With the first federal court hearing less than a week away in a lawsuit two men filed against Hamilton County over County Commission prayers, briefs on a motion for preliminary injunction now have been filed.
In June, Brandon Jones and Tommy Coleman filed a complaint in the Eastern District of Tennessee alleging violations of the First Amendment's Establishment Clause. Later that month, the pair filed a motion asking the court to order the commission to halt its prayer practices until U.S. Judge Harry S. "Sandy" Mattice could rule on the case.
On June 21, Mattice set a hearing on the motion for preliminary injunction for July 26.
Then commissioners passed a new prayer policy on July 3.
The county argues its new policy is constitutional and mooted all claims about events prior to its implementation and should be judged only on its face, since it's only been in effect two weeks. The plaintiffs' brief says the policy is a "sham."
Though next week's hearing is only preliminary, the court likely will consider four factors when deciding whether to grant the injunction. The first of those, which is often determinative in First Amendment cases, is whether Jones and Coleman are likely to succeed on the merits of the case.
Both parties argue a different legal test should apply to that factor.
The county's local counsel, Stephen Duggins, relies on the U.S. Supreme Court's 1983 decision in Marsh v. Chambers, where six justices upheld the Nebraska legislature's regular prayers by a paid chaplain.
In Marsh, the court relied heavily on the history of legislative prayer. The county's brief quotes from the Marsh opinion:
"It can hardly be thought that the same week members of the First Congress voted to appoint and pay a chaplain for each house and also voted to approve the draft of the First Amendment for submission to the state, they intended the Establishment Clause of the amendment to forbid what they just declared acceptable."
Robin Flores, attorney for Coleman and Jones, argues that the Supreme Court's decision in Marsh "was not the content of the prayers, but whether a government can use state funds to hire a chaplain to lead such prayers."
Flores said Mattice should apply a legal test from the 1971 U.S. Supreme Court decision Lemon v. Kurtzman, which has since been used in Establishment Clause cases dealing with matters such as posting of the Ten Commandments and teaching of creationism.
He later asks the court to consider commission actions dating back to at least May says the new invocation "policy is merely a sham."
The court will also consider three other factors when deciding whether the grant the injunction, including whether the plaintiffs "would suffer irreparable injury absent the injunction," "whether the injunction would cause substantial harm to others," and "whether the public interest would be served."
Both sides also submitted lists of the evidence they anticipate using on July 26. Duggins said in his summary that he intends to call the commission's legislative administrator, Chris Hixson, to testify about the new policy and its implementation.
Flores said in his summary that he might call Coleman, Jones, Clifton Burris and Amira Laham, all of whom attended commission meetings where invocations were given.