IN THE UNITED STATES COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
:
CLINT HARRIS and (name deleted from internet copy), :
by his/her father and next friend, :
CLINT HARRIS, : 
:
Plaintiffs, :
    -vs- : No.
:
THE CITY OF CHICAGO AND :
RICHARD M. DALEY, Mayor, :
:
Defendants. :





PLAINTIFF'S MEMORANDUM IN SUPPORT OF
MOTION FOR TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION




I.
Introduction
This case involves an establishment clause violation
in its rawest form-a state created and directed
religious ceremony featuring a state commissioned
"prayer" developed specifically for the occasion.  The
effect is multiplied by the City's call to the church,
its citizenry and its public schools to participate in
the ceremony together.  Tax dollars will be used to
reprint the prayer and distribute it to the myriad
celebrants.  A more complete disregard of the bedrock
principles of a half century of establishment clause
jurisprudence could hardly be imagined.  Indeed, the
entire scheme smacks of a Jacobinesque attempt to
establish a civic religion.  As Plaintiffs demonstrate
below the City's planned ceremony with its special
prayer is unconstitutional and should be enjoined.


II.
Legal Standards Governing Issuance of
Injunctive Relief

Plaintiffs seek a preliminary injunction.  The
Seventh Circuit has instructed that a preliminary
injunction may be issued only if the moving party
demonstrates some likelihood of success on the merits,
an inadequate remedy at law, and irreparable harm if
denied.  Indiana Civil Liberties Union v O'Bannon, 259
F.3d 766, 769 (7th Cir 2001).  If these elements are
met a balancing of the harms must be conducted.  Id. 
As in O'Bannon, supra, "deciding the merits of this
case involves the application of the Lemon test".
(Lemon v. Kurtzman, 403 U.S. 602 (1971)).    Id.  The
first prong of the Lemon test asks whether the state's
actual purpose was to advance or inhibit religion.
Books v Elkhart, 235 F.3d 292, 302 (7th Cir. 2000).
The second prong asks, irrespective of the state's
actual purpose, whether the action in question has the
primary effect of conveying a message that the state
is advancing or inhibiting religion.  Id at 304.  The
third prong prohibits "excessive entanglement" of
government and religion.  When the facts and the
applicable precedents concerning the Establishment
Clause are examined, it will be seen that the City's
actions here cannot pass constitutional muster under
any prong of Lemon, and the planned ceremony including
a city-sponsored prayer, printed at taxpayer cost and
distributed to religious institutions and public
schools should be enjoined.


III.
Factual Background

The City of Chicago has determined to commemorate the
tragic events of September 11, 2001, with a special
ceremony.  The Mayor's Office and the Mayor's Office
of Special Events have issued press releases detailing
the program to take place in the City's Civic Center
(next to the seat of government) and other venues.
(See Exhibit A attached).
As explained by the City's press releases,
"the centerpiece of the Daley Plaza program will be
the
mass reading of the Chicago Prayer of Hope Unity and
Remembrance, which was written jointly by prominent
religious leaders of Chicago.

The prayer will be distributed to the audience and
made
available to churches, synagogues, mosques and other
places of worship.

The Mayor urged Chicagoans to participate in the
ceremony,
but asked children to remain in school.  He asked
schools
to suspend their normal activities at noon so
students can
share in the observance.

He [the Mayor] said the City has asked houses of
worship
across the City to remain open throughout the day for
individual prayers and meditation."


Plaintiff Clint Harris has called the Mayor's Office
to obtain a copy of the Chicago Prayer of Hope, Unity
and Remembrance but was told that copies are not being
distributed until the ceremony.  (See Complaint
paragraph 11).  A similar call to the Archbishop's
Office revealed that, although the Archbishop had seen
the prayer, the City had asked the church not to
release its contents to anyone.  (See Complaint
paragraph 12).
Plaintiff Clint Harris is, and has been for the last
nine years, a taxpaying citizen of the City of
Chicago.  (See Complaint paragraph 3).  His (son/daughter)
(name deleted) is (deleted) years old and attends the Chicago Public
Schools.  (See Complaint paragraphs 3, 10).  Neither
he nor his (child) are adherents of any religious
sect or belief.

IV.
Analysis of The City's Actions Under Applicable
Establishment Clause Precedent

Plaintiffs begin with some first principles.  There
are few absolutes in the Establishment Clause area,
but one of them is that the Establishment Clause:
"forbids [government] sponsorship, financial support
and active involvement in religious activity"

Committee for Public Education & Religious Liberty v
Nyquist, 413 U.S. 756, 772 (1973) (citations omitted).
 The Supreme Court has specifically held that
"the religious liberty protected by the Constitution
is
abridged when the State affirmatively sponsors the
particular religious practice of prayer."

Santa Fe Independent School District v Doe, 530 U.S.
290, 313 (2000).

The principle vice of government sponsorship of
prayer is that it sends a message to non-adherents
that:
"they are outsiders, not full members of the
political community
and an accompanying message to adherents that they
are
insiders, favored members of the political community"

Santa Fe, supra, at 309-10 (citing, Lynch v Donnelley,
465 U.S. 668, 688 (1984) (O'Connor, J., concurring).

The Supreme Court has also observed that:

Our history vividly illustrates that one of the
specific evils feared
by those who drafted the Establishment Clause and
fought for
its adoption was that the taxing and spending power
would be
used to favor one religion over another or to support
religion
in general.

Flast v. Cohen, 392 U.S.

 And the Supreme Court has frequently declared that
"there are heightened concerns with protecting freedom
of conscience from subtle coercive pressure in the
elementary and secondary public schools."  and that
"our decisions. recognize. that prayer exercises in
public schools carry a particular risk of indirect
coercion.  The concern may not be limited to the
context of schools, but it is most pronounced there."
Lee v Weisman, 505 U.S. 577, 592 (1992).
Finally, the Seventh Circuit has admonished that
"[We subject] to particularly careful scrutiny
displays
[government action] at the seat of government."

Books v City of Elkhart, 235 F.3d 292, 305 (7th Cir.
2000).

With these principles as backdrop, Plaintiffs turn to
the specific facts of this case and the Lemon test.
As previously noted, Lemon v Kurtzman, 403 U.S. 602
(1971) is implicated in virtually every case involving
an asserted governmental violation of the
Establishment Clause.  Under Lemon, the Establishment
Clause is violated if    1) the state action does not
reflect a clearly secular purpose    2) the primary
effect of the state action is the advancement. of
religion or     3) the state action fosters excessive
entanglement with religion.  Lemon, supra, 403 U.S. at
612-13.
Plaintiffs submit that this case presents a
particularly egregious instance of church/state
entanglement.  It appears from the City's own press
releases that the Mayor has planned what cannot be
described as other than a religious ceremony,
involving a government sponsored prayer (the Chicago
Prayer of Hope Unity and Remembrance), immediately
adjacent to the seat of government (across the street
from City Hall and in the plaza adjoining the County
Courthouse), which prayer will be printed and
distributed (at taxpayer expense) to churches and the
public schools, so the students (in the words of the
press release) "can share in the observance".
Moreover, although the City will not tell Plaintiffs
what is in the prayer (or let anybody else reveal what
is in the prayer) it is plain, since the City is
advertising the prayer as "the centerpiece" of the
ceremony, and the prayer was "written jointly by
prominent religious leaders of Chicago", that the
Mayor's Office of Special Events conscripted these
religious leaders' services when it planned the
ceremony.
Plaintiffs contend that the City's actions cannot
survive any prong of Lemon.  As the Seventh Circuit
noted in Indiana Civil Liberties Union v O'Bannon,
supra, the first two prongs of the Lemon test "have
been refined and dubbed the 'endorsement test' 259
F.3d at 770.  Under the endorsement test, the Court
focuses on whether the state's action has the purpose
or effect of conveying a message of endorsement or
disapproval of religion.  Id.  The key question under
the "endorsement test" is this:  "Would a reasonable
person believe that the [government action] amounts to
an endorsement of religion?"  O'Bannon, 259 F.3d at
772.
Plaintiffs maintain that there is no way to
characterize the planned ceremony as anything other
than a thoroughgoing endorsement of religion
(especially over non-religion).  The City, in concert
with religious authorities, conceives of an event to
be held at or near the seat of government, in which a
City-sponsored prayer, (bearing the City's name and
advertised as the centerpiece of the program) is to be
printed up at taxpayer expense, and distributed to
places of worship and the populace at large on the day
of the ceremony.  The City has clearly enlisted the
services of religious leaders to write the prayer,
which will be the subject of "a mass reading".  To
make the identification of government and religion
complete, "the religious leaders will share the
podium" and the City "has asked houses of worship to
remain open throughout the day for individual prayers
and meditation."  On top of all this schoolchildren
will be asked to stop what they are doing in public
school and "share in the observance".
What could any reasonable person think but that the
City was endorsing religion?  Indeed, it would take an
unreasonable person, or at least one who wasn't paying
attention, to conclude otherwise.  Any secular purpose
behind this event, held at the seat of government,
with the chief executive of the City present,
highlighted as a prayer service with a "mass reading"
is completely swallowed up by the religious elements.
Bells will be rung, prayers will be offered and
churches will be asked to participate, as well as
schoolchildren.  Given the precedents cited above,
with the heightened level of scrutiny attaching both
to "seat of government" displays and the schoolhouse,
not to mention the dangerous area of government
sponsored prayer, and it is inarguable that the City's
actions violate the purpose and effect prongs of
Lemon.
So too is there an excessive entanglement of
government and religion.  Taxpayer money will be used
to print and distribute a prayer with Chicago's name
on it.  The identification of the City with the prayer
is obviously planned and is something of which the
Mayer is proud.  Add to this the degree of
coordination and planning with religious authorities
and the conclusion is unavoidable that there is a
symbolic union of government and religion.  See,
Gilfillan v City of Philadelphia, 637 F.2d 924, 932
(1980) (joint planning of Papal visit with archdiocese
and City of Philadelphia led to finding of excessive
entanglement).
Plaintiffs submit that this case most closely
resembles the Supreme Court's latest pronouncement on
state involvement with the practice of prayer, Lee v
Weisman, 505 U.S. 577 (1992).  There the Court
disapproved of a state held religious ceremony at a
high school graduation.  The Court found that the
state's pervasive involvement in the planning and
content of the religious service violated the central
command of the Establishment Clause and tended to
establish a state religion.  505 U.S. at 587.  The
Court said:
"[The state's] involvement is as troubling as it is
un-denied.
A school official, the principal, decided that an
invocation and
a benediction should be given, this is a choice
attributable
to the state, and from a constitutional perspective
it is as if
a state statute decreed that the prayers must occur."

505 U.S. at 587.

Here, the City and the Mayor have decided that the
tenor of the commemorative service will be religious,
and they have commissioned a prayer which is being
advertised as "the centerpiece" of the program.
Similarly in Weisman, the Supreme Court found that
the state chose the particular religious participant
(a rabbi), which involved the state further in
religious activity.  505 U.S. at 587.  So here, the
City and Mayor have chosen the various members of the
clergy who will be leading the service.
And just as in Weisman, the Defendants have
controlled the content of the prayer, (which, the
City's news releases advertise, is going to be "a
special interdenominational prayer") by decreeing its
nonsectarian nature.  No doubt the City will argue
that the nonsectarian quality of the prayer protects
it from being unconstitutional.  But the Weisman Court
condemned state-sponsored nonsectarian prayer as
equally violative of the Establishment Clause as a
clearly sectarian prayer might be.  Said the Court:
We are asked to recognize the existence of a practice
of
nonsectarian prayer, prayer within the embrace of
what is
known as the Judeo-Christian tradition, prayer which
is more
acceptable than one which, for example, makes
explicit
references to the God of Israel, or to Jesus Christ,
or to a
patron saint.  There may be some support, as an
empirical
observation, to the statement of the Court of Appeals
for the
Sixth Circuit, picked up by Judge Campbell's dissent
in the
Court of Appeals in this case, that there has emerged
in this
country a civic religion, one which is tolerated when
sectarian
exercises are not.  Stein, 822 F.2d at 1409; 908 F.2d
1090,
1098-1099 (CA1 1990)  (Campbell, J., dissenting)
(case
below); see also Note, Civil Religion and the
Establishment
Clause, 95 Yale L. J. 1237 (1986).  If common ground
can be
defined which permits once conflicting faiths to
express
the shared conviction that there is an ethic and a
morality
which transcend human invention, the sense of
community
and purpose sought by all decent societies might be
advanced.
But though the First Amendment does not allow the
government to stifle prayers which aspire to these
ends,
neither does it permit the government to undertake
that
task for itself.

The First Amendment's Religion Clauses mean that
religious
beliefs and religious expression are too precious to
be either
proscribed or prescribed by the State.  The design of
the
Constitution is that preservation and the
transmission of religious
beliefs and worship is a responsibility and a choice
committed
to the private sphere, which itself is promised
freedom to
pursue that mission.  It must not be forgotten then,
that while
concern must be given to define the protection
granted to an
objector or a dissenting nonbeliever, these same
Clauses exist
to protect religion from government interference.

The central meaning of the Religion Clauses of the
First Amendment,
[ ] is that all creeds must be tolerated and none
favored.  The
suggestion that government may establish an official
or civic
religion as a means of avoiding the establishment of
a religion
with more specific creeds strikes us as a
contradiction
that cannot be accepted.

505 U.S. at 589-90.

To the extent that the "special interdenominational"
prayer will form a part of Chicago Public
schoolchildren's "sharing of the observance", Lee v
Weisman, supra, is directly on point, and its reading
in the public schools should be enjoined.  To the
extent that the Court is able to perceive a
distinction based on the schoolhouse setting, because
of the "coercion" involved there, Plaintiffs observe
that the Supreme Court has held that "[P]roof of
coercion. [is] not a necessary element of any claim
under the Establishment Clause".  Committee for Public
Education & Religion v. Nyquist, 413 U.S. 756, 786
(1973).  That is, as noted by Justice Blackmun in his
concurring opinion in Weisman, "it is not enough that
the government restrain from compelling religious
practices:  it must not engage in them either".  505
U.S. at 604 (Blackmun, J., concurring) (Citations
omitted).  Ultimately, this case reduces itself to a
bedrock principle of constitutional law (cited with
approval in Lee v. Weisman), and it is this:
"It is no part of the business of government to
compose
official prayers for any group of the American people
to recite as a part of a religious program carried on
by
government," Engle v. Vitale, 370 U.S. 421, 425, 8 L.
Ed.
2d 601, 82 S. Ct. 1261 (1962).

505 U.S. at 588.

Chicago's planned commemorative ceremony violates
this fundamental tenet of constitutional law.


V.
Entitlement To Preliminary Injunction

Having failed all three prongs of Lemon, it is clear,
as it was in O'Bannon, supra, that Plaintiffs have
established likelihood of success on the merits.  259
F.2d at 773.  The remainder of the injunction calculus
necessarily follows.  There is, of course, no adequate
remedy at law that will avail Plaintiffs.  No amount
of money damages will prevent the constitutional
violation here or provide meaningful relief.  The only
remedy to prevent the constitutional wrong here is an
injunction.  Similarly, the harm if Defendant is not
enjoined, will be irreparable.  Government sponsorship
of prayer is impermissible because of the message of
exclusion it sends to non-adherents like Plaintiffs.
There is no way to "take back" a municipal declaration
that Plaintiffs are somehow less than the rest of the
(believing) polity.  Nor will there be a way to erase
the effects of the subtle coercion six year-old Sanji
will feel if she is required, at the peril of
ostracism, to "share in the observance", presumably
involving a religious prayer.
In terms of the balance of harms, Plaintiffs observe
that, although advertised as featuring religious
elements, if the City's true intent is primarily
secular, it can still hold a perfectly patriotic
"remembrance" by removing the offending City-sponsored
prayer.  There is no prohibition on the Mayor's urging
the citizenry to be well and truly religious on their
own time.  It is only when such a call to prayer is
joined with government sponsorship of prayer itself
that the Establishment Clause is violated.  Therefore,
the City still has time to avoid harm to anybody by
removing the government-sponsored religious component
from the ceremony.  If the City chooses not to do so,
any harm to it will be of its own making.  The
foregoing demonstrates that Plaintiffs will be harmed
if the injunction is not granted.  In light of the
City's ability to make a choice here, Plaintiffs
cannot conceive of any harm to the City.

Conclusion
The City's planned ceremony is violative of the
Establishment Clause as interpreted under Lemon v
Kurtzman, supra, and its progeny.  Plaintiffs are
entitled to an injunction enjoining the City from
using a government-sponsored prayer produced at
taxpayer expense in a ceremony near the seat of
government.  Plaintiffs urge this Court to issue such
an injunction forthwith.

Respectfully submitted,




Richard D. Grossman


RICHARD D. GROSSMAN
Law Offices of Richard D. Grossman
135 South LaSalle Street
Suite 1540
Chicago, IL  60603
(312) 701-0141