Mullin et al v. Sussex County, Delaware et al

Filing 50

MEMORANDUM OPINION re 7 motion to dismiss, 20 motion for preliminary injunction. Signed by Judge Leonard P. Stark on 5/15/12. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BARBARA MULLIN, JULIE JACKSON,
PASTOR JOHN STEINBRUCK, and
WILLIAM O'CONNOR,
Plaintiffs,

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C.A. No. 11-580-LPS

v.
SUSSEX COUNTY, DELAWARE,
SUSSEX COUNTY COUNCIL, and
MICHAEL H. VINCENT, in his official capacity
as County Council President,
Defendants.

David L. Finger, Esquire ofFINGER & SLANINA, LLC, Wilmington, DE.
Ayesha N. Khan, Esquire, Alex J. Luchenitser, Esquire, and BrookeR. Hardy, Esquire of
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, DC.
Attorneys for Plaintiffs.
JosephS. Shannon, Esquire and Artemio C. Aranilla, II, Esquire of MARSHALL DENNEHEY
WARNER COLEMAN & GOGGIN, Wilmington, DE.
Attorneys for Defendants.

MEMORANDUM OPINION

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May 15,2012
Wilmington, Delaware

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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.

BACKGROUND
I.

Factual Back~:round
The Council holds weekly meetings that are open to the public. (D.I. 1 ,-r 14) Since at

least 2006, 1 the Council has opened its meetings with a recitation of The Lord's Prayer/led by
the Council President. (!d. ,-r,-r 16, 19) While reciting The Lord's Prayer, the Council President
stands and faces the audience, and most members of the audience stand and bow their heads. (!d.

,-r 16; D.I. 22 at A33 ,-r 22, A38 ,-r 16, ASO ,-r 14)
The version of The Lord's Prayer delivered at the Council meetings is as follows:

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Although it is unclear exactly when the practice of opening Council meetings with a
recitation of The Lord's Prayer began, audio recordings on the Sussex County website indicate
that the practice dates to at least March 28, 2006. (D.I. 1 ,-r 19)
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While the parties are not consistent in their practice, the Court believes it is appropriate
to capitalize the title "The Lord's Prayer." "The Lord" of the title, the parties agree, is Jesus
Christ. See D.I. 41, Ex. A ,-r,-r 15, 22 (wherein Defendant's expert, Dr. Crossan, agrees with
Plaintiffs' expert that title is reference to Jesus Christ); see generally GORDON LOBERGER &
KATE SHOUP, WEBSTERS NEW WORLD ENGLISH GRAMMAR HANDBOOK 241 (Wiley Publishers
2d ed. 2009) (stating words referring to a specific deity should be capitalized).
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Our Father who art in heaven,
Hallowed be Thy N arne;
Thy Kingdom come;
Thy will be done
On earth as it is in heaven.
Give us this day our daily bread;
And forgive us our trespasses
As we forgive those who trespass against us.
And lead us not into temptation,
but deliver us from evil.
For Thine is the Kingdom,
The power,
And the glory forever.
Amen.

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(D.I. 1 ~ 20)
Plaintiffs are Sussex County citizens who have attended Council meetings in the past and
plan to do so in the future. (!d.

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7-10) Each of the Plaintiffs is offended by the Council's

recitation of The Lord's Prayer. (See id.) Two ofthe Plaintiffs, who are Christians, are offended
because they feel that the Council's practice co-opts and debases their faith.

(!d.~~

8-9) The

other two Plaintiffs are non-Christian and are offended because they feel the Council's practice
demeans and excludes their beliefs. (!d.
II.

~~

7, 10)

Procedural History
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. CaNST. amend. I§ 1, and the Delaware Constitution's corresponding
provision, DEL CONST. art. I § 1. (!d.) 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

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to bring their claims and that the Complaint fails to state a claim upon which relief can be
granted. (Id.)

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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 ofthe declarations of Plaintiffs' expert, David Harrington Watt. (Jd. at 7-8) In the

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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. (ld. 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 ,-r,-r 1-4) The Court
also stayed discovery. (ld. ,-r 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)

LEGAL STANDARDS
I.

Motion to Dismiss for Lack of Standin2
"A motion to dismiss for want of standing is ... properly brought pursuant to Rule

12(b)(1), because standing is a jurisdictional matter. Pursuant to Rule 12(b)(1), the Court must
accept as true all material allegations set forth in the complaint, and must construe those facts in
favor of the nonmoving party." Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007)
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(internal citations omitted); see also Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 102
(1998) (noting that standing is "threshold jurisdictional question"). A court may grant a motion
to dismiss for lack of standing 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 v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation
marks omitted).
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 (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 (2004); Twp. of

Lyndhurst v. Priceline.com Inc., 657 F.3d 148, 154 (3d Cir. 2011). Prudential standing embraces
the following principles:
(1) the plaintiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or
interests ofthird parties; (2) even when the plaintiffhas alleged
reasonable injury sufficient to meet the requirements of Article III,
the federal courts will not adjudicate abstract questions of wide
public significance which amount to generalized grievances
pervasively shared and most appropriately addressed in the

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representative branches; and (3) the plaintiffs complaint must fall
within the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question.
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. 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 ofthe litigation." !d. "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." !d. (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 'lAss 'n of State Utility Consumer Advocates v. F. C. C., 457 F .3d
1238, 1251 (11th Cir. 2006).

II.

Motion to Dismiss for Failure to State a Claim
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires

the Court to accept as true all material allegations ofthe complaint. See Spruill v. Gillis, 372
F.3d 218,223 (3d Cir. 2004). "The issue is not whether a plaintiffwill 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,
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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 (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).

III.

Motion for Preliminary Injunction
"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).

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DISCUSSION
I.

Standin&
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) ("[S]tanding, 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

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both Article III standing and prudential standing. See Elk Grove Unified Sch. Dist., 542 U.S. at
11-12; Twp. ofLyndhurst, 657 F.3d at 154.
Plaintiffs have adequately alleged Article III standing. 3 First, Plaintiffs have adequately
alleged an injury in fact by alleging direct and unwelcome exposure to The Lord's Prayer. See
Hinrichs v. Speaker of the House ofRepresentatives oflnd. Gen. Assembly, 506 F.3d 584, 590
n.5 (7th Cir. 2007) ("In the context of an alleged Establishment Clause violation ... allegations
of direct and unwelcome exposure to a religious message are sufficient to show the injury-in-fact
necessary to support standing.") (internal quotation marks omitted); see also Sch. Dist. of
Abington Twp. v. Schempp, 374 U.S. 203, 224 n.9 (1963) (determining plaintiffs had standing to
challenge reading of Bible verses, including Lord's Prayer, because plaintiffs were "directly
affected by the laws and practices against which their complaints [were] directed"). Second,

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Defendants do not contest Article III standing. (Tr. at 44) Numerous federal courts have
held that a plaintiff has standing where, as here, the plaintiff attends a meeting of a legislative
body and witnesses an opening prayer. See, e.g., Marsh v. Chambers, 463 U.S. 783, 786 n.4
(1983) (holding that state legislator had standing to challenge legislature's practice of opening
sessions with prayer, both "as a member of the Legislature and as a taxpayer"); Pelphrey v. Cobb
Cnty., 547 F.3d 1263, 1279 (lith Cir. 2008) (holding plaintiff"suffered a personal injury
sufficient to confer standing because [by attending commission meetings] he had direct contact
with" county commission's practice of opening meetings with prayers).

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Plaintiffs have adequately alleged a causal connection between their injury -being "deeply
offended" by the recitation of The Lord's Prayer- and the recitation of The Lord's Prayer at
Council meetings; indeed, they claim that their injury is a direct result of hearing the recitation of
The Lord's Prayer at Council meetings. (See D.I. 1 ~~ 7-10) Finally, Plaintiffs have alleged that
the relief requested - an injunction, declaratory judgment, and nominal damages - will redress
the injuries they have sustained. (See id.

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42-44)

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. 4 Finally,
Plaintiffs' allegations that the Council violated the Establishment Clause by endorsing one
religion- Christianity, and specifically Protestant Christianity- over all other religions is at least
one of the exact interests protected by the Establishment Clause. See Larson v. Valente, 456 U.S.
228, 244 (1982) ("The clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another."); see also McCreary County v. ACLU

ofKy., 545 U.S. 844, 860 (2005) (observing that "[t]he touchstone" ofEstablishment Clause

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Defendants rely on two cases- Valley Forge Christian Coli. v. Americans United for
Separation of Church & State, 454 U.S. 464 (1982), and Freedom From Religion Foundation v.
Obama, 641 F.3d 803 (7th Cir. 2011) ("FFRF')- to support their contention that Plaintiffs'
mere allegations of being offended by the recitation of The Lord's Prayer are insufficient to
confer prudential standing. (See D.I. 8 at 10) However, these cases are inapposite because, in
both, the plaintiffs had no direct contact with the challenged conduct but, instead, merely heard
ofthe conduct from others. See Valley Forge, 454 U.S. at 469, 486-87; FFRF, 641 F.3d at 812
(Williams, J., concurring). Conversely, here, the Complaint alleges that all of the Plaintiffs
attended the Council meetings and directly heard and were exposed to the recitation of The
Lord's Prayer. (See D.I. 1 ~~ 7-10)
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"analysis is the principle that the First Amendment mandates governmental neutrality between
religion and religion, and between religion and nonreligion") (internal quotation marks omitted);

Cnty. ofAllegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 603 (1989) ("Whatever
else the Establishment Clause may mean[,] ... it certainly means at the very least that the
government may not demonstrate a preference for one particular sect or creed (including a
preference for Christianity over other religions).") (internal citation omitted).
Accordingly, the Court finds that Plaintiffs have standing to bring their claims.

II.

Establishment Clause Jurisprudence
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

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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).

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"[L]egislative prayer lies at the heart of two intersecting realities." Joyner v. Forsyth Cnty., 653

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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

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and religious freedom." Marsh v. Chambers, 463 U.S. 783, 786 (1983). On the other hand, "not

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even the unique history oflegislative prayer can justify contemporary legislative prayers that

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have the effect of affiliating the government with one specific faith or belief." Allegheny, 492
U.S. at 603 (internal citation and quotation marks omitted).

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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).
A.

Supreme Court Precedent

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 oflegislative
prayer- sets forth the proper standard for review of the recitation of The Lord's Prayer at
Council meetings. 5 (See D.I. 21 at 20 n.7)
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. 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.

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lndeed, "the Supreme Court, in Marsh, excepted [the area of legislative prayer] from the
traditional analysis under the Establishment Clause." Pelphrey, 547 F.3d at 1269 (internal
citation omitted); see also Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987) (noting that
Marsh did not apply Lemon test); Snyder v. Murray City Corp., 159 F.3d 1227, 1232 (lOth Cir.
1998) (en bane) (in considering challenge to legislative prayer policy, determining that ''the
mainline body of Establishment Clause case law provides little guidance for our decision in this
case[;] [o]ur decision, instead, depends on our interpretation of the holding in Marsh").

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Based on the "unambiguous and unbroken history of' Congress permitting legislative
invocations for "more than 200 years," the Court ruled that the Nebraska Legislature's practice of
opening each session with a legislative prayer "[t]o invoke Divine guidance on a public body
entrusted with making the laws [was] not, in these circumstances, an 'establishment' of religion."

!d. at 792.
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 Judea-Christian tradition." !d.
at 793.
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. !d. at 793-94.
Nor did the Court find it constitutionally problematic that the minister was paid out of public
funds, as "remuneration [was] grounded in historic practice." !d. at 794. Finally, the Court
rejected arguments that the prayers were unconstitutional because they were in "the JudeaChristian tradition," as the prayers were "nonsectarian" and, in response to earlier complaints, the

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chaplain had "removed all references to Christ" from the prayers. ld. at 793 n.14. 6
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 (internal quotation marks and citation omitted). The

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Court stated that "[t]he legislative prayers involved in Marsh did not" have the effect of
affiliating the government with any one specific faith "because the particular chaplain had
removed all references to Christ." I d. (emphasis added). The Court stressed that while Marsh
found that "history may affect the constitutionality of nonsectarian references to religion by the
government, history cannot legitimate practices that demonstrate the government's allegiance to
a particular sect or creed." I d. (emphasis added).

B.

Circuit Court Guidance

Numerous circuit courts have addressed the constitutionality of specific legislative prayer
practices in light of Marsh. 7 The Seventh Circuit has stated that it "read[s] Marsh as hinging on
the nonsectarian nature of the invocations at issue." Hinrichs v. Bosma, 440 F.3d 393, 399 (7th

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In a 2005 religious display case, the Supreme Court reiterated the importance to its
holding in Marsh of the fact that the chaplain had removed all references to Christ. See Van
Orden v. Perry, 545 U.S. 677, 688 n.8 (2005).
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The Third Circuit has yet to address the issue of the constitutionality of legislative
prayers under Marsh. The only Third Circuit case to cite Marsh in a prayer-related context
involved the constitutionality of delivering a prayer at the opening of a school board meeting.
See Doe v. Indian River Sch. Dist., 653 F.3d 256, 259 (3d Cir. 2011). There the Court applied
the more restrictive Establishment Clause test of Lemon v. Kurtzman, 411 U.S. 192 (1973), due
to the presence of students at the meetings. See id. at 275.
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Cir. 2006), superseded on standing grounds sub nom. Hinrichs v. Speaker ofHouse of Reps of

Ind. Gen. Assembly, 506 F.3d 584, 600 (7th Cir. 2007). The Tenth Circuit, in an opinion denying
a speaker's request to present an invocation at a city council meeting due to the invocation's
disparaging, proselytizing content, stated that a permissible prayer under Marsh "typically
involves nonsectarian requests for wisdom and solemnity, as well as calls for divine blessing on
the work of the legislative body." Snyder v. Murray City Corp., 159 F.3d 1227, 1234 (lOth Cir.
1998) (en bane) (stating that Marsh approved of "genre" of prayer that "is a kind of ecumenical

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activity that seeks to bind peoples of varying faiths together in a common purpose").
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. ofEduc.,
52 Fed. Appx. 355, 357 (9th Cir. Dec. 3, 2002). 8 The Sixth Circuit has held that delivery of
sectarian invocations and benedictions at a high school graduation did "not pass the Marsh test"
because such sectarian invocations "say[] to some parents and students: we do not recognize
your religious beliefs, our beliefs are superior to yours[,]" and also "symbolically place the

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A California state Court, interpreting Marsh, held that a chaplain opening city council
meetings with an invocation that invoked the name of Jesus Christ violated the Establishment
Clause because "it conveyed the message that Christianity was being advanced over other
religions." Rubin v. City of Burbank, 124 Cal. Rptr. 2d 867, 873 (Cal. Ct. App. 2002) ("[W]e
interpret Marsh to mean that any legislative prayer that proselytizes or advances one religious
belief or faith ... violates the Establishment Clause.") (emphasis in original).
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government's seal of approval on one religious view." Stein v. Plainwell Cmty. Schs., 822 F.2d
1406, 1410 (6th Cir. 1987).9 The Fifth Circuit has concluded that there is advancement of
religion in violation of the Establishment Clause when a board permits speakers to offer
uniformly Christian prayers with overtly sectarian references and refuses to adopt a nonsectarian

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prayer policy. See Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188, 203 n.2 (5th Cir. 2006),
vacated on standing grounds, 494 F.3d 494 (5th Cir. 2007) (en bane).
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 ofGreat 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. ofSupervisors, 404 F.3d
276,278,284 (4th Cir. 2005) (holding town board of supervisors' practice of inviting community
religious leaders to deliver "non-sectarian [invocations] with elements of the American civil
religion" at opening ofboard meetings was constitutionally permissible), and Turner v. City
Council of Fredericksburg, 534 F.3d 352,356 (4th Cir. 2008) (O'Connor, J.) (holding town
council's decision to allow "only nonsectarian legislative prayers place[d] [the council's
decision] squarely within the range of conduct permitted by Marsh and Simpson[,]" as "[t]he

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The Sixth Circuit's holding that Marsh applied to invocations given at a high school
commencement was subsequently overturned by the Supreme Court. See Lee v. Weisman, 505
U.S. 577, 596 (1992) (holding that "[i]nherent differences between the public school system and
a session of a state legislature distinguish this case from Marsh"). However, the Sixth Circuit's
discussion of Marsh and its prohibition on sectarian prayers "remains valuable." Hinrichs, 440
F.3d at 400 n.3.
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restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to
people who come from a variety of backgrounds, not to exclude or disparage a particular faith").
In a 2011 case, Joyner v. Forsyth County, the Fourth Circuit held that the Forsyth County

Board of Commissioners' policy of inviting religious leaders ofvarious 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:
[Supreme Court and Fourth Circuit precedent] establish that in
order to survive constitutional scrutiny, invocations must consist of
the type of nonsectarian prayers that solemnize the legislative task
and seek to unite rather than divide. Sectarian prayers must not
serve as the gateway to citizen participation in the affairs of local
government. To have them do so runs afoul of the promise of
public neutrality among faiths that resides at the heart of the First
Amendment's religion clauses.

!d. 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. 10 See Pelphrey v. Cobb
Cnty., 547 F.3d 1263, 1271 (11th Cir. 2008). In Pelphrey, the Eleventh Circuit held that the
practice of two county commissions that allowed volunteer leaders of different religions, on a
rotating basis, to offer invocations with a variety of religious expressions did not violate the
Establishment Clause. See id. at 1266-67. In reaching this conclusion, the Court emphasized the
10

These factors include the speaker's religious affiliations and tenure delivering the
invocations as well as the overall nature of the prayers. See Pelphrey, 547 F.3d at 1271. The
Eleventh Circuit noted that, in Marsh, the '"non-sectarian' nature of the chaplain's prayers was
[but] one factor in this fact-intensive analysis; it did not form the basis for a bright-line rule." !d.
15

l

invocations contained a "diversity of ... religious expressions," 11 which "support[ ed] the finding
that the prayers, taken as a whole, did not advance any particular faith." Id. at 1278. Although
the Court did not "embark on a sensitive evaluation or ... parse the content of a particular
prayer," it reached its decision only after "finding[] that the prayers ofthe County Commission
were not exploited to advance one faith or belief." Id.

III.

Motion to Dismiss
The Court concludes that Plaintiffs' Complaint adequately states claims under both the

United States Constitution and the Delaware Constitution.

A.

United States 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

11

The prayers were offered by Christian, Jewish, Unitarian, and Muslim speakers, which
the Court noted represented "a wide cross-section of the County's religious leaders." Pelphrey,
547 F.3d at 1277. The prayers also contained references to a variety of religious figures,
including Jesus Christ, Allah, Mohammed. See id. at 1278. Additionally, some prayers
referenced the Torah, and the prayers contained references to a variety of terms, including "king
ofkings and lord oflords, Heavenly Father, and God of Abraham, Isaac, and Jacob, God of
history, Lord of creation, Lord of love, our Father." !d. (internal quotation marks omitted).

16

promoting, advancing, favoring, and endorsing the Christian religion."

(!d.~~

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. 12

B.

Delaware Constitution

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

12

See, e.g., Joyner, 653 F.3d at 349-50; Tangipahoa Parish Sch. Bd., 473 F.3d at 202-03;
Wynne, 376 F.3d at 301-02; Bacus, 52 Fed. Appx at 356-57; see also Hinrichs, 440 F.3d at 39496 (determining plaintiffs were likely to succeed on merits of constitutional challenge to
legislature's practice of opening its meetings with "overtly sectarian prayer, usually Christian").
17

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Hen/open 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.
IV.

Motion for Preliminary Injunction
Plaintiffs have demonstrated that a preliminary injunction is warranted in this case

because all four factors favor granting a preliminary injunction.

A.

Likelihood of Success on the Merits 13

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. 14 Numerous courts have concluded that The Lord's Prayer is a Christian, sectarian

13

The analysis contained here with respect to likelihood of success on the merits is
necessarily preliminary. While the Court finds a likelihood that Plaintiffs will succeed on the
merits of their claims, a likelihood is not a guarantee. See Univ. ofTex. v. Camenisch, 451 U.S.
390,393-94 (1981) (opining that district court's findings on "likelihood of success on merits" are
not '"tantamount to decisions on the underlying merits," adding the two are "significantly
different").
14

Defendants assert that the Court should not engage in an analysis of whether The Lord's
Prayer is sectarian. See D.I. 8 at 14; D.I. 27 at 7, 9; see also Marsh, 463 U.S. at 794-95 ("The
content of the prayer is not of concern to judges where, as here, there is no indication that the
prayer opportunity has been exploited to proselytize or advance any one, or to disparage any
other, faith or belief."). However, the Court concludes that such an analysis is necessary in order
to assess the constitutionality of Council's recitation of The Lord's Prayer. See generally Indian
18

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prayer. See, e.g., Doe ex ref. Doe v. Sch. Dist. ofNorfolk, 340 F.3d 605, 607 (8th Cir. 2003)
(referring to The Lord's Prayer as "a Christian prayer"); Chaudhuri v. Tennessee, 886 F. Supp.
1374, 1380 (M.D. Tenn. 1995) (referring to The Lord's Prayer as "a well-known Christian
prayer"); Warner v. Orange Cnty. Dep 't of Probation, 870 F. Supp. 69, 71 (S.D.N.Y. 1994)
(calling The Lord's Prayer "a specifically Christian prayer"); Griffin v. Coughlin, 673 N.E.2d 98,
107 (N.Y. 1996) ("[T]he Lord's Prayer ... is a specifically Christian prayer."); see also Sch.

Dist. ofAbington, 374 U.S. at 267, 284 n.61 (Brennan, J., concurring) (referring to The Lord's
Prayer as "an essentially Christian supplication" and stating that recitation of The Lord's Prayer
is "clearly sectarian"); Goluba v. Sch. Dist. ofRipon, 45 F .3d 1035, 103 7 n.2 (7th Cir. 1995)
("The Lord's Prayer, a prayer taught by Jesus to the Disciples, appears in the Christian Bible at
two places: a longer version contained in the Sermon on the Mount at Matthew 6:9-13, and a
shorter version at Luke 11 :2-4. "); United States ex ref. Phillips v. Downer, 13 5 F .2d 521, 523 (2d
Cir. 1943) (referring to The Lord's Prayer as a "teaching[] ofthe Christian church"); Skarin v.

River Sch. Dist., 653 F.3d at 265-67 (examining content of prayers given at board meetings to
determine if such prayers were exclusively Christian); see also generally D.I. 32 at 5-6
(collecting cases where courts have examined content of prayers in order to assess
constitutionality under Establishment Clause). Even the Eleventh Circuit in Pelphrey, a case on
which Defendants rely, examined the content of the prayers at issue. See 547 F.3d at 1277-78
(stating prayers at issue "contained references from Christianity and other faiths" and noting
"[ s]orne prayers included references to 'Jesus Christ,' but others referenced 'Allah,'
'Mohammed,' and the Torah"). Indeed, in Marsh, the Supreme Court analyzed the content of the
prayers, at least to the extent of determining the prayers were nonsectarian. See 463 U.S. at 793
& n.14; see also generally Joyner, 653 F.3d at 351 (rejecting idea that courts cannot examine
content of prayers and stating: "It is to say the least an odd view of the judicial function that
denies courts the right to review the practice at issue. For to exercise no review at all- to shut
our eyes to patterns of sectarian prayer in public forums - is to surrender the essence of the
Establishment Clause and allow government to throw its weight behind a particular faith. Marsh
did not countenance any such idea."). Here, the Court is not engaging in the sort of parsing that
the Marsh Court cautioned against but, rather, is examining The Lord's Prayer as a whole to
assess whether it advances one particular faith.
19

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Woodbine Cmty. Sch. Dist., 204 F. Supp. 2d 1195, 1197 (S.D. Iowa 2002) (citing expert
testimony to support conclusion that "the words of 'The Lord's Prayer' and its ritual unison
recitation or singing are central to the Christian faith and liturgy"); Johns v. Allen, 231 F. Supp.
852, 857 n.7 (D. Del. 1964) (opining presentation of The Lord's Prayer in public schools
"serve[s] to prefer one religion, i.e., the Christian religion, over any other," for "The Lord's
Prayer is contained in the New Testament of the King James version of the Bible"). But see

Doremus v. Board ofEd. ofBorough ofHawthorne, 75 A.2d 880, 888 (N.J. 1950) ("We find
nothing in the Lord's Prayer that is controversial, ritualistic or dogmatic. It is a prayer to 'God,
our Father'. It does not contain Christ's name and makes no reference to Him."). Scholarly
authorities agree that The Lord's Prayer is distinctly Christian. 15
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. 16 Still, viewing The Lord's Prayer as a whole, it

15

See, e.g., D.I. 12 at 8-9 (citing sources); C.J. CONNER, JESUS AND THE CULTURE WARS:
RECLAIMING THE LORD'S PRAYER 13 (2007); see also KENNETH STEVENSON, THE LORD'S
PRAYER: A TEXT IN TRADITION 2 (2004) ("[T]he 'Lord's Prayer' is the central prayer of the
Christian faith."); Daniel 0. Conkle, The Establishment Clause & Religious Expression in
Governmental Settings: Four Variables in Search of a Standard, 110 W.VA. L. REv. 315,326
(2007) (noting The Lord's Prayer is "distinctly sectarian in nature"); Robert J. Delahunty,
"Varied Carols": Legislative Prayer in a Pluralist Society, 40 CREIGHTON L. REv. 517, 527
(2007) (stating "Christian Lord's Prayer" has been found to contain '"sectarian' associations");
Anthony Barone Kolenc, "Mr. Scalia's Neighborhood": A Home for Minority Religions?, 81 ST.
JOHN'S L. REv. 819, 874 (2007) ("The Lord's Prayer [is] undoubtedly sectarian .... ").
16

As already noted, see supra n.2, it is undisputed that "The Lord" of the title of "The
Lord's Prayer" is Jesus Christ. (See D.I. 41, Ex. A~~ 15, 22) However, it does not appear from
20

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appears to be a distinctly Christian prayer. Defendants' expert Dr. Crossan even admits that, as
used in religious observances, The Lord's Prayer is specifically Christian. 17 (D.I. 41, Ex. A ,-r 31)
Defense counsel stated that it is undisputed that The Lord's Prayer comes from the New
Testament. (Tr. at 27) Defense counsel further stated at oral argument that Defendants did not
dispute that today only Christians say The Lord's Prayer as part of their religious observances.
(!d. at 27-28)

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
fact that The Lord's Prayer has been the only prayer recited at the beginning of Council meetings
for over six years is likely to be found to demonstrate that the Council gives Christianity an
unconstitutionally preferred status, sending a message to meeting attendees that the Council is
promoting the beliefs of Christianity. 18 See generally Bacus, 52 Fed. Appx. at 357 (opining that
recitation of distinctively Christian prayer was unconstitutional because it "advanced one faith,

the record that the title is recited at Council meetings. The Court's conclusion that it will likely
find The Lord's Prayer to be sectarian does not turn on the title or whether the title is said aloud.
17

Plaintiffs' expert, David Harrington Watt, declares: "asserting that [T]he Lord's Prayer
is not a Christian prayer is a great deal like asserting that water is not wet." (D .I. 21 at 7)
18

In cases where delivery of sectarian prayer has been upheld, Courts have relied on the
diversity of the prayers delivered. See, e.g., Pelphrey, 547 F.3d at 1267 (finding "diversity of the
religious expressions ... supports the finding that the prayers, taken as a whole, did not advance
any particular faith"); Newdow v. Bush, 355 F. Supp. 2d 265, 289 (D.D.C. 2005) (opining that
plaintiff was "not likely to succeed on his claim under Marsh on the basis of the sectarian nature
of the inaugural prayers standing alone" because inaugural prayers frequently represented
different denominations, which demonstrated that government was not "'exploiting' the prayer
opportunity to 'proselytize' a particular faith or creed").

21

Christianity, providing it with a special endorsed and privileged status"); Stein, 822 F.2d at 1410
(stating delivery of sectarian prayer "symbolically place[s] the government's seal of approval on
one religious view"). Contrary to Defendants' assertion (D.I. 14 at 3), advancement of religion is
distinct from proselytization. As the Fourth Circuit has summarized:
Proselytize and advance have difference meanings and denoted
different activities. To proselytize ... means to seek to convert
others to [a] belief, whereas to advance ... means simply to
forward, further, or promote [a] belief. Advancement could
include conversion but it does not necessarily contain any
conversion or proselytization element. Similarly, although
proselytization certainly involves some element of advancement,
the word proselytize stresses conversion in a manner that the word
advance does not.

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 Hen/open Sch. Dist., 759 F. Supp. 2d at
528.

B.

Likelihood of Irreparable Harm to Plaintiffs

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.l4
22

(quoting Elrod v. Burns, 427 U.S. 347, 373 (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 ofFull Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir.
2006); see also Hinrichs, 440 F.3d at 403; ACLU ofKy., 354 F.3d at 445. Plaintiffs have
demonstrated that they will suffer irreparable harm unless relief is granted because Plaintiffs plan
to attend future Council meetings (see D.L 1 ~~ 7-10) and will be forced to hear Council's likely
unconstitutional recitation of The Lord's Prayer at future meetings.

C.

Lack of Irreparable Harm to Defendants

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).

D.

Public Interest

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 ofTenajly, 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
23

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

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their claims. (See D.I. 27 at 18-20) However, in light ofthe 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.

E.

Waiver of Bond Requirement

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
24

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.
V.

Sua Sponte Stay of Preliminary Injunction

As is evident from the preceding discussion, courts across the country have grappled with
determining the constitutionality oflegislative prayers. In many instances, the invocations
offered at the start oflegislative sessions have been found to be nonsectarian and entirely
constitutional. This has been true of nonsectarian prayers offered by government officials, see,
e.g., Turner, 534 F.3d at 353, 356, and those offered by community religious leaders, see, e.g.,
Marsh, 463 U.S. at 793-95 (permitting nonsectarian invocation delivered by Presbyterian
minister); Simpson, 404 F.3d at 279 (permitting nonsectarian invocations delivered by various
community religious leaders). Courts also have upheld a legislative body's practice of inviting
community religious leaders to deliver prayers of any type- including sectarian prayers. 19 See,
e.g., Pelphrey, 547 F.3d at 1266 (upholding constitutionality of two county commissions'
practices of"allow[ing] volunteer leaders of different religions, on a rotating basis, to offer
invocations with a variety of religious expressions"); Atheists ofFla., Inc., v. City ofLakeland,
_F. Supp. 2d _ , 2012 WL 589588, at *13 (M.D. Fla. Feb. 22, 2012) (holding that town
council's practice of inviting community religious leaders listed in phone book to deliver opening
invocations, including sectarian invocations, was constitutionally permissible); Galloway v.
Town ofGreece, 732 F. Supp. 2d 195,218 (W.D.N.Y. 2010) (determining town council's
practice of inviting community religious leaders whose names appear on lists published by town

19

ln situations where courts have upheld a government body's practice of inviting
community religious leaders to deliver invocations, there was no evidence of any impermissible
motive in choosing which religious leaders to invite.
25

chamber of commerce and local newspaper to deliver opening invocations, including sectarian
invocations, was constitutionally permissible).
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 ofthe 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.
CONCLUSION
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.

26