*1 arbitrator, to decide. First Options See the parties agreed the arbitration would Chi., Inc. v. Kaplan, 115 conducted, and because the arbitrator in- 131 L.Ed.2d 985 (stating terpreted the rules as allowing him to parties if intended court to decide fashion the second decision fit, as he saw question of arbitrability, court should not the order of the District Court confirming afford arbitrator’s decision “considerable the May 13th and vacating Award the May leeway” but should rather review 4th Award AFFIRMED. issue. “independently”); accord Health Oxford — Sutter, Plans LLC v. -, 2068 n. 186 L.Ed.2d 113 (2013) (explaining that “certain gateway

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 592 F.3d at 342 (internal

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, 504 U.S. at 112 S.Ct. forum. Derived from Article III of our 2130 (quoting Whitmore Arkansas, v. 495 Constitution, it is the threshold inquiry in 149, 155, U.S. 110 1717, S.Ct. 109 L.Ed.2d case, every one for which party (1990)) “[t]he in (internal 135 quotation marks omit voking jurisdiction federal bears ted). bur The low, burden is requiring nothing “ den of [proof].” Lujan v. more than ‘an identifiable Defenders of trifle’ of Wildlife, 555, 504 561, U.S. 112 2130, S.Ct. harm.” Joint Stock Soc’y v. Am., N. UDV 119 L.Ed.2d 351 Analyzing Inc., this 164, 266 F.3d Cir.2001) (Alito, requirement entails a three-part J.) inquiry. (quoting United v. States Students Has at least plaintiff one suffered an “inju Challenging Regulatory Agency Proce ry in so, fact”? Id. If is injury “fairly (SCRAP), dures 669, 686, 93 S.Ct. ... trace[able] the challenged 2405, action of (1973)). L.Ed.2d 254 the defendant”? 560, Id. at 112 S.Ct. 2130 While point Plaintiffs at least (alterations in original) (quoting Simon four injuries other they contend also meet E. Ky. Rights Org., 26, 426 U.S. Welfare this requirement, “[t]he indignity of being 41-42, 1917, 96 S.Ct. 48 L.Ed.2d 450 singled [by out government] special (1976)). ifAnd the answer to both yes, is burdens on the basis of one’s religious will that injury “likely ... redressed by calling,” Locke v. Davey, 540 U.S. a favorable decision”? Id. at 124 S.Ct. (2004) (Sca L.Ed.2d S.Ct. 2130 (quoting Simon, 426 U.S. at lia, J., dissenting), enough is to'get in the 1917). 96 S.Ct. courthouse door. Unequal treatment is “a

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- 37 L.Ed.2d 948 guarantee of freedom S.Ct. ment’s 828, 449, 437, States, 401 U.S. religious discrimination. United freedom cludes Arkansas, (1971); v. Epperson Municipality No. 1 L.Ed.2d 168 See, e.g., Permoli 266, 104, 21 L.Ed.2d 89 S.Ct. Orleans, 3 How. Ewing (1968); Educ. v. Bd. Everson is ("Equality before law L.Ed. L.Ed. Twp., 330 U.S. or whether civil very liberty, essence Weaver, Univ. Christian religious.’’); Colo. omitted)). all, marks After fun- a plaintiff “asserting “[t]he tion is [his own her] [equality] discrimination, damental concern of discrimination right,” law a claim of dignitary class, affront deci- to redress even where it affects broad “is not group repre- sions based characteristics or ‘generalized abstract concern griev ” sent, specific to guarantee not economic ance.’ Ad Hoc Comm. Concerned Sandberg expectancies.” Greenburgh KPMG Peat Teachers v. #11 Union Free (2d Marwick, L.L.P., Dist., 111 F.3d Sch.

Cir.1997). Seldin, (quoting Warth v. (1975)). 45 L.Ed.2d 343

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 98 L.Ed. 873 [chil- tort,” widespread the case of “a mass age dren] from others of similar quali- and though even “large numbers of individuals solely gen-

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, 141 L.Ed.2d 10 good And for way their hearts and in a unlikely minds standing reason: deny “[t]o to persons undone.”). ever who injured[,] simply are fact because on, un

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. 88 L.Ed. 733 But where harm to no one. for may arrange the state that assumed reli- City’s background, this Against en- persons suspicious all Tatum, photographing oh Laird

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 39 L.Ed.2d 260 (quoting (3d Cir.2000) (“but for” cau- Gregory Charles O. Harry Kalven, & Jr., sation sufficient establish traceability Cases (2d and Materials on Torts 961 standing). establish ed.1969)), where “[t]he tort is said to be Redressability C.

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, 112 S.Ct. 2130 (quoting Simon, 426 perpetrated.” (First) Restatement 1917). U.S. at Redressability § Torts 18 cmt. e Because we view “easily established where,” in a case as the claimed discrimination itself the pri here, “the alleged injury arises from an mary injury alleged, it “follows from our identifiable discriminatory policy.” Smith ” definition of ‘injury fact’ that the City Meese, Cir ” “is the ‘cause’ of injury rather than .1987). While we predict cannot “the exact any member of the press. Ne. Fla. Chap nature of the possible relief ... without a ter Contractors, Associated Gen. full development facts, an order 5, 113 U.S. at 666 n. enjoining policy and requiring non discriminatory investigation and enforce Finally, even if only the collateral ment would redress injury.” Id. consequences of the discrimination —rath er than unequal treatment itself— As past harms, potential could count as injury, Article III the avenues for depend redress on how a par “wrongly equat[es] ... injury ‘fairly trace plaintiffs ticular injury shows itself. *16 able’ to the defendant with injury as to plaintiffs Those able prove to “actual in which the defendant’s actions the very juries]” i.e., those other than “the ab — last step in the chain of causation.” Con stract value of [the] constitutional Party Aichele, stitution Pa. v. 757 F.3d right[s],” such as out-of-pocket of losses or (3d 347, Cir.2014) (second 366 alteration in emotional may compen recover distress — original) (quoting Bennett v. Spear, 520 satory damages. Memphis Cmty. Sch. 154, 168-69, U.S. 1154, 117 S.Ct. Stachura, 137 Dist. v. 299, 308, 477 U.S. 106 (1997)). L.Ed.2d 281 That is 2537, incorrect. S.Ct. 91 (1986); 249 L.Ed.2d see also “[T]here is room for concurrent causation Carey v. Piphus, 247, 435 264-66, U.S. 98 analysis standing, and, indeed, of 1042, ‘an S.Ct. (1978). 55 L.Ed.2d 252 For indirect causal suffice, relationship will so plaintiffs, other major “the purpose of the long as there a fairly is traceable connec may suit be to obtain a public declaration ” (citation omitted) tion.’ Id. (quoting Toll that the[y right are] improperly w[ere] Bros. v. Township Readington, treated,” 555 F.3d see (Second) Restatement of of 131, Cir.2009) (internal 142 quotation § (1979), Torts 901 c cmt. along with nomi- Wash discrimination.” “intentional prove) symbolic “a that serve damages

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, 60 L.Ed.2d 870 avail Cir.1991)). range (9th Given they that allege for them enough easily redressability is sat remedies, able the NYPD surveilled and that are Muslim isfied. any other than members more Muslims

[*] ^[*] ^[*] 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 50 L.Ed.2d 450 (in implemented it the New York Metro- politan area a focus on New Jersey), Here, Plaintiffs seek proceed to why (because it has been employed by way of the first these methods, three ' the belief “that Muslim religious identity arguing their “allegations leave no doubt ... is a permissible proxy for criminality,” the ... [Program] relies on an ex ¶ 36). Compl. The Complaint also articu- press classification of Muslims for disfa lates the “variety of methods” by which vored treatment.” See Pis.’ Br. 10. This the surveillance is See, carried out. e.g., is a legal viable theory. Where plaintiff ¶ id. 39 (“tak[ing] videos photographs can point to á facially discriminatory poli at mosques, Muslim-owned businesses and cy, protected “the by trait definition plays schools”); id. (“monitor[ing Muslim] web- role in the decision-making process, inas sites, listservs, ¶ rooms”); and chat much as id. 46 policy explicitly peo classifies (“snapping] pictures, ple tak[ing] video, on that basis.”5 Cmty. Servs. v. Wind collecting] license Auth., plate Gap numbers (3d Mun. of con- 421 F.3d gregants they arrive (quoting at mosques DiBiase v. SmithKline ¶47 pray”); id. Corp., (“us[ing] Beecham 48 F.3d undercover offi- Cir. 1995)). cers ... Put daily another monitor way, life in direct evidence [Muslim] neighborhoods of intent “supplied is ... by the policy itself.” sermons and con- Massarsky ¶ Gen. versations Corp., Motors mosques”); 706 F.2d id. (3d Cir.1983) (Sloviter, (“placing] J., dissent informants or offi- undercover ing). cers in all MSAs”). virtually all These allegations hardly “bare assertions ... The City nonetheless plausi- attacks the amounting] to nothing more than a ‘for- bility of the allegations, arguing that Plain- mulaic recitation of the elements’ of a con- point tiffs only “conclusory allegations stitutional discrimination claim.” Iqbal, spread throughout [the] ... [Com- 556 U.S. at 129 S.Ct. 1937 (quoting plaint,” which “as a matter of law cannot Bell Atl. Corp. v. Twombly, 550 U.S. at City credited.” Br. 56. It further as- 544, 545, 167 L.Ed.2d 929 serts that, “[o]nee the allega- conclusory (2007)). aside, tions are pushed the remaining fac- tual allegations are insufficient to find a Despite City’s demand more in facially discriminatory classification.” Id. when, formation whom, by about and how disagree

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) 270 F.R.D. 388, 390 about Program, including it token was (emphasis original); see also Twombly, 5. To the the City extent focuses on Plaintiffs’ cuit explained, has primary indeed, "[t]he — allege failure to the existence of a perhaps written only [between a suit in- —difference policy, requirement there is no policy volving a written and policy] unwritten is an See, be reduced to written e.g., form. evidentiary Johnson Hoye Oakland, one.” California, Cir.2011). While a L.Ed.2d 949 (holding "[p]laintiff[ ] difficulty ha[s] no establishing that an [prison] "unwritten policy racially policy written,” what a policy is when the segregating prisoners in double cells” contrast, was policy, "[a]n unwritten usually *18 is subject to scrutiny). strict As the Ninth Cir- harder to establish.” Id.

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 135 L.Ed.2d 89 required to survive threshold plausibility the law prohibits selective tion enforcement See, e.g., Rojas v. Alexan motion to dismiss. But such as race. on considerations based (2d Store, Inc., Dep’t der’s objecting inten basis constitutional Cir.1990) ("maintenance records of laws is discriminatory application of tionally arrestees”); Colum. Marshall race Clause, not the Fourth Equal Protection (10th Hosp., Reg’l F.3d Lea play no Subjective intentions Amendment. J.) (racial designation Cir.2003) (McConnell, Fourth ordinary, probable-cause role in was none driving-citation form "where on a analysis.”); States v. Sco United Amendment Nelson, for”); F.2d Jean v. called (Newman, po, Cir.1983) (statistical evidence 1495-96 C.J., (“Though concurring) the Fourth class); protected showing "glaring” effect on arrest, pretext other permits a if Amendment York, F.Supp.2d Floyd v. Newof cause, Equal by probable supported wise (S.D.N.Y.2013) (disparities mi between imposes restraint Clause still Protection groups nority in "hit rates” combined discriminations.”). class-based impermissibly evidence); Highway Rodriguez v. Cal. other *19 Rehiel, have, 738 F.3d monitored Jersey for Muslim (“The TSA suspicion Officials’ was an obvi terrorist activities without monitoring the ous alternative explanation for their con Muslim community itself,” (alteration id. duct, which negates any original) inference retali (quoting Hassan, 2014 WL ation.”). we That might *6). to conjure able at up some non-discriminatory motive to ex Here’s the City’s problem: there’s a dif- plain City’s alleged conduct is not a ference between “intent” and “motive.” valid basis for dismissal. It “only is when “[A] defendant acts intentionally when he plausible [a] defendant’s alternative expla desires particular result, without refer- nation is so convincing” to render ence to the reason for such desire. Mo- “plaintiffs explanation ... plausible” ini tive, on hand, the other reason why that a may court dismiss a complaint. the defendant desires the result.” 2 Har- Baca, Starr v. (9th 652 F.3d ry Sanger al., Richards et American Law Cir.2011) (emphasis original). § Procedure at 6 In other words, sum,

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 100 L.Ed.2d 465 contrast, scrutiny, In such strict as those based *21 on race. scrutiny United (applicable v. suspect to States Armstrong, classes like 517 456, 464, U.S. 116 1480, race and S.Ct. nationality) is 134 an even L.Ed.2d more de- (1996) 687 (naming “race” standard, manding “religion” which as requires the clas- examples “unjustifiable sification for “narrowly standardfs]” tailored ... [to] a “decision whether prosecute” to (quoting further [a] compelling governmental inter- Oyler Boles, v. 448, 368 456, U.S. 82 ].” Gratz v. Bollinger, 244, 539 esé U.S. 501, 7 (1962))); L.Ed.2d 446 Burlington N. 270, 2411, 123 S.Ct. 156 L.Ed.2d 257 Ford, R.R. v. 648, 504 651, 112 S.Ct. (2003). Strict and intermediate scrutiny 2184, (1992) 119 L.Ed.2d 432 to (referring (which we collectively “height- refer as “race” and “religion” as “classifications] ened scrutiny” to distinguish them from along lines”); suspect v. Rogers, Friedman the far less demanding rational-basis re- 1, 17, 440 U.S. 887, 99 S.Ct. 59 L.Ed.2d 100 view) in effect set up a presumption of (1979) (calling “race, religion, [and] alien- invalidity that the defendant must rebut. age ... inherently suspect distinctions”); Perhaps surprisingly, neither our Court City Dukes, New Orleans v. 427 U.S. nor the Supreme Court has considered 297, 303, 2513, 96 S.Ct. 49 L.Ed.2d 511 whether classifications based on religious (1976) (same); United States Batchel affiliation10 trigger heightened scrutiny der, 442 114, 9, 125 n. under the Equal Protection Clause. See (1979) 60 L.Ed.2d 755 (listing “race” and Steven G. Calabresi Salander, & Abe Reli- “religion” “unjustifiable as standard[s]” gion and the Equal Protection Clause: under our Constitution (quoting Oyler, 368 Why the Constitution Requires School U.S. at 501)); Steele v. Louis Vouchers, 65 Fla. (2013); L.Rev. ville R.R., & Nashville Kenji Yoshino, Suspect Symbols: The Lit- (1944) 89 L.Ed. 173 (Murphy, erary Argument Heightened Scrutiny for J., (“The concurring) Constitution voices Gays, 96 Colum. L.Rev. its disapproval whenever economic dis (1996). We therefore confront a question applied crimination is under authority of of first impression in this Circuit. law against any race, color.”). creed or Although the answer to question this is This line of comment can be traced back found binding precedent, hardly we to the famous footnote four of the Su- opinion We refer in this only to discrimi necessary distinguish among religious based religious nation on rather affiliation, religion's tenets, general affiliation and a than involvement. Case distinguishes law be specific religious belief’’), modified, 136 F.3d See, tween the two. e.g,, United States v. (7th Cir.1998). Nor do we mean to DeJesus, (3d Cir.2003) F.3d position state a separate on “question (Fuentes, J.) (“Because we affirm the District religions together whether all constitute a sus- finding Court’s government's that the strikes pect quasi-suspect or class.” Christian Set were jurors’ based heightened on religious Reading Jointly Room Maintained involvement rather religious than their affilia Francisco, San (9th 807 F.2d 1467 n. 1 tion, we need not reach the issue of whether a Cir.1986) (Norris, J., dissenting from the deni- peremptory solely strike based religious banc) al rehearing en (stating this as a unconstitutional.’’); affiliation would be Unit separate panel issue that expressly de- ed Stafford, States v. 136 F.3d decide). clined to Cir.1998) (Posner, C.J.) (explaining that “[i]t omitted)); (internal Unit quotation marks 1938 decision in Carolene Court’s preme DeJesus, 500, 510-11 F.3d ed States Products, suggested the Court where J.) Cir.2003) (Fuentes, (referring (3d “be sub should discriminatory legislation pro “a “religious affiliation” scrutiny dictum exacting judicial more jected to class”)); Supreme Court Tolchin v. tected prohibitions general under (3d 1099, 1114 Jersey, if Amendment” “directed Fourteenth “race, or alien- (naming religion national, racial or religious, particular distinctions”); United “suspect age” as States v. minorities.” Carolene United Friedland, 4,n. 58 S.Ct. States v. Co., Prods. Cir.1996) (“[T]he re (citations government can[not] omit L.Ed. departure downward[ ] for a added). to move before fuse ted) And even (emphasis 3553(e) § base[d] [if] under 18 U.S.C. Products, considered the Court Carolene *22 ground constitutionally suspect a ... on a classic ex to be discrimination religious religion.”). race or such as equal protection “a denial of ample of classes.” to the less favored laws of the appellate by other guided are We also Louisiana, 179 U.S. Co. v. Sugar Am. subjected religious-based Ref. have courts that (1900); 43, 102 89, 92, 45 L.Ed. scrutiny. For heightened classifications 505, Cuir, 485, De Hall v. see also instance, Tenth Cir Eighth both (1877) (“Directors' schools of 24 L.Ed. 547 that fanfare have held without cuit Courts prop deny youth a ... [cannot] in Iowa classification,” Ab “[r]eligion suspect is a school any particular admission age er Calbone, 1301, 1322 F.3d v. 600 dulhaseeb color, or reli nationality, on account (10th Cir.2010); Bureau v. U.S. n. 10 Patel . gion”) (8th Prisons, 807, Cir. 515 F.3d 816 Ninth have 2008), the Second and these statements It is true see, words, e.g., many in so the same done so, Supreme Court even are dicta. But 654, Brown, F.3d 668 v. 352 States United consideration,” serious “requires dicta J.) Cir.2003) (2d (Calabresi, (holding that 85, Marzzarella, F.3d 614 v. United States due to a strike peremptory the exercise when, (3d Cir.2010), ... “especially 90 n. 5 affiliation religious a venire member’s decades-long suc here, we encounter Kentucky, 476 U.S. v. Batson would violate Court,” cession of statements (1986), 1712, 69 90 L.Ed.2d Sch., 106 418 Cnty. Pub. v. Myers Loudoun trig “religious classifications (D. J., (4th Cir.2005) Motz, because 395, 410 F.3d Read Sci. scrutiny”); Christian Moreover, ger strict judgment). concurring City v. Jointly Room Maintained ing Con with own. our this dicta consistent (9th Francisco, Dist., 784 F.2d San F.3d Valley Sch. nelly v. Steel Cir.1986) (“It that an individu Cir.2013) “race, seems clear (identifying 209, 213 requirements meets “inherently religion sus al alienage” as religion, [and] amended, class.”), suspect aas v. treatment (quoting Schumacher pect distinctions” Cir.1986).11 (9th (3d Cir.1992) 792 F.2d Nix, F.2d only subject to rational- recognized the classifications appellate courts have 11. Some see, one, review. basis e.g., John’s open question as an St. Chicago, courts City state Christ v. We also note numerous United Church Cir.2007); affiliation is (7th Wirzburger religious v. held that have F.3d either Cir.2005); opinions (1st Galvin, issued suspect classification or have See, e.g., Johnson, effect. strong dicta to that n. 2 with Taylor Raymond Dep’t, 728 A.2d curiam), Sch. Bagley aware we are (per but not Marrujo High- (Me.1999); N.M. State religious holding single court of a circuit Today join we these courts and “whether the ... class is defined by a[n] hold that intentional discrimination based trait [immutable] that ‘frequently bears no religious affiliation must height survive relation to ability to perform or contribute equal-protection ened review. Before to society’” and “whether the class has turning fully more to our reasoning, how been saddled with unique disabilities be- ever, we pause to reiterate that the term cause of prejudice or inaccurate stereo- “heightened scrutiny,” it, as we use types.” encom Id. at 725 (quoting Frontiero v. passes both scrutiny” “intermediate Richardson, “strict scrutiny.” Because bears 36 L.Ed.2d 583 (plurality opin- production burden of ion)). proof But while these factors are those respect both, see IV(A)(2), Part we most often considered, single “[n]o infra talis- need not—and should not12—determine in man can define those groups likely to be connection with its motion to dismiss which the target of classifications offensive to the applies, two and we that ques leave Fourteenth ...; Amendment experience, tion for the District Court in the first logic, abstract must be the primary instance when and if it becomes necessary guide.” City Cleburne v. Cleburne Liv- to decide it. Ctr., ing Inc., 472 n. (1985) (Mar- 87 L.Ed.2d 313 In designating particular classi shall, J., concurring in judgment as “suspect” fication or “quasi-suspect” un *23 part and dissenting part). in der Equal Clause, Protection the Su preme Court generally considers a variety first have Courts looked par with of factors “grouped around [the] central ticular suspicion on discrimination based idea” of “whether the discrimination em on “immutable human attributes.” Par bodies a gross unfairness is that [so] suffi ham Hughes, v. 441 347, 351, U.S. 99 S.Ct. ciently inconsistent with the equal 1742, ideals of (1979) 60 L.Ed.2d 269 (plurality opin ” protection to term it ion). ‘invidious.’ Watkins Accordingly, a classification is more v. Army, 699, (9th 875 F.2d 724-25 likely to receive heightened scrutiny if it Cir.1989) (en banc) (Norris, J., concurring against discriminates individuals based on in judgment). Among these are a characteristic they either cannot way Transp. 753, Dep't, 118 N.M. 887 Auth., P.2d 12. Ashwander v. Valley Tenn. 297 U.S. 747, (1994); 288, 347, 751 Cnty. 466, Bd. (1936) Comm’rs 56 S.Ct 80 L.Ed. 688 of of (Brandéis, J., Saguache 975, Flickinger, ("It v. concurring) 687 P.2d 982 is n. 9 not the habit (Colo. 1984) (en of banc); questions the court to Correll, decide of a State v. constitu 626 tional nature 699, absolutely necessary unless (Tenn.1982); S.W.2d to a 701 Burmaster v. (quoting decision of the case.” Burton v. Unit Gravity Drainage Dist. No. 2 St. Charles States, 283, 295, ed 243, 196 U.S. 25 S.Ct. 49 Parish, 1381, (La.1978); 366 So.2d 1386 n. 3 (1905))); 482 Liverpool, L.Ed. N.Y. & Phila. 97, v. Lane County, Gunn 173 Or.App. 20 P.3d S.S. Co. v. Emigration, Comm’rs 113 U.S. 247, (2001); Lucander, 251 LaCava v. 58 33, 39, 352, (1885) ("In 5 S.Ct. 28 L.Ed. 899 527, Mass.App.Ct. 358, 791 N.E.2d 363 jurisdiction, exercise of [its] [the Court Purcell, 319, But see State v. 199 Ariz. ... never must] ... formulate a rule of consti 113, (“In 18 P.3d (Ct.App.2001) 121 addition law tutional required by broader than is being to right, religious fundamental affilia precise facts to applied.”); which it is to be may tion suspect also be a classification under Ala. State Fed’n McAdory, Labor v. 325 U.S. Equal (emphasis Clause.” Protection add 450, 461, 1384, (1945) 89 L.Ed. 1725 ed)); Davis, 767, State v. 504 N.W.2d 771 ("It long has [the been Court’s] considered (Minn.1993), denied, cert. 511 U.S. practice not ... to decide any constitutional S.Ct. (1994); 128 L.Ed.2d 679 question Casarez necessity advance for its State,

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, 374 U.S. at 83 S.Ct. 1560 (citation history

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. 37 L.Ed. 905 groups have borne the brunt of majority Indeed, 15. race, the close relationship among ¶ "); ("To 'ancestries of interest.’ id. 53 facil- religion, ethnicity, origin and national is re- itate future surveillance of entire American by allegations flected the communities, Plaintiffs' Com- Muslim the NYPD has created See, ¶ plaint. e.g., ("In Compl. 40 maps addition to indicating the mosques, locations of res- targeting by focusing taurants, Muslims mosques, on establishments, retail and schools businesses, Muslim-owned by Muslims, other Muslim- serving owned as well as organizations associated subjects as of sur- populations ethnic heavily Muslim coun- veillance, Program ¶ intentionally tries.”); also ("The tar- id. 55 inspects NYPD also gets by using Muslims ethnicity proxy as a changes records of compiles name data- ¶ faith.”); ("As part id. 41 Program, bases of new Muslim converts who Ara- take Department designated names, has twenty-eight bic as well as Muslims who take countries and 'American Black Muslim' as perceived ”). names that are to be ‘Western.’ control,” Am. spread beyond times, rapidly and the which during different oppression Ass’n, Douds, C.I.O. contin Commc’ns prejudice religious against battle (1950) 2001, 674, 382, 448, 94 L.Ed. 925 Act of See, Patriot e.g., U.S. ues. in fa- 102(a)(3), (Black, J., counsels dissenting), also 107-56, § 115 Stat. Pub.L. scrutiny. taken (“The heightened that have been vor of acts of violence since Americans and Muslim against Arab is whether relevant consideration A final 11, 2001, against attacks September Branches Legislative and Executive con and are should be States United form of discrimina- that a have concluded free who value by all Americans demned In inherently holding invidious. tion is by Appellants dom.”); Support Brief in classifica- “quasi-suspect” to be a gender Legal Asian American Amici Cuñete scrutiny, deserving of intermediate tion Fund & 17 Other & Education Defense instance, noted, for Supreme Court Sup Organizations Non-Governmental “a co- that, Congress is because Frontiero Muslims for American porting Rights Civil Government,” its “con- equal branch 11-22. upon based that classifications clu[sion] be history, distinctions light In of this ... inherently [was] invidious sex are religious grounds pose citizens on tween question significance [then] to the without “danger of stigma acute particularly at U.S. consideration.” 411 under Educ. Kir Bd. animosities.” stirred 1764. Grumet, 512 Dist. v. yas Joel Vill. Sch. that foreclose Many of the same statutes L.Ed.2d 687, 728, S.Ct. U.S. discrimination, including Title sex-based J., in the (1994) concurring (Kennedy, by cited Rights Act of 1964 of the Civil VII Rockefeller, Wright v. see judgment); also Court, see id. the Frontiero 11 L.Ed.2d S.Ct. religious discrimina- also forbid (“When J., dissenting) (Douglas, (mak- See, § 2000e-2 e.g., tion. U.S.C. are drawn lines religious racial or practice” “unlawful ing employment it an multiracial, com State, multireligious based employer for an discriminate Constitution munities that our seeks sex, “race, color, or national ori- religion, separatist; become one together weld passage of the Civil gin”). And from reli to race or to relate antagonisms that 1875,16 designed to those Act of Rights Kunz v. generated....”); ... gion security post- in our national strengthen York, world,17 commitment to September (1951) (Jackson, J., dissent 95 L.Ed. 280 concept” equality ... “sacrosanct (“If intrinsically the subjects are ing) any two religious groups,” “all ... see divisive, among they are race incendiary and 102(a)(3), § is embod- Act of 2001 Patriot experience religion.”). “[c]enturies That See, e.g., 2 throughout the U.S. Code. religious ... ied at one testify that laws aimed 1311(a) (employment); § U.S.C. U.S.C. prejudices hatreds and group generate See, e.g., Act of Pub.L. U.S. Patriot ch. 18 Stat. 16. Act of Mar. *26 ("The 107-56, b(3), 102(a)(3), § 115 Stat. ("[I]t recog- just government we to is essential responsibility concept of individual law, the of all men before equality nize the American wrongdoing is sacrosanct in soci duty government in of that it is the and hold racial, religious, equally ety, applies all to equal people mete out dealings to its groups.... Nation is called [T]he and ethnic all, nativity, justice to of and exact whatever patriotism of upon recognize the fellow race, color, religious politi- or persuasion, or racial, ethnic, religious all citizens ...”). cal. backgrounds.”). (2)(B) 3106a(1)(B), § (banking); 12 U.S.C. filiation subject are to heightened scrutiny (fair § 2504(a) housing); 22 § U.S.C. under the Equal Protection Clause. (Peace Corps service); § 49 U.S.C. (air transportation private and use of air ii. Evaluation of Means and Ends

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 150 L.Ed.2d 115 holding (O’Connor, highest J., offices that dis are known senting). States.”); the United President Harry Truman, Special Message to Congress Also increasingly demanding is (Feb. 1948) on Civil Rights (“Racial, the standard of proof. While the rational- religious and other invidious forms of dis- basis usually standard puts the burden of deprive crimination individual proof on the classification’s opponent and equal chance to develop and utilize his “permits court hypothesize interests talents to enjoy the rewards of his might support [the governmental] dis efforts.”); President Roosevelt, Theodore tinctions,” id. at (empha S.Ct. 2053 Sixth (Dec. Message Annual to Congress added) sis (citing Doe, Heller v. 1906) (“[W]e justice must treat with 113 S.Ct. 125 L.Ed.2d 257 good will immigrants all who come here (1993); Fritz, R.R. Ret. Bd. v. [wjhether undér the they law[J (1980)), L.Ed.2d 368 Protestant, Catholic or Jew Gen- or justification the burden of under in both ”); tile .... President Obama, Barack State termediate and strict scrutiny “is demand (Jan. 28, 2014) Union Address ing and ... entirely State,” on the .rests (“[W]e believe the inherent dignity and United Virginia, States v. 518 equality of every being, human regardless L.Ed.2d of race or religion, creed sexual orienta- Hogan, See also 458 U.S. at tion.”). 102 S.Ct. 3331 (discussing the standard reasons, For these we conclude that and burden for intermediate scrutiny); — classifications on the basis af- religious Austin, Fisher v. Tex. Univ. *27 306 York, City v. New York 474 2419, 186 Ass’n L.Ed.2d of

—, 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 89 L.Ed. 194 is that ] ples merely because an interest in national security national constitutes a ‘pressing security is invoked. public necessity,’ though government’s sum, In because Plaintiffs plausibly have use of suspect [a classification] to advance alleged that engaged in intention- that objective must be [appropriately] tai al discrimination against protected class, Skinner, lored.”); 489 U.S. at and because that classification creates a (Marshall, (“The J. dissenting) presumption of unconstitutionality that re- World War II relocation-camp cases and mains City’s obligation rebut, Plain- Red scare and McCarthy-era internal tiffs have stated a claim under the Equal subversion cases only the most ex Protection Clause of treme reminders Fourteenth that when we fun allow Amendment. damental freedoms to be sacrificed name real perceived exigency, we invariably (citations come to regret it.” B. First-Amendment Claims omitted)). finally We reach Plaintiffs’ claims under it Today is acknowledged, instance, the Religion Clauses of the First Amend-

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 83 S.Ct. 1560 Schempp, Rule of Civil under Federal pleadings (Brennan, J., concurring) (noting “the diffi 12(b)(6), it is the United States Procedure implicating culty ... endemic to issues criminal the “civil or Constitution —not of the First Amend religious guarantees Plaintiffs seek Jersey of New law” Edmond, ment”); City —that Robinson fundamentally, But even more to enforce. (10th (recogniz Attorney legal Jersey General’s “an Clause is ing that the Establishment determining in is not helpful law”); conclusion case its difficult area notorious for Plaintiffs’ consti City Zion, violated whether 927 F.2d Harris v. Cir.1991) (“[C]ases emphatically “It rights. arising tutional 1410-11 judicial depart duty province Religion [F]irst under the Clauses Jersey some of presented the New executive—“to have [A]mendment ment” —not Marbury Madi constitutional perplexing questions is.” most what the law say law.”). argu (1 Cranch) consider this son, 137, 177, 2 L.Ed. We therefore Brother Ltd. Wyeth & ment waived. John v. CIGNA Corp., Int’l 1076 “can apply law, only and must abide by the (3d Cir.1997) J.) (Alito, n. 6 (“[Arguments Constitution, or [we] cease to be civil (such raised passing footnote), courts and become instruments [police] but not squarely argued, are policy.” Korematsu, considered 323 U.S. at waived.”). (Jackson, J., S.Ct. 193 dissenting). We believe

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 65 S.Ct. 193 (Murphy, neutral or that is not generally ápplicable J., dissenting). can violate the Free Exercise Clause with out regard to the motives of those who What occurs here in guise one is not measure.”); enacted the see also Shrwm v. new. We have been down similar roads Coweta, 1144-45 before. during Jewish-Americans the Red (10th Cir.2006) (McConnell, J.) (“Proof Scare, during African-Americans the Civil hostility or discriminatory Rights Movement, may motivation Japanese-Ameri- be sufficient to prove that a challenged cans during World IIWar are examples governmental action is not neutral, -but that readily spring to mind. We left Free Exercise Clause is not confined why to wonder we cannot see with foresight (citations actions based on animus.” omit what we see -so with clearly hindsight— ted)); Morton, Allen v. “[Royalty 72 that is a of the matter heart and (D.C.Cir.1973) (Tamm, J., (not mind[,] concurring) race, creed, or color.” Ex that, ing under the Clause, Endo, Establishment parte Mitsuye “good motives cannot impermissible save 89 L.Ed. 243 actions”). bottom, At the City needs We reverse and remand for pro- further something other than this threadbare ar ceedings consistent with opinion. this gument based on the absence subjective hostility to avoid a non-swinging ROTH, strikeout. Judge, Circuit concurrence. agree I plaintiffs have demonstrat- Y. CONCLUSION standing ed and made sufficient allegations The allegations in Plaintiffs’ Complaint of violations of equal-protection rights .. I tell a story which there is standing to differ from the majority its failure to complain and which present constitutional determine whether scrutiny” “intermediate concerns that must and, be addressed if or “strict scrutiny” applies here. In our true, redressed. Our job judicial. far, We determinations so also, we have I be- to re- necessary findings

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: