The U.S. Court of Appeals for the D.C. Circuit recently held that merely alleging a violation of the Establishment Clause, without more, is sufficient to satisfy the irreparable harm factor in a preliminary-injunction determination. The circuit court applied the reasoning of the three-Justice plurality in Elrod v. Burns, 427 U.S. 347 (1976) (where political speech and freedom of expression are alleged to be threatened or impaired, the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury", citing New York Times Co. v. United States, 403 U.S. 713 (1971)). In applying Elrod -- a freedom of expression case -- to an Establishment Clause case, the D.C. Circuit joined the Second, Fifth, and Sixth Circuits.
Plaintiffs are non-Catholic Navy chaplains and an endorsing agency. They alleged that "the Navy prefers Catholics" in violation of the Establishment Clause. The chaplains moved for a preliminary injunction. The district court denied the motion because the chaplains failed to show any irreparable injury (one of the four factors necessary to grant a preliminary injunction). The circuit court disagreed. It applied Elrod to "purported Establishment Clause violations" not "simply by axiomatically applying Elrod's admonition * * * as other courts have done" but rather because the circuit court "emphasize[d] the language surrounding this maxim and note[d] its validity with respect to Establishment Clause claims." The circuit court remanded to the district court to complete the remaining three preliminary-injunction factors.
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