation.” A. Scalia & B. Garner, Reading Law at 69
`(West: 2012).
`
`

`

`12
`religion guarantees as they appear in the First
`Amendment.
`
`A quarter century ago, this essential distinction
`between Establishment and Free Exercise claims was
`marked by this Court. In Church of Lukumi Babalu
`Aye v. City of Hialeah, 508 U.S. 520 (1993), the Court
`observed that, in cases involving claims of a
`government “attempt to disfavor [one’s] religion[,] the
`Free Exercise Clause is dispositive.” Id. at 532
`(emphasis added). In contrast, the Court further
`noticed that “Establishment Clause cases ... for the
`most part6 have addressed governmental efforts to
`benefit religion or particular religions.” Id. (emphasis
`added). In the eyes of this Court, then, there are two
`kinds of religion cases — Establishment and Free
`Exercise — each of which “deal[s] with a question
`different ... in its formulation and emphasis.” Id.
`
`In Free Exercise cases, discriminatory actions
`taken against a religion require proof that the action
`“prohibits” one’s “exercise” of one’s religious faith. See
`id. at 532. See McGowan v. Maryland, 366 U.S. 420,
`429 (1961). Thus, as applied to the Lukumi Babalu
`plaintiffs, they were able to sustain a Free Exercise
`claim because the law targeted the church’s “religious
`exercise” of animal sacrifices. Id. at 542. Such is not
`
`6 Even if the Establishment Clause might be invoked in a case
`involving government action disparaging a religion, the Court’s
`“for the most part” qualifier does not allow courts to disregard the
`presumptive rule that government attempts to disfavor religion or
`religious practice are not governed by the Establishment Clause,
`but rather by the Free Exercise Clause.
`
`

`

`13
`the case here. No one is contending that any one is
`prohibited from exercise of their religious faith by the
`President’s Proclamation. Instead, the claim is
`phrased as an Establishment one, asserting that the
`Proclamation “send[s] a message to non-adherents of
`a particular religion that they are outsiders, not full
`members of the political community.” See IRAP at 36
`(italics original, bold added). To sustain such a claim,
`a court must first discern whether the law or activity
`in question is one that is conferring a benefit upon a
`favored religious group, and on account of this favor,
`unconstitutionally causes “feelings of marginalization
`and exclusion” in non-adherents of the preferred
`religious faith. Id. at 43.
`
`C. The Establishment Clause Claim Here
`Should Not Be Appraised by the Lemon
`Test.
`
`Having assumed that the Establishment Clause
`applies even to laws that do not prefer or in some other
`way benefit religion, the Fourth Circuit assumed that
`this Court’s three-part test set forth in Lemon v.
`Kurtzman, 403 U.S. 602 (1971) would apply. Slip Op.
`at 44. The Fourth Circuit is mistaken — on two
`counts.
`
`First, as already established, there is no finding
`that the Proclamation preferred any religious
`denomination over another, such as in Larson v.
`Valente, 456 U.S. 228, 244 (1982); nor was there any
`effort expended upon an inquiry whether one could
`infer from the alleged anti-Muslim rhetoric that the
`real purpose was to benefit any competing religious
`
`

`

`14
`faith. See, e.g., Epperson v. Arkansas, 393 U.S. 97
`(1968). The Lemon test, however, has been tailored to
`sort out those laws that permissibly benefit religion
`from those that do not, requiring proof of: (i) a
`“secular purpose,” (ii) a primary effect that neither
`advances not inhibits religion, and (iii) no “foster[ing]
`[of] ‘an excessive government entanglement with
`religion.” Id. at 612-13. Each prong of the test makes
`sense only if the Establishment Clause challenge is
`limited to claims that one has been injured by a
`government benefit conferred on a favored religious
`group, such as the placement of a Ten Commandments
`monument on public property,7 the erection of a creche
`scene during the Christmas season on the county
`courthouse lawns,8 teaching “creation” in a public
`school classroom,9 prayer and Bible reading as part of
`the public school curriculum,10 conferring monetary
`benefits upon private religious schools,11 conferring
`monetary benefits upon parents who send their
`children to private religious schools,12 or providing tax
`
`7 See, e.g., McCreary County v. ACLU of Ky., 545 U.S. 844 (2005).
`
`8 See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989);
`Lynch v. Donnelly, 465 U.S. 668 (1984).
`
`9 See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987).
`
`10 See, e.g., Wallace v. Jaffree, 472 U.S. 38 (1985); Abington v.
`Schempp, 374 U.S. 203 (1963).
`
`11 See, e.g., Everson v. Board of Education, 330 U.S. 1 (1947);
`Valley Forge Christian Coll. v. Americans United for Separation
`of Church & State, 454 U.S. 464 (1982).
`
`12 See, e.g., Mueller v. Allen, 463 U.S. 388 (1983).
`
`

`

`15
`breaks and other monetary benefits to support private
`counseling organizations with ties to certain religious
`denominations.13
`
`Second, and in any event, federal court judges are
`ill-advised to grant preliminary injunctive relief in
`Establishment Clause cases based on the application
`of the Lemon test. Such preliminary relief is available
`only when one is likely to succeed on the merits, and it
`is not obvious that the Court would even apply the
`Lemon test, much less render a decision favorable to
`plaintiffs on the merits. See K. Ravishankar, “The
`Establishment Clause Hydra: The Lemon Test in the
`Circuit Courts,” 41 U. DAYTON L. REV. 262 (2006).
`Indeed, for years, the Court’s Establishment Clause
`jurisprudence has been severely criticized by former
`members of this Court. See, e.g., Zelman v. Simmons-
`Harris, 536 U.S. 639, 688 (2002) (Souter, J.,
`dissenting) (Establishment Clause jurisprudence has
`reached “doctrinal bankruptcy”); Lamb’s Chapel v.
`Center Moriches Union Free Sch. Dist., 508 U.S. 384,
`399 (1993) (Scalia, J., concurring) (“Establishment
`Clause [cases constitute a] geometry of crooked lines
`and wavering shapes”); Committee for Public Educ.
`and Religious Liberty v. Regan, 444 U.S. 646, 671
`(1980)
`(Stevens, J., dissenting)
`(“the
`‘blurred,
`indistinct, and variable barrier’ described in Lemon.”).
`
`13 See, e.g., Bowen v. Kendrick, 487 U.S. 589 (1988).
`
`

`

`16
`II. THE MATTER BEFORE THIS COURT DOES
`NOT RISE TO THE LEVEL OF AN ARTICLE
`III CASE OR CONTROVERSY.
`
` During his campaign for the presidency, then-
`candidate Trump repeatedly invoked the term “radical
`Islamic terrorism.”14 This rhetoric distinguished him
`from President Obama, who for years had been widely
`criticized because of his steadfast refusal to use the
`words “Islamic” and “terrorism”
`in the same
`sentence.15 President Trump apparently believed it
`was little more than common sense to describe a
`significant portion of the world’s terrorism in relation
`to the religion openly espoused by the persons
`committing it. President Obama, however, appeared
`to believe that linking Islam to terrorism would paint
`with too broad a brush, tying an entire religion to the
`views of a subset of its most extreme and violent
`adherents. At its essence, this rhetorical conflict
`constituted a political dispute between two competing
`positions embraced by different segments of the
`American public.
`
`Whether or not Fourth Circuit Chief Judge
`Gregory and his Fourth Circuit colleagues who joined
`his opinion approve, on November 8, 2016, the
`American people voted for the very immigration
`
`14 P. Holley, “‘Radical Islamic terrorism’: Three words that
`separate Trump from most of Washington,” The Washington Post
`(Mar. 1, 2017)
`
`15 D. Diaz, “Obama: Why I won’t say ‘Islamic terrorism,’” CNN
`(Sept. 29, 2016)
`
`

`

`17
`policies that President Trump has been attempting to
`carry out with EO-1, EO-2, and the September
`Proclamation. Indeed, President Trump’s statements
`that the Chief Judge Gregory finds so “disparaging,”
`“disturbing,” and “raw[]” (IRAP at *52, *55, *57) were
`widely known by the American public prior to its
`choosing to elect President Trump. Therefore, the
`Court’s imputation of religious animus to President
`Trump based on statements he made on the campaign
`trail inescapably imputes those same motivations to
`the American public who voted for the President’s
`policies. This is dangerous ground for the judiciary to
`stand, as it is fundamental to our nation that it is the
`people who are sovereign.
`
` The political dispute reflected in this case is
`quintessential

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