STARK, District Judge.
Pending before the Court are two motions: (1) a Motion to Dismiss (D.I. 7) filed by defendants Sussex County, Delaware (the "County"), Sussex County Council (the "Council"), and Michael H. Vincent, in his official capacity as County Council President (collectively, "Defendants"), and (2) a Motion for a Preliminary Injunction (D.I. 20) filed by plaintiffs Barbara Mullin, Julie Jackson, Pastor John Steinbruck, and William O'Connor (collectively, "Plaintiffs"), For the reasons set forth below, the Court will deny Defendants' Motion to Dismiss and grant Plaintiffs' Motion for a Preliminary Injunction.
The Council holds weekly meetings that are open to the public. (D.I. 1 ¶ 14) Since at least 2006,
The version of The Lord's Prayer delivered at the Council meetings is as follows:
(D.I. ¶ 20)
Plaintiffs are Sussex County citizens who have attended Council meetings in the past and plan to do so in the future. (Id. ¶¶ 7-10) Each of the Plaintiffs is offended by the Council's recitation of The Lord's Prayer. (See id.) Two of the Plaintiffs, who are Christians, are offended because they feel that the Council's practice co-opts and debases their faith. (Id. ¶¶ 8-9) The other two Plaintiffs are non-Christian and are offended because they feel the Council's practice demeans and excludes their beliefs. (Id. ¶¶ 7, 10)
Plaintiffs filed their complaint (the "Complaint") on June 30, 2011. (D.I. 1) The Complaint alleges that the County's practice of having the Council President recite The Lord's Prayer at the opening of Council meetings violates the Establishment Clause of the United States Constitution, U.S. CONST. amend. I § 1, and the Delaware Constitution's corresponding provision, DEL. CONST. art. I § 1. (Id.) In lieu of an answer, Defendants filed the pending Motion to Dismiss on August 10, 2011. (D.I. 7) Defendants contend that Plaintiffs lack standing to bring their claims and that the Complaint fails to state a claim upon which relief can be granted. (Id.)
On December 1, 2011, Plaintiffs filed a Motion for a Preliminary Injunction pursuant to Federal Rule of Civil Procedure 65(a). (D.I. 20) The parties completed briefing on Plaintiffs' motion on January 4, 2012. (See D.I. 32) The Court held oral argument on both motions on January 11, 2012. (See Motions Hr'g Tr., Jan. 11, 2012 (D.I. 44) (hereinafter "Tr."))
At oral argument, the parties made a joint request that the Court treat the pending motions as cross-motions for summary judgment. (Tr. at 3, 6) Additionally, Defendants moved to strike one or both of the declarations of Plaintiffs' expert, David Harrington Watt. (Id. at 7-8) In the event that the Court did not strike Mr. Watt's declarations, Defendants also requested the opportunity to supplement the record in response to issues Mr. Watt raised in his second declaration. (Id. at 75) By Order dated January 12, 2012, the Court denied the parties' joint request to treat the pending motions as cross-motions for summary judgment, denied Defendants' request to strike, and permitted Defendants to supplement the record. (D.I. 36 ¶¶ 1-4) The Court also stayed discovery. (Id. ¶ 5; D.I. 38; D.I. 49) The parties' supplemental submissions relating to the pending motions were all filed by February 2, 2012. (See D.I. 41; D.I. 42; D.I. 43)
"A motion to dismiss for want of standing is ... properly brought pursuant
There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
In addition to establishing Article III standing, a party must establish "prudential standing." See Elk Grove Unified Sch. Dist. v. Newton, 542 U.S. 1, 11-12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004); Twp. of Lyndhurst v. Priceline.com Inc., 657 F.3d 148, 154 (3d Cir. 2011). Prudential standing embraces the following principles:
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 485 (3d Cir.1998) (internal quotation marks and citations omitted).
The party invoking federal jurisdiction has the burden to establish standing to sue. See Lujan, 504 U.S. at 561, 112 S.Ct. 2180. Each of the standing requirements "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim." Id. (internal quotation marks omitted). "When ruling on motion to dismiss for lack of standing, federal courts may consider affidavits and other factual materials in the record." Nat'l Ass'n of State Utility Consumer Advocates v. F.C.C., 457 F.3d 1238, 1251 (11th Cir. 2006).
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir.2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sees. Litig., 114 F.3d 1410, 1420 (3d Cir.1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio, 221 F.3d at 481-82 (internal quotation marks omitted).
However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that `raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)). While heightened fact pleading is not required, "enough facts to state a claim to relief that is plausible on its face" must be alleged. Twombly, 127 S.Ct. at 1974. At bottom, "[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir.2008) (internal quotation marks omitted). Nor is the Court obligated to accept as true "bald assertions," Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997) (internal quotation marks omitted), "unsupported conclusions and unwarranted inferences," Schuylkill Energy Resources, Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir.1997), or allegations that are "self-evidently false," Nami v. Fauver, 82 F.3d 63, 69 (3d Cir.1996).
"A preliminary injunction is an extraordinary remedy that should be granted only if: (1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and (4) granting the injunction is in the public interest." NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir.1999).
As a threshold matter, Plaintiffs must establish that they have standing to challenge the Council's legislative invocation practice. See Marion v. TDI Inc., 591 F.3d 137, 147 (3d Cir.2010) ("[Standing, because it implicates a federal court's authority to hear a case, must be addressed as a threshold matter."). In order to establish standing, a Plaintiff must demonstrate both Article III standing and prudential standing. See Elk Grove Unified Sch. Dist., 542 U.S. at 11-12, 124 S.Ct. 2301; Twp. of Lyndhurst, 657 F.3d at 154.
Plaintiffs have adequately alleged Article III standing.
Plaintiffs have also adequately alleged prudential standing. First, Plaintiffs assert their own legal rights and interests. Second, Plaintiffs' injuries of being directly exposed to the Council's allegedly unconstitutional recitation of The Lord's Prayer are not generalized grievances that would be more appropriately addressed in the representative branches.
Accordingly, the Court finds that Plaintiffs have standing to bring their claims.
Prior to reaching the merits of the parties' remaining motions, the Court will summarize the Establishment Clause jurisprudence that governs its analysis.
The Establishment Clause of the First Amendment, made applicable to the states through the Fourteenth Amendment, provides that "Congress shall make no law respecting the establishment of religion." U.S. CONST. amend. I § 1. The instant case is specifically about legislative prayer, which has "unique footing in the landscape of First Amendment jurisprudence." Pelphrey v. Cobb Cnty., 410 F.Supp.2d 1324, 1329 (N.D.Ga.2006). "[Legislative prayer lies at the heart of two intersecting realities." Joyner v. Forsyth Cnty., 653 F.3d 341, 345 (4th Cir. 2011). On one hand, legislative prayer "is deeply embedded in the history and tradition of this country" and "has coexisted with the principles of deestablishment and religious freedom." Marsh v. Chambers, 463 U.S. 783, 786, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). On the other hand, "not even the unique history of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with one specific faith or belief." Allegheny, 492 U.S. at 603, 109 S.Ct. 3086 (internal citation and quotation marks omitted).
Thus, in this case, the Court must assess whether it is likely to conclude that the Council's recitation of The Lord's Prayer is merely a constitutionally permissible way to memorialize a public occasion, as Defendants contend (D.I. 27 at 5), or, rather, an unconstitutional affiliation of the Government with one faith — Christianity — as Plaintiffs contend (D.I. 32 at 2).
Although "[t]he Supreme Court's Establishment Clause jurisprudence is vast and comprised of interlocking lines of cases applying the Clause in particular situations," Doe v. Indian River Sch. Dist., 653 F.3d 256, 269 (3d Cir.2011), both parties agree that Marsh v. Chambers — the only Supreme Court case to directly address the constitutionality of legislative prayer — sets forth the proper standard for review of the recitation of The Lord's Prayer at Council meetings.
In Marsh, the Supreme Court evaluated an Establishment Clause challenge to the Nebraska legislature's practice of beginning each legislative session with a prayer offered by a publicly paid chaplain. See 463 U.S. at 784-85, 103 S.Ct. 3330. In order to assess the constitutionality of the prayer practice, the Court engaged in an extensive historical analysis and determined that legislative prayer had a "unique history" dating back to the First Congress. See id. at 786-90, 103 S.Ct. 3330. Based on the "unambiguous and unbroken history of Congress permitting legislative invocations for "more than 200 years," the Court ruled that the Nebraska
In addition to discussing legislative prayer in general, the Supreme Court addressed whether any particular features of the Nebraska invocation practice violated the Establishment Clause. See id. Specifically, the Court identified three potentially problematic aspects of the Nebraska prayer practice: (1) the prayers were given by "a clergyman of only one denomination — Presbyterian — [who] has been selected [by the Nebraska legislature] for 16 years;" (2) "the chaplain is paid at public expense;" and (3) "the prayers are in the Judeo-Christian tradition." Id. at 793, 103 S.Ct. 3330.
The Court concluded that none of these features rendered the Nebraska prayer practice unconstitutional. First, the Court noted that even though the prayers were usually given by a Presbyterian minister, there was no evidence that the minister was appointed to deliver the prayers out of some impermissible motive or desire to advance one specific faith. Id. at 793-94, 103 S.Ct. 3330. Nor did the Court find it constitutionally problematic that the minister was paid out of public funds, as "remuneration [was] grounded in historic practice." Id. at 794, 103 S.Ct. 3330. Finally, the Court rejected arguments that the prayers were unconstitutional because they were in "the Judeo-Christian tradition," as the prayers were "nonsectarian" and, in response to earlier complaints, the chaplain had "removed all references to Christ" from the prayers. Id. at 793 n. 14, 103 S.Ct. 3330.
Six years after Marsh, the Supreme Court offered further guidance. In County of Allegheny v. ACLU Greater Pittsburgh Chapter, a religious display case, the Court explained that Marsh "recognized that not even the unique history of legislative prayer can justify the contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief." 492 U.S. at 603, 109 S.Ct. 3086 (internal quotation marks and citation omitted). The Court stated that "[t]he legislative prayers involved in Marsh did not" have the effect of affiliating the government with any one specific faith "
Numerous circuit courts have addressed the constitutionality of specific legislative prayer practices in light of Marsh.
Circuit courts have further held that recitation of sectarian prayers associated with one faith improperly advance a specific faith in violation of Marsh. The Ninth Circuit has held that, presuming Marsh was applicable, a school board's practice of reciting invocations (which ended "in the Name of Jesus") violated the Establishment Clause because these invocations were an unconstitutional effort to "advance[] one faith, Christianity, providing it with a special endorsed and privileged status in the school board." Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ, 52 Fed.Appx. 355, 357 (9th Cir.2002).
In a series of cases, the Fourth Circuit has held that the delivery of solely sectarian invocations associated with one faith violates the Establishment Clause, whereas nonsectarian invocations are constitutionally permissible. Compare Wynne v. Town of Great Falls, 376 F.3d 292, 301-02 (4th Cir.2004) (holding that town council's practice of opening meetings with sectarian prayers that included reference to Jesus Christ was unconstitutional because it impermissibly advanced Christianity), with Simpson v. Chesterfield Bd. of Supervisors, 404 F.3d 276, 278, 284 (4th Cir.2005) (holding town board of supervisors' practice
In a 2011 case, Joyner v. Forsyth County, the Fourth Circuit held that the Forsyth County Board of Commissioners' policy of inviting religious leaders of various faiths to offer invocations was unconstitutional in practice because numerous religious leaders gave explicitly sectarian invocations that repeatedly invoked specific tenets of Christianity. See 653 F.3d at 344, 353-54. The Fourth Circuit explained:
Id. at 342-43.
The Eleventh Circuit has rejected an argument that Marsh permits only nonsectarian prayers; instead, it views Marsh as mandating examination of multiple factors to assess whether a legislative prayer opportunity has been exploited to advance one faith.
The Court concludes that Plaintiffs' Complaint adequately states claims under both the United States Constitution and the Delaware Constitution.
The Complaint states a claim for violation of the Establishment Clause of the First Amendment of the United States Constitution. Defendants contend that Plaintiffs' claims are barred by the Supreme Court's holding in Marsh; however, the Complaint contains numerous allegations that make this case factually distinguishable from Marsh. Specifically, the Complaint alleges that the Council opens each session by having the Council President recite The Lord's Prayer, which the Complaint alleges is "a distinctly Christian prayer" and, in particular, the "version typically delivered by Protestants." (D.I. 1 ¶¶, 1 21-22) The Complaint further alleges that "[b]y persistently sponsoring this Christian prayer, the County Council has aligned itself with a single faith" and, therefore, the Council's prayer practice "has the purpose and effect of promoting, advancing, favoring, and endorsing the Christian religion." (Id. ¶¶ 2, 33) These allegations are sufficient to state a claim for violation of the Establishment Clause of the United States Constitution because, unlike the prayer in Marsh — which did not advance a specific faith — the Council's prayer practice is alleged to advance the Christian faith and, thereby, constitute government endorsement of Christianity. As discussed above, numerous federal courts, relying on Marsh, have held that delivery of sectarian prayers at legislative meetings is unconstitutional because these prayers affiliate the government with a specific faith.
Additionally, Plaintiffs have stated a claim under the Delaware Constitution. Article I, Section 1 of the Delaware Constitution provides that "no power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship, nor a preference given by law to any religious societies, denominations or modes of worship." DEL. CONST. art. I § 1. Plaintiffs have adequately alleged that the Defendants' practice of opening each Council meeting with a prayer violates the Delaware Constitution because this practice gives preference "to religious societies and modes of worship that use [T]he Lord's Prayer generally, and the Protestant version of [T]he Lord's Prayer in particular." (D.I. 1 ¶ 37)
The Delaware Constitution provides protections that are, at a minimum, co-extensive with the protections provided by the United State Constitution. See generally Doe v. Cape Henlopen Sch. Dist., 759 F.Supp.2d 522, 528 (D.Del.2011) (stating Article I, Section 1 of Delaware Constitution "is analogous to the Establishment Clause and Free Exercise Clause of the First Amendment of the United States Constitution"). Thus, because Plaintiffs have sufficiently pled claims to withstand dismissal under the United State Constitution, Plaintiffs claims also withstand dismissal under the Delaware Constitution.
Accordingly, Defendants' Motion to Dismiss will be denied.
Plaintiffs have demonstrated that a preliminary injunction is warranted in this case because all four factors favor granting a preliminary injunction.
Plaintiffs have demonstrated a likelihood of success on the merits of their claim that the Council's practice of opening meetings with a recitation of The Lord's Prayer is unconstitutional.
Plaintiffs have shown a likelihood that the Court will deem the version of The Lord's Prayer delivered at the Council meetings to be a distinctly Christian prayer and, thus, a sectarian prayer.
Although Defendants' two experts, Dr. John Dominic Crossan and Dr. James Edward Jones, opine that The Lord's Prayer does not have exclusively Christian content (see D.I. 41, Ex. A ¶¶ 20, 31 & Ex. B ¶ 25), it is likely that the Court will ultimately find The Lord's Prayer to be a Christian prayer. The Court recognizes that specific words within The Lord's Prayer are not solely associated with the Christian faith.
Moreover, the Court determines that it is likely to conclude that the Council's practice of opening each meeting with a recitation of this distinctly Christian Lord's Prayer violates the Establishment Clause because it constitutes government endorsement of the Christian faith. The
Wynne, 376 F.3d at 300 (emphasis in original) (internal quotation marks and citations omitted). Therefore, Plaintiffs need not show proselytization in order to prove advancement. The Council's advancement of Christianity likely violates the principle that "citizens should come to public meetings confident in the assurance that government plays no favorites in matters of faith but welcomes the participation of all." Joyner, 653 F.3d at 355.
By demonstrating a likelihood of success on their claims under the United States Constitution, Plaintiffs have also demonstrated that they are likely to succeed on the merits of their claims under the Delaware Constitution. See Cape Henlopen Sch. Dist., 759 F.Supp.2d at 528.
Plaintiffs have demonstrated that they will suffer irreparable harm if injunctive relief is denied. "`The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" Indian River Sch. Dist., 653 F.3d at 283 n. 14 (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)). As the D.C. Circuit has concluded: "[W]here a movant alleges a violation of the Establishment Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C.Cir.2006); see also Hinrichs, 440 F.3d at 403; ACLU of Ky. v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir.2003). Plaintiffs have demonstrated that they will suffer irreparable harm unless relief is granted because Plaintiffs plan to attend future Council meetings (see
Defendants will not suffer irreparable harm if the Court grants a preliminary injunction. Defendants contend that they may suffer harm if the Court grants an injunction because Council members will no longer receive the guidance in performance of their duties that they now receive by reciting The Lord's Prayer. (Tr. at 42-43) However, prohibiting the Council from reciting The Lord's Prayer does not prevent the Council from opening its meetings with a nonsectarian prayer or moment of silence, which could also enable the Council members to seek guidance (without offending the United States or Delaware Constitution).
Plaintiffs have demonstrated that the public interest favors granting a preliminary injunction. "[W]here there are no societal benefits justifying a burden on religious freedom, the public interest clearly favors the protection of constitutional rights." Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir.2002) (internal quotation marks omitted). Here, the public interest favors an environment in which there is not any governmental favoritism of a specific religion in violation of the Establishment Clause. Defendants argue that a preliminary injunction is not in the public interest because Plaintiffs are not likely to succeed on the merits of their claims. (See D.I. 27 at 18-20) However, in light of the Court's determination that Plaintiffs have demonstrated a likelihood of success on the merits, Defendants' argument is unpersuasive. Accordingly, the public interest favors granting a preliminary injunction.
Under Federal Rule of Civil Procedure 65(c), a court generally may not issue a preliminary injunction unless the party seeking the injunction provides a security bond, as the rule on its face admits no exceptions. See Fed.R.Civ.P. 65(c); Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 210 (3d Cir.1990). There are situations, however, in which the bond requirement can be waived. See Temple Univ. v. White, 941 F.2d 201, 219 (3d Cir.1991).
The Third Circuit has articulated factors for assessing whether a Court should waive the bond requirement. "First, at least in noncommercial cases, the court should consider the possible loss to the enjoined party together with the hardship that a bond requirement would impose on the applicant." Id. at 219. Here, the loss to the enjoined parties is non-monetary. Also, Plaintiffs are citizens who are of modest income; forcing them to post a bond could create a financial hardship.
Second, the Court should consider "the impact that a bond requirement would have on enforcement of such a [federal] right, in order to prevent undue restriction of it." Id. at 220. Here, this lawsuit seeks to enforce the federal right to be free from unconstitutional government establishment of religion.
Defendants are not requesting a bond in this case, and based on the factors discussed above, the Court determines that waiver of the bond requirement is appropriate. (Tr. at 46) Accordingly, Plaintiffs will not be required to post a bond.
As is evident from the preceding discussion, courts across the country have grappled
In short, "public institutions throughout this country manage to regularly commence proceedings with invocations that provide all of the salutary benefits of legislative prayer without the divisive drawbacks of a constitutional violation. Joyner, 653 F.3d at 354. As Justice O'Connor has summarized, legislative prayers that withstand constitutional scrutiny "share a common characteristic: they recognize[] the rich religious heritage of our country in a fashion that [is] designed to include members of the community, rather than to proselytize." Turner, 534 F.3d at 356.
Under the circumstances, the Court deems it appropriate to stay the effect of its preliminary injunction order for a period of one month. It is hoped that during this period the parties may confer — perhaps with the assistance of one of this Court's judicial officers as mediator — and attempt to agree upon how to preserve the Council's practice of opening its meetings with a prayer but to do so in a manner that is consistent with the United States and Delaware Constitutions.
The Court will deny Defendants' Motion to Dismiss. The Court will grant Plaintiffs' Motion for Preliminary Injunction, but will stay entry of the preliminary injunction for thirty days. An appropriate Order follows.
At Wilmington, this 15th day of May, 2012, for the reasons set forth in the Memorandum Opinion issued this same date,