Today, the en banc U.S. Court of Appeals for the Fourth Circuit again upheld the injunction against the Administration’s “travel ban,” which barred individuals from a number of countries, mostly Muslim, from traveling to this country. The 285-page decision includes several concurring and dissenting opinions, but the majority opinion makes clear that religious bias and prejudice illegally formed the basis for the Administration’s Executive Orders and Proclamation. Bernabei & Kabat submitted an amicus brief on behalf of numerous civil rights groups which argued that the long history of anti-Muslim bias and discrimination was reflected in the “travel ban,” and that such legal discrimination motivated acts of violence against immigrants.
Several key excerpts follow:
Pages 41-42: . . . . Assuming without deciding that the proffered purpose of the Proclamation is “facially legitimate,” we turn to the question of whether it is “bona fide” as required by Mandel. Justice Kennedy’s concurrence in Din elaborated on this “bona fide” requirement. An action is not considered “bona fide” if Plaintiffs make an “affirmative showing of bad faith,” which they must “plausibly allege[] with sufficient particularity.” See id. at 2141 (Kennedy, J., concurring in the judgment); Mandel, 408 U.S. at 770. Upon such a showing, a court may “look behind” the Government’s proffered justification for its action. See Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in the judgment); see also Marczak v. Greene, 971 F.2d 510, 516-18 (10th Cir. 1992). Therefore, to advance their First Amendment claim, Plaintiffs must have “plausibly alleged with sufficient particularity” that the Proclamation’s invocation of national security is a pretext for an anti-Muslim religious purpose.
In the extraordinary case before us, resolution of that question presents little difficulty. Unlike Din and Mandel, in which the Government had a “bona fide factual basis” for its actions, Din, 135 S. Ct. at 2140 (Kennedy, J., concurring in the judgment), here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. 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 the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2. See IRAP I, 857 F.3d at 591; see, e.g., J.A. 168, 756, 779, 791, 794, 808-12, 815-17, 820.
Page 49: Rather, an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation-to exclude Muslims from the United States. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the President’s own deputy press secretary made this connection express: he explained that President Trump tweets extremist anti-Muslim videos as part of his broader concerns about “security,” which he has “addressed . . . with . . . the proclamation.” J.A. 1502-03.
The Government correctly points out that the President’s past actions cannot “forever taint” his future actions. See McCreary, 545 U.S. at 874; First Br. 18. President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims. But “an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense.” McCreary, 545 U.S. at 874. In fact, instead of taking any actions to cure the “taint” that we found infected EO-2, President Trump continued to disparage Muslims and the Islamic faith.
Page 52: In sum, the face of the Proclamation, read in the context of President Trump’s official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective.
Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 535 (1993).
Pages 57-58: On a human level, the Proclamation’s invisible yet impenetrable barrier denies the possibility of a complete, intact family to tens of thousands of Americans. J.A. 868-69. On an economic level, the Proclamation inhibits the normal flow of information, ideas, resources, and talent between the Designated Countries and our schools, hospitals, and businesses. On a fundamental level, the Proclamation second-guesses our nation’s dedication to religious freedom and tolerance. “The basic purpose of the religion clause of the First Amendment is to promote and assure the fullest possible scope of religious liberty and tolerance for all and to nurture the conditions which secure the best hope of attainment of that end.” Schempp, 374 U.S. at 305 (Goldberg, J., concurring). When we compromise our values as to some, we shake the foundation as to all. Schempp, 374 U.S. at 225 (“The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, ‘it is proper to take alarm at the first experiment on our liberties.’” (citation omitted)).
