PHILADELPHIA (CN) - Led by an Army veteran, New Jersey Muslims can sue New York City for targeting their mosques and businesses for surveillance, "on the false and stigmatizing premise that Muslim religious identity 'is a permissible proxy for criminality,'" the Third Circuit ruled Tuesday.
The appeals court reversed and remanded the February 2014 dismissal of a complaint from 10 plaintiffs, including an Army veteran, students, and owners of an auto body shop and a sausage company.
A U.S. District Court in New Jersey ruled that the plaintiffs failed to prove that the NYPD's post-Sept. 11, 2011 surveillance, including regular photographing of Muslim establishments and infiltrating informants into recreational mosque getaways, had caused the plaintiffs any actual harm.
The Third Circuit disagreed, in direct and rather impassioned language.
"What occurs here in one guise is not new," the court concluded. "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.'"
Judge Thomas Ambro wrote the 60-page ruling for the unanimous three-judge panel, citing Ex parte Endo, one of the 1944 Supreme Court cases that invalidated the internment of Japanese-Americans.
Lead plaintiff Syed Farhaj Hassan claimed that since learning of the program in a 2011 Associated Press report, he had become more reluctant to attend the businesses and mosques under watch.
New York argued that the harm had come from the AP, not the NYPD, an argument at which the court - in a moment when the temperature of oral argument accurately portends a decision - balked.
But invoking Plessy v. Ferguson and Brown v. Board of Education, the court found that the demoralization of being selectively watched by the government for religious purposes, if true, is harm enough.
"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," Ambro wrote. "Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret."
Ambro found that the plaintiffs had pleaded their case with sufficient detail, including when it occurred and the NYPD's methods of surveillance.
The constitutional case attracted dozens of support counsel from groups including the American Civil Liberties Union and staff of the New York University School of Law. They sought, among other things, to establish a standard of heightened scrutiny in cases of religious discrimination in Equal Protection cases under the jurisdiction of the Third Circuit.
Judge Ambro acknowledged that, "perhaps surprisingly," neither the Third Circuit nor the U.S. Supreme Court had established whether the same exacting examinations required for First Amendment claims are applied for claims under the Fourteenth Amendment.
"Today, we join these courts and hold that intentional discrimination based on religious affiliation must survive heightened equal-protection review," Ambro wrote.
In a two-paragraph concurring opinion, Third Circuit Judge Jane Richards Roth disagreed with the majority only by saying she believes "intermediate scrutiny" rather than "strict scrutiny" is required in this case.
The judge wrote: "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."
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