United States District Court, Eastern District of Pennsylvania
April 8, 2002
FREETHOUGHT SOCIETY ET AL.
CHESTER COUNTY ET AL.
The opinion of the court was delivered by: Stewart Dalzell, United States District Judge.
On March 6, 2002, after a trial, we declared that defendants' keeping
of their Ten Commandments plaque on the Chester County Courthouse facade
violated the First Amendment, and permanently enjoined them from
continued maintenance of that plaque. See Freethought Society v. Chester
County, ___ F. Supp.2d ___, 2002 WL 342710 (E.D.Pa., Mar. 6, 2002).
Having filed a notice of appeal of that decision, defendants thereafter
filed a motion to stay our Order, and plaintiffs have filed their
opposition to that motion.
Among other things, the parties joined issue on the factual question of
irreparability of harm. We therefore held a hearing on that point, and
heard argument, earlier today.*fn1
A disappointed litigant in an equity case in federal court may seek
what the Federal Rules of Civil Procedure describe as an injunction
pending appeal. Specifically, Fed.R.Civ.P. 62(c) provides, in relevant
part, that "[w]hen an appeal is taken from an interlocutory or final
judgment granting . . . an injunction, the court in its discretion
may suspend, modify, restore, or grant an injunction during the pendency of
the appeal upon such terms as to bond or otherwise as it considers proper
for the security of the rights of the adverse party." Although defendants
here have taken the normally jurisdiction-divesting action of filing a
notice of appeal to the Court of Appeals, Fed.R.App.P. 8(a)(1)(A) and (C)
provides that parties like defendants must first seek relief in the
district court.*fn2 Rule of Appellate Procedure 8 provides:
(a) Motion for Stay.
(1) Initial Motion in the District Court. A party must
ordinarily move first in the district court for the
(A) a stay of the judgment or order of a district
court pending appeal;
(C) an order suspending, modifying, restoring, or
granting an injunction while an appeal is pending.
Referring to these rules that "govern the power of district courts and
courts of appeals to stay an order pending appeal", the Supreme Court in
Hilton v. Braunskill, 481 U.S. 770
, 776 (1987), established four common
factors that regulate the issuance of stays:
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in
the proceeding; and (4) where the public interest
Id. (citations omitted). The "burden of meeting this standard is a
heavy one," Wright & Miller, supra note 2 at 503-05.
We will now canvass the four Hilton factors.
Balancing of Stay Factors
1. Strong Showing of Success on the Merits
Our March 6, 2002 Memorandum canvassed at length the facts and law that
led us to conclude that the continued display of this primarily sectarian
statement offends both the First Amendment and the history of
disestablishment of which the First Amendment has become the centerpiece
in recent decades.
Defendants place great stress on what they regard as the likelihood
that the Supreme Court will overrule Lemon v. Kurtzman, 403 U.S. 602
(1971). Defendants contend that the fulfillment of this prediction will
undermine the jurisprudential foundation of our March 6 decision. Putting
aside the inherently speculative nature of defendants' prophecy, there is
no reason to expect that the Supreme Court will reconsider, much less
To be sure, as we pointed out at pages 10-12 of our March 6, 2002
Memorandum, many have heaped ashes on Lemon, none more vividly than
Justice Scalia in his concurrence in Lamb's Chapel v. Central Moriches
School Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring). But as
we observed on page 12 of our Memorandum, where we quoted the Seventh
Circuit's statement in Books v. City of Elkhart, 235 F.3d 292, 301
(7th Cir. 2000), cert. denied, 121 S.Ct. 2209 (2001),
we are not at liberty to stray from Lemon until the Supreme Court
explicitly overrules that oft-cited decision.
Such an overruling is not imminent. Indeed, not only has the Supreme
Court applied Lemon's test as recently as two years ago, see Doe v. Sante
Fe Indep. School Dist., 530 U.S. 290, 314 (2000)*fn3, it declined to
review the Seventh Circuit's decision in Books over the strong dissent of
The Chief Justice and Justices Scalia and Thomas who criticized the
Seventh Circuit for "applying the oft-criticized framework set out in
Lemon v. Kurtzman", 121 S.Ct. at 2211. Just over a month ago, the Supreme
Court denied the petition for a writ of certiorari in Indiana Civil
Liberties Union, et al. v. O'Bannon, 259 F.3d 766 (7th Cir. 2001), cert.
denied, 122 S.Ct. 1173 (Feb. 25, 2002), which proffered another chance to
overrule Lemon in a Ten Commandments case.
Thus, in the harsh light of actual opportunities to review Lemon
— even in two cases presenting challenges to Ten Commandments
memorials — the Supreme Court has declined to revisit that
watershed decision. Lemon thus remains good law, and defendants' views to
the contrary constitute nothing more than wishful thinking.
Regarding defendants' contention that neither plaintiff has standing,
we thoroughly considered this question at pages 7-9 of our March 6
Memorandum. The affidavit Ms. Downey appended to plaintiffs' opposition
to the motion to stay merely confirms what we held on March 6, and that
is her regular need to visit the Courthouse where she comes into
unwelcome contact with the Ten Commandments plaque. Ms. Flynn will, as we
held, return at least on an annual basis to the High Street side of the
Courthouse to participate in political rallies. If neither of these women
has standing to challenge the plaque, it is very hard to imagine who in
Chester County would. Indeed, on defendants' reasoning, no one in Chester
County would have standing to challenge the mounting of a crucifix on the
High Street facade. Nothing in First Amendment standing jurisprudence
warrants such an unthinkable result.
There is no point in restating what we discussed at such length
regarding the predominant religious purpose of the plaque. Viewing its
text, history, and context, the plaque here stands in contrast to other
cases where the language of the Ten Commandments was both laundered to
remove sectarian origin and placed among many other wholly secular
memorials. See our discussion of defendants' "best case", State of
Colorado v. Freedom from Religion Foundation, 898 P.2d 1031 (Colo.
1995), at pages 19-21 of our March 6 Memorandum.
In sum*fn4, had this plaque been displayed next to, say, plaques of
the Bill of Rights, the Declaration of Independence and the
Compact, this might have been a much closer case.*fn5 As this plaque
hangs alone, however, it is not a close case. Far from making a "strong
showing" of likely success in their appeal, defendants have shown none.
2. Irreparable Injury
In defendants' motion, they offer the conjecture that given the
plaque's mounting on "brittle" limestone*fn6, removing it pending appeal
could well damage both the wall and the plaque. This possibility is not
surprising given the fact that the plaque has been mounted on that
limestone for over eighty-one years. Indeed, two witnesses today
testified that defendants' fears of significant damage are by no means
While Jim Brooks, plaintiffs' registered professional structural
engineer, disputes defendants' fear in his affidavit, it would seem that
the real possibility of irreparable physical injury here may be cured
merely by covering the plaque with an opaque beige drape that is
calculated to match the color of the surrounding limestone. Balancing the
equities, such a drape will surely suffice during the pendency of
3. Substantial Injury to Other Parties
Others will suffer no substantial injury if the plaque is covered with
an opaque beige drape while the appeal is pending. After the extensive
notoriety of this case, everyone on both sides of the issue will know
what is behind the drape, but none whose views are now constitutionally
vindicated will take offense at the actual sight of this sectarian
4. The Public Interest
The public interest will be served by covering the plaque because, as
the Supreme Court noted in Elrod v. Burns, 427 U.S. 347, 373-74 (1976),
"[t]he loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury." As Wright & Miller
point out, stays are commonly denied in First Amendment cases. See Wright
& Miller, supra, at 507-09, n. 15 (collecting cases). The plaque here has
already rebuked the First Amendment for over eighty-one years, and thus
its removal from sight on this courthouse (of all places) is long
In addition to the manifest violation of Establishment Clause
jurisprudence we described in our March 6 Memorandum, the plaque is, as
we suggested in our Conclusion, alien to the tradition of
disestablishment of which the First Amendment is only a part. That
tradition has particular force in the Commonwealth of Pennsylvania, where
William Penn's "holy experiment" included tolerance of competing
religious views that was unique in the colonies long before the First
Amendment was a gleam in James Madison's eyes.*fn7
Balancing all the factors, we will grant a stay, but only upon the
condition provided in the accompanying Order.*fn8
AND NOW, this 8th day of April, 2002, upon consideration of defendants'
motion for a stay pending appeal, plaintiffs' opposition thereto, and
after a hearing this day, and upon the findings of fact, conclusions of
law and balancing of equities set forth in the accompanying Memorandum,
it is hereby ORDERED that:
1. The motion is GRANTED only to the extent of the following
2. By April 22, 2002, defendants shall cover the Ten Commandments
plaque on the Chester County Courthouse facade with an opaque drape of a
color calculated to match, as closely as possible, the limestone on the
High Street facade of the Courthouse.