The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
Hawaii's Civil Unions Law, 2011 Haw. Sess. L. Act 1 (codified at Hawaii Revised Statutes ("HRS") Ch. 572B) ("Act 1") becomes effective on January 1, 2012. Plaintiffs Emmanuel Temple, the House of Praise; Carl E. Harris; Lighthouse Outreach Center Assembly of God; and Joe Hunkin, Jr. (collectively "Plaintiffs") filed this action under 42 U.S.C. § 1983 on December 28, 2011, seeking declaratory and prospective injunctive relief to prevent Defendants Neil Abercrombie, in his official capacity as Governor of the State of Hawaii; and Loretta J. Fuddy, in her official capacity as Director of Health of the State of Hawaii (collectively "Defendants") "from enforcing Act 1 against [them]." Doc. No. 4, Pls.' Mot. at 2. Plaintiffs move for a temporary restraining order ("TRO") to prevent such enforcement and to stop Act 1's implementation on January 1, 2012. Based on the following, the Motion is DENIED.
Hawaii Governor Neil Abercrombie signed Act 1 into law on February 23, 2011. Now, three days before it is to go into effect, Plaintiffs seek a TRO under Federal Rule of Civil Procedure 65, contending that they will be subject to "imminent and immediate danger" by being subject to civil fines or penalties if Act 1 takes effect on January 1, 2012. Id. at 12; Doc. No. 1, Compl. ¶ 19. Plaintiffs' Complaint alleges violations of the First, Fifth, and Fourteenth Amendments to the United States Constitution. Plaintiffs contend that -- because Act 1 does not specifically exempt religious organizations from Hawaii's anti-discrimination laws (e.g., HRS Chapter 489 -- Discrimination in Public Accommodations)*fn1 -- they will be subject to immediate and irreparable harm, and that they are likely to succeed on the merits of their Constitutional claims.
The Complaint alleges that Plaintiff Emmanuel Temple, the House of Praise, is a domestic, nonprofit corporation whose purpose is to advance and promote the worship of God; to engage in and promote the study of the Holy Scriptures; and to advance the gospel of Jesus Christ. Plaintiff Carl E. Harris ("Harris") is a Bishop and Pastor of Emmanuel Temple, House of Praise. Likewise, co-Plaintiff Lighthouse Outreach Center Assembly of God is a domestic, nonprofit corporation whose purpose is to worship the Lord, and conduct activities such as Sunday school, outreach programs, and day care. Doc. No. 1, Compl. ¶ 4.
Harris attests that he opposes Act 1 because same sex marriage and civil unions are against the teachings of the gospel of Jesus Christ. Doc. No. 4-1, Harris Decl. ¶¶ 3,4. He states that he is aware of instances in "New Jersey, California, and Hawaii" where religious institutions and churches have refused to rent their properties to others for civil unions and receptions, and have thus been subject to civil rights complaints. Id. ¶ 6. He is "aware that this year, the Hawaii Civil Rights Commission accepted a complaint from a same sex couple against a church which refused to rent its property for a same sex couple to perform a same sex marriage." Id. ¶ 7. He further attests that:
[b]ecause of my stance regarding same-sex unions and marriages, I am under imminent and immediate threat commencing on January 1, 2012 of being investigated; incurring attorneys fees and costs in defending my religious liberties; being enjoined and fined by the Hawaii Civil Rights Commission for refusing to rent my facilities to same sex couples.
Among other provisions, Act 1 details who may solemnize a civil union. HRS § 572B-4 (b) allows judges who may perform marriages under HRS Ch. 572 to legally perform civil unions. It also allows "[a]ny ordained or licensed member of the clergy" to solemnize a civil union. And it specifically provides that such authorized persons are not required to solemnize civil unions and are not subject to fines or penalties if they refuse, for any reason, to join persons in a civil union. Id. Act 1 thus contains "immunity" from fines or penalties if a pastor, such as Harris, refuses to perform a civil union (if such refusal would otherwise constitute illegal discrimination). Act 1 does not, however, contain "immunity" if a church or other religious organization refuses -- on the basis that it is opposed to civil unions -- to rent or otherwise allow use of its facilities for performing civil unions or hosting receptions celebrating a civil union.*fn2
The Complaint, among other things, seeks prospective injunctive relief to enjoin Abercrombie and/or Fuddy, in their official capacities, from enforcing Hawaii anti-discrimination laws against Plaintiffs, based upon Plaintiffs' planned refusal to make their facilities available to those who might seek to use them for performing or celebrating civil unions. Because of the alleged burden on their Constitutional rights, Plaintiffs seek a TRO "mandating that Act 1 cannot be implemented until a trial on the merits." Doc. No. 4, Pls.' Mot. at 15.
The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F. Supp. 2d 1241, 1247 (D. Haw. 1999); cf. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (observing that an analysis of a preliminary injunction is "substantially identical" to an analysis of a temporary restraining order).
A "preliminary injunction is an extraordinary and drastic remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). A "plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20; accord Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). "That is, 'serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135-36 (9th Cir. 2011) (citing Clear Channel Outdoor, Inc. v. City of L.A., 340 F.3d 810, 813 (9th Cir. 2003)). Winter emphasized that -- contrary to some earlier Ninth Circuit caselaw -- plaintiffs seeking preliminary relief must ...