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 
2 

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) 
3 

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 
4 

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, 
5 

 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, 
6 

 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 
7 

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 

 
8 

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
9 

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 
10 

discriminatory surveillance program—have standing to sue in 

federal court to vindicate their religious-liberty and equalprotection 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 
11 

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 
12 

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.” 
13 

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 
14 

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] twentythree 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 
15 

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 
16 

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 
17 

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 
18 

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 
19 

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 
20 

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, 
21 

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). 
22 

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.”). 
23 

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. 
24 

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 [nondiscriminatory] governmental investigative and datagathering 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. 
25 

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; 
26 

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. 
27 

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-infact . . . 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 
28 

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 
29 

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 equalprotection 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 
30 

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. 
31 

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 
32 

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 disparatetreatment 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 
33 

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 
34 

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’ selectiveenforcement 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”). 
35 

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” 
36 

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 
37 

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. 
38 

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 
39 

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). 
40 

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), 
41 

“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, 
42 

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). 
43 

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.”). 
44 

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 
45 

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.”). 
46 

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 
47 

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.’”). 
48 

“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 
49 

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 
50 

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.”). 
51 

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 rationalbasis 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 
52 

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 
53 

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 rationalbasis 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 
54 

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 
55 

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 
56 

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 
57 

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 
58 

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 
59 

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. 
1 

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.