506 F.Supp.3d 229
D. Del.2020Background
- Knights of Columbus Star of the Sea Council sought to erect a nativity creche on the Rehoboth Beach Bandstand; the City denied creche requests in 2018 and 2019, allegedly because the display was religious.
- Plaintiff filed suit and moved for a preliminary injunction in Nov. 2020 to prevent enforcement of the City's allegedly anti-religious display practice for the 2020 holiday season.
- The City adopted a November 2020 Policy banning private holiday displays on City property for the 2020 season, then on December 7 adopted a Revised Policy banning all unattended private displays year-round but allowing City displays and permitting attended private displays.
- The City erected its own unattended holiday display on the Bandstand (including a creche and menorah); the Revised Policy authorizes City-maintained unattended displays but prohibits private unattended displays.
- The Knights did not submit an application for an attended creche under the Revised Policy and do not presently challenge the Revised Policy’s constitutionality.
- Court denied the preliminary injunction as moot and unripe, and alternatively held plaintiff failed to show irreparable harm required for preliminary relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of challenge to earlier/no-religious-displays policy | Voluntary cessation exception applies; City changed policy to avoid litigation but may revert; history of alleged discrimination | City adopted November policy before motion and then a durable Revised Policy addressing concerns; subsequent events make recurrence unlikely | Motion moot; City met heavy burden showing wrongful behavior not reasonably expected to recur |
| Ripeness to seek injunction for an attended creche | Relief requested but no permit application filed; futility claimed | Revised Policy permits attended displays; Knights has not applied and City said an attended-permit would likely be granted | Not ripe; plaintiff must apply and get a final agency decision before court intervention |
| Likelihood of success on First Amendment claims (viewpoint/content discrimination) | Evidence suggests prior viewpoint discrimination in 2018–19 and that the November policy was content-based | City disputes existence of any anti-religious policy and contends policies are content-neutral; Revised Policy is neutral | Court assumed, without deciding, that Knights would likely prevail on merits for purposes of analysis |
| Irreparable harm / preliminary-injunction factors | Harm from exclusion during Advent/Christmas and burden on religious exercise; time-sensitive injury | No present anti-religious policy; Revised Policy reduces risk of recurrence; public process provides notice and opportunity to be heard | Plaintiff failed to show irreparable harm; balance of equities and public interest did not support injunction |
Key Cases Cited
- Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004) (preliminary injunction is an extraordinary remedy and requires strict showings)
- Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir. 2017) (First Amendment preliminary injunction framework flips burdens—government must justify restriction once protected speech shown)
- Greater Philadelphia Chamber of Commerce v. City of Philadelphia, 949 F.3d 116 (3d Cir. 2020) (applies Reilly’s burden-shifting in First Amendment preliminary-injunction context)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000) (voluntary cessation mootness standard: case moot if wrongful behavior could not reasonably be expected to recur)
- United States v. Virgin Islands, 363 F.3d 276 (3d Cir. 2004) (discusses timing and motives in voluntary cessation analysis)
- Hartnett v. Pennsylvania State Education Association, 963 F.3d 301 (3d Cir. 2020) (defendant's defense of past policy bears on mootness and likelihood of recurrence)
- Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998) (ripeness requires a government decision on an application before judicial review)
- DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (vigorous defense of prior policy may indicate intent to reinstate and affect mootness)
- Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) (vigorous defense of contested policy relevant to voluntary cessation/mootness analysis)