Syed Hassan v. City of New York

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 14-1688
________________
SYED FARHAJ HASSAN;
THE COUNCIL OF IMAMS IN NEW JERSEY;
MUSLIM STUDENTS ASSOCIATION OF THE U.S.
AND CANADA, INC.;
ALL BODY SHOP INSIDE & OUTSIDE;
UNITY BEEF SAUSAGE COMPANY;
MUSLIM FOUNDATION INC.; MOIZ MOHAMMED;
JANE DOE; SOOFIA TAHIR;
ZAIMAH ABDUR-RAHIM;
ABDUL-HAKIM ABDULLAH,
Appellants
v.
THE CITY OF NEW YORK
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-12-cv-03401)
District Judge: Honorable William J. Martini
Argued January 13, 2015
Before: AMBRO, FUENTES, and ROTH, Circuit Judges
(Opinion filed: October 13, 2015)
Baher A. Azmy, Esquire (Argued)
Ghita Schwarz, Esquire
Omar Farah, Esquire
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012
Glenn Katon, Esquire
Farhana Khera, Esquire
Adil Haq, Esquire
Muslim Advocates
P.O. Box 71080
Oakland, CA 94612
Lawrence S. Lustberg, Esquire
Joseph A. Pace, Esquire
Portia Dolores Pedro, Esquire
Gibbons
One Gateway Center
Newark, NJ 07102
Counsel for Appellants
Zachary W. Carter
Corporation Counsel of the City of New York
Richard P. Dearing, Esquire
Peter G. Farrell, Esquire (Argued)
2
Celeste Koeleveld, Esquire
Alexis Leist, Esquire
Anthony DiSenso, Esquire
William Oates, Esquire
Cheryl Shammas, Esquire
Odile Farrell, Esquire
New York City Law Department
100 Church Street
New York, NY 10007
Counsel for Appellee
Ayesha N. Khan, Esquire
Gregory M. Lipper, Esquire
Alexander J. Luchenitser, Esquire
Americans United for Separation of Church and State
1901 L Street N.W.
Suite 400
Washington, DC 20036
Counsel for Amicus Appellant
Americans United for Separation of Church and State
Benjamin C. Block, Esquire
William Murray, Esquire
Covington & Burling LLP
850 Tenth Street N.W.
Washington, DC 20001
Stephen J. Schulhofer, Esquire
40 Washington Square South
New York, NY 10012
3
Robert L. Rusky, Esquire
159 Beaver Street
San Francisco, CA 94114
Counsel for Amicus Appellants
Karen Korematsu, Jay Hirabayashi, Holly Yasui
Brian D. Boyle, Esquire
Walter E. Dellinger, III, Esquire
Deanna M. Rice, Esquire
Nausheen Hassan, Esquire
O’Melveny & Myers LLP
1625 Eye Street, N.W.
Washington, DC 20006
Counsel for Amicus Appellants
100 Blacks in Law Enforcement Who Care,
Chris Burbank, Eric Adams
Gregory J. Wallance, Esquire
W. Stewart Wallace, Esquire
Kaye Scholer LLP
250 West 55th Street
New York, NY 10019
Michael Robertson, Esquire
Kaye Scholer LLP
The McPherson Building
901 Fifteenth Street, N.W.
Washington, DC 20005-2327
Counsel for Amicus Appellants
Asian American Legal Defense and Education Fund,
4
American Arab Anti-Discrimination Committee,
Universal Muslim Association of America Advocacy,
South Asian Americans Leading Together,
Shia Rights Watch,
New Jersey Muslim Lawyers Association,
National Network for Arab American Communities,
National Lawyers Guild New York City Chapter,
Muslim Public Affairs Council,
Muslim Legal Fund of America,
Muslim Consultative Network,
Muslim Bar Association of New York,
Muslim American Civil Liberties Coalition,
Creating Law Enforcement Accountability and
Responsibility,
Arab American Association of New York,
Asian Americans Advancing Justice–Asian Law
Caucus,
South Asian Organization, Project SALAM
Ronald K. Chen, Esquire
Rutgers University Constitutional Rights Clinic
123 Washington Street
Newark, NJ 07102
Edward Barocas, Esquire
Jeanne LoCicero, Esquire
Alexander Shalom, Esquire
American Civil Liberties Union of New Jersey Foundation
P.O. Box 32159
Newark, NJ 07102
Counsel for Amicus Appellants
American Civil Liberties Union of New Jersey,
5
LatinoJustice PRLDEF,
Mexican American Legal Defense and Educational
Fund,
Bill of Rights Defense Committee, Garden State Bar,
Association, Hispanic Bar Association of New Jersey,
Association of Black Women Lawyers of New Jersey
Bruce D. Brown, Esquire
Gregg P. Leslie, Esquire
Jamie T. Schuman, Esquire
Reporters Committee for Freedom of the Press
1101 Wilson Boulevard, Suite 1100
Arlington, VA 22209
Jennifer A. Borg, Esquire
North Jersey Media Group Inc.
1 Garret Mountain Plaza
Woodland Park, NJ 07424
Counsel for Amicus Appellants
Reporters Committee for Freedom of the Press,
North Jersey Media Group Inc.
Michael W. Price, Esquire
Faiza Patel, Esquire
Brennan Center for Justice at NYU School of Law
161 Avenue of the Americas
New York, NY 10013
Counsel for Amicus Appellant
Brennan Center for Justice at New York University
School of Law
6
Allen P. Pegg, Esquire
Hogan Lovells US LLP
600 Brickell Avenue, Suite 2700
Miami, FL 33131
Counsel for Amicus Appellants
Sikh Coalition, Interfaith Alliance Foundation,
National Council of the Churches of Christ in the
USA,
Union for Reform Judaism,
Central Conference of American Rabbis,
Women of Reform Judaism,
Islamic Society of North America,
Bend the Arc: A Jewish Partnership for Justice,
Hindu Temple Society of North America,
Auburn Theological Seminary,
National Council of Jewish Women,
Universal Muslim Association of America,
American Humanist Association,
Sikh American Legal Defense and Education Fund,
Muslim Alliance in North America
National Religious Campaign Against Torture,
Reconstructionist Rabbinical Association,
Imam Mahdi Association of Marjaeya,
Muslims for Peace,
T’ruah: The Rabbinic Call for Human Rights,
Ta’leef Collective, Muslim Congress, Unitarian
Universalist Legislative Ministry of New Jersey,
Queens Federation of Churches, Inc.,
Northern California Islamic Council,
Council of Islamic Organization of Greater Chicago,
Islamic Shura Council of Southern California
7
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
TABLE OF CONTENTS
I.  INTRODUCTION ............................................................. 9
II.  BACKGROUND ............................................................. 10
A.  Plaintiffs’ Allegations ................................................ 10
1.  The Program ......................................................... 10
2.  Reports and Informational Databases ................... 13
3.  Fall-Out from the Program’s Disclosure to the
Public .................................................................... 14
B.  District Court .............................................................. 17
III. STANDING ..................................................................... 18
A.  Injury-in-Fact ............................................................. 19
B.  Fair Traceability ......................................................... 25
C.  Redressability ............................................................. 27
IV. CONSTITUTIONAL CLAIMS....................................... 28
A.  Equal-Protection Claim .............................................. 28
1.  Do Plaintiffs Plausibly Allege Intentional
Discrimination?..................................................... 29
i.  Plaintiffs Plausibly Allege a Surveillance
Program with a Facially Religious
Classification. .................................................. 29
8
ii  Intentional Discrimination Does Not Require an
Invidious Motive. ............................................ 35
2.  Is the Alleged Discrimination Nonetheless Legally
Justified? ............................................................... 37
i.  Level of Scrutiny ............................................. 37
ii.  Evaluation of Means and Ends........................ 51
B.  First-Amendment Claims ........................................... 55
V.  CONCLUSION ................................................................ 58
I. INTRODUCTION
Plaintiffs appeal the dismissal of their civil-rights suit
against the City of New York (the “City”). They claim to be
targets of a wide-ranging surveillance program that the New
York City Police Department (the “NYPD”) began in the
wake of the September 11, 2001 terrorist attacks (the
“Program”). Plaintiffs allege that the Program is based on the
false and stigmatizing premise that Muslim religious identity
“is a permissible proxy for criminality, and that Muslim
individuals, businesses, and institutions can therefore be
subject to pervasive surveillance not visited upon individuals,
businesses, and institutions of any other religious faith or the
public at large.” First Am. Compl. ¶ 6 (the “Complaint” or
“Compl.”). They bring this lawsuit “to affirm the principle
that individuals may not be singled out for intrusive
investigation and pervasive surveillance that cause them
continuing harm simply because they profess a certain
faith.” Id. ¶ 8.
In its narrowest form, this appeal raises two questions:
Do Plaintiffs—themselves allegedly subject to a
9
discriminatory surveillance program—have standing to sue in
federal court to vindicate their religious-liberty and equal-
protection rights? If so, taking Plaintiffs’ non-conclusory
allegations as true, have they stated valid claims under the
First and Fourteenth Amendments to our Constitution? Both
of these questions, which we answer yes, seem
straightforward enough. Lurking beneath the surface,
however, are questions about equality, religious liberty, the
role of courts in safeguarding our Constitution, and the
protection of our civil liberties and rights equally during
wartime and in peace.
II. BACKGROUND
A. Plaintiffs’ Allegations
Lead Plaintiff Syed Faraj Hassan and others of or
associated with the Islamic faith (collectively “Plaintiffs”)
assert that, since January 2002, the City has through the
NYPD conducted the Program in secret “to monitor the lives
of Muslims, their businesses, houses of worship,
organizations, and schools in New York City and surrounding
states, particularly New Jersey.” See Pls.’ Br. 2 (citing
Compl. ¶¶ 36, 38). As this case comes before us on the City’s
Motion to Dismiss, we must take all facts alleged in
Plaintiffs’ Complaint as true and draw all reasonable
inferences that arise therefrom in their favor. See Fed. R. Civ.
P. 12(b)(6).
1. The Program
Plaintiffs contend that the NYPD launched the
Program following the September 11, 2001 terrorist attacks
with the goal of “infiltra[ting] and monitor[ing] Muslim life
in and around New York City.” Compl. ¶ 2. They claim that
it “target[s] Muslim entities and individuals in New Jersey for
10
investigation solely because they are Muslim or believed to
be Muslim” rather than “based upon evidence of
wrongdoing.” Id. ¶¶ 7, 47. Plaintiffs claim that the Program,
going on its tenth year when the Complaint was filed, “has
never generated a single lead.” Id. ¶ 2.
Per the Complaint, the NYPD “uses a variety of
methods to spy on Muslims.” Id. ¶ 39. Among the
techniques that it employs are to “snap pictures, take video,
and collect license plate numbers of [mosque] congregants”
and to “mount surveillance cameras on light poles, aimed at
mosques,” which “[o]fficers can [then] control
[remotely] . . . with their computers” and which generate
footage used “to help identify worshippers.” Id. ¶ 46.
Plaintiffs also allege the NYPD sends “undercover
officers”—some of which are called “mosque crawlers” and
“rakers”—into mosques, student organizations, businesses,
and neighborhoods that “it believes to be heavily Muslim.”
Id. ¶¶ 47, 49–50. By “monitor[ing] sermons and
conversations in mosques” and “surveil[ling] locations such
as bookstores, bars, cafes, and nightclubs,” officers
“document[] . . . American Muslim life” in “painstaking
detail[]” and “report back to the NYPD.” Id. ¶ 47.
While Plaintiffs believe that some of this surveillance
activity is passive (such as “tak[ing] video and photographs at
mosques, Muslim-owned businesses, and schools,” id. ¶ 39,
and recording “the subject of conversations overheard at
mosques,” id. ¶ 47), in other cases NYPD officers more
actively engage with the persons monitored. One alleged
spying method of the latter type is to “sen[d] undercover
officers to [Muslim-affiliated] locations to engage in
pretextual conversations to elicit information from proprietors
and patrons.” Id. ¶ 39. Officers also “sometimes pose” as
members of certain groups and organizations under
investigation. Id. ¶ 50. The Complaint illustrates one such
11
example where an NYPD “officer . . . went on a rafting trip
with a[] [Muslim Students Association (MSA)] and
monitored and recorded how often the student participants on
the trip prayed” and their “discuss[ion of] religious
topics.” Id.
Not only does the alleged Program “utilize[] numerous
forms of surveillance,” id. ¶ 45, but that surveillance is also
widespread. Plaintiffs claim, for instance, that the NYPD
“has strived to have an informant inside every mosque within
a 250-mile radius of New York City” and has “place[d]
informants or undercover officers in all or virtually all
MSAs” at “colleges and universities in New York, New
Jersey, Connecticut, and Pennsylvania . . . without any
indication whatsoever of criminal activity or any connection
whatsoever to wrongdoing.” Id. ¶¶ 47, 49. In all, the NYPD
has allegedly “surveill[ed] . . . at least twenty mosques,
fourteen restaurants, eleven retail stores, two grade schools
and two [MSAs], in addition to an untold number of
individuals who own, operate, and visit those
establishments.” Id. ¶ 3.
Plaintiffs claim that, in addition to singling out
organizations and businesses for surveillance that in some
way are visibly or openly affiliated with Islam (such as
mosques or businesses with prayer mats or other Islamic
identifications), “the Program also intentionally targets
Muslims by using ethnicity as a proxy for faith.” Id. ¶ 40.
Plaintiffs aver, for instance, that the NYPD “has designated
twenty-eight countries . . . constitut[ing] about 80% of the
world’s Muslim population” and “American Black Muslim”
as “ancestries of interest.” Id. ¶ 41. But the Program is still
decidedly focused on religion. Thus, rather than “surveil all
people and establishments with ‘ancestries of interest,’” the
NYPD “expressly chooses to exclude people and
establishments with such ‘ancestries’ if they are not Muslim.”
12
Id. ¶ 42. This includes “Egyptians if they are Coptic
Christians, Syrians if they are Jewish, or Albanians if they are
Catholic or Orthodox Christian.” Id. Conversely, Plaintiffs
claim that the NYPD has examined other immigrant
communities in Newark, New Jersey “for the presence of
Muslims,” such as the “Portuguese and Brazilian immigrant
communities” notwithstanding that “Portugal and Brazil
[are] . . . not found on [the NYPD’s] list of twenty-eight
‘ancestries.’” Id. ¶ 44.
2. Reports and Informational Databases
Plaintiffs allege that the Program has resulted in “a
series of reports documenting in detail the information
obtained from [the NYPD’s] surveillance of New Jersey
Muslim communities.” Id. ¶ 5. These “includ[e] a report
focusing on the Muslim community in Newark” (the “Newark
report”), id.; “more than twenty precinct-level maps of the
City of Newark, noting the location of mosques and Muslim
businesses and the ethnic composition of the Muslim
community,” id. ¶ 3; “analytical report[s] on every mosque
within 100 miles” of New York City, id. ¶ 47; and a weekly
“MSA Report on schools, including reports on Rutgers New
Brunswick and Rutgers Newark,” id. ¶ 51.
The information and records collected and compiled
are extensive and varied. Among these are
“pictures, . . . video, . . . and license plate numbers of
[mosque] congregants,” id. ¶ 46; intelligence about “where
religious schools are located,” id. ¶ 47; indications of
religious affiliation and Muslim patronage of shops,
restaurants, and grocery stores, id.; lists of “businesses owned
or frequented by Muslims,” id.; and “names of professors,
scholars, and students” affiliated with MSAs, id. ¶ 51. The
City also allegedly “compiles databases of new Muslim
converts who take Arabic names, as well as Muslims who
13
take names that are perceived to be ‘Western.’” Id. ¶ 55.
Besides names and other identifying information of
individuals, businesses, and organizations, the NYPD reports
include seemingly mundane and innocuous details about
Muslim community life in New Jersey, such as: (1) “flyers
are posted in shops advertising for Quran tutoring;” (2) “a
picture of a mosque hangs in a grocery store;” (3) “a
restaurant serves ‘religious Muslims;’” (4) “customers visit a
Dunkin’ Donuts after Friday prayer;” (5) “a restaurant is
located near a particular mosque;” (6) “employees or
customers of establishments are observed wearing ‘traditional
clothing;’” (7) “Muslim prayer mats are hanging on the wall
at an Indian restaurant;” and (8) “a store posts a sign that it
will be closed on Friday in observance of Friday prayer.” Id.
¶ 47. Finally, NYPD officers have compiled “the subject[s
and details] of conversations overheard at mosques.” Id. In
one 2006 report, for instance, they “document[ed] twenty-
three conversations at twenty mosques,” though “[n]one of
the information collected showed any indication of criminal
activity.” Id.
3. Fall-Out from the Program’s Disclosure
to the Public
Plaintiffs claim that, despite “initial secrecy,” public
knowledge of the alleged Program’s existence “has become
widespread in New Jersey and elsewhere.” Id. ¶ 45. They
also contend that a number of the allegedly generated reports
“ha[ve] been widely publicized,” id. ¶ 20, and that each
Plaintiff has been “either specifically named in an NYPD
spying report or is a member of at least one mosque or other
association named in such a report,” Pls.’ Br. 21 (citing
Compl. ¶¶ 12–15, 17–26, 28–29, 31–32, 34).
Plaintiffs have learned since the news broke, for
14
instance, that the NYPD’s so-called “Newark report”
designates several of them as a “Location of Concern,”
defined “as, among other things, a ‘location that individuals
may find co-conspirators for illegal actions,’ and a ‘location
that has demonstrated a significant pattern of illegal
activities.’” Compl. ¶ 58. Similarly, the NYPD’s “U.S.–Iran
report” describes organizations believed to pose serious
threats to New York City, such as Hezbollah and Hamas,
along with a list of “Other Shi’a Locations in the vicinity of
NYC,” which include Plaintiff Muslim Foundation Inc.
(“MFI”) and Masjid-e-Ali mosque (owned and operated by
MFI), “as well as three additional mosques attended by
Plaintiff Hassan.” Id. ¶ 60.
While Plaintiffs allege that the Program is stigmatizing
by itself, they also claim these specific defamatory statements
targeting them in particular have intensified their harms and
that “New York City officials” have exacerbated these
injuries by publicly “acknowledg[ing] the [Program’s]
existence” and “describing it as focused on ‘threats’ and as an
attempt to document the ‘likely whereabouts of terrorists.’”
Id. ¶ 61. “Discussing the surveillance, [former] Mayor
Bloomberg has stated publicly” that “[w]e’re doing the right
thing. We will continue to do the right thing.” Id. ¶ 64. And
“[former Police] Commissioner Kelly has said” that “[w]e’re
going to continue to do what we have to do to protect the
[C]ity.” Id. Plaintiffs state that these and other “official
proclamations,” which “falsely suggest that Muslims alone
present a unique law enforcement threat,” indicate “that [City
officials] believe the NYPD’s targeting of Muslims for
surveillance on the basis of their religion is appropriate and
will continue.” Id. ¶¶ 64–65.
Plaintiffs also contend that, in large part because of the
Program’s alleged stigmatizing and reputational
consequences, the surveillance has affected their worship and
15
religious activities. For example, Plaintiff Hassan, a soldier
in the U.S. Army who has worked in military intelligence,
asserts that “[h]e has decreased his mosque attendance
significantly” because of his belief that “being closely
affiliated with mosques under surveillance by law
enforcement” will jeopardize his ability to hold a security
clearance and will tarnish his reputation among his fellow
soldiers and diminish their trust in him. Id. ¶¶ 11–13.
Likewise, Plaintiffs Moiz Mohammed, Jane Doe, and Soofia
Tahir state that they now avoid (or have avoided) discussing
their faith openly or at MSA meetings for fear of being
watched and documented, id. ¶¶ 24–30, and Plaintiff
Mohammad alleges that “[t]he stigma now attached to being a
Muslim member of the MSA has caused [him] to avoid
discussing his faith or his MSA participation in public and to
avoid praying in places where non-Muslims might see him
doing so,” id. ¶ 25.
The individual Plaintiffs are not the only ones affected.
The organizational Plaintiffs allege that the Program “has
undermined their ability to fulfill their mission[s by] deterring
potential members from joining and casting doubt on [their]
ability to maintain the confidentiality of their membership.”
Pls.’ Br. 6 (citing Compl. ¶ 17). According to the Complaint,
two mosques that are members of Plaintiff Council of Imams
in New Jersey, and that are named in the NYPD’s Newark
report, “have . . . seen a decline in attendance . . . as a result
of the [NYPD’s] surveillance” because their congregants can
no longer worship freely knowing that law-enforcement
agents or informants are likely in their midst. Compl. ¶ 15.
Similarly, “[a]s affinity student groups, MSAs subject to
surveillance . . . are diminished in their ability to establish
viable student organizations that students will feel secure
joining and participating in” and are less able “to embark
upon integral partnerships with campus administrators and
other organizations and [to] fulfill the spiritual needs of their
16
members in a confidential manner.” Id. ¶ 17. And Plaintiff
MFI has changed its religious and educational programming
to avoid controversial topics likely to stigmatize its
membership further and to attract additional NYPD attention.
Id. ¶ 23.
Finally, several Plaintiffs also contend that financial
harm has accompanied their alleged religious, reputational,
and stigmatizing injuries. For example, Plaintiffs All Shop
Body Inside & Outside and Unity Beef Sausage Company
claim that the surveillance has damaged their “business[es] by
scaring away customers,” id. ¶¶ 19, 21, and Plaintiffs Zaimah
Abdur-Rahim and Abdul-Hakim Abdullah allege that the
publication of the address and a photograph on the Internet of
their home “in connection with the NYPD’s
surveillance . . . has decreased [its] value . . . and diminished
[its] prospects for sale,” id. ¶¶ 31–32, 34. Also, two of
Plaintiff Council of Imams in New Jersey’s member mosques
have witnessed “[l]osses in . . . financial support,” which
further “harm[s] both mosques’ ability to fulfill their religious
missions.” Id. ¶ 15.
B. District Court
In June 2012, Plaintiffs sued the City pursuant to 42
U.S.C. § 1983 and Monell v. Department of Social Services of
the City of New York, 436 U.S. 658 (1978), for discriminating
against them as Muslims in violation of the Free Exercise and
Establishment Clauses of the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment. They seek
expungement of any unlawfully obtained records pertaining
to them, a judgment declaring that the City has violated their
First and Fourteenth Amendment rights, an order enjoining
their future discriminatory surveillance, and damages.
The District Court granted the City’s Motion to
17
Dismiss the Complaint in February 2014 pursuant to Federal
Rule of Civil Procedure 12(b)(1) for lack of standing and
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim. First, the Court held that Plaintiffs failed to identify
any cognizable “injury-in-fact” (let alone one “fairly
traceable” to the City’s surveillance). Second, it concluded
that Plaintiffs failed to state a claim because “[t]he more
likely explanation for the surveillance was a desire to locate
budding terrorist conspiracies” than a desire to discriminate.
Hassan v. City of New York, No. 12-cv-3401, 2014 WL
654604, at *7 (D.N.J. Feb. 20, 2014). It therefore entered
judgment in the City’s favor. Plaintiffs now appeal these
rulings.
III. STANDING
As did the District Court, we begin with Plaintiffs’
standing to have a federal court decide their claims. Standing
to sue is required for jurisdiction in a federal forum. Derived
from Article III of our Constitution, it is the threshold inquiry
in every case, one for which “[t]he party invoking federal
jurisdiction bears the burden of [proof].” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992). Analyzing this
requirement entails a three-part inquiry. Has at least one
plaintiff suffered an “injury in fact”? Id. If so, is that injury
“fairly . . . trace[able] to the challenged action of the
defendant”? Id. at 560 (alterations in original) (quoting
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42
(1976)). And if the answer to both is yes, will that injury be
“likely . . . redressed by a favorable decision”? Id. at 561
(quoting Simon, 426 U.S. at 38).
When answering these questions, “we must assume
that the party asserting federal jurisdiction is correct on the
legal merits of his claim, that a decision on the merits would
be favorable[,] and that the requested relief would be
18
granted.” Cutler v. U.S. Dep’t of Health & Human Servs.,
797 F.3d 1173, 1179 (D.C. Cir. 2015) (internal quotation
marks omitted). In other words, to withstand a “facial attack”
at the motion-to-dismiss stage, a plaintiff need only plausibly
allege facts establishing each constitutional requirement.
Lewis v. Casey, 518 U.S. 343, 358 (1996).
A. Injury-in-Fact
A plaintiff alleges injury-in-fact when it claims that it
has, or is in imminent danger of having, suffered “an invasion
of a legally protected interest” that is “concrete and
particularized” and “‘actual or imminent, not conjectural and
hypothetical.’” Lujan, 504 U.S. at 560 (quoting Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990)) (internal quotation
marks omitted). The burden is low, requiring nothing more
than “‘an identifiable trifle’ of harm.” Joint Stock Soc’y v.
UDV N. Am., Inc., 266 F.3d 164, 177 (3d Cir. 2001) (Alito,
J.) (quoting United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), 412 U.S. 669, 686 (1973)).
While Plaintiffs point to at least four other injuries
they contend also meet this requirement, “[t]he indignity of
being singled out [by a government] for special burdens on
the basis of one’s religious calling,” Locke v. Davey, 540 U.S.
712, 731 (2004) (Scalia, J., dissenting), is enough to get in the
courthouse door. Unequal treatment is “a type of personal
injury [that] ha[s] long [been] recognized as judicially
cognizable,” Heckler v. Mathews, 465 U.S. 728, 738 (1984),
and virtually every circuit court has reaffirmed1—as has the
1
See, e.g., Davis v. Guam, 785 F.3d 1311, 1315 (9th Cir.
2015) (“[E]qual treatment under law is a judicially cognizable
interest . . . even if it brings no tangible benefit to the party
19
Supreme Court—that a “discriminatory classification is itself
a penalty,” Saenz v. Roe, 526 U.S. 489, 505 (1999), and thus
qualifies as an actual injury for standing purposes, where a
citizen’s right to equal treatment is at stake. See also Ne. Fla.
Chapter of Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 657 (1993) (“The ‘injury in
fact’ . . . is the denial of equal treatment . . . .”).2
asserting it.”); Am. Civil Liberties Union of N.M. v.
Santillanes, 546 F.3d 1313, 1319 (10th Cir. 2008) (“The
injury in fact is the denial of equal treatment.”); Planned
Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 790 (4th Cir.
2004) (“Discriminatory treatment . . . qualif[ies] as an actual
injury for standing purposes.”); Lutheran Church-Mo. Synod
v. FCC, 154 F.3d 487, 493 (D.C. Cir. 1998) (“[T]he claim
that the litigant was denied equal treatment is sufficient to
constitute Article III ‘injury in-fact.’”); Peyote Way Church of
God, Inc. v. Thornburgh, 922 F.2d 1210, 1214 n.2 (5th Cir.
1991) (“[I]llegitimate unequal treatment is an injury unto
itself . . . .”).
2
Plaintiffs’ personal interest in religious equality falls
squarely within the zone of those protected by the
constitutional guarantees in question. While their claims
certainly strike at the heart of the Equal Protection Clause of
the Fourteenth Amendment, the First Amendment’s guarantee
of freedom of religion includes freedom from religious
discrimination. See, e.g., Permoli v. Municipality No. 1 of
New Orleans, 44 U.S. 589, 597 (1845) (“Equality before the
law is of the very essence of liberty, whether civil or
religious.”); Colo. Christian Univ. v. Weaver, 534 F.3d 1245,
1257 (10th Cir. 2008) (McConnell, J.) (“From the beginning,
20
None of the City’s arguments to the contrary are
persuasive. First, its argument that unequal treatment is only
injurious when it involves a tangible benefit like college
admission or Social Security takes too cramped a view of
Article III’s injury requirement. As the Supreme Court has
noted,
discrimination itself, by perpetuating “archaic
and stereotypic notions” or by stigmatizing
members of the disfavored group as “innately
inferior” and therefore as less worthy
participants in the political community, can
cause serious noneconomic injuries to those
this nation’s conception of religious liberty included, at a
minimum, the equal treatment of all religious faiths without
discrimination or preference.”); cf. Karl Loewenstein, Some
General Observations on the Proposed “International Bill of
Rights” 17 (1942).
“[T]he Religion Clauses . . . and the Equal Protection
Clause as applied to religion . . . all speak with one voice on
this point: Absent the most unusual circumstances, one’s
religion ought not affect one’s legal rights or duties or
benefits.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v.
Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J., concurring
in part and concurring in the judgment in part); see also, e.g.,
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 845 (1995); Larson v. Valente, 456 U.S. 228, 244–45
(1982); Comm. for Pub. Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 792–93 (1973); Gillette v. United States, 401
U.S. 437, 449 (1971); Epperson v. Arkansas, 393 U.S. 97,
104 (1968); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S.
1, 15 (1947).
21
persons who are personally denied equal
treatment solely because of their membership in
a disfavored group.
Heckler, 465 U.S. at 739–40 (citation omitted) (quoting Miss.
Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)); see
also, e.g., Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072,
1074 (3d Cir. 1995) (per curiam) (“[A] victim of
discrimination suffers a dehumanizing injury as real as, and
often of far more severe and lasting harm than, a blow to the
jaw.” (internal quotation marks omitted)). After all, “[t]he
fundamental concern of discrimination law is to redress the
dignitary affront that decisions based on group characteristics
represent, not to guarantee specific economic expectancies.”
Sandberg v. KPMG Peat Marwick, L.L.P., 111 F.3d 331, 335
(2d Cir. 1997).
The City next argues that Plaintiffs have suffered no
injury-in-fact because it has not overtly condemned the
Muslim religion. City Br. 35. This argument does not stand
the test of time. Our Nation’s history teaches the
uncomfortable lesson that those not on discrimination’s
receiving end can all too easily gloss over the “badge of
inferiority” inflicted by unequal treatment itself. Closing our
eyes to the real and ascertainable harms of discrimination
inevitably leads to morning-after regret. Compare Plessy v.
Ferguson, 163 U.S. 537, 551 (1896) (“[If] enforced
separation of the two races stamps the colored race with a
badge of inferiority . . . [,] it is not by reason of anything
found in the act, but solely because the colored race chooses
to put that construction upon it.”), with Brown v. Bd. of Educ.,
347 U.S. 483, 494 (1954) (“To separate [children] from
others of similar age and qualifications solely because of their
race generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way
unlikely ever to be undone.”).
22
Moving on, we are similarly unpersuaded by the City’s
alternative argument that Plaintiffs’ alleged injuries are not
“particularized.” It is true that “only . . . a complainant [who]
possesses something more than a general interest in the
proper execution of the laws . . . is in a position to secure
judicial intervention.” Stark v. Wickard, 321 U.S. 288, 304
(1944). But where a plaintiff is “asserting [his or her] own
[equality] right,” a claim of discrimination, even where it
affects a broad class, “is not an abstract concern or
‘generalized grievance.’” Ad Hoc Comm. of Concerned
Teachers v. Greenburgh #11 Union Free Sch. Dist., 873 F.2d
25, 29 (2d Cir. 1989) (quoting Warth v. Seldin, 422 U.S. 490,
499 (1975)). Because Plaintiffs in this case claim to be the
very targets of the allegedly unconstitutional surveillance,
they are unquestionably “affect[ed] . . . in a personal and
individual way.” Lujan, 504 U.S. at 560 n.1.
Further, that hundreds or thousands (or even millions)
of other persons may have suffered the same injury does not
change the individualized nature of the asserted rights and
interests at stake. See, e.g., Sch. Dist. v. Schempp, 374 U.S.
203, 223 (1963) (calling religious freedom an “individual”
right); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227
(1995) (referring to a citizen’s “personal right to equal
protection of the laws” (emphasis in original)). Standing is
easily recognized, for instance, in the case of “a widespread
mass tort,” even though “large numbers of individuals suffer
the same common-law injury.” FEC v. Akins, 524 U.S. 11,
24 (1998). And for good reason: “[t]o deny standing to
persons who are in fact injured[,] simply because many others
are also injured, would mean that the most injurious and
widespread Government actions could be questioned by
nobody.” Massachusetts v. EPA, 549 U.S. 497, 526 n.24
(2007) (emphasis omitted) (quoting SCRAP, 412 U.S. at 688).
Harm to all—even in the nuanced world of standing law—
cannot be logically equated with harm to no one.
23
Against this background, the City’s reliance on Laird
v. Tatum, 408 U.S. 1 (1972), is misplaced. The plaintiffs
there alleged only a “chilling effect” on third parties’ speech
caused by “the mere existence, without more, of [non-
discriminatory] governmental investigative and data-
gathering activity.” Id. at 10–11. Plaintiffs here, by contrast,
allege that the discriminatory manner by which the Program
is administered itself causes them direct, ongoing, and
immediate harm. Because “standing . . . is only a problem
where no harm independent of the First Amendment is
alleged,” Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004)
(Calabresi, J.), and Laird doesn’t stand for the proposition
that public surveillance is either per se immune from
constitutional attack or subject to a heightened requirement of
injury, that case’s “narrow” holding, see 408 U.S. at 15,
doesn’t reach the facts of this case.
Indeed, in several post-Laird cases we have recognized
that, while surveillance in public places may not of itself
violate any privacy right,3 it can still violate other rights that
give rise to cognizable harms. See, e.g., Hall v. Pa. State
Police, 570 F.2d 86, 91 (3d Cir. 1978) (“Although it may be
assumed that the state may arrange for photographing all
suspicious persons entering the bank, it does not follow that
its criterion for selection may be racially based, in the absence
of a proven compelling state interest.” (citation omitted)); cf.
Anderson v. Davila, 125 F.3d 148, 160–61 (3d. Cir. 1997)
(Roth, J.) (while public governmental surveillance alone was
not cognizable, identical surveillance conducted in retaliation
3
We do not take a position on whether Plaintiffs could have
brought suit to vindicate such an interest. They do not allege
a violation of some constitutional right to privacy, but to
equal treatment.
24
for one’s exercise of First Amendment rights gave rise to a
separate injury cognizable under Article III).
B. Fair Traceability
The second requirement of injury-in-fact is a causal
connection between a defendant’s alleged conduct and the
plaintiff’s harm. See Lujan, 504 U.S. at 561. The City
contends that Plaintiffs have failed to satisfy this requirement
because the Associated Press (“AP”), not the NYPD, revealed
the Program to the public and did so without the City’s
permission. In short, it argues, “What you don’t know can’t
hurt you. And, if you do know, don’t shoot us. Shoot the
messenger.”
Aside from its distortions of the factual record,4 the
4
Far from attesting to the NYPD and AP’s respective roles in
revealing the once-secret Program, the affidavit of defense
counsel on which the City relies merely states that the AP
reported on the NYPD’s conduct and “released [unredacted]
documents to the public at large beginning in . . . August
2011.” Decl. of Peter G. Farrell ¶ 3. It is impossible to infer
reasonably, let alone conclude, from this statement that the
AP was the first (or only) public source of the information or
that the NYPD played no role for which it may be held
legally responsible.
Moreover, even if they were required to do so,
Plaintiffs have produced ample evidence in rebuttal showing
that: (1) “[a] former NYPD informant . . . independently [of
the AP] revealed the NYPD’s practice of targeting innocent
Muslims” by “sp[eaking] publicly in great detail about his
part in the NYPD’s policy and practice of surveilling
Muslims on the basis of religion,” Decl. of Glenn Katon ¶ 4;
25
City’s argument is legally untenable because (to repeat) the
discrimination itself is the legally cognizable injury. Indeed,
discrimination often has been likened to a “dignitary tort,”
see, e.g., Curtis v. Loether, 415 U.S. 189, 195 n.10 (1974)
(quoting Charles O. Gregory & Harry Kalven, Jr., Cases and
Materials on Torts 961 (2d ed. 1969)), where “[t]he tort is
said to be damage itself,” 2 Dan B. Dobbs, Dobbs Law of
Remedies § 7.4(1), at 334 (2d ed. 1993). And, as with other
“torts” in this category, “the affront to the other’s
dignity . . . is as keenly felt by one who only knows after the
event that an indignity has been perpetrated upon him as by
one who is conscious of it while it is being perpetrated.”
Restatement (First) of Torts § 18 cmt. e (1934). Because we
view the claimed discrimination itself as the primary injury
alleged, it “follows from our definition of ‘injury in fact’” that
the City “is the ‘cause’” of that injury rather than any member
of the press. Ne. Fla. Chapter of Associated Gen.
Contractors, 508 U.S. at 666 n.5.
Finally, even if only the collateral consequences of the
discrimination—rather than the unequal treatment itself—
could count as Article III injury, the City “wrongly
equat[es] . . . injury ‘fairly traceable’ to the defendant with
injury as to which the defendant’s actions are the very last
step in the chain of causation.” Constitution Party of Pa. v.
Aichele, 757 F.3d 347, 366 (3d Cir. 2014) (second alteration
in original) (quoting Bennett v. Spear, 520 U.S. 154, 168–69
(1997)). That is incorrect. “[T]here is room for concurrent
and (2) “[s]ince the AP began publishing reports regarding
the NYPD’s policy and practice of targeting Muslims for
surveillance, senior New York City officials have
acknowledged and endorsed the NYPD’s tactics,” thus
“propagat[ing] and amplif[ying] the harm,” id. ¶ 3.
26
causation in the analysis of standing, and, indeed, ‘an indirect
causal relationship will suffice, so long as there is a fairly
traceable connection.’” Id. (citation omitted) (quoting Toll
Bros. v. Township of Readington, 555 F.3d 131, 142 (3d Cir.
2009) (internal quotation marks omitted)); see also Block v.
Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986) (Scalia, J.)
(“[T]he question of core, constitutional injury-in-
fact . . . requires no more than de facto causality.”); Pitt News
v. Fisher, 215 F.3d 354, 361 (3d Cir. 2000) (“but for”
causation sufficient to establish traceability to establish
standing).
C. Redressability
The last requirement of Article III standing is
redressability, which requires the plaintiff to show that
“it . . . [is] ‘likely,’ as opposed to merely ‘speculative,’ that
the injury will be ‘redressed by a favorable decision.’” Lujan,
504 U.S. at 560 (quoting Simon, 426 U.S. at 38).
Redressability is “easily established in a case where,” as here,
“the alleged injury arises from an identifiable discriminatory
policy.” Smith v. Meese, 821 F.2d 1484, 1494 (11th Cir.
1987). While we cannot predict “the exact nature of the
possible relief . . . without a full development of the facts, an
order enjoining the policy and requiring non-discriminatory
investigation and enforcement would redress the injury.” Id.As for past harms, the potential avenues for redress
depend on how a particular plaintiff’s injury shows itself.
Those plaintiffs able to prove “actual injur[ies]”—i.e., those
other than “the abstract value of [the] constitutional right[s],”
such as out-of-pocket losses or emotional distress—may
recover compensatory damages. Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 308 (1986); see also Carey v.
Piphus, 435 U.S. 247, 264–66 (1978). For other plaintiffs,
“the major purpose of the suit may be to obtain a public
27
declaration that the[y are] right and w[ere] improperly
treated,” see Restatement (Second) of Torts § 901 cmt. c
(1979), along with nominal damages that serve as “a
symbolic vindication of [their] constitutional right[s],”
Schneider v. County of San Diego, 285 F.3d 784, 794 (9th
Cir. 2002) (quoting Floyd v. Laws, 929 F.2d 1390, 1403 (9th
Cir. 1991)). Given the range of available remedies,
redressability is easily satisfied.
* * * * *
Confident in our jurisdiction to hear this case, we now
turn to the merits of Plaintiffs’ constitutional claims and begin
with equal protection.
IV. CONSTITUTIONAL CLAIMS
A. Equal-Protection Claim
The Equal Protection Clause of the Fourteenth
Amendment to our Constitution provides that “[n]o State
shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. Amend. XIV, § 1.
Plaintiffs claim the City is contravening that mandate and
violating their rights by surveilling them pursuant to a
Program that investigates persons not because of any
reasonable suspicion of wrongdoing (or other neutral
criterion) but solely because of their Muslim religious
affiliation.
A “claim of selective investigation” by the police
draws on “‘ordinary equal protection standards.’” Flowers v.
City of Minneapolis, 558 F.3d 794, 798 (8th Cir. 2009)
(quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).
As with other equal-protection claims, we ask whether the
City intentionally discriminates against a reasonably
28
identifiable group and whether that intentional discrimination
is nonetheless legally justified.
1. Do Plaintiffs Plausibly Allege Intentional
Discrimination?
To state an equal-protection claim, Plaintiffs must
allege (and ultimately prove) “intentional discrimination.”
Washington v. Davis, 426 U.S. 229, 241 (1976); Pers. Adm’r
of Mass. v. Feeney, 442 U.S. 256, 276 (1979). It is not
enough for them to allege that they are Muslim and that the
NYPD surveilled more Muslims than members of any other
religion. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rather,
Plaintiffs’ religious affiliation must have been a substantial
factor in that different treatment. Davis, 426 U.S. at 235;
Feeney, 442 U.S. at 276.
i. Plaintiffs Plausibly Allege a
Surveillance Program with a
Facially Religious Classification.
There are a variety of theories to consider in an equal-
protection claim of this type. First, Plaintiffs could point to a
policy that is facially discriminatory, meaning that the policy
“by its own terms” singles out Muslims “for different
treatment.” 3 Ronald D. Rotunda & John E. Nowak, Treatise
on Constitutional Law § 18.4 (10th ed. 2012); see, e.g.,
Adarand, 515 U.S. at 213, 227–29. Second, they could
identify a policy that “either shows no classification on its
face or else indicates a classification which seems to be
legitimate,” yet one that NYPD officers apply to Muslims
with a greater “degree[] of severity” than other religious
groups. Rotunda & Novak, supra, § 18.4; see, e.g., Yick Wo
v. Hopkins, 118 U.S. 356, 373–74 (1886). Or, third, Plaintiffs
could identify a facially neutral policy that the City
purposefully “designed to impose different burdens” on
29
Muslims and that (even if applied evenhandedly) does in fact
have the intended adverse effect. Rotunda & Novak, supra,
§ 18.4; see, e.g., Village of Arlington Heights v. Met. Hous.
Dev. Corp., 429 U.S. 252, 264–65 (1977).
Here, Plaintiffs seek to proceed by way of the first of
these three methods, arguing their “allegations leave no doubt
that the . . . [Program] relies on an express classification of
Muslims for disfavored treatment.” See Pls.’ Br. 10. This is
a viable legal theory. Where a plaintiff can point to a facially
discriminatory policy, “the protected trait by definition plays
a role in the decision-making process, inasmuch as the policy
explicitly classifies people on that basis.”5 Cmty. Servs. v.
Wind Gap Mun. Auth., 421 F.3d 170, 177 (3d Cir. 2005)
(quoting DiBiase v. SmithKline Beecham Corp., 48 F.3d 719,
726 (3d Cir. 1995)). Put another way, direct evidence of
intent is “supplied by the policy itself.” Massarsky v. Gen.
Motors Corp., 706 F.2d 111, 128 (3d Cir. 1983) (Sloviter, J.,
dissenting).
5
To the extent the City focuses on Plaintiffs’ failure to allege
the existence of a written policy, there is no requirement that
a policy be reduced to written form. See, e.g., Johnson v.
California, 543 U.S. 499, 502, 509 (2005) (holding that an
“unwritten [prison] policy of racially segregating prisoners in
double cells” was subject to strict scrutiny). As the Ninth
Circuit has explained, “[t]he primary—indeed, perhaps
only—difference [between a suit involving a written and
unwritten policy] is an evidentiary one.” Hoye v. City of
Oakland, 653 F.3d 835, 855 (9th Cir. 2011). While a
“[p]laintiff[] ha[s] no difficulty establishing what a policy is
when the policy is written,” “[a]n unwritten policy, by
contrast, is usually harder to establish.” Id.30
The City nonetheless attacks the plausibility of the
allegations, arguing that Plaintiffs point to only “conclusory
allegations . . . spread throughout [the] . . . [C]omplaint,”
which “as a matter of law cannot be credited.” City Br. 56. It
further asserts that, “[o]nce the conclusory allegations are
pushed aside, the remaining factual allegations are
insufficient to find a facially discriminatory
classification.” Id.We disagree with this characterization. While the City
compares Plaintiffs’ claims to the conclusory allegations in
Iqbal, those were far from what we have here. In our case,
Plaintiffs allege specifics about the Program, including when
it was conceived (January 2002), where the City implemented
it (in the New York Metropolitan area with a focus on New
Jersey), and why it has been employed (because of the belief
“that Muslim religious identity . . . is a permissible proxy for
criminality,” Compl. ¶ 36). The Complaint also articulates
the “variety of methods” by which the surveillance is carried
out. See, e.g., id. ¶ 39 (“tak[ing] videos and photographs at
mosques, Muslim-owned businesses and schools”); id.(“monitor[ing Muslim] websites, listservs, and chat rooms”);
id. ¶ 46 (“snap[ping] pictures, tak[ing] video, and collect[ing]
license plate numbers of congregants as they arrive at
mosques to pray”); id. ¶ 47 (“us[ing] undercover
officers . . . to monitor daily life in [Muslim]
neighborhoods . . . and sermons and conversations in
mosques”); id. ¶ 49 (“plac[ing] informants or undercover
officers in all or virtually all MSAs”). These allegations are
hardly “bare assertions . . . amount[ing] to nothing more than
a ‘formulaic recitation of the elements’ of a constitutional
discrimination claim.” Iqbal, 556 U.S. at 681 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. at 544, 545 (2007)).
Despite the City’s demand for more information about
when, by whom, and how the policy was enacted and where it
31
was written down, “the Twombly–Iqbal duo have not
inaugurated an era of evidentiary pleading.” Santana v. Cook
Cnty. Bd. of Review, 270 F.R.D. 388, 390 (N.D. Ill. 2010)
(emphasis in original); see also Twombly, 550 U.S. at 570
(rejecting the proposition that notice pleading “require[s]
heightened fact pleading of specifics”). Nor do “factual
allegations . . . become impermissible labels and conclusions
simply because the additional factual allegations explaining
and supporting the articulated factual allegations are not also
included.” In re Niaspan Antitrust Litig., 42 F. Supp. 3d 735,
753 (E.D. Pa. 2014) (internal quotation marks omitted).
While it is possible that Plaintiffs will ultimately falter in
meeting their burden of proof, the collection of evidence is
the object of discovery.
Moreover, even if the pleading of “evidence” rather
than “grounds for relief” were required (which it is not), the
Complaint includes numerous examples of persons that the
NYPD is surveilling because of their religious affiliation.6
6
To the extent the City means to argue that Plaintiffs have
failed to allege plausibly that even these exemplars have not
been singled out by reason of their religious affiliation, we
disagree. Plaintiffs’ allegations, which draw on the sources of
circumstantial evidence commonly used to make out a prima
facie case of intentional discrimination in a disparate-
treatment suit of this type, easily satisfy the plausibility
threshold required to survive a motion to dismiss. See, e.g.,
Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 410 (2d
Cir. 1990) (“maintenance of records of the race of the
arrestees”); Marshall v. Colum. Lea Reg’l Hosp., 345 F.3d
1157, 1170 (10th Cir. 2003) (McConnell, J.) (racial
designation on a driving-citation form “where none was
32
See, e.g., Compl. ¶ 14 (the Masjid al-Haqq and Masjid Ali K.
Muslim mosques); id. ¶ 17 (MSAs for Rutgers University
campuses at Newark and New Brunswick); id. ¶ 18 (All Body
Shop Inside & Outside); id. ¶ 20 (Unity Beef Sausage Co.);
id. ¶ 22 (the Masjid-e-Ali mosque); id. ¶ 31 (Al-Hidaayah
Academy); id. (Al Muslimaat Academy). These allegations
supplement those that the NYPD “surveil[led] . . . at least
twenty mosques, fourteen restaurants, eleven retail stores, two
grade schools and two [MSAs] in New Jersey,” id. ¶ 38;
“creat[ed] over twenty precinct-level maps of the City of
Newark,” id.; and attempted to place an “informant inside
every mosque within a 250-mile radius of New York City” as
well as prepared an “analytical report on every mosque within
100 miles,” id. ¶ 47.
Finally, because Plaintiffs allege that all of these
persons and entities were surveilled without any reasonable
suspicion of wrongdoing (as noted above, they assert that,
“[i]n all its years of operation, the Program has never
generated a single [criminal] lead,” id. ¶ 2), this case can be
easily contrasted with others where the law-enforcement
investigation at issue was almost certainly explained by a
reasonable suspicion of wrongdoing.7 Cf. George v. Rehiel,
called for”); Jean v. Nelson, 711 F.2d 1455, 1495–96 (11th
Cir. 1983) (statistical evidence showing “glaring” effect on
protected class); Floyd v. City of New York, 959 F. Supp. 2d
540, 587 (S.D.N.Y. 2013) (disparities between minority
groups in “hit rates” combined with other evidence);
Rodriguez v. Cal. Highway Patrol, 89 F. Supp. 2d 1131, 1141
(N.D. Cal. 2000) (statistical evidence).
7
This of course is not to say that an absence or presence of
reasonable suspicion in a particular case determines the
33
738 F.3d 562, 586 (3d Cir. 2013) (“The TSA Officials’
suspicion was an obvious alternative explanation for their
conduct, which negates any inference of retaliation.”). That
we might be able to conjure up some non-discriminatory
motive to explain the City’s alleged conduct is not a valid
basis for dismissal. It is “only when [a] defendant’s plausible
viability of a plaintiff’s equal-protection claim. Cf. Whren v.
United States, 517 U.S. 806, 813 (1996) (“[T]he Constitution
prohibits selective enforcement of the law based on
considerations such as race. But the constitutional basis for
objecting to intentionally discriminatory application of laws is
the Equal Protection Clause, not the Fourth Amendment.
Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.”); United States v. Scopo, 19
F.3d 777, 786 (2d Cir. 1994) (Newman, C.J., concurring)
(“Though the Fourth Amendment permits a pretext arrest, if
otherwise supported by probable cause, the Equal Protection
Clause still imposes restraint on impermissibly class-based
discriminations.”).
But although a lack of reasonable suspicion does not
afford a presumption that a law-enforcement officer initiated
an investigation on the basis of a protected characteristic, it is
certainly one factor that may be considered by a finder of
fact. See Bennett v. City of Eastpointe, 410 F.3d 810, 822 n.1
(6th Cir. 2005) (“While the stop was justified from a Fourth
Amendment perspective . . . [,] the lack of suspicion . . . may
properly be considered in the plaintiffs’ selective-
enforcement claim.”); Anderson v. Cornejo, 284 F. Supp. 2d
1008, 1055 (N.D. Ill. 2003) (citing “the lack of adequate
suspicion for a strip search” as probative of the fact that a
customs officer “acted, at least in part, because [the plaintiff
was] an African-American woman”).
34
alternative explanation is so convincing” to render the
“plaintiff’s explanation . . . implausible” that a court may
dismiss a complaint. Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011) (emphasis in original).
In sum, because Plaintiffs have pleaded ample “factual
content [that] allows [us] to draw the reasonable inference
that the [City] is liable for the misconduct alleged,” Iqbal,
556 U.S. at 663, we decline to dismiss their Complaint on the
ground that they have not plausibly alleged a surveillance
program with a facially discriminatory classification.
ii Intentional Discrimination Does
Not Require an Invidious Motive.
The City also argues that, even assuming Plaintiffs
have plausibly alleged a facial classification based on
religious affiliation, their allegations of discriminatory
“purpose” are implausible because “the more likely
explanation for the NYPD’s actions is public safety rather
than discrimination based upon religion.” City Br. 49. Its
reasoning is essentially two-fold: “the surveillance is alleged
to have begun just after the [September 11, 2001] terrorist
attacks,” id., and “[t]he police could not have monitored New
Jersey for Muslim terrorist activities without monitoring the
Muslim community itself,” id. (alteration in original) (quoting
Hassan, 2014 WL 654604, at *6).
Here’s the City’s problem: there’s a difference
between “intent” and “motive.” “[A] defendant acts
intentionally when he desires a particular result, without
reference to the reason for such desire. Motive, on the other
hand, is the reason why the defendant desires the result.” 2
Harry Sanger Richards et al., American Law and Procedure
§ 8, at 6 (1922). In other words, “intent” asks whether a
person acts “intentionally or accidentally,” while “motive”
35
asks, “If he did it intentionally, why did he do it?” 1 John
William Salmond, Jurisprudence § 134, at 398 (7th ed. 1924)
(emphasis in original); see also Black’s Law Dictionary 881
(Bryan Garner ed., 10th ed. 2014) (“While motive is the
inducement to do some act, intent is the mental resolution or
determination to do it.”). This fundamental “distinction
between motive and intent runs all through the law.” Johnson
v. Phelan, 69 F.3d 144, 155 (7th Cir. 1995) (Posner, C.J.,
concurring in part and dissenting in part).
In focusing on what the City contends was its
“legitimate purpose[]” of “analy[zing] . . . potential [security]
threats and vulnerabilities,” City Br. 50, it wrongly assumes
that invidious motive is a necessary element of discriminatory
intent. It is not. All you need is that the state actor meant to
single out a plaintiff because of the protected characteristic
itself. See, e.g., Snyder v. Louisiana, 552 U.S. 472, 485
(2008); Bray v. Alexandria Women’s Health Clinic, 506 U.S.
263, 269–70 (1993). In a school-segregation case, for
instance, “the ‘intent’ which triggers a finding of
unconstitutionality is not an intent to harm black students, but
simply an intent to bring about or maintain segregated
schools.” United States v. Sch. Dist. of Omaha, 521 F.2d 530,
535 (8th Cir. 1975). Likewise, a prosecutor who strikes a
juror on the basis of race discriminates intentionally even if
motivated by a sincere desire to win his case. See, e.g.,
Georgia v. McCollum, 505 U.S. 42, 59 (1992).
So too here. While the absence of a legitimate motive
may bear on whether the challenged surveillance survives the
appropriate level of equal-protection scrutiny, “intentional
discrimination” need not be motivated by “ill will, enmity, or
hostility” to contravene the Equal Protection Clause. Floyd v.
City of New York, 959 F. Supp. 2d 540, 662 (S.D.N.Y. 2013)
(quoting Ferrill v. Parker Grp., Inc., 168 F.3d 468, 473 n.7
(11th Cir. 1999)); see also Cmtys. for Equity v. Mich. High
36
Sch. Athletic Ass’n, 459 F.3d 676, 694 (6th Cir. 2006)
(distinguishing between “an intent to treat two groups
differently” and “an intent to harm”); Garza v. County of Los
Angeles, 918 F.2d 763, 778 n.1 (9th Cir. 1990) (Kozinski, J.,
concurring in part and dissenting in part) (“[T]here can be
intentional discrimination without an invidious motive.”).
Thus, even if NYPD officers were subjectively motivated by
a legitimate law-enforcement purpose (no matter how
sincere), they’ve intentionally discriminated if they wouldn’t
have surveilled Plaintiffs had they not been Muslim.
2. Is the Alleged Discrimination
Nonetheless Legally Justified?
Once a plaintiff demonstrates treatment different from
others with whom he or she is similarly situated and that the
unequal treatment is the result of intentional discrimination,
“the adequacy of the reasons for that discrimination
are . . . separately assessed at equal protection’s second step”
under the appropriate standard of review. SECSYS, LLC v.
Vigil, 666 F.3d 678, 689 (10th Cir. 2012). To apply this
traditional legal framework to the facts of this case, we must
determine the appropriate standard of review (i.e., rational
basis, intermediate scrutiny, or strict scrutiny) and then ask
whether it is met.8
i. Level of Scrutiny
At a minimum, intentional discrimination against any
“identifiable group” is subject to rational-basis review, which
8
Although other modes of analysis have also been employed,
see, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2596 (2015),
we find it appropriate to apply the conventional two-part
framework in the context of this case.
37
requires the classification to be rationally related to a
legitimate governmental purpose. Johnson v. Cohen, 836
F.2d 798, 805 n.9 (3d Cir. 1987). Where a “quasi-suspect” or
“suspect” classification is at issue, however, the challenged
action must survive “intermediate scrutiny” or “strict
scrutiny.” 9 Intermediate scrutiny (applicable to quasi-suspect
classes like gender and illegitimacy) requires that a
classification “be substantially related to an important
governmental objective.” Clark v. Jeter, 486 U.S. 456, 461
(1988). In contrast, strict scrutiny (applicable to suspect
classes like race and nationality) is an even more demanding
standard, which requires the classification be “narrowly
tailored . . . [to] further [a] compelling governmental
interest[].” Gratz v. Bollinger, 539 U.S. 244, 270 (2003).
Strict and intermediate scrutiny (which we collectively refer
to as “heightened scrutiny” to distinguish them from the far
less demanding rational-basis review) in effect set up a
presumption of invalidity that the defendant must rebut.
Perhaps surprisingly, neither our Court nor the
Supreme Court has considered whether classifications based
on religious affiliation10 trigger heightened scrutiny under the
9
“Strict scrutiny” is also triggered in the case of a
“fundamental right.” While “the right to free exercise of
religion” is fundamental, Lewis, 518 U.S. at 404, Plaintiffs
proceed in this case on the theory that religious affiliation is a
protected class.
10
We refer in this opinion only to discrimination based on
religious affiliation rather than involvement. Case law
distinguishes between the two. See, e.g., United States v.
DeJesus, 347 F.3d 500, 510 (3d Cir. 2003) (Fuentes, J.)
(“Because we affirm the District Court’s finding that the
38
Equal Protection Clause. See Steven G. Calabresi & Abe
Salander, Religion and the Equal Protection Clause: Why the
Constitution Requires School Vouchers, 65 Fla. L. Rev. 909,
919 (2013); Kenji Yoshino, Suspect Symbols: The Literary
Argument for Heightened Scrutiny for Gays, 96 Colum. L.
Rev. 1753, 1783 (1996). We therefore confront a question of
first impression in this Circuit.
Although the answer to this question is not found in
binding precedent, we hardly write on a clean slate. To start,
it has long been implicit in the Supreme Court’s decisions
that religious classifications are treated like others
traditionally subject to heightened scrutiny, such as those
based on race. United States v. Armstrong, 517 U.S. 456, 464
(1996) (naming “race” and “religion” as examples of
“unjustifiable standard[s]” for a “decision whether to
government’s strikes were based on the jurors’ heightened
religious involvement rather than their religious affiliation,
we need not reach the issue of whether a peremptory strike
based solely on religious affiliation would be
unconstitutional.”); United States v. Stafford, 136 F.3d 1109,
1114 (7th Cir. 1998) (Posner, C.J.) (explaining that “[i]t is
necessary to distinguish among religious affiliation, a
religion’s general tenets, and a specific religious belief”),
modified, 136 F.3d 1115 (7th Cir. 1998). Nor do we mean to
state a position on the separate “question of whether all
religions together constitute a suspect or quasi-suspect class.”
Christian Sci. Reading Room Jointly Maintained v. City of
San Francisco, 807 F.2d 1466, 1467 n.1 (9th Cir. 1986)
(Norris, J., dissenting from the denial of rehearing en banc)
(stating this as a separate issue that the panel expressly
declined to decide).
39
prosecute” (quoting Oyler v. Boles, 368 U.S. 448, 456
(1962))); Burlington N. R.R. v. Ford, 504 U.S. 648, 651
(1992) (referring to “race” and “religion” as “classif[ications]
along suspect lines”); Friedman v. Rogers, 440 U.S. 1, 17
(1979) (calling “race, religion, [and] alienage . . . inherently
suspect distinctions”); City of New Orleans v. Dukes, 427
U.S. 297, 303 (1976) (same); United States v. Batchelder, 442
U.S. 114, 125 n.9 (1979) (listing “race” and “religion” as
“unjustifiable standard[s]” under our Constitution (quoting
Oyler, 368 U.S. at 456)); Steele v. Louisville & Nashville
R.R., 323 U.S. 192, 209 (1944) (Murphy, J., concurring)
(“The Constitution voices its disapproval whenever economic
discrimination is applied under authority of law against any
race, creed or color.”).
This line of comment can be traced back to the famous
footnote four of the Supreme Court’s 1938 decision in
Carolene Products, where the Court suggested that
discriminatory legislation should “be subjected to more
exacting judicial scrutiny under the general prohibitions of
the Fourteenth Amendment” if “directed at particular
religious, or national, or racial minorities.” United States v.
Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (citations
omitted) (emphasis added). And even before Carolene
Products, the Court considered religious discrimination to be
a classic example of “a denial of the equal protection of the
laws to the less favored classes.” Am. Sugar Ref. Co. v.
Louisiana, 179 U.S. 89, 92 (1900); see also Hall v. De Cuir,
95 U.S. 485, 505 (1877) (“Directors of schools in
Iowa . . . [cannot] deny a youth of proper age admission to
any particular school on account of nationality, color, or
religion.”).
It is true that these statements are dicta. But even so,
Supreme Court dicta “requires serious consideration,” United
States v. Marzzarella, 614 F.3d 85, 90 n.5 (3d Cir. 2010),
40
“especially . . . when, as here, we encounter a decades-long
succession of statements from the Court,” Myers v. Loudoun
Cnty. Pub. Sch., 418 F.3d 395, 410 (4th Cir. 2005) (D. Motz,
J., concurring in the judgment). Moreover, this dicta is
consistent with our own. Connelly v. Steel Valley Sch. Dist.,
706 F.3d 209, 213 (3d Cir. 2013) (identifying “race, religion,
[and] alienage” as “inherently suspect distinctions” (quoting
Schumacher v. Nix, 965 F.2d 1262, 1266 (3d Cir. 1992)
(internal quotation marks omitted)); United States v. DeJesus,
347 F.3d 500, 510–11 (3d Cir. 2003) (Fuentes, J.) (referring
in dictum to “religious affiliation” as “a protected class”);
Tolchin v. Supreme Court of New Jersey, 111 F.3d 1099,
1114 (3d Cir. 1997) (naming “race, religion or alienage” as
“suspect distinctions”); United States v. Friedland, 83 F.3d
1531, 1537 (3d Cir. 1996) (“[T]he government can[not]
refuse to move for a downward[] departure under 18 U.S.C.
§ 3553(e) [if] . . . base[d] . . . on a constitutionally suspect
ground such as race or religion.”).
We also are guided by other appellate courts that have
subjected religious-based classifications to heightened
scrutiny. For instance, both the Eighth and Tenth Circuit
Courts have held without fanfare that “[r]eligion is a suspect
classification,” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1322
n.10 (10th Cir. 2010); Patel v. U.S. Bureau of Prisons, 515
F.3d 807, 816 (8th Cir. 2008), and the Second and Ninth have
done the same in so many words, see, e.g., United States v.
Brown, 352 F.3d 654, 668 (2d Cir. 2003) (Calabresi, J.)
(holding that the exercise of a peremptory strike due to a
venire member’s religious affiliation would violate Batson v.
Kentucky, 476 U.S. 79 (1986), because “religious
classifications . . . trigger strict scrutiny”); Christian Sci.
Reading Room Jointly Maintained v. City of San Francisco,
41
784 F.2d 1010, 1012 (9th Cir. 1986) (“It seems clear that an
individual religion meets the requirements for treatment as a
suspect class.”), amended, 792 F.2d 124 (9th Cir. 1986).11
Today we join these courts and hold that intentional
discrimination based on religious affiliation must survive
11
Some appellate courts have recognized the question as an
open one, see, e.g., St. John’s United Church of Christ v. City
of Chicago, 502 F.3d 616, 638 (7th Cir. 2007); Wirzburger v.
Galvin, 412 F.3d 271, 283 (1st Cir. 2005); Taylor v. Johnson,
257 F.3d 470, 473 n.2 (5th Cir. 2001) (per curiam), but we
are not aware of a single circuit court holding that religious
classifications are subject to only rational-basis review.
We also note that numerous state courts either have
held that religious affiliation is a suspect classification or
have issued opinions with strong dicta to that effect. See,
e.g., Bagley v. Raymond Sch. Dep’t, 728 A.2d 127, 137 (Me.
1999); Marrujo v. N.M. State Highway Transp. Dep’t, 887
P.2d 747, 751 (N.M. 1994); Bd. of Cnty. Comm’rs of
Saguache v. Flickinger, 687 P.2d 975, 982 n.9 (Colo. 1984)
(en banc); State v. Correll, 626 S.W.2d 699, 701 (Tenn.
1982); Burmaster v. Gravity Drainage Dist. No. 2 of St.
Charles Parish, 366 So. 2d 1381, 1386 n.3 (La. 1978); Gunn
v. Lane County, 20 P.3d 247, 251 (Or. App. 2001); LaCava v.
Lucander, 791 N.E.2d 358, 363 (Mass. App. Ct. 2003). But
see State v. Purcell, 18 P.3d 113, 121 (Ariz. Ct. App. 2001)
(“In addition to being a fundamental right, religious affiliation
also may be a suspect classification under the Equal
Protection Clause.” (emphasis added)); State v. Davis, 504
N.W.2d 767, 771 (Minn. 1993), cert. denied, 511 U.S. 1115(1994); Casarez v. State, 913 S.W.2d 468 (Tex. Crim. App.
1994).
42
heightened equal-protection review. Before turning more
fully to our reasoning, however, we pause to reiterate that the
term “heightened scrutiny,” as we use it, encompasses both
“intermediate scrutiny” and “strict scrutiny.” Because the
City bears the burden of production and proof with respect to
both, see infra Part IV(A)(2), we need not—and should
not12—determine in connection with its motion to dismiss
which of the two applies, and we leave that question for the
District Court in the first instance when and if it becomes
necessary to decide it.
In designating a particular classification as “suspect”
or “quasi-suspect” under the Equal Protection Clause, the
Supreme Court generally considers a variety of factors
“grouped around [the] central idea” of “whether the
discrimination embodies a gross unfairness that is [so]
sufficiently inconsistent with the ideals of equal protection to
term it ‘invidious.’” Watkins v. U.S. Army, 875 F.2d 699,
724–25 (9th Cir. 1989) (en banc) (Norris, J., concurring in the
12
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring) (“It is not the habit of the court to
decide questions of a constitutional nature unless absolutely
necessary to a decision of the case.” (quoting Burton v.
United States, 196 U.S. 283, 295 (1905))); Liverpool, N.Y. &
Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39
(1885) (“In the exercise of [its] jurisdiction, [the Court
must] . . . never . . . formulate a rule of constitutional law
broader than is required by the precise facts to which it is to
be applied.”); Ala. State Fed’n of Labor v. McAdory, 325 U.S.
450, 461 (1945) (“It has long been [the Court’s] considered
practice not . . . to decide any constitutional question in
advance of the necessity for its decision.”).
43
judgment). Among these are “whether the . . . class is defined
by a[n] [immutable] trait that ‘frequently bears no relation to
ability to perform or contribute to society’” and “whether the
class has been saddled with unique disabilities because of
prejudice or inaccurate stereotypes.” Id. at 725 (quoting
Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality
opinion)). But while these factors are those most often
considered, “[n]o single talisman can define those groups
likely to be the target of classifications offensive to the
Fourteenth Amendment . . . ; experience, not abstract logic,
must be the primary guide.” City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 472 n.24 (1985) (Marshall, J.,
concurring in the judgment in part and dissenting in part).
Courts first have looked with particular suspicion on
discrimination based on “immutable human attributes.”
Parham v. Hughes, 441 U.S. 347, 351 (1979) (plurality
opinion). Accordingly, a classification is more likely to
receive heightened scrutiny if it discriminates against
individuals based on a characteristic that they either cannot
realistically change or ought not be compelled to change
because it is fundamental to their identities. See, e.g., Baskin
v. Bogan, 766 F.3d 648, 655 (7th Cir. 2014) (Posner, J.)
(framing this issue as whether “the unequal treatment [is]
based on some immutable or at least tenacious characteristic
of the people discriminated against” as opposed to a
“characteristic[] that [is] easy for a person to change, such as
the length of his or her fingernails”); Watkins, 875 F.2d at 726(Norris, J., concurring in the judgment) (“[T]he Supreme
Court is willing to treat a trait as effectively immutable if
changing it would involve great difficulty, such as requiring a
major physical change or a traumatic change of identity.”).
Religious affiliation falls within this category. As we
44
have recognized in the immigration context,13 religious
affiliation is typically seen as “capable of being changed,” yet
“of such fundamental importance that individuals should not
be required to modify it.”14 Ghebrehiwot v. Attorney Gen. of
U.S., 467 F.3d 344, 357 (3d Cir. 2006) (quoting Escobar v.
Gonzalez, 417 F.3d 363, 367 (3d Cir. 2005)); see also Baskin,
766 F.3d at 655 (Posner, J.) (listing “religion” as an example
of “a deep psychological commitment” that would qualify for
13
Other courts have drawn on the definition of “immutable”
in immigration cases when defining the term in the context of
an equal-protection suit. Latta v. Otter, 771 F.3d 456, 464 n.4
(9th Cir. 2014) (quoting an immigration case for the
proposition that “[s]exual orientation and sexual identity are
immutable; they are so fundamental to one’s identity that a
person should not be required to abandon them” (alteration in
original)), cert. denied, 135 S. Ct. 2931 (2015).
14
Aziz Z. Huq, The Signaling Function of Religious Speech
in Domestic Counterterrorism, 89 Tex. L. Rev. 833, 852
(2011) (recognizing that religion lies “at the core of many
individuals’ understanding of their identity”); David B.
Salmons, Comment, Toward a Fuller Understanding of
Religious Exercise: Recognizing the Identity-Generative and
Expressive Nature of Religious Devotion, 62 U. Chi. L. Rev.
1243, 1258 (1995) (noting the “fundamental role [that
religious preference] play[s] in shaping an individual’s
concept of identity and personhood”); Note, Reinterpreting
the Religion Clauses: Constitutional Construction and
Conceptions of the Self, 97 Harv. L. Rev. 1468, 1474 (1984)
(“A society that failed to protect religion would foreclose the
individual’s choice of the most fundamental part of his
identity.”).
45
heightened scrutiny). Moreover, while some immutable
characteristics, such as intellectual disability, are so often
correlated with “a person’s ability to participate in society”
that we frequently deem them to be constitutionally
permissible bases for discrimination, see Baskin, 766 F.3d at
655, a person’s religious affiliation is at the other end of that
spectrum.
Religious discrimination, “by [its] very nature,” has
long been thought “odious to a free people whose institutions
are founded upon the doctrine of equality.” Bell v. Maryland,
378 U.S. 226, 288 (1964) (Goldberg, J., concurring) (quoting
Hirabayashi v. United States, 320 U.S. 81, 100 (1943)); W.
Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 653 (1943)
(“[For] Jefferson and those who followed
him[,] . . . [r]eligious minorities as well as religious majorities
were to be equal in the eyes of the political state.”); President
James Madison, Religious Freedom: A Memorial and
Remonstrance Against the General Assessment, in “A Bill
Establishing Provision for the Teachers of the Christian
Religion,” Presented to the General Assembly of Virginia, at
the Session of 1785 (1819) (“A just Government . . . will be
best supported by protecting every citizen in the enjoyment of
his Religion with the same equal hand which protects his
person and his property; by neither invading the equal rights
of any Sect, nor suffering any sect to invade those of
another.”).
Courts also are more likely to subject classifications
that are “closely associated with inequality” to a more
searching inquiry. Windsor v. United States, 699 F.3d 169,
1996 (2d Cir. 2012), aff’d on other grounds, 133 S. Ct. 2675(2013). Thus, if the classification is accompanied by a
history of “discrimination based on archaic and overbroad
assumptions,” Roberts v. U.S. Jaycees, 468 U.S. 609, 625
(1984), or if it has been traditionally used as a tool for the
46
oppression and subordination of minority groups, see, e.g.,
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495–96
(1989) (plurality opinion), heightened scrutiny often is more
appropriately applied.
The history of religious discrimination in the United
States is intertwined with that based on other protected
characteristics, including national origin and race.15 Saint
Francis Coll. v. Al-Khazraji, 481 U.S. 604, 611–12 (1987)
(noting that “[t]he Ninth edition of the Encyclopedia
Britannica . . . referred to Arabs, Jews, and other ethnic
groups such as Germans, Hungarians, and Greeks, as separate
races” (citations omitted)); Fong Yue Ting v. United States,
149 U.S. 698, 717 (1893) (referring to “Chinese laborers” as
15
Indeed, the close relationship among race, religion,
ethnicity, and national origin is reflected by the allegations in
Plaintiffs’ Complaint. See, e.g., Compl. ¶ 40 (“In addition to
targeting Muslims by focusing on mosques, Muslim-owned
businesses, and other Muslim-associated organizations as
subjects of surveillance, the Program also intentionally targets
Muslims by using ethnicity as a proxy for faith.”); id. ¶ 41
(“As part of the Program, the Department has designated
twenty-eight countries and ‘American Black Muslim’ as
‘ancestries of interest.’”); id. ¶ 53 (“To facilitate future
surveillance of entire American Muslim communities, the
NYPD has created maps indicating the locations of mosques,
restaurants, retail establishments, and schools owned by or
serving Muslims, as well as ethnic populations from heavily
Muslim countries.”); id. ¶ 55 (“The NYPD also inspects
records of name changes and compiles databases of new
Muslim converts who take Arabic names, as well as Muslims
who take names that are perceived to be ‘Western.’”).
47
“of a distinct race and religion”); In re Halladjian, 174 F.
834, 838 (C.C.D. Mass. 1909) (“A Hindoo . . . differs in color
no less from a Chinaman than from an Anglo-Saxon . . . .”);
Khaled A. Beydoun, Between Muslim and White: The Legal
Construction of Arab American Identity, 69 N.Y.U. Ann.
Surv. Am. L. 29, 33 (2013) (noting that “the conflation of
Arab and Muslim identity was deeply entrenched within the
courts during the Naturalization Era” and that “Islam was
treated as an ethno-racial identity”).
It is thus unsurprising that tampering with religious
affiliation brings into play the same concerns of inequality.
Though “[n]othing but the most telling of personal
experiences in religious persecution suffered by our forebears
could have planted our belief in liberty of religious opinion
any more deeply in our heritage,” Schempp, 374 U.S. at 214(citation omitted), we have struggled to guarantee religious
equality since our Nation’s founding. See generally Everson
v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 9–10 (1947);
Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 616
(1987); Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232,
236 (1957); Murdock v. Pennsylvania, 319 U.S. 105, 109
(1943). Different religious groups have borne the brunt of
majority oppression during different times, and the battle
against religious prejudice continues. See, e.g., U.S. Patriot
Act of 2001, Pub. L. 107-56, § 102(a)(3), 115 Stat. 274 (“The
acts of violence that have been taken against Arab and
Muslim Americans since the September 11, 2001, attacks
against the United States should be and are condemned by all
Americans who value freedom.”); Brief in Support of
Appellants by Amici Curiae the Asian American Legal
Defense & Education Fund & 17 Other Non-Governmental
Organizations Supporting Civil Rights for American
Muslims 11–22.
In light of this history, distinctions between citizens on
48
religious grounds pose a particularly acute “danger of stigma
and stirred animosities.” Bd. of Educ. of Kiryas Joel Vill.
Sch. Dist. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J.,
concurring in the judgment); see also Wright v. Rockefeller,
376 U.S. 52, 67 (1964) (Douglas, J., dissenting) (“When
racial or religious lines are drawn by the State, the
multiracial, multireligious communities that our Constitution
seeks to weld together as one become separatist; antagonisms
that relate to race or to religion . . . are generated . . . .”); Kunz
v. New York, 340 U.S. 290, 313 (1951) (Jackson, J.,
dissenting) (“If any two subjects are intrinsically incendiary
and divisive, they are race and religion.”). That “[c]enturies
of experience testify that laws aimed at one . . . religious
group . . . generate hatreds and prejudices which rapidly
spread beyond control,” Am. Commc’ns Ass’n, C.I.O. v.
Douds, 339 U.S. 382, 448 (1950) (Black, J., dissenting), also
counsels in favor of heightened scrutiny.
A final relevant consideration is whether the
Legislative and Executive Branches have concluded that a
form of discrimination is inherently invidious. In holding
gender to be a “quasi-suspect” classification deserving of
intermediate scrutiny, the Supreme Court noted, for instance,
in Frontiero that, because Congress is “a coequal branch of
Government,” its “conclu[sion] that classifications based
upon sex are inherently invidious . . . [was] not without
significance to the question [then] under consideration.” 411
U.S. at 687–88.
Many of the same statutes that foreclose sex-based
discrimination, including Title VII of the Civil Rights Act of
1964 cited by the Frontiero Court, see id. at 687, also forbid
religious discrimination. See, e.g., 42 U.S.C. § 2000e-2
(making it an “unlawful employment practice” for an
employer to discriminate based on “race, color, religion, sex,
or national origin”). And from the passage of the Civil Rights
49
Act of 1875,16 to those designed to strengthen national
security in our post-September 11 world,17 that commitment
to the “sacrosanct . . . concept” of equality among “all
religious . . . groups,” see U.S. Patriot Act of
2001§ 102(a)(3), is embodied throughout the U.S. Code. See,
e.g., 2 U.S.C. § 1311(a) (employment); 12 U.S.C.
§ 3106a(1)(B), (2)(B) (banking); 12 U.S.C. § 4545 (fair
housing); 22 U.S.C. § 2504(a) (Peace Corps service); 49
U.S.C. § 40127 (air transportation and use of private airports).
The same commitment to religious equality is seen in
the pronouncements of the Executive Branch, from those of
our first President, George Washington, to our current
President, Barack Obama. See, e.g., President George
Washington, Address to the Members of the New Church in
Baltimore (Jan. 1793), in 2 Jared Sparks, Life of George
Washington Commander-in-Chief of the American Armies: to
Which Are Added, His Diaries and Speeches; and Various
16
Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 (“[I]t is essential
to just government we recognize the equality of all men
before the law, and hold that it is the duty of government in
its dealings with the people to mete out equal and exact
justice to all, of whatever nativity, race, color, or persuasion,
religious or political . . . .”).
17
See, e.g., U.S. Patriot Act of 2001, Pub. L. 107-56,
§ 102(a)(3), b(3), 115 Stat. 274 (“The concept of individual
responsibility for wrongdoing is sacrosanct in American
society, and applies equally to all religious, racial, and ethnic
groups. . . . [T]he Nation is called upon to recognize the
patriotism of fellow citizens from all ethnic, racial, and
religious backgrounds.”).
50
Miscellaneous Papers Relating to His Habits & Opinions
314, 314–15 (1839) (“In this enlightened age, and in this land
of equal liberty, it is our boast that a man’s religious tenets
will not forfeit the protection of the laws, nor deprive him of
the right of attaining and holding the highest offices that are
known in the United States.”); President Harry Truman,
Special Message to the Congress on Civil Rights (Feb. 2,
1948) (“Racial, religious and other invidious forms of
discrimination deprive the individual of an equal chance to
develop and utilize his talents and to enjoy the rewards of his
efforts.”); President Theodore Roosevelt, Sixth Annual
Message to Congress (Dec. 3, 1906) (“[W]e must treat with
justice and good will all immigrants who come here under the
law[,] . . . [w]hether they are Catholic or Protestant, Jew or
Gentile . . . .”); President Barack Obama, State of the Union
Address (Jan. 28, 2014) (“[W]e believe in the inherent dignity
and equality of every human being, regardless of race or
religion, creed or sexual orientation.”).
For these reasons, we conclude that classifications on
the basis of religious affiliation are subject to heightened
scrutiny under the Equal Protection Clause.
ii. Evaluation of Means and Ends
The final step in evaluating an equal-protection claim
is to examine the challenged action’s “means” and “ends” and
the “fit” between the two. The specific analysis differs
depending on the level of scrutiny that applies. The higher
the scrutiny required, the more persuasive must be the
governmental objective and the snugger the means-ends fit.
Thus, while it usually matters little for purposes of rational-
basis review that a governmental interest is not exceedingly
important or that “other means are better suited to the
achievement of governmental ends,” heightened scrutiny
demands a much stronger justification and a much tighter
51
relationship “between the means employed and the ends
served.” Tuan Anh Nguyen v. INS, 533 U.S. 53, 77–78 (2001)
(O’Connor, J., dissenting).
Also increasingly demanding is the standard of proof.
While the rational-basis standard usually puts the burden of
proof on the classification’s opponent and “permits a court to
hypothesize interests that might support [the governmental]
distinctions,” id. at 77 (emphasis added) (citing Heller v. Doe,
509 U.S. 312, 320 (1993); R.R. Ret. Bd. v. Fritz, 449 U.S. 155(1980)), the burden of justification under both intermediate
and strict scrutiny “is demanding and . . . rests entirely on the
State,” United States v. Virginia, 518 U.S. 515, 533 (1996).
See also Hogan, 458 U.S. at 724 (discussing the standard and
burden for intermediate scrutiny); Fisher v. Univ. of Tex. at
Austin, 133 S. Ct. 2411, 2419 (2013) (strict scrutiny).
Here, the City argues that “[a] comprehensive
understanding of the makeup of the community would help
the NYPD figure out where to look—and where not to look—
in the event it received information that an Islamist
radicalized to violence may be secreting himself in New
Jersey.” City Br. 50. It even goes so far as to assert that “it
would be irresponsible for the NYPD not to have an
understanding of the varied mosaic that is the Muslim
community to respond to such threats.” Id. (emphasis added).
But because heightened scrutiny applies in this case, we
cannot accept the City’s invitation to dismiss Plaintiffs’
Complaint based on its assurance that the Program is justified
by national-security and public-safety concerns. Rather, the
burden of producing evidence to overcome heightened
scrutiny’s presumption of unconstitutionality is that of the
City, cf. Aiken v. City of Memphis, 37 F.3d 1155, 1163 (6th
Cir. 1994) (en banc) (“When, as here, a race-based
affirmative action plan is subjected to strict scrutiny, the party
defending the plan bears the burden of producing evidence
52
that the plan is constitutional.”), and must be met after its
Motion to Dismiss.
To be clear, we acknowledge that a principal reason
for a government’s existence is to provide security. But while
we do not question the legitimacy of the City’s interest, “[t]he
gravity of the threat alone cannot be dispositive of questions
concerning what means law enforcement officers may employ
to pursue a given purpose.” City of Indianapolis v. Edmond,
531 U.S. 32, 42 (2000). Rather, heightened scrutiny requires
that the relationship between the asserted justification and
discriminatory means employed “be substantiated by
objective evidence.” Patrolmen’s Benevolent Ass’n of New
York v. City of New York, 310 F.3d 43, 53 (2d Cir. 2002).
“[M]ere speculation or conjecture is insufficient,” id., as are
appeals to “‘common sense’ which might be inflected by
stereotypes,” Reynolds v. City of Chicago, 296 F.3d 524, 526
(7th Cir. 2002) (Posner, J.). See also Lomack v. City of
Newark, 463 F.3d 303, 310 (3d Cir. 2006) (citing with
approval Patrolmen’s Benevolent Ass’n, 310 F.3d at 52–53).
And “[e]ven in the limited circumstance” where a
suspect or quasi-suspect classification “is permissible to
further [an important or] compelling state interest, the
government is still ‘constrained in how it may pursue that
end.’” Grutter v. Bollinger, 539 U.S. 306, 333 (2003)
(second alteration in original) (quoting Shaw v. Hunt, 517
U.S. 899, 908 (1996) (internal quotation marks and citation
omitted)). While “[a] classification does not fail rational-
basis review because it is not made with mathematical nicety
or because in practice it results in some inequality,” Heller,
509 U.S. at 321 (internal quotation marks omitted), strict
scrutiny requires that “the classification at issue . . . ‘fit’ with
greater precision than any alternative means,” Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986) (plurality
opinion) (citing John Hart Ely, The Constitutionality of
53
Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723, 727
n.26 (1974)). Intermediate scrutiny falls somewhere in
between the two, asking if there is a “direct, substantial
relationship between objective and means.” Hogan, 458 U.S.
at 725.
No matter how tempting it might be to do otherwise,
we must apply the same rigorous standards even where
national security is at stake. We have learned from
experience that it is often where the asserted interest appears
most compelling that we must be most vigilant in protecting
constitutional rights. “[H]istory teaches that grave threats to
liberty often come in times of urgency, when constitutional
rights seem too extravagant to endure.” Skinner v. Ry. Labor
Execs.’ Ass’n, 489 U.S. 602, 635 (1989) (Marshall, J.,
dissenting); see also Grutter, 539 U.S. at 351 (Scalia, J.,
concurring in part and dissenting in part) (“The lesson of
Korematsu [v. United States, 323 U.S. 214, 223 (1944)] is
that national security constitutes a ‘pressing public necessity,’
though the government’s use of [a suspect classification] to
advance that objective must be [appropriately] tailored.”);
Skinner, 489 U.S. at 635 (Marshall, J. dissenting) (“The
World War II relocation-camp cases and the Red scare and
McCarthy-era internal subversion cases are only the most
extreme reminders that when we allow fundamental freedoms
to be sacrificed in the name of real or perceived exigency, we
invariably come to regret it.” (citations omitted)).
Today it is acknowledged, for instance, that the F.D.R.
Administration and military authorities infringed the
constitutional rights of Japanese-Americans during World
War II by placing them under curfew and removing them
from their West Coast homes and into internment camps. Yet
when these citizens pleaded with the courts to uphold their
constitutional rights, we passively accepted the Government’s
representations that the use of such classifications was
54
necessary to the national interest. Hirabayashi, 320 U.S. 81;
Korematsu, 323 U.S. 214. In doing so, we failed to recognize
that the discriminatory treatment of approximately 120,000
persons of Japanese ancestry was fueled not by military
necessity but unfounded fears. See United States v. Hohri,
482 U.S. 64, 66 (1987); see also Act to Implement
Recommendations on the Commission of Wartime Relocation
and Internment of Civilians, Pub. L. 100-383, § 2(a), 102
Stat. 903-04 (1988). Given that “unconditional deference to
[the] government[’s] . . . invocation of ‘emergency’ . . . has a
lamentable place in our history,” Patrolmen’s Benevolent
Ass’n, 310 F.3d at 53–54 (citing Korematsu, 323 U.S. at 223),
the past should not preface yet again bending our
constitutional principles merely because an interest in
national security is invoked.
In sum, because Plaintiffs have plausibly alleged that
the City engaged in intentional discrimination against a
protected class, and because that classification creates a
presumption of unconstitutionality that remains the City’s
obligation to rebut, Plaintiffs have stated a claim under the
Equal Protection Clause of the Fourteenth Amendment.
B. First-Amendment Claims
We finally reach Plaintiffs’ claims under the Religion
Clauses of the First Amendment. They allege violations of
both the Establishment Clause and the Free Exercise Clause,
which respectively prohibit the making of any “law
respecting an establishment of religion” or “prohibiting the
free exercise thereof.” U.S. Const. Amend. I.
Plaintiffs bring both claims under the theory that the
First Amendment demands strict governmental neutrality
among religious sects. While it is intuitive that
discriminatory conduct that inhibits a person’s full religious
55
expression may run afoul of the Free Exercise Clause of the
First Amendment, under the facts here the same is
counterintuitive for the Establishment Clause, as the latter
“tend[s] to [involve] challenge[s] to governmental
endorsement.” Catholic League for Religious & Civil Rights
v. City of San Francisco, 624 F.3d 1043, 1050 n.20 (9th Cir.
2010) (en banc) (emphasis added). But see Colo. Christian
Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008)
(McConnell, J.) (“[S]tatutes involving discrimination on the
basis of religion, including interdenominational
discrimination, are subject to heightened scrutiny whether
they arise under the Free Exercise Clause, the Establishment
Clause, or the Equal Protection Clause . . . .” (citations
omitted)). However, a full discussion of either Religion
Clause and its application to our case is unnecessary, as we
confine ourselves to the City’s arguments raised in its Motion
to Dismiss. Those arguments are unpersuasive.
The City first argues that, “according to a three month
fact finding investigation by the New Jersey Attorney
General, the surveillance Program did not violate New Jersey
civil or criminal law.” City Br. 44. That this argument could
defeat a federal constitutional claim, let alone on a motion to
dismiss, borders on the frivolous. Aside from a court’s
inability to consider such matters extraneous to the pleadings
under Federal Rule of Civil Procedure 12(b)(6), it is the
United States Constitution—not the “civil or criminal law” of
New Jersey—that Plaintiffs seek to enforce. But even more
fundamentally, the New Jersey Attorney General’s legal
conclusion is not helpful in determining whether the City
violated Plaintiffs’ constitutional rights. “It is emphatically
the province and duty of the judicial department”—not the
New Jersey executive—“to say what the law is.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
The City’s only other argument (aside from a few
56
scattered citations to free-speech and privacy cases that have
little application to Plaintiffs’ religion claims) is buried in a
footnote in its brief amidst a discussion of the Equal
Protection Clause:
[Plaintiffs have also failed to] allege[] a
classification that violates the Free Exercise and
Establishment Clauses of the First Amendment
because such claims [similarly] require a
showing of discriminatory purpose. See
Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 540 (1993) (“Here, as in
equal protection cases, we may determine the
city council’s object from both direct and
circumstantial evidence.”)) [sic]; Lemon v.
Kurtzman, 403 U.S. 602, 612–13 (1971) (in
order to survive an Establishment Clause
challenge, the government practice must
(1) have a secular purpose, (2) have a primary
effect that neither advances nor inhibits
religion, and (3) not foster excessive state
entanglement with religion).
City Br. 58 n.20 (emphasis added). A sentence-long
argument buried in a footnote is hardly a satisfactory way to
tackle two of the most jurisprudentially challenging and
nuanced areas of our law. Schempp, 374 U.S. at 246(Brennan, J., concurring) (noting “the difficulty . . . endemic
to issues implicating the religious guarantees of the First
Amendment”); Robinson v. City of Edmond, 160 F.3d 1275,
1282 (10th Cir. 1998) (recognizing that the Establishment
Clause is “an area notorious for its difficult case law”);
Harris v. City of Zion, 927 F.2d 1401, 1410–11 (7th Cir.
1991) (“[C]ases arising under the Religion Clauses of the
[F]irst [A]mendment have presented some of the most
perplexing questions in constitutional law.”). We therefore
57
consider this argument waived. John Wyeth & Brother Ltd. v.
CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997)
(Alito, J.) (“[A]rguments raised in passing (such as in a
footnote), but not squarely argued, are considered waived.”).
But even if we were to consider the City’s halfhearted
assertion that allegations of overt hostility and prejudice are
required to make out claims under the First Amendment, this
argument would easily fail, just as did the identical argument
with respect to the Equal Protection Clause. While the
contours of neither the Free Exercise nor the Establishment
Clause are static and well defined, courts have repeatedly
rejected the notion that either Clause “is . . . confined to
actions based on animus.” Laurence H. Tribe, American
Constitutional Law §§ 5–16, at 956 (3d ed. 2000) (“[A] law
that is not neutral or that is not generally applicable can
violate the Free Exercise Clause without regard to the motives
of those who enacted the measure.”); see also Shrum v. City
of Coweta, 449 F.3d 1132, 1144–45 (10th Cir. 2006)
(McConnell, J.) (“Proof of hostility or discriminatory
motivation may be sufficient to prove that a challenged
governmental action is not neutral, but the Free Exercise
Clause is not confined to actions based on animus.” (citations
omitted)); Allen v. Morton, 495 F.2d 65, 72 (D.C. Cir. 1973)
(Tamm, J., concurring) (noting that, under the Establishment
Clause, “good motives cannot save impermissible actions”).
At bottom, the City needs something other than this
threadbare argument based on the absence of subjective
hostility to avoid a non-swinging strikeout.
V. CONCLUSION
The allegations in Plaintiffs’ Complaint tell a story in
which there is standing to complain and which present
constitutional concerns that must be addressed and, if true,
redressed. Our job is judicial. We “can apply only law, and
58
must abide by the Constitution, or [we] cease to be civil
courts and become instruments of [police] policy.”
Korematsu, 323 U.S. at 247 (Jackson, J., dissenting).
We believe that statement of Justice Jackson to be on
the right side of history, and for a majority of us in quiet
times it remains so . . . until the next time there is the fear of a
few who cannot be sorted out easily from the many. Even
when we narrow the many to a class or group, that
narrowing—here to those affiliated with a major worldwide
religion—is not near enough under our Constitution. “[T]o
infer that examples of individual disloyalty prove group
disloyalty and justify discriminatory action against the entire
group is to deny that under our system of law individual guilt
is the sole basis for deprivation of rights.” Id. at 240(Murphy, J., dissenting).
What occurs here in one guise is not new. We have
been down similar roads before. Jewish-Americans during
the Red Scare, African-Americans during the Civil Rights
Movement, and Japanese-Americans during World War II are
examples that readily spring to mind. We are left to wonder
why we cannot see with foresight what we see so clearly with
hindsight—that “[l]oyalty is a matter of the heart and mind[,]
not race, creed, or color.” Ex parte Mitsuye Endo, 323 U.S.
283, 302 (1944).
We reverse and remand for further proceedings
consistent with this opinion.
59
ROTH, Circuit Judge, concurrence.
I agree that plaintiffs have demonstrated standing and
made sufficient allegations of violations of equal-protection
rights.. I differ from the majority in its failure to determine
whether “intermediate scrutiny” or “strict scrutiny” applies
here. In our determinations so far, we have also, I believe,
made the findings necessary to resolve the issue of the
appropriate level of scrutiny.
In my opinion, “intermediate scrutiny” is appropriate
here. I say this because “intermediate scrutiny” is the level
applied in gender discrimination cases. I have the immutable
characteristic of being a woman. I am happy with this
condition, but during my 80 years on this earth, it has caused
me at times to suffer gender discrimination. My remedy now
for any future gender discrimination would be reviewed with
“intermediate scrutiny.” For that reason, I cannot endorse a
level of scrutiny in other types of discrimination cases that
would be stricter than the level which would apply to
discrimination against me as a woman.
1