*1
arbitrator, to decide.
First Options
See
the parties agreed the arbitration would
Chi., Inc. v. Kaplan,
115 conducted, and because the arbitrator
in-
matters, such as parties whether have a
valid arbitration agreement at all or
whether a concededly binding arbitration clause applies ato type certain of contro Syed Farhaj HASSAN; The Council of versy are presumptively for courts Imams in Jersey; Stu decide,” Muslim and an arbitrator’s determination dents Association of the Can of those matters is subject therefore to de ada, Inc.; Body All Shop Inside & review). novo The interpreta arbitrator’s Outside; Unity Sausage Beef Compa tion of the PLA is therefore entitled to ny; Inc.; Muslim Foundation Moiz deference. Mohammed; Doe; Jane Tahir; Soofia Finally, UBC’s argument that Zaimah Abdur-Rahim; Abdul-Hakim Arbitrator Pierson became functus officio Abdullah, Appellants after issuing first his decision is unavailing. The parties contractually agreed in Article 3(D) Section that the arbitrator would The CITY OF NEW YORK.
issue two decisions. “The functus officio
No. 14-1688.
that,
doctrine dictates
once arbitrators
have fully exercised their authority to ad
United States
Appeals,
Court of
judicate the issues
them,
submitted to
Third Circuit.
their authority
questions
over those
is end
ed, and the arbitrators have no further
Argued
Jan.
2015.
authority,
agreement
absent
by
par
Opinion
filed: Oct.
ties,
to redetermine
th[ose]
issue[s].”
Metals,
T.Co
(alterations
in original) quotation marks omit-
ted). Arbitrator Pierson could possi-
bly have been before he functus officio
“fully exercised authority [his] adjudi- submitted,
cate the issues by to [him]”
fulfilling parties’ agreed-upon require-
ment that he issue a second decision.
CONCLUSION
Because we must defer to the .arbitra-
tor’s interpretation of the rules which *5 (Argued), Ghi- Azmy, Esquire, A.
Baher Farah, Es- Schwarz, Esquire, Omar ta Rights, for Constitutional quire, Center Eaton, Esquire, York, N.Y., Glenn Khera, Haq, Es- Adil Esquire, Farhana Oakland, CA, Advocates, Muslim quire, Joseph A. Esquire, Lustberg, S. Lawrence Pedro, Es- Dolores Pace, Portia Esquire, NJ, Gibbons, Newark, Counsel quire, Appellants. Carter, Counsel Corporation
Zachary W. York, P. Dear- Richard City of New *6 Farrell, Esquire, G. ing, Esquire, Peter Koeleveld, Esquire, Celeste (Argued), DiSenso, Anthony Leist, Esquire, Alexis Cheryl Oates, Esquire, Esquire, William Farrell, Esquire, Shammas, Esquire, Odile New Department, City York Law New N.Y., Appellee. York, for Counsel Khan, Gregory M. Esquire, N. Ayesha Luchenitser, J. Esquire, Alexander Lipper, Separation for Americans United Esquire, DC, State, Washington, of Church Appellant, Americans for Amicus Counsel of Church Separation for United State. Block, William Esquire,
Benjamin C. Burling Covington & Esquire, Murray, DC, J. Sehul- Stephen LLP, Washington, N.Y., York, Robert L. hofer, Esquire, New CA, Francisco, Coun- Esquire, San Rusky, Kore- Karen Appellants, Amicus sel for Holly Yasui. matsu, Jay Hirabayashi, Boyle, Brian D. Esquire, Walter E. Del- Reporters Committee for Freedom of the III, linger, Esquire, Rice, M. Deanna Es- Press, Arlington, VA, Jennifer A. Borg, quire, Hassan, Nausheen Esquire, O’Mel- Esquire, North Jersey Inc., Media Group veny Myers LLP, & Washington, DC, Park, NJ, Woodland Counsel for Amicus Counsel for Amicus Appellants, 100 Blacks Appellants, Reporters Committee for in Law Care, Enforcement Who Chris Press, Freedom of the North Jersey Me- Burbank, Eric Adams. dia Group Inc. Gregory Wallance, J. Esquire, W. Stew- Price, Michael W. Esquire, Patel, Faiza Wallace, art Esquire, Kaye LLP, Scholer Esquire, Brennan for Justice York, N.Y., New at Center Michael Robertson, Es- NYU Law, School of York, , N.Y., New quire, Kaye LLP, Scholer Washington, Counsel for DC, Amicus Appellant, for Counsel Amicus Brennan Appellants, Asian Center for American Legal Justice Defense York New Education University Fund, American School of Law Arab Anti-Discrimination Committee, Universal Muslim Association Allen P. Pegg, Esquire, Hogan Lovells of America Advocacy, South Asian Ameri- LLP, Miami, FL, Counsel for Amicus cans Leading Together, Shia Rights Appellants, Coalition, Sikh Interfaith Alli- Watch, Jersey New Muslim Lawyers Asso- Foundation, ance National Council of the ciation, National Network for Arab Ameri- Churches of USA, Christ Union Communities, can for National Lawyers Guild Reform Judaism, Central New York Conference of Chapter, Muslim Public Rabbis, American Council, Affairs Women of Reform Muslim Juda- Legal Fund of ism, America, Islamic Society of Muslim North America, Network, Consultative Bend the Muslim Arc: Bar A Association York, Jewish Partnership New Justice, Muslim American Civil Hindu Coalition, Temple Society Liberties of North Creating America, Law Enforcement Auburn Accountability Theological Seminary, and Responsibility, Arab National American Associ- Council of Women, Jewish Uni- ation of York, Asian versal Americans Ad- Muslim Association of America, vancing Caucus, Justice-Asian Law South American Humanist Association, Sikh Asian Organization, Project SALAM. Legal American Defense and Education Fund, Muslim Alliance in North Chen,
Ronald K. America Esquire, Rutgers Uni- *7 National Religious versity Campaign Against Tor- Rights Clinic, Constitutional New- ture, NJ, ark, Reconstructionist Barocas, Edward Rabbinical Esquire, Associa- Jeanne tion, LoCicero, Imam Esquire, Mahdi Shalom, Alexander Association Marjaeya, Es- quire, Peace, Muslims American Civil Liberties Union T’ruah: The Rabbinic New Jersey Foundation, Call for Human Newark, NJ, Rights, Collective, Ta’leef Counsel for Appellants, Amicus Muslim Congress, American Unitarian Universalist Civil Liberties Union of Jersey, Legislative New Lati- Ministry of New Jersey, noJustice PRLDEF, Queens Mexican American Churches, Federation of Inc., Legal Defense and Fund, Educational Bill Northern California Council, Islamic of Rights Committee, Defense Garden Council of Islamic Organization of Greater Bar, State Association, Hispanic Bar Asso- Chicago, Islamic Shura Council of South- ciation of New Jersey, Association of Black ern California.
Women Lawyers of Jersey. New Brown, Bruce D. Esquire, Gregg P. Les- AMBRO, FUENTES, Before:
lie, Esquire, Jamie T. Schuman, Esquire, ROTH, Judges. Circuit THE COURT OF OPINION Judge.
AMBRO, Circuit OF CONTENTS
TABLE .284 I. INTRODUCTION
II.BACKGROUND.,.... Allegations.285 Plaintiffs’
A. 1. The Informational Reports Program’s Disclosure from the 3. Fall-Out .288 Court District B.
III.STANDING.289 A. Traceability.292 Fair B.
C. CLAIMS.
IV. CONSTITUTIONAL Equal-Protection A. Plausibly Allege Plaintiffs Do Plausibly Plaintiffs Religious Classification. Facially Discrimination ii. Intentional Motive.!. Legally Justified? Nonetheless Alleged Discrimination Is Scrutiny. i. Level . Ends of Means ii. Evaluation Claims. First-Amendment B. .309
V. CONCLUSION. for intrusive out singled may not als I.INTRODUCTION surveillance pervasive investigation their dismissal appeal Plaintiffs simply harm continuing cause them City of New against suit civil-rights Id. certain faith.” they profess because to be tar- claim (the They “City”). York ¶ 8. pro- wide-ranging surveillance of a gets Police De- York
gram form, raises appeal this narrowest In its “NYPD”) wake (the began in partment Plaintiffs —themselves Do questions: two attacks terrorist September discriminatory sur- to a subject allegedly allege Plaintiffs (the “Program”). sue standing program veillance —have stigma- false and Program is based religious- their vindicate federal court religious iden- that Muslim tizing premise so, If rights? equal-protection liberty and *8 criminality, for proxy permissible tity “is a allega- non-conclusory Plaintiffs’ taking businesses, individuals, that Muslim and claims" they stated valid true, have as tions subject be can therefore institutions and Amend- Fourteenth and First under in- upon not visited surveillance pervasive of these Both our Constitution? ments businesses, institutions dividuals, and seem yes, we answer which questions, public or the faith religious any other beneath Lurking enough. straightforward ¶ (the “Com- Compl. First Am. large.” however, about questions surface, law- bring this They “Compl.”). plaint” role liberty, religious ipdividu- equality, principle “to affirm the suit courts in safeguarding our Constitution, mosques,” which “[o]fficers can con- [then] and the protection of our civil liberties and trol [remotely] ... with their computers” rights equally during wartime in and and generate which footage used “to help peace. identify ¶46. worshippers.” Id. Plaintiffs also allege the NYPD sends “undercover II. BACKGROUND officers”—some of which are called “mos- que crawlers” and A. Allegations Plaintiffs’ “rakers” —into mosques, student organizations, businesses, Lead Syed Plaintiff Faraj Hassan and neighborhoods that “it believes to be others of or associated the Islamic heavily Muslim.” ¶¶47, Id. 49-50. By faith “Plaintiffs”) (collectively that, assert “monitorpng] sermons and conversations since January 2002, City has through in mosques” and “surveil[ling] locations the NYPD conducted Program in se- such bookstores, as bars, cafes, and night- cret “to monitor the of Muslims, lives their clubs,” officers (cid:127) (cid:127) (cid:127) ] American “document! businesses, houses of worship, organiza- Muslim life” in “painstaking ]” and tions, and detail! in schools New York “report ¶ back to the NYPD.” Id. 47. states, surrounding particularly New Jer- sey.” ¶¶ See Pis.’ Br. 2 (citing Compl. While Plaintiffs believe that some of this 38). As this case comes before us on the surveillance activity (such is passive as City’s Dismiss, Motion to we must take all “takpng] video and photographs at mos- facts alleged in Plaintiffs’ Complaint ques, businesses, Muslim-owned true and draw all reasonable ¶ schools,” inferences id. and recording “the sub- that arise therefrom in their favor. See ject of conversations overheard at mos- 12(b)(6). Fed.R.Civ.P. ¶ ques,” 47), id. in other cases NYPD offi- cers more actively engage persons with the
1. The Program monitored. One alleged spying method of Plaintiffs contend that NYPD type latter is to “sen[d] undercover launched the Program following the Sep- officers to [Muslim-affiliated] locations to tember 2001 terrorist attacks engage with the pretextual conversations to elicit goal of “infiltra[ting] and monitorpng] information from proprietors patrons.” Muslim ¶ life and around New York City.” Id. 39. Officers also pose” “sometimes ¶ Compl. 2. They claim that it “target[s] as members of certain groups and organi- Muslim entities and ¶ individuals zations under investigation. Id. 50. The Jersey for investigation solely Complaint because illustrates one such example they are Muslim or believed where Muslim” an NYPD “officer ... went on a rather than “based upon rafting trip evidence of with a[ ] [Muslim Students As- ¶¶ wrongdoing.” Id. (MSA)] Plaintiffs sociation and monitored and re- claim that the Program, going on its tenth corded how often the student participants year when the Complaint filed, was on the trip “has prayed” “discusspon and their generated never ¶2. a single lead.” religious of] Id. topics.” Id. Per the Complaint, the NYPD “uses a only Not does the alleged Program “uti-
variety spy methods to on Muslims.” lize[ ]. numerous forms of surveillance,” id. ¶ Id. 39. Among the ¶ techniques it but that surveillance is also wide- employs are to “snap pictures, video, take spread. claim, Plaintiffs instance, and collect plate license numbers of [mos- the NYPD “has strived to have an infor- que] congregants” and to “mount surveil- .mant inside every mosque *9 a within 250- lance cameras light' on poles, at aimed mile radius of New York City” and has Databases and Reports 2. officers undercover or informants Informational
“plaee[d] “colleges at MSAs” virtually all or in all has Program the allege that Plaintiffs Jersey, York, New in New and universities document- reports of in “a series resulted ... without Pennsylvania Connecticut, and obtained the information in detail ing ac- of criminal whatsoever indication any Jersey New of surveillance NYPD’s] [the whatsoever any connection or tivity ¶ “in- These 5. Id. communities.” Muslim all, ¶¶ the In 49. Id. wrongdoing.” the Muslim focusing on report a clud[e] ... “surveill[ed] allegedly has NYPD (the re- “Newark in Newark” community restau- fourteen mosques,- twenty least twenty precinct- id.; than “more port”), stores, grade two rants, retail eleven Newark, noting City of the of maps level [MSAs], in addition and two schools busi- Muslim and mosques of location own, op- who individuals of number untold of composition ethnic and nesses Id. those establishments.” erate, and visit ¶ 3; “analytical id. community,” Muslim ¶ 3. within every mosque report[s] on ¶ 47; and City, id. York of miles” New to sin- that, in addition claim Plaintiffs schools, including on Report “MSA weekly for and businesses organizations out gling and Brunswick Rutgers on reports visibly are way in that some surveillance ¶ Newark,” 51. id. Rutgers (such as Islam with -openly affiliated or mats prayer with businesses mosques or collected records and The information identifications), “the Pro- Islamic or other varied. and extensive are compiled and by Muslims intentionally targets also gram video, ... ... are Among “pictures, these faith.” Id. for ethnicity proxy as using [mosque] con- of numbers plate license and instance, aver, ¶ Plaintiffs 40. ¶ 46; about intelligence id. gregants,” coun- twenty-eight designated “has NYPD located,” id. are schools religious “where of 80% constituting] about ... tries and ¶ affiliation religious 47; indications “American and population” Muslim world’s restaurants, shops, patronage Muslim of interest.” as “ancestries Muslim” Black id.; “busi- stores, lists grocery and ¶ is still decided- Program But the 41. Id. Muslims,” frequented or owned nesses Thus, rather than religion. on ly focused scholars, professors, id.; “names and with establishments people and all “surveil MSAs, id. affiliated students” and ” “ex- NYPD interest,’ ‘ancestries “compiles ¶ allegedly City also The and es- people to exclude chooses pressly who converts Muslim new databases they if ‘ancestries’ with such tablishments Muslims, names, well as Arabic take ¶ includes 42. This Id. Muslim.” are not to be perceived are take names who Christians, Coptic are they if “Egyptians ” ¶ Id. 55. ‘Western.’ if Jewish, Albanians are they if Syrians in- identifying other names Besides Christian.” or Orthodox they are Catholic businesses, and individuals, formation claim Conversely, Plaintiffs Id. include reports NYPD organizations, immigrant other examined has NYPD innocuous details mundane seemingly “for Jersey Newark, New communities Jer- community life New Muslim about Muslims,” as- such presence (1) posted “flyers as: sey, such immigrant com- Brazilian “Portuguese (2) tutoring;” Quran advertising for shops “Portugal notwithstanding that munities” grocery in a mosque hangs aof picture “a [the not found Brazil [are] ” ‘religious (3) serves store;” “a restaurant ‘ancestries.’ twenty-eight list of NYPD’s] ” Dunkin’ visit Muslims;’ “customers ¶44: Id. *10 (5) Donuts after Friday prayer;” “a restau- Shi’a Locations in the vicinity NYC,” rant is located near particular a mosque;” which include Plaintiff Muslim Foundation (6) “employees or customers of (“MFI”) establish- Inc. Masjid-e-AIi and mosque ments are (owned observed wearing ‘traditional operated by MFI), “as well as ” (7) clothing;’ “Muslim prayer mats are three additional mosques attended by hanging on the wall at an Indian ¶ restau- Plaintiff Hassan.” Id. 60.
rant;” “a store posts sign a that it While Plaintiffs allege that the Program will be closed on Friday in observance of is stigmatizing by itself, they also claim ¶ Friday prayer.” Id. 47. Finally, NYPD specific these defamatory statements tar- officers compiled have subject[s “the and geting them in particular have intensified details] conversations overheard at mos- their harms and that “New York City offi- ques.” Id. In one report, for in- cials” have injuries exacerbated these stance, they twenty-three “document[ed] publicly “acknowledging] the [Program’s] conversations twenty mosques,” though existence” and “describing it as focused on “[n]one information collected ‘threats’ and as an attempt to document any showed indication of criminal activity.” ” the ‘likely whereabouts of terrorists.’ Id. Id. ¶ 61. “Discussing surveillance, [for- Mayor mer] Bloomberg has public- stated S. 'Fall-Out the Program’s ly” that “[w]e’re doing the right thing. Disclosure Public We will continue to right do the thing.” Plaintiffs that, claim ¶ despite “initial se- Id. 64. And “[former Police] Commis- crecy,” public knowledge of the alleged sioner Kelly has said” that “[w]e’re going Program’s existence “has become wide- to continue to do what we have to do to spread in Jersey and elsewhere.” Id. protect the [C]ity.” Id. Plaintiffs state that ¶ They also contend that a number of these and other “official proclamations,” the allegedly generated reports “ha[ve] which “falsely suggest that alone Muslims widely ¶ been publicized,” id. and that present a unique law threat,” enforcement each Plaintiff has been “either specifically indicate “that [City officials] believe the named in an NYPD spying report or is a NYPD’s targeting of Muslims for surveil- member of at least one mosque or other lance on the basis of their religion ap- association named in such report,” Pis.’ propriate ¶¶ and will continue.” Id. 64-65. ¶¶ Br. 21 (citing Compl. 12-15, 17-26, 28- Plaintiffs that, also contend in large 34). part because of the Program’s alleged Plaintiffs have learned since the news stigmatizing reputational conse- broke, instance, for that the NYPD’s quences, so- the surveillance has affected called report” “Newark designates several their worship and religious activities. of them as a “Location Concern,” de- example, For Hassan, Plaintiff a soldier “as, fined among other things, a ‘location in the Army who has worked mili- may individuals find co-conspirators tary intelligence, asserts that' has “[h]e illegal actions,’ ‘location that has decreased his mosque signifi- attendance demonstrated significant pattern of ille- cantly” because of his belief that “being ” gal ¶ activities.’ Compl. 58. Similarly, closely affiliated with mosques under sur- the NYPD’s “U.S.—Iran report” describes veillance by law enforcement” will jeop- organizations believed to pose serious ardize his ability to a security hold clear- threats to New York City, such as Hezbol- ance and will tarnish reputation his lah and Hamas, along with a list of “Other among his fellow soldiers and diminish *11 contend also Plaintiffs ¶¶ several Finally, Like- 11-13. Id. in him. trust their their accompanied has harm financial Mohammed, that Jane Moiz
wise, Plaintiffs stigma- and reputational, religious, alleged they now that state Tahir Doe, and Soofia All Plaintiffs example, injuries. For tizing avoided) discussing their (or have avoid Unity and & Outside Shop Body Inside for fear meetings MSA or at openly faith the sur- that claim Sausage Company Beef documented, id. and watched being of “businessfes] damaged their has veillance alleges ¶¶[ Mohammad Plaintiff 24-30, and ¶¶ 19, 21, customers,” id. away scaring being to attached now stigma “[t]he that and Abdur-Rahim Zaimah Plaintiffs and - caused has MSA of the member Muslim a the that allege Abdullah Abdul-Hakim or his his discussing faith to avoid [him] photo- and a the address of publication to and avoid public in participation MSA “in home of their the Internet graph on non-Muslims where places in praying surveillance NYPD’s the connection ¶ so,” id. 25. doing him see might di- .-.. and value [its] ... has decreased only sale,” the are id. Plaintiffs for prospects The individual [its] minished Plain- Council Also, ¶¶ Plaintiff organizational The two of affected. 34. ones mos- Jersey’s under- member Program “has the in New that of Imams allege tiffs ... finan- mission[s “[Bosses their have witnessed ability ques to fulfill their mined both “harm[s] join- further support,” which members cial potential deterring by] religious their fulfill ability to to ability mosques’ casting [their] doubt ing and ¶ Id. 15. missions.” mem- confidentiality of their maintain ¶ 17). Compl. (citing Pis.’ Br. bership.” District Court B. mosques two Complaint, to the
According
of
Council
City
Plaintiff
of
members
sued the
are
that
Plaintiffs
June
In
are named
that
Monell
Jersey,
§
and
and
in New
42 U.S.C.
Imams
to
pursuant
...
“have
report,
Services
Social
Department
Newark
NYPD’s
York,
as a result
attendance
decline
seen
(1978), for discrimi-
because
surveillance”
56 L.Ed.2d
the [NYPD’s]
in viola-
as Muslims
worship
longer
nating against them
can no
congregants
their
and Establish-
Exercise
Free
tion
law-enforcement
knowing
freely
and
Amendment
First
of the
Clauses
likely in their ment
informants
agents Four-
Clause
Protection
Equal
¶
affin-
Similarly, “[a]s
Compl. 15.
midst.
expunge-
seek
They
Amendment.
teenth
subject to sur-
MSAs
groups,
ity student
records
unlawfully obtained
any
ment
ability
in their
... are diminished
veillance
them,
declaring
judgment
to
pertaining
organizations
student
viable
establish
to
First and
their
violated
City has
and
joining
feel secure
will
students
order
rights,
Amendment
Fourteenth
“to em-
less able
and are
in”
participating
discriminatory sur-
future
their
enjoining
with cam-
partnerships
integral
upon
bark
veillance,
damages.
organizations
and other
administrators
pus
City’s
granted
of their
needs
spiritual
Court
fulfill the
The District
[to]
in Febru-
Complaint
Id.
manner.”
to Dismiss
in a confidential
Motion
members
of Civil
Rule
changed its
to Federal
pursuant
¶
has
ary
Plaintiff MFI
17. And
standing
12(b)(1)
lack
for
programming
Procedure
and educational
religious
12(b)(6)
Procedure
of Civil
stigma-
Rule
likely to
Federal
topics
controversial
avoid
First,
a claim.
to state
failure
to attract
membership further
its
tize
identify
failed
¶
that Plaintiffs
held
Court
Id.
attention.
NYPD
additional
cognizable
any
(let
“injury-in-fact”
alone
ler v. U.S. Dep’t
Health & Human
one “fairly
City’s
traceable”
Servs.,
surveil-
(D.C.Cir.2015)
lance). Second, it
(internal
concluded that Plaintiffs
quotation
omitted).
marks
In
failed to
state
claim because “[t]he more
words,
other
to withstand a “facial attack”
likely explanation for the surveillance was
*12
at the
stage,
motion-to-dismiss
plaintiff
a
a desire to locate budding
con-
terrorist
need only plausibly allege facts establish
spiracies” than a desire to discriminate.
ing each constitutional requirement. Lew
v. City
York,
Hassan
No. 12-cv-
is v. Casey,
343,
518
358,
U.S.
116 S.Ct.
3401, 2014
654604,
(D.N.J.
WL
at *7
2174, 135
Feb.
(1996).
L.Ed.2d 606
20, 2014). It therefore entered judgment
City’s
favor.
A.
Injury-in-Fact
Plaintiffs
appeal
now
rulings.
these
A plaintiff alleges injury-in-fact
when it claims
has,
that it
or is in immi
III. STANDING
nent danger of having, suffered “an inva
As did the
Court,
District
we begin
sion of
legally
protected
interest”
is
“
with Plaintiffs’ standing to have a federal
“concrete
particularized”
and
and ‘actual
court decide their claims. Standing to sue or imminent, not conjectural
hypothet
required
is
jurisdiction
for
in a federal
ical.’” Lujan,
560,
When answering questions, these type of personal injury [that] ha[s] long “we must assume that party asserting recognized [been] as judicially cognizable,” jurisdiction federal is correct the legal Mathews, Heckler v. claim, merits of his that a decision on the 79 L.Ed.2d (1984), merits be favorable!,] would and that the virtually every circuit court has reaffirme requested relief would be granted.” Cut d1—as has the Supreme Court—that a See, e.g., Guam, Davis v. ("[E]qual treatment un- itself, perpetuating by discrimination is itself “discriminatory classification notions” stereotypic “archaic Roe, 526 U.S. Saenz
penalty,”
the disfavored
members
stigmatizing
(1999), and
L.Ed.2d
1518, 143
there-
“innately inferior”
group'
injury for stand
actual
as an
qualifies
thus
in the
worthy participants
as less
fore
right
a citizen’s
where
ing purposes,
serious
cause
community, can
political
Ne.
also
See
at stake.
is
treatment
equal
persons
those
injuries to
noneconomic
Contrac
Gen.
Associated
Chapter
Fla.
treat-
equal
denied
personally
who
Jacksonville, 508
Am.
tors
membership
solely
their
because
ment
2297, 124 L.Ed.2d
group.
a disfavored
(“The
fact’
‘injury Heckler,
,”).2
equal treatment...
denial
*13
omitted)
Miss. Univ.
(citation
(quoting
for
the
arguments
City’s
the
of
None
725,
718,
102
458 U.S.
v. Hogan,
Women
First,
argu-
its
persuasive.
contrary are
(1982)); see
3331,
1090
L.Ed.2d
73
S.Ct.
injuri-
only
is
treatment
unequal
Ins.
ment that
Harleysville
also,
v.
e.g., Mardell
Life
Cir.1995)
like
tangible
(3d
benefit
(per
a
involves
1072,
it
Co.,
1074
ous when
F.3d
65
Security takes
suf-
curiam)
(“[A]
or Social
of discrimination
victim
admission
college
as, and
injury
real
dehumanizing injury
Ill’s
as
of Article
view
fers
cramped
too
lasting harm
has
severe
of far more
Supreme Court
often
theAs
requirement.
(internal quota-
jaw.”
than,
the
a blow to
noted,
Cir.2008) (McCon-
1245,
(10th
1257
F.3d
...
cognizable
534
interest
judicially
is a
law
der
nell,
(“From
J.)
beginning, this nation’s
the
the
tangible benefit to
no
brings
if it
even
included, at a
liberty
religious
conception of
it.”);
Liberties Union
asserting
Am. Civil
party
religious
minimum,
of all
equal
the
treatment
1313,
Santillanes,
1319
F.3d
546
v.
N.M.
of
prefer-
or
discrimination
without
faiths
ence.”);
("The
Cir.2008)
injury
the
in fact is
(10th
Loewenstein,
Some General
Karl
treatment.”); Planned Parenthood
cf.
equal
of
denial
Proposed "International
the
on
Observations
786,
Rose,
790
F.3d
v.
361
Inc.
of
S.C.
(1942).
Rights" 17
Bill
("Discriminatory
...
of
Cir.2004)
treatment
(4th
standing
injury for
actual
an
qualifies] as
Equal
and the
...
Religion Clauses
"[T]he
Synod v.
Church-Mo.
purposes.”); Lutheran
religion ...
applied to
Clause
Protection
(D.C.Cir.1998)
487,
FCC,
493
F.3d
154
point: Absent
this
one voice on
speak with
all
was denied
("[T]he
litigant
the
claim that
circumstances,
reli
one’s
most unusual
the
Arti
to constitute
is sufficient
equal treatment
legal
or
rights
ought
affect one’s
gion
not
”);
Way
Peyote
Church
'injury in-fact.’
Kiryas
cle III
Educ.
Bd.
or benefits.”
duties
of
of
1210,
God,
Thornburgh,
687,
922
v.
Grumet,
Inc.
512 U.S.
v.
Vill. Sch. Dist.
Joel
of
Cir.1991) ("[Ijllegitimate un
(1994)
2481,
n. 2
715,
1214
546
129 L.Ed.2d
114 S.Ct.
itself....”).
injury unto
is an
equal
J.,
treatment
part
(O’Connor,
concurring
and concur
in
also, e.g.,
see
judgment
part);
ring
in the
religious
Univ.
personal
Rosenberger
interest
Rector & Visitors
v.
2. Plaintiffs’
of
of
2510,
845,
819,
Va.,
132
zone of those
S.Ct.
115
squarely within
U.S.
equality falls
515
Valente,
(1995);
456
guarantees
v.
Larson
constitutional
700
protected
L.Ed.2d
1673,
244-45,
228,
72
certainly
L.Ed.2d
102 S.Ct.
strike
their claims
U.S.
question. While
Religious
(1982);
&
of
Pub. Educ.
Clause
Comm.
Equal
Protection
33
heart
at the
756,
Amendment,
413 U.S.
Liberty Nyquist,
the First Amend-
v.
Fourteenth
(1973);
2955,
v.
Gillette
religion in-
Cir.1997).
Seldin,
(quoting
Warth v.
(1975)).
The City
argues
next
have
Plaintiffs
Because Plaintiffs in this case claim to be
injury-in-fact
suffered no
because it has
very
targets of
allegedly
unconsti
overtly
reli-
condemned
Muslim
surveillance,
tutional
they are unquestion
gion.
Br.
argument
35. This
does
ably
personal
“affect[ed]
in a
and indi
not stand the
of time.
test
Our Nation’s
way.” Lujan,
vidual
560 n.
history teaches the uncomfortable lesson
that those not on
receiving
discrimination’s
can
easily gloss
“badge
end
all too
over the
Further,
(or
that hundreds or thousands
inferiority”
by unequal
inflicted
treat-
millions)
even
may
of other persons
have
Closing
eyes
ment itself.
our
real
*14
injury
suffered the same
change
does not
and ascertainable harms of discrimination
the individualized nature of the asserted
inevitably
morning-after
leads to
regret.
See,
rights and
at
interests
stake.
e.g.,
537,
Compare Plessy
Ferguson,
v.
163 U.S.
203,
Sch. Dist. v. Schempp,
223,
374 U.S.
551,
(1896)
1138,
16
41
S.Ct.
L.Ed. 256
1560,
(1963) (call
83
10
S.Ct.
L.Ed.2d 844
(“[If]
separation
enforced
of the
races
two
ing religious
freedom an “individual”
stamps the colored race with a
badge
Constructors,
right); Adarand
Inc. v.
[,]
...
inferiority
it
not
by
is
reason
Peña,
200, 227,
515
2097,
U.S.
115 S.Ct.
act,
anything
solely
found in the
but
be-
(1995)
132
(referring
L.Ed.2d 158
to a
cause the colored race
to
that
put
chooses
“personal right
citizen’s
equal protec
to
it.”),
upon
construction
Brown Bd.
with
v.
tion
(emphasis
original)).
of the laws”
in
Educ.,
483, 494,
686,
347 U.S.
74 S.Ct.
Standing
easily
instance,
recognized,
is
for
(1954) (“To separate
fications
because
their race
suffer
injury.”
same common-law
erates a
feeling
inferiority as to their
Akins,
11, 24,
FEC v.
118
U.S.
S.Ct.
status in the community
may
that
affect
(1998).
1777,
Moving
similarly
many
injured,
we are
others are also
would mean
persuaded by
City’s
argu
injurious
alternative
that
widespread
the most
and
alleged injuries
ment that Plaintiffs’
questioned
Government actions could be
“particularized.”
EPA,
not
It is
“only by nobody.”
true that
Massachusetts v.
a complainant
possesses
...
some
n.
[who]
U.S.
127 S.Ct.
thing
general
omitted)
more than a
interest
in the
(emphasis
L.Ed.2d 248
SCRAP,
proper
execution of the
...
in a
(quoting
laws
is
at
U.S.
93 S.Ct.
2405).
position
judicial
to secure
intervention.”
Harm to all—even in the nuanced
Wickard,
v.
Stark
standing
world of
logically
law—cannot be
equated
S.Ct.
ance its that not (1972), bank, it follow is mis- does tering L.Ed.2d racially a only may be alleged there selection for plaintiffs criterion The placed. compel- speech parties’ proven aof based, on third absence “chilling in the effect” existence, omitted)); without (citation mere “the caused state interest.” ling cf. governmen- [non-discriminatory] more, Davila, 160-61 Anderson activi- data-gathering and investigative J.) (while gov- Cir.1997) (Roth, public tal (3d. Plaintiffs 2318. at ty.” Id. cog- not was alone ernmental surveillance discrimi- contrast, allege that the here, by conducted nizable, surveillance identical Program is by which manner natory of First exercise one’s for retaliation direct, on- them itself causes administered separate rise to rights gave Amendment Because harm. immediate going, III). Article cognizable under injury no where only problem is “standing Amendment First independent harm Traceability Fair B. Pidlypchak, alleged,” Gill injury- requirement second The J.), Cir.2004) (Calabresi, 379, 383 between causal is a connection in-fact proposition stand doesn’t Laird plain alleged conduct defendant’s per se is either public surveillance at Lujan, harm. See tiffs sub- attack or constitutional immune City contends The injury, requirement ject heightened to a re satisfy this failed have Plaintiffs holding, see case’s “narrow” Press the Associated because quirement facts reach doesn’t the Pro NYPD, revealed (“AP”), case. of this without did so public gram the cases we Indeed, post-Laird in several short, it argues," In *15 City’s permission. in that, while surveillance recognized have you. hurt can’t know you don’t “What any violate of itself may not public places know, us. Shoot don’t shoot And, you if do other violate it can still right,3 privacy messenger.” the harms. cognizable to rise that rights give the factual its distortions of from Aside Police, F.2d See, Pa. v. State e.g., Hall un- legally is record,4 City’s argument the may be (“Although it (3d 86, 91 Moreover, required do they to were even if Plain- position on whether not take 3. doWe ample evidence so, produced have such Plaintiffs brought suit to vindicate have could tiffs (1) former showing "[a] allege a violation that: They do not in rebuttal interest. an to privacy, but the right independently [of ... constitutional informant some NYPD targeting practice of treatment. equal the NYPD’s revealed AP] publicly in by "sp[eaking] Muslims” innocent attesting AP’s to the NYPD 4. Far part the NYPD's in great detail about his revealing once-secret the respective roles surveilling on Muslims practice of policy and on counsel of defense affidavit Program, the Glenn Katon religion,” Deck of the basis.of AP merely that the states City relies the which publishing 4; (2) began ¶ AP "[s]ince “re- conduct NYPD’s reported policy and NYPD's regarding the reports public to the documents [unredacted] leased surveillance, targeting Muslims for practice August 2011.” beginning large City have acknowl- officials York senior ¶ impossible 3. It is Peter G. Farrell Deck tactics,” thus NYPD's edged and endorsed conclude, from reasonably, alone let to infer harm,” amplifying] “propagating] (or first AP was that the statement this ¶id. 3. the information only) public source may be it played no role for which NYPD responsible. legally held
ins ID <so-
(to
tenable
repeat)
because
the discrimina
omitted));
marks
see also
Meese,
Block
tion
is the legally cognizable
itself
injury.
793 F.2d
(D.C.Cir.1986)
(Scalia,
Indeed,
J.)
discrimination
(“[T]he
often has been lik
question
core,
constitutional
ened
tort,” see,
to a “dignitary
e.g.,
injury-in-fact
Curtis
... requires no more than de
Loether,
195 n.
causality.”);
Fisher,
Pitt News v.
facto
damage itself,” 2
Dobbs,
Dan B.
Dobbs
Law
7.4(1),
§
Remedies
at 334
The last requirement of Article
ed.1993). And, as with other “torts” in III standing is redressability, which re
this category, “the affront to the other’s quires the plaintiff to show that “it ...
[is]
dignity ...
is as keenly felt by one who ‘likely,’ as opposed to merely ‘speculative,’
only knows after the event that
indigni
the injury will be ‘redressed
aby
”
ty has been perpetrated upon
him as
favorable decision.’ Lujan, 504 U.S. at
one who is
of it
conscious
while it is being
560,
nal
Davis,
S.Ct.
426 U.S.
constitutional
v.
ington
[their]
of
vindication
(1976);
Die
Adm’r
County
San
Pers.
2040,
v.
L.Ed.2d 597
Schneider
right[s],”
of
(9th
(quot
276,
256,
Feeney, 442 U.S.
go, 285 F.3d
v.
Mass.
of
Laws,
Floyd
It is
ing
2282,
[*] [*] [*] H* # v religion. See Ashcroft Iqbal, L.Ed.2d 129 S.Ct. this to hear jurisdiction in our Confident (2009). Rather, religious affilia Plain- Plaintiffs’ merits of to the case, turn we now factor in begin a substantial claims must have been tion tiffs’ constitutional Davis, 426 U.S. treatment. equal protection. that different 2040; at Feeney, at 96 S.Ct. CLAIMS CONSTITUTIONAL IV. 2282. 99 S.Ct. Claim Equal-Protection A. a Plausibly Allege Surveil- Protection Clause i. Plaintiffs Equal
The
Facially Re-
to our Consti
with a
Program
Amendment
lance
the Fourteenth
shall
that
State
ligious
“[n]o
Classification.
provides
tution
jurisdiction
its
within
deny
any person
consid
variety of theories to
are a
There
the laws.” U.S.
protection
equal
type.
this
claim of
equal-protection
er in
XIV, § 1. Plaintiffs claim
Amend.
Const.
policy
a
First,
point to
Plaintiffs could
that mandate
contravening
City
is
meaning that
discriminatory,
facially
by surveilling them
rights
their
violating
out Mus
singles
“by its own terms”
policy
investigates
Program
pursuant
3 Ronald
treatment.”
lims “for different
sus
any reasonable
not because
persons
Nowak, Treatise on
E.
& John
D. Rotunda
(or
neutral cri
other
wrongdoing
picion of
(10th ed.2012);
§ 18.4
Law
Constitutional
terion)
of their Muslim
solely because
but
213, 227-29,
Adarand,
see,
e.g.,
religious affiliation. .
Second, they could identi
investigation”
A “claim selective
classifica
shows no
fy policy
“either
“ ‘ordinary equal
police
draws
a classifi
face
else indicates
tion on its
”
Flowers
standards.’
protection
yet
legitimate,”
seems to be
which
cation
794, 798
Cir.
Minneapolis,
apply to Muslims
NYPD
one that
officers
States, 470
2009)
Wayte v. United
(quoting
severity” than
greater “degree[ ]
awith
L.Ed.2d
Novak,
&
religious groups. Rotunda
other
(1985)).
equal-protec
As with other
see,
Hop
18.4;
Yick Wo v.
e.g.,
§
supra,
City inten
claims,
ask whether
tion
we
kins, 118 U.S.
reasonably
against
tionally discriminates
*17
(1886). Or,
third, Plaintiffs
L.Ed.
inten
that
group and whether
identifiable
facially
policy
identify a
neutral
could
legally
is nonetheless
tional discrimination
impose
to
“designed
City purposefully
justified.
and that
on Muslims
burdens”
different
Plausibly Allege
1. Do
in
(even
evenhandedly) does
fact
applied
if
Plaintiffs
Discrimination?
Intentional
Rotun
adverse effect.
the intended
have
see,
18.4;
Novak,
e.g.,
§
Vil
supra,
claim, da &
equal-protection
an
state
To
v. Met. Hous.
Heights
(and
Arlington
ultimately
lage
allege
Plaintiffs must
Corp.,
Dev.
conceived (January 2002), where the City
We
with this
policy
characterization.
was enacted and where it was
While the City compares
down,
Plaintiffs’ claims written
“the Twombly-Iqbal duo
to the conclusory allegations
Iqbal,
have not inaugurated
era
of evidentiary
those
far
were
from what we have here.
pleading.” Santana v.
Cnty.
Cook
Bd. of
case,
In our
Plaintiffs allege specifics Review,
(N.D.Ill.2010)
296
¶
(Al-
id.
31
(the Masjid-e-Ali mosque);
(rejecting
1955
127
(Al Muslimaat
Academy);
“re-
pleading
id.
Hidaayah
notice
that
proposition
the
specif-
pleading
supplement
fact
heightened
quire[s]
Academy).
allegations
These
... be-
allegations
ics”).
“factual
do
Nor
..: at
“surveil[led]
the NYPD
that
those
conclusions
labels
impermissible
come
fourteen restau-
mosques,
twenty
least
alle-
factual
additional
the
because
simply
stores,
grade
two
rants,
retail
eleven
the ar-
supporting
explaining
gations
Jersey,”
in New
two [MSAs]
schools and
also
are not
allegations
factual
ticulated
¶
twenty precinct-
38;
over
“creat[ed]
id.
Litig.,
Niaspan Antitrust
In re
included.”
id.;
Newark,”
City of
the
maps of
level
(in-
(E.D.Pa.2014)
735, 753
F.Supp.3d
42
in-
“informant
place an
to
attempted
omitted).
itWhile
marks
quotation
ternal
radi-
a 250-mile
mosque within
every
side
ultimately
will
that Plaintiffs
possible
is
prepared
City” well as
York
of New
us
proof,
their burden of
meeting
falter
every mosque
on
report
“analytical
an
object of dis-
is the
of evidence
collection
¶
miles,” id. 47.
100
within
covery.
of “evi-
Moreover,
pleading
even if
allege
Plaintiffs
Finally, because
for relief’
“grounds
than
rather
dence”
were
and entities
persons
all of these
not),
(which
the Com-
it is
required
were
suspicion
any reasonable
without
surveilled
per-
examples
numerous
includes
plaint
(as
above, they assert
wrongdoing
noted
surveilling because
is
the NYPD
sons that
operation,
that,
years of
all its
“[i]n
See, e.g.,
affiliation.6
religious
of their
single
generated
never
Program has
¶
(the
and Mas-
Masjid al-Haqq
14
Compl.
¶ 2),
can be
lead,”
this case
id.
[criminal]
¶ 17
mosques);
id.
K. Muslim
jid Ali
where
with others
easily contrasted
University campuses
(MSAs
Rutgers.
for
was
investigation at issue
law-enforcement
¶
Brunswick);
18
id.
and New
at Newark
by a reasonable
certainly explained
almost
Outside);
id.
(All
&
Body Shop Inside
George
¶
wrongdoing.7
Co.);
suspicion
¶
Sausage
id.
Beef
(Unity
Cf.
(N.D.Cal.
Patrol,
F.Supp.2d
argue that
City
to
means
the extent the
6. To
evidence).
2000) (statistical
allege
plausibly'
have failed
Plaintiffs
singled
exemplars have not been
these
even
affiliation, we
religious
by reason of their
out
say
absence
7. This
course
draw
allegations, which
disagree. Plaintiffs'
par
suspicion
reasonable
presence of
evidence
circumstantial
on the sources of
of a
viability
ticular case determines
prima
commonly
make out a
used to
facie
Whren
equal-protection claim.
plaintiff's
Cf.
dispa
ain
discrimination
of intentional
case
States,
v. United
satisfy
type, easily
of this
suit
rate-treatment
(1996) ("[T]he
Constitu
In because “intent” asks Plaintiffs have whether a pleaded person acts ample “intentionally “factual content accidentally,” [that] allows [us] to while “mo- asks, tive” draw “If he did it reasonable intentionally, inference that why did he do [City] is it?” liable 1 John for the William Salmond, misconduct alleged,” Jurisprudence Iqbal, (7th § 134, at ed.1924) we (emphasis in original); decline to dismiss see their also Complaint on the Black’s Law ground Dictionary 881 (Bryan they ed., have not Garner al- plausibly 2014) (“While 10th ed. leged a surveillance motive program is the in- with a facial- ly act, ducement do some discriminatory intent classification. is the mental resolution or determination to do ii This, Intentional it.”). Discrimination Does Not fundamental “distinction be-
Require an Invidious Motive. tween motive and intent runs all through the law.” Phelan, Johnson v. 69 F.3d The City also argues that, even (7th Cir.1995) (Posner, C.J., concur- assuming Plaintiffs have plausibly alleged ring in part and dissenting part). a facial classification based on religious affiliation, allegations their of discriminato In focusing on what City contends ry “purpose” implausible because “the was its “legitimate purpose[]” of “ana- more likely explanation for the NYPD’s lysing] ... potential [security] threats and public actions is safety rather than dis vulnerabilities,” City Br. it wrongly crimination upon based religion.” Br. City assumes that invidious motive is a neces- Its reasoning is essentially two-fold: sary element of discriminatory intent. It “the surveillance is alleged to have begun you is not. All need is that the state actor just after [September 11, 2001] terror meant to single a plaintiff out because of attacks,” id., ist police “[t]he could not protected See, characteristic itself. But although a lack of suspicion reasonable suspicion lack of may ... properly be consid does afford a presumption that a law- ered plaintiffs' in the selective-enforcement enforcement officer initiated investigation claim.”); Cornejo, Anderson v. F.Supp.2d on the protected basis characteristic, it is (N.D.Ill.2003) (citing "the lack of certainly one may factor that be considered adequate suspicion strip for a pro search” as by a finder of fact. See Bennett v. bative fact that a customs officer "act
Eastpointe, 822 n. 1 Cir. ed, part, at least in plaintiff [the because was] 2005) ("While the stop justified was woman”). an African-American Fourth perspective [,] Amendment
298 legiti- a subjectively motivated 472, Louisiana, were Snyder v. e.g., (no matter purpose mate law-enforcement 175 L.Ed.2d 170 485, 128 S.Ct. intentionally discrim- sincere), they’ve how Women’s Alexandria (2008); Bray v. surveilled have they if inated wouldn’t 113 Clinic, U.S. Health they not been Muslim. (1993). had Plaintiffs In a 753, 122 L.Ed.2d S.Ct. instance, case, “the school-segregation Alleged Discrimination Is. the 2. finding of uncon a triggers
‘intent’ which
Legally
Nonetheless
to harm black
an intent
stitutionality is not
bring
intent
to
simply an
students,
Justified?
but
segregated schools.”
maintain
about or
plaintiff
a
demonstrates
Once
Omaha, 521
Dist.
v. Sch.
States
United
others
different
treatment
Cir.1975). Likewise,
(8th
a
530, 535
similarly
situated
or she is
he
whom
the basis
juror
a
strikes
who
prosecutor
the result of
is
unequal
that the
treatment
if
intentionally even
of race discriminates
discrimination,
adequacy
“the
intentional
his
to
desire
win
by a sincere
motivated
that discrimination
reasons for
McCollum, 505
See,
v.
Georgia
e.g.,
case.
protec
at equal
separately
assessed
42, 59, 112
L.Ed.2d
appropriate
under the
step”
tion’s second
(1992).
SECSYS,
Vig
v.
LLC
of review.
standard
(10th Cir.2012).
To
il,
666 F.3d
here.
absence
too
While
So
legal framework
traditional
apply this
on whether
may bear
motive
legitimate
a
case,
determine
we must
of this
the facts
survives
challenged surveillance
(i.e.,
of review
standard
appropriate
scru
of equal-protection
level
appropriate
scrutiny,
basis,
or
intermediate
rational
need
discrimination”
tiny, “intentional
it is
then ask
scrutiny) and
whether
strict
will, enmity, or hostili
by “ill
be motivated
met.8
Equal Protection
contravene
ty” to
York, 959
Floyd
v.
Clause.
Scrutiny
i.
Level
(S.D.N.Y.2013) (quot
540, 662
F.Supp.2d
minimum,
dis
a
Inc.,
At
intentional
168 F.3d
Grp.,
Parker
ing Ferrill
'
any
“identifiable
against
(11th Cir.1999));
crimination
also
see
473 n.
review,
subject to rational-basis
group”
Ath
High Sch.
Equity v. Mich.
Cmtys. for
ra
to be
(6th
classification
requires the
which
Ass’n,
Cir.
459 F.3d
letic
governmen
legitimate
tionally related to
2006)
“an intent
between
(distinguishing
Cohen, 836 F.2d
Johnson
in
tal
differently”
purpose.
and “an
groups
treat
two
Cir.1987).
“qua
Where
n. 9
Los
harm”);
County
Garza
tent to
is at
classification
“suspect”
si-suspect”
n. 1
Cir.
Angeles,
however,
action must
issue,
challenged
1990)
J.,
(Kozinski,
concurring
part
“strict
scrutiny” or
(“[T]here
“intermediate
can
inten
survive
dissenting
part)
scrutiny (appli
scrutiny.”9 Intermediate
an invidious
without
tional discrimination
gender
like
classes
quasi-suspect
motive.”). Thus,
cable
if NYPD
even
officers
in the
triggered
scrutiny” is also
9. “Strict
analysis
also
Although
have
other modes
right.” While “the
a “fundamental
see,
case of
Hodges,
Obergefellv.
employed,
e.g.,
been
-
religion” is funda-
right to free exercise
2584, 2596,
-,
mental, Lewis,
U.S. at
(2015),
appropriate to
it
we find
L.Ed.2d
in this case on
proceed
Plaintiffs
two-part
framework
apply
conventional
protected
religious
theory that
affiliation is
this
case.
context
class.
and illegitimacy) requires that a classifica- write on a clean
start,
slate. To
it has
tion
substantially
“be
long
related to an impor-
been implicit in the Supreme Court’s
tant governmental objective.”
decisions that
Clark v.
religious classifications are
Jeter,
treated
like
others traditionally subject to
heightened
v. (Tex.Crim.App.1994). S.W.2d 468 decision.”). disability, are so tics, intellectual as such not com- ought or be change
realistically ability to person’s “a is fundamental often correlated it change because pelled to See, frequently society” v. that we e.g., Baskin identities. participate to their constitutionally permissi- to be 766 F.3d them Bogan, deem J.) Baskin, whether discrimination, this issue as (Posner, (framing see ble bases on some based [is] treatment unequal religious affilia- person’s “the character- at least tenacious immutable spectrum. the other end tion is at against” discriminated people istic discrimination, very “by [its] Religious [is] “eharacteristic[ ] ato opposed as thought “odious nature,” long been has such as change, easy person for a are found whose institutions people a free Watkins, fingernails”); her of his or length Bell v. equality.” upon ed doctrine (Norris, J., concurring F.2d at Maryland, (“[T]he Court is Supreme judgment) (1964) J., (Goldberg, 1814, 12 L.Ed.2d effectively immut- a trait as willing to treat Hirabayashi Unit concurring) (quoting great involve it changing if would able States, ed major physi- requiring as difficulty, such (1943)); State Bd. Va. L.Ed. 1774 W. change of identi- traumatic change or a cal Barnette, Educ. ty”). (“[For] L.Ed. 1628 this cate falls within affiliation Religious him[,] those who followed Jefferson and immi in the recognized As we have gory. as reli minorities as well [rjeligious context,13 religious affiliation gration in the equal were to be majorities gious being “capable seen typically state.”); President political eyes of the impor yet “of such fundamental changed,” A Madison, Religious Freedom: James re individuals should tance that Against Remonstrance Memorial and modify it.”14 Ghebrehiwot quired Assessment, in “A Bill Establish General U.S., Attorney Gen. of *24 the Teachers ing Provision Cir.2006) v. (3d Escobar Gon (quoting to the Gen Religion,” Presented Christian (3d Cir.2005)); zales, 363, see 367 417 F.3d of Virginia, at the Session Assembly of eral J.) (Posner, Baskin, F.3d at 655 766 also (“A (1819) just will Government 1785 deep of “a example an (listing “religion” as citi by every protecting supported be best that would commitment” psychological Religion of his enjoyment in the zen scrutiny). More heightened qualify for his protects equal hand which the same over, characteris- immutable while some many the core of ing religion lies "at definition have on the 13. Other courts drawn identity”); understanding of their immigration when individuals' cases of in "immutable” Comment, Salmons, a Fuller Toward equal- David B. the context of an defining term in 456, Recog- Otter, Understanding Religious Exercise: 771 F.3d protection Latta v. suit. of Expressive Identity-Generative immigra nizing and (quoting an 4 464 n. Devotion, “[sjexual U. Chi. Religious 62 proposition that Nature tion case for of 1243, (1995) (noting "funda- identity are immuta 1258 and sexual L.Rev. orientation ble; play[s] identity religious preference] they to one’s are so fundamental mental role [that concept identity required aban of person shaping individual’s that a should not Note, (alteration original)), Reinterpreting cert. de personhood”); don them” — 2931, nied, -, 192 Construction U.S. 135 Constitutional Religion Clauses: (2015). Self, L.Rev. L.Ed.2d 97 Harv. Conceptions 609 of 1468, ("A society (1984) that failed to 1474 individu- religion foreclose the protect would Signaling Huq, Function 14. Aziz The Z. of part of the most fundamental al’s choice of Religious Speech Counterterror- in Domestic ism, 833, identity.”). (2011) (recogniz- his 89 852 Tex. L.Rev. 303 person property; and his by neither invad- (referring to “Chinese laborers” as “of a ing equal rights Sect, any nor suf- distinct race and religion”); In re Hallad fering sect any to invade those of anoth- jian, 834, 174 F. (C.C.D.Mass.1909) 838 er.”). (“A Hindoo ... differs color no less from a Chinaman than from an Anglo- Courts also are likely more subject ”); Saxon .... Khaled A. Beydoun, Be classifications that are “closely associated tween Muslim and White: The Legal with inequality” to Con a more searching inqui struction Arab American ry. States, Identity, Windsor v. United N.Y.U. Ann. 169, Surv. 29, (2013) Am. L. Cir.2012), on other aff'd — (noting that “the grounds, conflation of -, Arab U.S. 2675, 133 S.Ct. Muslim identity deeply was L.Ed.2d Thus, if entrenched the clas within the courts during sification is accompanied by a Naturalization history of Era” and that “Islam “discrimination based was on archaic treated as an and over- ethno-racial identity”). broad assumptions,” Roberts v. Jay U.S. cees, 609, 625, 468 U.S. 104 S.Ct. It is thus unsurprising that tampering (1984), L.Ed.2d 462 if it has been tradi with religious brings affiliation play into
tionally used as a tool for the oppression the same concerns of inequality. Though
and subordination of minority
see,
groups,
“[njothing but the most telling
personal
e.g., City
Co.,
Richmond
J.A. Croson
experiences in religious persecution suf
495-96,
109 S.Ct.
fered
our forebears could have planted
L.Ed.2d 854
(plurality opinion), our belief in liberty
religious
opinion
heightened scrutiny often is
appro
more
any more deeply in our heritage,”
priately applied.
Schempp,
The
religious
omitted),
discrimination in
we have struggled to
the United States is
guarantee
intertwined
religious
with that
equality since our Na
based on
protected
other
characteristics,
founding.
tion’s
See generally Everson v.
including national origin and race.15
Bd.
Saint
Ewing Twp.,
9-
U.S.
of Educ. of
Francis
Coll. v. Al-Khazraji,
67 S.Ct.
(1947);
L.Ed. 711
107 S.Ct.
95 L.Ed.2d
Shaare
Congregation
Cobb,
Tefila
(1987) (noting that
615, 616,
“[t]he Ninth
edition of
95 L.Ed.2d
the Encyclopedia
(1987);
Britannica ...
referred
Schware Bd. Bar Exam’rs
Arabs, Jews,
N.M.,
and other
groups
ethnic
Germans,
such as
Hungarians,
Greeks,
(1957);
L.Ed.2d 796
Murdock v. Pennsyl
*25
separate
(citations
as
races”
omitted)); vania,
105, 109,
319
870,
U.S.
63 S.Ct.
87
Fong
Ting
States,
Yue
v. United
149 U.S. L.Ed. 1292
Different
religious
698, 717, 13
1016,
(1893)
S.Ct.
ports). The final step in evaluating an
The same commitment
religious
equal-protection claim is to examine the
equality is seen in
pronouncements
of
challenged action’s “means” and “ends”
Branch,
the Executive
from those of our
and the “fit” between the two. The specif
President,
first
George Washington, to
analysis
ic
differs depending
our.
on the
level
President,
current
See,
Barack Obama.
scrutiny that applies.
higher
The
e.g., President George Washington,
scrutiny
Ad-
required,
persuasive
more
dress to the Members of the New
must
Church
be the governmental objective and
(Jan.
in
1793),
Baltimore
the snugger
2 Jared
Thus,
means-ends fit.
Sparks,
George
it
Washington
usually
while
Com-
matters little for purposes
Life
the American
rational-basis
Armies:
review
a governmen
mander-in-Chief of
Added,
to Which Are
tal interest
His
is not
Diaries and
exceedingly important or
Speeches; and
that “other means
Various
are
Miscellaneous Pa-
better suited to the
pers Relating to His
achievement
of governmental
Habits & Opinions
ends,”
314,
(1839) (‘Tn
heightened
314-15
scrutiny
enlightened
this
demands a much
age,
stronger justification
and in this land of equal liberty,
and a much tighter
it is
our
relationship
boast
that man’s
“between
religious
the means
tenets will
employed
and the
not forfeit
ends
protection
served.”
laws,
Tuan Anh
Nguyen
nor
INS,
53,
deprive
U.S.
him the
right of
attaining and
—,
S.Ct.
of
Cir.2002).
(2d
“[M]ere
43, 53
F.3d
(strict scrutiny).
(2013)
insufficient,”
is
conjecture
or
speculation
“[a]
City argues that
Here,
the
“
sense’
‘common
id.,
appeals to
as are
the make
understanding of
comprehensive
stereotypes,”
inflected
might be
which
help the
community would
up of the
F.3d
Chicago, 296
City
v.
Reynolds
of
to look—and
where
figure out
NYPD
J.).
Cir.2002) (Posner,
also
(7th
See
it received
the event
to look—in
not
where
Newark, 463 F.3d
City
v.
Lomack
of
to
radicalized
an Islamist
that
information'
Pa-
approval
with
(citing
in New
secreting himself
may be
violence
Ass’n,
at
F.3d
Benevolent
trolmen’s
far
goes
It
so
50.
even
City Br.
Jersey.”
52-53).
irresponsible
“it would be
that
as to assert
circum
limited
the
in
“[e]ven
have
understand
to
And
NYPD not
for the
quasi-suspect
suspect
where
the Muslim stance”
that is
mosaic
varied
ing of the
[an
to further
permissible
“is
classification
to such threats.”
respond
community to
interest, the
state
compelling
added).
height
important or]
But because
(emphasis
Id.
it
in how
case,
still ‘constrained
can
is
government
this
we
scrutiny applies
ened
”
Bolling
v.
end.’ Grutter
to
that
may pursue
dismiss
City’s
the
invitation
accept
S.Ct.
er,
on its assur
539 U.S.
Complaint based
Plaintiffs’
(second
(2003)
by na
alteration
Program justified
is
L.Ed.2d 304
the
ance that
Hunt, 517 U.S.
v.
concerns.
Shaw
tional-security
public-safety
original) (quoting
135 L.Ed.2d
899, 908,
evidence
Rather,
producing
of
S.Ct.
the
burden
cita
scrutiny’s pre
(1996) (internal
marks
quotation
heightened
to overcome
unconstitutionality
omitted)).
is that
classification
“[a]
While
sumption
tion
Memphis, 37
because
rational-basis review
City, Aiken
fail
does not
cf.
banc)
Cir.1994) (en
nicety or
mathematical
with
not made
it is
here,
affirmative
in
a race-based
in some
(“When,
it results
in practice
because
scrutiny,
subjected
321,113
to strict
Heller,
at
plan is
action
509 U.S.
equality,”
plan
omitted),
bears
defending the
(internal
party
marks
quotation
plan
that the
evidence
producing
“the classifica
burden
that
scrutiny requires
strict
constitutional.”),
met
be
must
precision
greater
‘fit’
at issue
after
tion
Dismiss.
means,”
Wygant
its Motion
any
than
alternative
Educ.,
n.
Bd.
Jackson
clear,
acknowledge
we
beTo
90 L.Ed.2d
6, 106 S.Ct.
exis
government’s
for a
reason
a principal
Ely,
Hart
(citing John
opinion)
(plurality
we
But while
security.
provide
tence is to
Racial
Constitutionality
Reverse
The
City’s
legitimacy
question
do not
723, 727
Discrimination,
L.Rev.
41 Chi.
U.
threat alone
interest,
gravity
“[t]he
(1974)).
scrutiny falls
Intermediate
n. 26
questions concern
dispositive
cannot be
two, asking if
between
somewhere
officers
law enforcement
means
ing what
“direct,
relationship
substantial
there is
purpose.”
given
pursue
may employ
Hogan,
means.”
objective and
between
Edmond, 531 U.S.
Indianapolis
City of
725,102
L.Ed.2d 333
might
it
tempting
how
No matter
scrutiny re
(2000). Rather, heightened
same
otherwise,
apply
must
we
do
between
relationship
quires
se-
national
even where
standards
discriminatory
rigorous
justification
asserted
have learned
at stake. We
curity is
by ob
“be substantiated
employed
means
as-
it
where
is often
experience
Benevolent
Patrolmen’s
jective evidence.”
*28
serted interest appears most compelling
Hohri,
States
482 U.S.
107 S.Ct.
that we
vigilant
must be
most
protecting
2246, 96
(1987);
L.Ed.2d 51
see also Act to
rights.
constitutional
“[H]istory teaches
Implement Recommendations on the Com-
grave
threats
liberty
often come in mission of Wartime Relocation and Intern-
times of urgency, when constitutional
Civilians,
ment of
Pub.L.
2(a),
§
rights seem too extravagant
to endure.”
102 Stat. 903-04
Given that “un-
Ry.
Skinner v.
Ass’n,
Labor Execs.’
489 conditional deference to
govern-
[the]
602, 635,
U.S.
109 S.Ct.
103 L.Ed.2d
ment’s]
invocation of ‘emergency’ ...
(1989) (Marshall, J.,
dissenting); see has a
place
lamentable
in our history,”
Grutter,
also
at
U.S.
123 S.Ct. Patrolmen’s
Ass’n,
Benevolent
at
(Scalia, J.,
concurring
part Korematsu,
53-54 (citing
(“The
dissenting in part)
lesson of Kore
193),
65 S.Ct.
past
the
should
preface
States,
matsu
United
[v.
yet again bending our
princi-
constitutional
that the F.D.R. Administration and mili- ment. They allege violations of both the tary infringed authorities the constitution- Establishment Clause and the Free Exer- al rights of Japanese-Americans during Clause, cise respectively which prohibit the World II by War placing them under cur- making any “law respecting estab- few removing them from their West lishment religion” or “prohibiting the Coast homes and into camps. internment free exercise thereof.” U.S. Const. Yet when these pleaded citizens with the Amend. I. courts to uphold their constitutional rights, we passively accepted Plaintiffs bring both claims Government’s under the representations theory that the use of such classi- First Amendment de- was necessary fications to the mands governmental national in- strict neutrality terest. Hirabayashi, among religious sects. itWhile is intui- 1375; Korematsu, tive that discriminatory conduct that inhi- so, doing In we failed to recognize person’s bits full religious expression discriminatory ap- may treatment of run afoul the Free Exercise Clause 120,000 proximately persons of Japanese of the First Amendment, under the facts ancestry was fueled not military neces- here the same is counterintuitive for the sity but unfounded fears. See United Clause, Establishment latter
CO o GO- *29 (aside argument City only s other The gov to challenge^] to [involve]
“tend[s]
to
citations
free-
few scattered
from a
Catholic
endorsement.”
ernmental
little
that have
cases
speech
privacy
Rights v.
Religious & Civil
League for
claims) is
religion
to Plaintiffs’
application
1043,
Francisco,
F.3d
City
San
of
a
in its brief amidst
in a
buried
footnote
(em
,(en banc)
Cir.2010)
(9th
n. 20
Protection Clause:
Equal
the
discussion
added).
Christian
But
Colo.
see
phasis
a
allege[
to]
]
have also failed
[Plaintiffs
(10th
Weaver,
F.3d
v.
Univ.
Ex
Free
violates the
classification
(“[Statutes
J.)
(McConnell,
in
Cir.2008)
the
Clauses of
Establishment
ercise .and
of reli
on the basis
volving discrimination
claims
because such
First Amendment
dis
including
gion,
interdenominational
showing
a
of discrim
[similarly] require
heightened
crimination,
subject
to
are
Lukumi
Church
inatory purpose. See
the
arise under
they
scrutiny whether
Hialeah,
City
Babalu Aye,
Inc. v.
Clause,
Establishment
the
Free Exercise
Protection
Clause,
Equal
or
the
(1993) (“Here,
equal
as in
L.Ed.2d 472
omitted)).
(citations
Howev
Clause....”
the
cases, may determine
we
protection
Religion
of either
er,
discussion
a full
object
both direct and
city council’s
to our case is
application
and its
Clause
evidence.”) [sic]; Lemon
circumstantial
confine ourselves
unnecessary, as we
Kurtzman,
in its Motion
arguments raised
City’s
(1971) (in
29 L.Ed.2d
unper
arguments
Those
to Dismiss.
an Establishment
order
survive
suasive.
challenge,
government prac
Clause
(2)
purpose,
a secular
must
tice
have
that, “ac
City
argues
The
first
ad
effect
neither
primary
have
finding
fact
in
month
cording to a three
(3) not
religion, and
vances nor inhibits
Attorney
Jersey
by the
vestigation
New
entanglement with
excessive state
foster
Program did not
General, the surveillance
religion).
criminal law.”
Jersey
civil
violate New
added).. A
City
(emphasis
Br. 58 n. 20
argument could
That
this
City Br. 44.
in a foot
buried
sentence-long argument
claim, let
constitutional
a federal
defeat
way to
hardly
satisfactory
tackle
note is
dismiss, borders on
a motion to
alone
challeng
jurisprudentially
two of the most
from a court’s inabili
Aside
frivolous.
of our
law.
areas
ing
nuanced
extraneous
ty
such matters
to consider
But even if
that statement
we were to
consider
Justice
*30
City’s
the
Jackson to
the right
halfhearted assertion that
side of history,
alle
and for a
gations
majority
of overt
hostility
quiet
us in
prejudice
times it
are
remains so ... until
required to
make out
next time
claims under
there is
fear
of a few who
Amendment,
First
cannot be
this
sorted
argument
out
would
easily from
fail,
many.
easily
just as
Even
did the
when we
argu
identical
narrow the many tea
ment with
class or
respect
group,
to the
Equal Protection
narrowing
to those
Clause.
affiliated
with a
While
contours of neither the
—here
major worldwide religion
Free Exercise
not near
nor
the Establishment
—is
enough
our
under
Constitution.
Clause
“[T]o
are static
in-
defined,
and well
courts
fer that examples of individual disloyalty
have repeatedly rejected the notion that
prove group disloyalty and justify
either
discrimi-
Clause “is ... confined to actions
natory
against
action
group
entire
is to
based on animus.”
Tribe,
Laurence H.
deny that under our system of law individ-
American
§§
Constitutional Law
guilt
ual
is the sole
deprivation
basis
2000) (“[A]
ed.
law that
is not
rights.”
Id. at
lieve, made level of appropriate issue
solve the
scrutiny. scrutiny” is “intermediate my opinion,
In “in- say this because I here.
appropriate applied scrutiny” is level
termediate I have cases.
gender discrimination being a wom- characteristic
immutable condition, but this happy I
an. am earth, it has on this years
during my gender dis- to suffer times me at
caused any fu- remedy now for My
crimination. be re- would discrimination gender
ture *31 scrutiny.” For “intermediate
viewed level of reason, I cannot endorse discrimination types of
scrutiny in other the level than stricter would be
cases that to discrimination apply would
which me as a woman.
against CO INSURANCE
INDIAN HARBOR EQUIPMENT, LTD,
F M& Machinery Furnival
f/k/a
Company, Appellant.
No. 14-1897. Appeals, States Court
United Circuit.
Third Jan. 2015.
Argued on Oct.
Opinion filed: