Amicus Brief in Support of State of Hawaii in the Trump Travel Ban Case

In its decision affirming a preliminary injunction against the Trump administration’s third travel ban (Sept. 24, 2017), the Fourth Circuit relied on McCreary County v. ACLU, and the secular purpose prong of Lemon v. Kurtzman, to hold that the Proclamation is invalid because a “reasonable observer” would conclude that it rests on “anti-Muslim bias.” That ruling was correct. But the Fourth Circuit also held that the Proclamation must be invalidated under a distinct legal principle: the prohibition on official action based on animus toward any particular religious group. This rule has been recognized as fundamental under the Establishment Clause. And it is directly applicable here. Indeed, while the Fourth Circuit focused mainly on Lemon’s secular purpose prong, the facts that it considered even more clearly demonstrate anti-Muslim animus under familiar means of discerning improper motive. As the Fourth Circuit observed, “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.”