Pelphrey v. Cobb County, Ga.

• Decision Date: 13 January 2006
• Docket Number: No. Civ.A. 105CV2075RWS.,Civ.A. 105CV2075RWS.
• Citation: 410 F.Supp.2d 1324
• Parties: Gary PELPHREY a/k/a Bats, Edward Buckner, Roberto Moraes, Wesley Crowe, Jeffrey Selman, Marie Shockley, and Roberta "Bobbi" Goldberg, Plaintiffs, v. COBB COUNTY, GEORGIA; Sam Olens, in his official capacity as Chairman of the Cobb County Commission and in his individual capacity; Phillip T. "Murray" Homan, in his official capacity as Chairman of the Cobb County Planning Commission and in his individual capacity, Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1324

410 F.Supp.2d 1324

Gary PELPHREY a/k/a Bats, Edward Buckner, Roberto Moraes, Wesley Crowe, Jeffrey Selman, Marie Shockley, and Roberta "Bobbi" Goldberg, Plaintiffs, v. COBB COUNTY, GEORGIA; Sam Olens, in his official capacity as Chairman of the Cobb County Commission and in his individual capacity; Phillip T. "Murray" Homan, in his official capacity as Chairman of the Cobb County Planning Commission and in his individual capacity, Defendants.

No. Civ.A. 105CV2075RWS.

United States District Court, N.D. Georgia, Atlanta Division.

January 13, 2006.

Gerald R. Weber, Margaret Fletcher Garrett, American Civil Liberties Union Foundation of Georgia, Inc., Atlanta, GA, for Plaintiffs.

David F. Walbert, Larry Hugh Chesin, Parks Chesin & Walbert, Atlanta, GA, Mark Alan Adelman, Office of Cobb County Attorney, Marietta, GA, for Defendants.

ORDER

STORY, District Judge.

Now before the Court is Plaintiffs' Motion for Preliminary Injunction [2-1]. The Court has reviewed the record, and now enters the following Order.

Factual Background

Plaintiffs in this action are seven residents and taxpayers of Cobb County, Georgia, who attend and plan on continuing to attend Cobb County Government meetings, either in person or via the internet. They brought this suit as a challenge to the County's practice of permitting "sectarian" prayers — and in particular, those that refer to "Jesus," "Jesus Christ," or "Christ" — at the opening of meetings of the County's Commission and Planning Commission (collectively, the "Commissions").

I. The Challenged Invocation Practice

Cobb County, the parties in this case agree, has maintained a longstanding practice of opening the legislative sessions of its Commissions with an invocation in the form of a prayer. It appears to be the custom of the Commissions to have a commission member introduce an individual selected to provide the invocation, and to state, "for all who wish to do so, please rise for the invocation and the Pledge [of Allegiance]." The invited speaker then stands at the podium and recites the prayer into a microphone. Although no systematic attempt has been made to measure the median length of the prayers, witnesses for the County state that they typically last less than one minute.

The individuals performing the invocations are not members of the County's Commissions, nor are they chaplains who hold any enduring office with the County. Rather, the invitation to provide the invocation is extended to various community residents who serve as leaders at local religious institutions.

According to Defendants, administrative employees with the County (a deputy clerk and an administrative specialist) create lists comprising names of religious leaders identified in the local Yellow Pages, the internet, and on cards received from new religious institutions in the County, as well as persons who participate in the volunteer Chaplain Program for the Cobb County Fire and Police Departments. After compiling these lists, the employees contact the religious leaders and ask if they would be interested in providing the invocation at an upcoming Commission meeting. Once a particular, willing speaker is identified the employees prepare a form letter confirming the speaker's attendance at the scheduled Commission or Planning Commission meeting and mail it to the speaker, postage pre-paid. According to Defendants, the County makes no "inquiry into the content of the prayer that is to be offered," nor does it attempt to regulate the content of the invitee's speech. The clergy, moreover, receive no payment for their time.

The record, as it now stands, does not describe the precise process employed by the County to select a speaker for any given Commission meeting.¹ The employees involved in the scheduling process, however, have both testified that, "[i]n inviting a clergy member to provide the invocation, the particular religious affiliation or denomination of the clergy member is not [a] concern...." (See Richardson Aff. ¶ 11; Martin Aff. ¶ 11.) Both concede that "the large majority of religious institutions in Cobb County are Christian," and that, accordingly, "the large majority of religious leaders who accept [the] invitations are Christian[,]" (see Richardson Aff. ¶ 12; Martin Aff. ¶ 12), but state that religious leaders at the County's synagogues and its mosque have likewise been invited to offer opening prayers. They go on to say that a number of non-Christian leaders have accepted the County's invitations, and that, on more than one occasion, persons belonging to the Jewish and Muslim faiths have offered the prayer.²

Plaintiffs do not dispute this point, but note that these non-Christian speakers did not include in their prayers any overt sectarian reference. By way of contrast, Plaintiffs, focusing on meetings that took place during an eighteen month period prior to commencement of this lawsuit, have identified thirty prayers including references to "Jesus," "Christ," or "Jesus Christ" given at County Commission meetings, and point to twelve such references during Planning Commission meetings.³ Typically, these references were made at the conclusion of the prayer, and consisted of language such as, "in Christ's name" or "in Jesus' name we pray."⁴ Defendants do not deny that such references were made, but point out that many invocations, even by Christian clergy, did not include any reference to Christ, and observe that, in any event, "the quoted language was one small fraction of the words used by the clergy member." (See Answer ¶¶ 29-75.)

II. Plaintiffs' Request that Sectarian References be Removed and the Ensuing Litigation

According to testimony offered by Defendants, the invocation practice has not been the subject of controversy within the Commissions, and continues under the unanimous consent of the commission members (who themselves are not of homogeneous sectarian affiliation). (See Olens Aff. ¶ 23 (observing that Commission Chairman is a member of the Jewish faith).) At least two of the Plaintiffs, however, have voiced their opposition to the practice during public comment sessions, relating to members of the Commission their view that the sectarian references in the prayers violate the Unites States Constitution and, further, were personally offensive to them. The American Civil Liberties Union ("ACLU") lodged similar grievances, and requested that the County remove all sectarian references from the invocations.

The County, notwithstanding the ACLU's admonition that failure to change its policies would "embroil the County in costly and lengthy litigation[,]" declined to alter its policies and forbid all sectarian references in the invocational prayers. (See Am. Verified Compl. at Ex. G.) In light of Defendants' unwillingness to implement the requested reforms, Plaintiffs brought this suit on August 10, 2005. In their Complaint, as amended, they articulate their grievance as follows:

The Plaintiffs object to the sectarian prayers at Cobb County government meetings because they invoke a specific god — a Christian God — to the exclusion of all other Gods. The Plaintiffs are offended and often feel repressed by this practice. Each time they attend a government meeting the Plaintiffs are affronted by Defendants' overtly Christian prayers and subject to unavoidable and unwelcome religious messages sponsored by the County. Mr. Pelphrey believes that the government's use of sectarian prayer is demeaning to his religion. The prayers cause other Plaintiffs to feel like outsiders in their own community and unwelcome at government meetings. Furthermore, they are offended because the sectarian prayers are an unconstitutional endorsement of religion and because the prayers trivialize religion.

(See Am. Verified Compl. ¶ 18.) Plaintiffs ask that this Court declare Defendants "sponsorship of sectarian prayers" at Cobb County government meetings violative of the United States and Georgia Constitutions; enjoin Defendants from "knowingly and intentionally allowing sectarian prayers at County government meetings, making any further expenditures of public funds, and taking any further action to sponsor sectarian prayers at Cobb County government meetings[,] and requiring ... Defendants, their successors, and assigns to advise anyone conducting a prayer as part of the City Council meeting that sectarian prayers are not permitted"; as well as nominal damages, costs, and fees. (See Am. Verified Compl. at Prayer for Relief.)

Discussion

I. Preliminary Injunction Standard

A preliminary injunction is an "extraordinary and drastic remedy[.]" Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985). To obtain such relief, a movant must demonstrate:

(1) a substantial likelihood of success on the merits of the underlying case, (2) the movant will suffer irreparable harm in the absence of an injunction, (3) the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued, and (4) an injunction would not disserve the public interest.

Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir.2002). To determine whether Plaintiffs have met their burden in this case, the Court begins by examining the substantive law applicable to this controversy and evaluating Plaintiffs' likelihood of success in light of that authority.

II. Substantial Likelihood of Success

Plaintiffs charge that Defendants' practice of "permitting" sectarian references during invocational prayers violates the proscriptions of the Establishment Clause of the United States Constitution and two provisions of the Georgia Constitution. The Court addresses Plaintiffs' likelihood of succeeding on each constitutional challenge separately.

A. The Establishment Clause

1. A review of applicable authorities

a. Lemon and Marsh

The Establishment Clause of the First Amendment, made applicable to the states...