Emmanuel Temple, The House Of Praise et al v. Abercrombie et al

Filing 12

ORDER Denying Plaintiffs' Motion For Temporary Restraining Order re 4 . Signed by JUDGE J. MICHAEL SEABRIGHT on 12/30/11. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

EMMANUEL TEMPLE, THE
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HOUSE OF PRAISE; CARL E.
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HARRIS; LIGHTHOUSE
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OUTREACH CENTER ASSEMBLY )
OF GOD; JOE HUNKIN, JR.,
)
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Plaintiffs,
)
)
vs.
)
)
NEIL ABERCROMBIE, in his
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official capacity as Governor of the )
State of Hawaii; LORETTA J.
)
FUDDY, in her official capacity as )
Director of Health of the State of
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Hawaii; STATE OF HAWAII,
)
)
Defendants.
)
_____________________________ )

CIV. NO. 11-00790 JMS-KSC
ORDER DENYING PLAINTIFFS’
MOTION FOR TEMPORARY
RESTRAINING ORDER

ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
I. INTRODUCTION
Hawaii’s Civil Unions Law, 2011 Haw. Sess. L. Act 1 (codified at
Hawaii Revised Statutes (“HRS”) Ch. 572B) (“Act 1”) becomes effective on
January 1, 2012. Plaintiffs Emmanuel Temple, the House of Praise; Carl E. Harris;
Lighthouse Outreach Center Assembly of God; and Joe Hunkin, Jr. (collectively
“Plaintiffs”) filed this action under 42 U.S.C. § 1983 on December 28, 2011,

seeking declaratory and prospective injunctive relief to prevent Defendants Neil
Abercrombie, in his official capacity as Governor of the State of Hawaii; and
Loretta J. Fuddy, in her official capacity as Director of Health of the State of
Hawaii (collectively “Defendants”) “from enforcing Act 1 against [them].” Doc.
No. 4, Pls.’ Mot. at 2. Plaintiffs move for a temporary restraining order (“TRO”)
to prevent such enforcement and to stop Act 1’s implementation on January 1,
2012. Based on the following, the Motion is DENIED.
II. BACKGROUND
Hawaii Governor Neil Abercrombie signed Act 1 into law on
February 23, 2011. Now, three days before it is to go into effect, Plaintiffs seek a
TRO under Federal Rule of Civil Procedure 65, contending that they will be
subject to “imminent and immediate danger” by being subject to civil fines or
penalties if Act 1 takes effect on January 1, 2012. Id. at 12; Doc. No. 1, Compl.
¶ 19. Plaintiffs’ Complaint alleges violations of the First, Fifth, and Fourteenth
Amendments to the United States Constitution. Plaintiffs contend that -- because
Act 1 does not specifically exempt religious organizations from Hawaii’s antidiscrimination laws (e.g., HRS Chapter 489 -- Discrimination in Public

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Accommodations)1 -- they will be subject to immediate and irreparable harm, and
that they are likely to succeed on the merits of their Constitutional claims.

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In particular, HRS § 489-3 provides:
Unfair discriminatory practices that deny, or attempt to deny, a
person the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of a place
of public accommodation on the basis of race, sex, including
gender identity or expression, sexual orientation, color, religion,
ancestry, or disability are prohibited.

In turn, HRS § 489-7.5(a) provides a private cause of action for violations, as follows:
(a) Any person who is injured by an unlawful discriminatory
practice, other than an unlawful discriminatory practice under part
II of this chapter, may:
(1) Sue for damages sustained, and, if the judgment is for
the plaintiff, the plaintiff shall be awarded a sum not less than
$1,000 or threefold damages by the plaintiff sustained, whichever
sum is the greater, and reasonable attorneys' fees together with the
costs of suit; and
(2) Bring proceedings to enjoin the unlawful discriminatory
practices, and if the decree is for the plaintiff, the plaintiff shall be
awarded reasonable attorneys’ fees together with the cost of suit.
And HRS § 489-8 provides for imposition of penalties for violations in actions brought by the
Hawaii Attorney General or Hawaii Civil Rights Commission, as follows:
(a) It shall be unlawful for a person to discriminate unfairly in
public accommodations.
(b) Any person, firm, company, association, or corporation who
violates this part shall be fined a sum of not less than $500 nor
more than $10,000 for each violation, which sum shall be collected
in a civil action brought by the attorney general or the civil rights
commission on behalf of the State. The penalties provided in this
section shall be cumulative to the remedies or penalties available
under all other laws of this State. Each day of violation under this
part shall be a separate violation.
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The Complaint alleges that Plaintiff Emmanuel Temple, the House of
Praise, is a domestic, nonprofit corporation whose purpose is to advance and
promote the worship of God; to engage in and promote the study of the Holy
Scriptures; and to advance the gospel of Jesus Christ. Plaintiff Carl E. Harris
(“Harris”) is a Bishop and Pastor of Emmanuel Temple, House of Praise.
Likewise, co-Plaintiff Lighthouse Outreach Center Assembly of God is a domestic,
nonprofit corporation whose purpose is to worship the Lord, and conduct activities
such as Sunday school, outreach programs, and day care. Doc. No. 1, Compl. ¶ 4.
Harris attests that he opposes Act 1 because same sex marriage and
civil unions are against the teachings of the gospel of Jesus Christ. Doc. No. 4-1,
Harris Decl. ¶¶ 3,4. He states that he is aware of instances in “New Jersey,
California, and Hawaii” where religious institutions and churches have refused to
rent their properties to others for civil unions and receptions, and have thus been
subject to civil rights complaints. Id. ¶ 6. He is “aware that this year, the Hawaii
Civil Rights Commission accepted a complaint from a same sex couple against a
church which refused to rent its property for a same sex couple to perform a same
sex marriage.” Id. ¶ 7. He further attests that:
[b]ecause of my stance regarding same-sex unions and
marriages, I am under imminent and immediate threat
commencing on January 1, 2012 of being investigated;
incurring attorneys fees and costs in defending my
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religious liberties; being enjoined and fined by the
Hawaii Civil Rights Commission for refusing to rent my
facilities to same sex couples.
Id. ¶ 8.
Among other provisions, Act 1 details who may solemnize a civil
union. HRS § 572B-4 (b) allows judges who may perform marriages under HRS
Ch. 572 to legally perform civil unions. It also allows “[a]ny ordained or licensed
member of the clergy” to solemnize a civil union. And it specifically provides that
such authorized persons are not required to solemnize civil unions and are not
subject to fines or penalties if they refuse, for any reason, to join persons in a civil
union. Id. Act 1 thus contains “immunity” from fines or penalties if a pastor, such
as Harris, refuses to perform a civil union (if such refusal would otherwise
constitute illegal discrimination). Act 1 does not, however, contain “immunity” if
a church or other religious organization refuses -- on the basis that it is opposed to
civil unions -- to rent or otherwise allow use of its facilities for performing civil
unions or hosting receptions celebrating a civil union.2

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Legislation was introduced in 2011 that would have exempted religious organizations
from “any civil claim or cause of action” for refusing to provide “services, accommodations,
benefits, advantages, facilities, goods, or privileges” if “related to a solemnization or celebration
of a same-sex relationship, such as a same-sex marriage or a civil union between persons of the
same sex” if it violated the organization’s religious beliefs and faith. See H.B. No. 1244, 26th
Leg. (Hawaii 2011) and S.B. No. 1447, 26th Leg. (Hawaii 2011), Doc. Nos. 5 & 6, Harris Decl.
Exs. 4 & 5. That legislation was not enacted, and the Hawaii Civil Rights Commission opposed
(continued...)
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The Complaint, among other things, seeks prospective injunctive
relief to enjoin Abercrombie and/or Fuddy, in their official capacities, from
enforcing Hawaii anti-discrimination laws against Plaintiffs, based upon Plaintiffs’
planned refusal to make their facilities available to those who might seek to use
them for performing or celebrating civil unions. Because of the alleged burden on
their Constitutional rights, Plaintiffs seek a TRO “mandating that Act 1 cannot be
implemented until a trial on the merits.” Doc. No. 4, Pls.’ Mot. at 15.
III. STANDARD OF REVIEW
The standard for issuing a temporary restraining order is identical to
the standard for issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac.
Corp., 99 F. Supp. 2d 1241, 1247 (D. Haw. 1999); cf. Stuhlbarg Int’l Sales Co. v.
John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an
analysis of a preliminary injunction is “substantially identical” to an analysis of a
temporary restraining order).
A “preliminary injunction is an extraordinary and drastic remedy
never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
2

(...continued)
it. In opposing the legislation, the Hawaii Civil Rights Commission testified that the language
was vague and overly broad because, for among other reasons, it might allow a religious
organization to discriminate against same-sex couples in civil unions in use of church facilities
that are offered to the general public for a fee for marriages and other celebrations. See Doc. No.
4-7, Luiz Decl. Ex. 5, Testimony regarding H.B. 1244, at 2.
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24 (2008) (citation omitted). A “plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.” Id. at 20; accord
Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). “That is,
‘serious questions going to the merits’ and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary injunction, so long as
the plaintiff also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for Wild Rockies v. Cottrell, 632 F.3d
1127, 1135-36 (9th Cir. 2011) (citing Clear Channel Outdoor, Inc. v. City of L.A.,
340 F.3d 810, 813 (9th Cir. 2003)). Winter emphasized that -- contrary to some
earlier Ninth Circuit caselaw -- plaintiffs seeking preliminary relief must
demonstrate that “irreparable injury is likely in the absence of an injunction.” 555
U.S. at 22. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (“In
Winter, the Supreme Court definitively refuted [the Ninth Circuit’s] ‘possibility of
irreparable injury’ standard.”).
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IV. DISCUSSION
A.

Principles of Justiciabilty -- Ripeness and Standing
Before addressing the merits of a challenge to the constitutionality of

Act 1, either facially or as it might be applied to Plaintiffs, the court determines
whether Plaintiffs’ challenge is justiciable. See, e.g., Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94 (1998); see also Bernhardt v. County of Los Angeles,
279 F.3d 862, 868 (9th Cir. 2002). This court’s “role is neither to issue advisory
opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or
controversies consistent with the powers granted the judiciary in Article III of the
Constitution.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138
(9th Cir. 2000) (en banc). This justiciability inquiry may be addressed by asking
whether Plaintiffs have standing or, alternatively, whether the challenge is ripe.
See id. (“The constitutional component of the ripeness inquiry is often treated
under the rubric of standing and, in many cases, ripeness coincides squarely with
standing’s injury in fact prong.”).
The ripeness doctrine avoids “premature adjudication” of disputes.
Scott v. Pasadena Unif. Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002). Where, as
here, a plaintiff challenges a law before it might be enforced -- a “pre-enforcement
challenge” -- the claim is “only ripe only if a plaintiff is presented with ‘the
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immediate dilemma to choose between complying with newly imposed,
disadvantageous restrictions and risking serious penalties for violation.’” San Luis
& Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163, 1173 (9th Cir. 2011)
(quoting Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 (1993)). A court examines
(1) “whether the plaintiffs have articulated a concrete plan to violate the law in
question”; (2) “whether the prosecuting authorities have communicated a specific
warning or threat to initiate proceedings”; and (3) “the history of past prosecution
or enforcement under the challenged statute.” Thomas, 220 F.3d at 1139.
“Constitutional challenges based on the First Amendment present
unique standing considerations.” Ariz. Right to Life Political Action Comm. v.
Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). “In an effort to avoid the chilling
effect of sweeping restrictions, the Supreme Court has endorsed what might be
called a ‘hold your tongue and challenge now’ approach rather than requiring
litigants to speak first and take their chances with the consequences.” Id. That is,
a plaintiff “does not have to await the consummation of threatened injury to obtain
preventive relief.” Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 143,
n.29 (1974). But, “when plaintiffs seek to establish standing to challenge a law or
regulation that is not presently being enforced against them, they must demonstrate
‘a realistic danger of sustaining a direct injury as a result of the statute’s operation
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or enforcement.’” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000)
(quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297 (1979));
see also Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (stating that even
when plaintiffs challenge a restriction on the grounds that it may chill their First
Amendment rights, “they must still satisfy the rigid constitutional requirement that
plaintifs must demonstrate an injury in fact to invoke a federal court’s
jurisdiction.” (quoting Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 999 (9th
Cir. 2004)). “[N]either the mere existence of a proscriptive statute nor a
generalized threat of prosecution satisfies the ‘case or controversy’ requirement.”
Thomas, 220 F.3d at 1139. “As the Supreme Court observed in Pennell [v. City of
San Jose, 485 U.S. 1 (1988)] ‘application of the constitutional standing
requirement [is not] a mechanical exercise.’” Carrico v. City and Cnty. of San
Francisco, 656 F.3d 1002, 1007 (9th Cir. 2011) (quoting Pennell, 485 U.S. at 7).
“In other words, context matters.” Id.
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B.

Application of Justiciability Principles
In the specific context now before the court -- that is, given the

present evidentiary record and the nature and timing of the Plaintiffs’ specific
challenge to Act 1 -- the relief sought is not justiciable.3 Because the dispute is not
ripe (or because Plaintiffs presently lack standing), Plaintiffs necessarily fail to
meet the standard for granting of a TRO. See, e.g., Washington v. Bert Bell/Pete
Rozelle NFL Retirement Plan, 504 F.3d 818, 825 (9th Cir. 2005); Newcomb v. U.S.
Office of Special Counsel, 2010 WL 4055572 (S. D. Cal. Oct. 5, 2010) (reasoning
that, because no ripe claim was presented, a court could not issue a TRO).
In applying Thomas’ three-part test, the court first considers whether
the plaintiffs have articulated a concrete plan to violate the law in question. And in
considering this factor, “[a] general intent to violate a statute at some unknown
date in the future does not rise to the level of an articulated, concrete plan.”
Thomas, 220 F.3d at 1139. Thomas thus concluded that several landlords’ future
intent not to rent apartments to unmarried couples in violation of Alaska law was
insufficiently concrete: “The landlords’ expressed ‘intent’ to violate the law on
some uncertain day in the future - if and when an unmarried couple attempts to

3

In this Order, the court considers only the constitutional, not prudential, component of
the ripeness doctrine.
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lease one of their rental properties - can hardly qualify as a concrete plan.” Id. at
1140.
Likewise, in this case any threat of enforcement and imposition of
fines by government officials (e.g., the Hawaii Attorney General or the Hawaii
Civil Rights Commission) under HRS § 489-8 for violating Act 1 is highly
speculative. No one has asked Plaintiffs to use their facilities for a civil union. No
one has inquired about such use in the days following Act 1’s effective date.
Plaintiffs cannot say when and under what circumstances such a request might be
made. Although they suggest that they will refuse to make their facilities available
if asked, it remains speculative when, to whom, and under circumstances that
might occur.
In other words, whether Plaintiffs would face “a realistic danger of
sustaining a direct injury as a result of” enforcement of § 489-8, is “wholly
contingent upon the occurrence a number of unforseeable events[.]” Id. at 1141.
First, a couple would have to ask Plaintiffs to use a particular facility of theirs -which presumably would have to be a “public accommodation” -- for a civil union
made possible by Act 1.4 Second, Plaintiffs would wrongly have to refuse based

4

This fact, standing alone, is highly speculative. Plaintiffs do not even attempt to
explain why a same-sex couple would desire to solemnize a civil union on a premises owned or
operated by an entity clearly hostile to same-sex couples.
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upon a protected ground. Next, the couple, having been denied such a request,
would have to file a complaint with the Hawaii Civil Rights Commission under
HRS § 489-6 or otherwise notify authorities of alleged discrimination. Finally,
such authorities would then have to decide to proceed against Plaintiffs. None of
this has occurred, and without some indication of the parameters of such a
hypothetical violation (e.g., the nature of the request, the proposed use, the
circumstances of a denial), a “‘dispute is not justiciable, because it is not ripe for
court review.’” Id. at 1141 (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523
U.S. 726, 732 (1998)).5 See also Shirmer v. Nagode, 621 F.3d 581, 586 (7th Cir.
2010) (stating that to present a justiciable controversy, the plaintiff must assert
more than “a wholly speculative possibility”of enforcement); Wolfson v. Brammer,
616 F.3d 1045, 1064 (9th Cir. 2010) (stating, in the context of prudential ripeness,
that a claim is not ripe for adjudication if it rests on future contingent events);
Erwin Chemerinsky, Federal Jurisdiction § 2.4.1 (5th ed 2007) (“Specifically, the
ripeness doctrine seeks to separate matters that are premature for review because

5

Although Harris states that he is aware that this year the Hawaii Civil Rights
Commission accepted a complaint brought by a same sex couple against a church that refused to
rent its property for a same sex couple to perform a same sex marriage, Doc. No. 4-1, Harris
Decl. ¶ 7, the possible application of such a complaint -- with no other details -- is entirely
speculative to the present dispute. If anything, it demonstrates that Plaintiffs’ alleged injury
(imminent threat of enforcement, and chilling of First Amendment rights) does not depend upon
Act 1 becoming effective.
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the injury is speculative and may never occur, from those cases that are appropriate
for federal court action.”).
Plaintiffs also point to HRS § 489-7.5, which provides a private cause
of action for persons injured by an unlawful discriminatory practice in a public
accommodation. Under this section, caselaw indicates an injured party may file a
civil action for a violation without first seeking administrative relief with the
Hawaii Civil Rights Commission. See The Epileptic Found. v. City and Cnty. of
Maui, 300 F. Supp. 2d 1003, 1017 n.35 (D. Haw. 2004) (“[A] plaintiff injured in
violation of chapter 489 may either bring a civil action pursuant to § 489-7.5 or
seek administrative relief.”). Again, however, a genuine threat of enforcement (by
a private party) against Plaintiffs would be contingent on several events beyond
Plaintiffs’ control: a couple would have to ask, they would have to be denied, and
they would then have to file suit.
Moreover, if the alleged discrimination victims filed suit on their own
(without resort to assistance from government authorities, e.g. the Hawaii Attorney
General or Hawaii Civil Rights Commission), such private action would raise other
justiciability concerns. See Associated Oregon Indus. v. Avakian, 2010 WL
1838661, at *5 (D. Or. May 6, 2010) (reasoning that court was “aware of no case
permitting a plaintiff to preemptively challenge the right of a private actor to bring
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a private cause of action before that cause of action has arisen.”). Avakian
examined standing and ripeness in a pre-enforcement, First Amendment context,
and reiterated that a “‘relaxed approach to justiciability’ is appropriate ‘only upon a
showing that the plaintiff is immediately in danger of sustaining a direct injury as a
result of an executive or legislative action.” Id. (citation omitted). Plaintiffs are
not seeking to declare Chapter 489 unconstitutional; they are, however, seeking to
enjoin its enforcement based upon a position they might be put in if Act 1 takes
effect. In this hypothetical situation, then, they would be seeking to enjoin a
private actor from enforcing a surely facially-valid statute (HRS ch. 489). See
Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007) (“It is well-established
that when a plaintiff brings a pre-enforcement challenge to the constitutionality of
a particular statutory provision, the causation element of standing requires the
named defendants to possess authority to enforce the complained-of provision.”)
(citations omitted).
As to Thomas’ second prong, there are also no “specific warning or
threat to initiate proceedings” by authorities. Thomas, 220 F.3d at 1139 (emphasis
added). Although the Hawaii Civil Rights Commission during the past legislative
session in opposed the granting of broad immunity for religious organizations from
anti-discrimination laws, such testimony is not a specific warning or threat against
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Plaintiffs to impose penalties for a hypothetical violation. Similarly, contrary to
Plaintiffs’ argument, the Attorney General’s broad statement in its Opposition that
religious organizations should not be exempt from liability for discrimination when
participating in non-religious activity hardly amounts to a specific threat of
penalties.
Finally, the last Thomas inquiry -- history of past enforcement -- “has
little weight in [the court’s] analysis.” Wolfson, 616 F.3d at 1060. In this context,
because Act 1 is entirely new, there is no history of enforcement or interpretation
regarding its provisions. Given the weakness of the claim of ripeness on the first
two prongs of Thomas, it is clear that the present dispute is not ripe for the granting
of a TRO.
In short, the present dispute -- based upon the current record and
allegations -- is not justiciable such that Plaintiffs have not met their burden to
authorize this court to issue a temporary restraining order that would prevent Act 1
from taking effect on January 1, 2012. See Winter, 555 U.S. at 20.
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V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Temporary
Restraining Order, Doc. No. 4, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 30, 2011

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Temple et al. v. Abercrombie, et al., Civ. No. 11-00790 JMS-KSC, Order Denying Plaintiffs’
Motion for Temporary Restraining Order

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