Co-Authored By: Joshua Matz, Corey Brettschneider, Micah Schwartzman, Nelson Tebbe.

Yesterday, a diverse group of leading constitutional law scholars—representing many different views about the Establishment Clause—filed an amicus brief in IRAP v. Trump, the Fourth Circuit Muslim Ban case.  (They will also file in the Ninth Circuit case.) 

The brief can be found here. 

The district courts in Maryland and Hawaii based their decisions on several cases that remain controversial, including Lemon v. Kurtzman.  While we think their decisions are correct, we also think there is a different principle—with deep roots in our tradition and with widespread support among jurists of all stripes—that more accurately captures the nature of President Trump’s constitutional violation. 

Put simply, government is forbidden from acting on the basis of animus toward religion in general, or toward any particular religious group.  Official acts with this purpose are prohibited under the Establishment Clause.  See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (“In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.”).  This principle has been most recently elaborated in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), and is strongly supported by precedent and original understanding.

The amicus brief filed by constitutional law scholars explains and develops this Establishment Clause principle; links that body of case law to the Free Exercise and Equal Protection Clauses; shows how this approach makes sense of evidence in the public record (including Trump's pre-inauguration statements); and, relying on Korematsu, explores the possibility that Trump had both legitimate and illegitimate motives for issuing the revised travel ban.

Many lower courts have reached the correct conclusion that the travel ban is unconstitutional.  But they have not always formulated the strongest legal objections to the ban.  We hope this amicus brief, supported by respected constitutional scholars with a wide diversity of views about the First and Fourteenth Amendments, will be useful to the courts as they hear argument in the coming months.

Here is the amicus brief's Summary of Argument:

The District Court properly concluded that the Order is unconstitutional.  Relying mainly on McCreary County v. ACLU of Ky., 545 U.S. 844 (2005), and Lemon v. Kurtzman, 403 U.S. 602 (1971), it found that an objective observer would understand that the Order lacked a secular purpose—and that, instead, its “primary purpose was grounded in religion,” namely effectuating “the proposed Muslim Ban.”  Int’l Refugee Assistance Project v. Trump, No. 12-Civ-361, 2017 WL 1018235, at *11 (D. Md. Mar. 16, 2017) (“IRAP”).  Under settled precedent, this conclusion was correct.  But Lemon and McCreary remain controversial.  See Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 565 U.S. 994 (2011) (Thomas, J., dissenting from denial of certiorari) (discussing criticism of Lemon by the Chief Justice and Justices Kennedy, Scalia, Thomas, and Alito); see also Green v. Haskell Cty. Bd. of Comm’rs, 574 F.3d 1235, 1243-1249 (10th Cir. 2009) (Gorsuch, J., dissenting from denial of rehearing en banc).

Importantly, the District Court’s conclusion is also independently supported by a line of Establishment Clause precedent—repeatedly confirmed in Free Exercise and Equal Protection Clause cases—that forbids the government from acting on the basis of animus toward any particular religion.  See, e.g., Town of Greece v. Galloway, 134 S. Ct. 1811 (2014); id. at 1831 (Alito, J., concurring); Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 722, 728 (1994) (Kennedy, J., concurring in the judgment); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Larson v. Valente, 456 U.S. 228 (1982).  This longstanding and fundamental principle has been adopted by judges of many different persuasions concerning the Establishment Clause.  And it is directly applicable to the unusual nature of the President’s constitutional violation here. 

As the District Court found, the evidence that the Order violates the Establishment Clause is overwhelming.  While the District Court focused on whether the President lacked a secular purpose under Lemon, the very same facts even more clearly bespeak anti-Islamic animus under familiar means of discerning improper motive.  See, e.g., Town of Greece, 134 S. Ct. 1824-26; Locke v. Davey, 540 U.S. 712, 725 (2004); Lukumi, 508 U.S. at 534-36; see also, e.g., United States v. Windsor, 133 S. Ct. 2675, 2693-94 (2013); City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985).  That conclusion is compelling even without consideration of President Trump’s admissions of animus in the pre-inauguration period.  But it is forcefully confirmed by a careful review of those remarks, which, as a matter of precedent, must be considered in the constitutional analysis.

The extraordinary record in this case demonstrates that President Trump’s sole motive in issuing the Order—and in gerrymandering it—was based on animus.  After repeatedly and specifically promising voters that he would ban Muslims from entering the United States, he arrived in office and promptly issued a sweeping, unprecedented, and bizarrely-structured order without any discernible connection to an actual national security threat.  That order, even as subsequently revised, functioned as the “Muslim Ban” that he had repeatedly promised to voters during (and after) the campaign.  In case this point somehow remained unclear, President Trump made numerous statements to the effect that excluding Muslims was the Order’s core purpose.  An extensive public record thus supports the inference that President Trump was following through on his animus-laden campaign promise, rather than acting for any legitimate reason.

Even if one assumes that national security concerns played some role, that will not save the order.  It is not unusual for animus to co-exist with legitimate motives.  As the Supreme Court has explained, where the government acts on the basis of mixed motives, courts do not hesitate to invalidate official acts when animus was a primary or essential motive.  See Windsor, 133 S. Ct. at 2693; Lukumi, 508 U.S. at 535; Larson, 456 U.S. at 248.  In that respect, Korematsu v. United States, 323 U.S. 214 (1944), is instructive.  As Korematsu teaches, the combination of animus and actual (or perceived) national security threat is uniquely toxic: a veneer of noble motive can be invoked to justify the most horrid abuses.  Even if an official starts with the best of intentions, animus ultimately corrupts and distorts any motive it touches.  Here, only by ignoring months of clear and consistent statements by the President could it be thought that he did not act on the basis of animus toward Muslims in following through on his promise to ban them.  Not only did he ban many Muslims from entering the nation, but he has also repeatedly made anti-Muslim claims inflicting stigma and disability on Muslims nationwide.   See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000) (“We refuse to turn a blind eye to the context in which this policy arose . . . .”).

In 1785, James Madison presciently warned against any law departing “from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens.” Madison, Memorial and Remonstrance Against Religious Assessments ¶ 9 (1785).  He added:

Instead of holding forth an Asylum to the persecuted, [the Bill] is itself a signal of persecution.  It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.  Distant as it may be in its present form from the Inquisition, it differs from it only in degree.  The one is the first step, the other the last in the career of intolerance.  The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent, may offer a more certain repose from his Troubles.

The bill against which Madison famously remonstrated has been consigned to the dustbin of history.  But the underlying evils against which Madison warned are still with us.  This case does not present them in disguise.  No, “this wolf comes as a wolf.”  Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting).  President Trump repeatedly and ostentatiously expressed the animus that brought it forth in his calls, and subsequent acts, to ban persons of a single faith from entering the United States.  For liberty to endure, the Order must be rejected.

Disclosure:  Joshua is counsel to amici curiae, and Corey, Micah, and Nelson are among the represented scholars.

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