motivated by God to join a religious group, while another may simply have a strong interest in a particular issue and thus join a civic group. The simple incentives to join one group or another, however, do not establish that one is fundamentally more dangerous than the other. The plaintiffs have presented a colorable claim under the Fourteenth Amendment, and the defendants' motion to dismiss this claim must therefore be denied.
II. Motion for a Preliminary Injunction
Federal Rule of Civil Procedure 65(a) authorizes a preliminary injunction when (1) there is a strong likelihood of success on the merits, (2) the plaintiffs would suffer irreparable injury in the absence of injunctive relief, (3) the defendants would not be harmed by a preliminary injunction, and (4) the public interest does not weigh against an injunction. See, e.g., Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir. 1995).
On the present record, it is impossible to determine whether a preliminary injunction should issue in this case. A pivotal issue is whether, as the plaintiffs contend, Islam requires that the Imam be chosen from within the congregation. The plaintiffs' motion for a preliminary injunction makes reference to "affidavits of AHMAD ABDUL JABBAR-AL SAMAD, et al attached hereto." These affidavits, however, were never filed with the court.
The only evidentiary material now available is a declaration of Father Francis T. Menei, a Roman Catholic Priest and the administrator of Religion and Family Services for the Department of Corrections. In paragraph 6, Father Menei states, "In a correctional setting, it is not repugnant to Islam that the outside religious coordinators be chosen by the administrators of the Department of Corrections." Because Father Menei does not explain why Islam in a correctional setting might differ from Islam in a free setting, an evidentiary hearing is necessary to resolve this threshold issue.
At the hearing, should the plaintiffs successfully show a likelihood of success, irreparable harm will automatically follow, since "it is well-established that 'the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (quoting Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976)). An evidentiary hearing on the motion for a preliminary injunction should also include testimony relating to harm that the defendants may suffer should the injunction issue, and to the effect of an injunction on the public interest.
The plaintiffs' Complaint alleges violations of the First Amendment's Free Exercise Clause and the Fourteenth Amendment's Equal Protection Clause. Because they have not pleaded violations of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (the "RFRA"), I have not considered its bearing on this case. Should they wish to do so, however, they may amend their Complaint and present testimony regarding the RFRA at the hearing on the preliminary injunction.
The prison rule that is the subject of this litigation does not take full effect until January 1, 1996. Thus, an order temporarily restraining its enforcement is premature at this time.
An Order follows.
AND NOW, this 1st day of December, 1995, in accordance with today's opinion, it is hereby ORDERED that:
1. The Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) is DENIED.
2. The Plaintiffs' Motion for a Temporary Restraining Order is DENIED.
3. The Plaintiffs' Motion to Allow Service by Mail and to Dispense with Requirement of Security is DENIED AS MOOT.
4. An evidentiary hearing on the Plaintiffs' Motion for a Preliminary Injunction is hereby set for Tuesday, December 19, 1995, at 3:00 P.M., in Courtroom 7B of the United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
BY THE COURT
Robert S. Gawthrop, III, J.
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