Madalyn Murray O'Hair and Society of Separationists, Inc. v. Mark White

Madalyn Murray Society O’HAIR and

Separationists, Inc.,

Plaintiffs-Appellants, WHITE, al.,

Mark et

Defendants-Appellees.

No. 79-1397. of Appeals,

United States Court

Fifth Circuit.*

May * case, 9(1) Former Fifth Circuit Section of Public Law 96=452 —October O’Hair,

Madalyn Murray pro se. Jon Murray, plaintiffs-appellants. for Rand, Ark., Christopher for Springs, Hot of Separationists. Soc. McMurtry, County

James Atty., B. Neal Stokey, County Atty., Asst. Russell J. Bai- Austin, Tex., ley, Jones, Renfro, Samu- Honts, elson, Moya. Richards & Bradshaw, O’Laughlin Atty. Susan Asst. Gen., Tex., Austin, White, for Mark et al. GODBOLD, Before Judge, Chief BROWN, CLARK, RONEY, CHARLES GEE, FAY, TJOFLAT, HILL, RUBIN, VANCE, KRAVITCH, complex for a vio- FRANK M. JOHN constitutional SON, Jr., GARZA, HENDERSON, REAV gravamen complaint lations.1 The LEY, HATCHETT, POLITZ, ANDERSON, provision was that a that had been in the TATE, JOHNSON, RANDALL, D. SAM of the of Texas constitution State since CLARK, WILLIAMS, A. THOMAS the civil 1875 violated of O’Hair and **, Judges.*** GARWOOD Circuit Society’s membership of the both its application. existence and its The chal- VANCE, Judge: Circuit lenged provides: case, appellants Madalyn in this Mur- religious No required test shall ever be ray Society Separation- O’Hair and the office, qualification ists, (Society), brought Inc. suit to challenge State; trust, anyone in this nor shall a provision constitution State holding excluded from office on account of Texas. The district court dismissed provided sentiments, he religious of his complaint this panel and divided of circuit acknowledge the existence of a affirmed. We now reverse decision of Being. the district court remand and for further Tex.Const., added). art. 4 (emphasis § proceedings. Despite confusing the rather nature of the complaint, we have identify been able to I. specific several appellants claims for which Madalyn Murray is O’Hair an atheist. seek relief. Society Separationists She and the of Appellants seek a declaration that proponents complete vocal and active of article separation (sec- church section 4 of the Texas constitution of and state. In October 4) Society brought religion deroga- O’Hair and the suit in establishes in the United States District Court for the tion of federal Constitution’s first seeking clause,3 District of Texas declara- Western amendment establishment four- tory, injunctive, compensatory clause,4 and relief equal protection teenth amendment ** Judge participate provision Garwood has elected not to tide the constitutional lawsuit, in this decision. precursor any in issue had no of the former constitutions. *** Judge participated argument Ainsworth and consultation but because of his death on portion 3. The relevant amendment first participate December in this did provides: decision. Congress respecting shall make no law Appellants properly jurisdiction 1. invoked the religion, prohibiting establishment or pursuant of the district court to 28 U.S.C. free exercise thereof .... 1343(a)(3) (4) Declaratory Judg- § U.S.Const., amend. 1. The establishment Act, ment 28 U.S.C. 2202. This §§ incorporated clause been into the four- appellate jurisdiction court’s rests -applicable teenth amendment and held to the § U.S.C. 1291. Educ., E.g., states. Everson v. Board of Society filed a similar suit in the United U.S. (1947). 91 L.Ed. States District Court for the Western District Connecticut, generally Palko v. of North Carolina in 1979. In that case a 82 L.Ed. declaratory judgment was entered on the basis (1937) (basis incorporation for 288 particular whether agreed of a consent decree in which the state provision “implicit provi- not to enforce a similar constitutional concept liberty”). of ordered Society Separationists, sion. See Inc. v. Hunt, (W.D.N.C. April No. CC 78-0351 portion relevant of the fourteenth amend- 1979). provides: ment persons promulgated All born 2. The or naturalized the Unit- State of Texas has six con- States, subject jurisdiction independence ed thereof, to the stitutions since it declared its Republic are citizens of the United States and from the of Mexico in 1836. Four they during political period the State No were written wherein reside. State surrounding any chaos shall make or enforce law which shall Civil War and Recon- abridge privileges struction. The current constitution was draft- or immunities of citi- States; adopted following year, any ed in 1875 and zens of nor shall State the United many life, liberty, deprivé any person proper- has been amended times since Ar- then. or rights under the first republican their amendment. guarantee of a IV and article enjoin They seek to government.5 They allege form of direct members of a with comply state activities numerous officially religious minority who suffer ground of section 4 on the requirements by being singled discrimination sanctioned to discriminate operate those activities up public They for ridicule. out and held injunction They seek an against atheists. also claim that section has caused O’Hair any salaries to state against payment Society and several other members of the officials, jurors or because those judges, jury pre- service and has be excluded from pool allegedly selected from parties were of- running vented atheists from illegally excluded. atheists were from which receiving salary. fice and thus from a state perpetuation prevent seek to They also injunctions seeking In addition to based of atheists exclusion claims,7 five appellants seek to halt on these by enjoining jury service public office against that have been initiated them in Texas until cases jury election or selection unconstitutional.6 system. section 4 declared in the state court The first is a proceeding charging with criminal O’Hair their to sue on As the basis for disrupting City the invocation of the Austin claims, appellants allege they have these meeting on November 1977.8 Council been harmed both the existence and actions, four are civil two of The other operation Primarily, appel- of section brought solely against were effectively es- lants assert the section religion brought tablishes in Texas in violation of and two which were law; ty, process deny chal- nor to in this lawsuit because the State has not without due any person jurisdiction equal complaint grounds. lenged within its the the on those protection of the laws. U.S.Const., amend. 1.§ November sum- 7. On O’Hair was service, jury the call moned for but refused IV, 4 of the United States 5. Article section not that she because she would take the oath provides: Constitution required Sep- assumed would be of her. On guarantee every The United States shall to jury again tember 1978 she was called for Republican State in this Union a Government, Form of service, judge. but was excused the O’Hair protect and shall each of them alleges that on each of these occasions she was Invasion; Application against and on of the juror by prevented serving en- from as a the (when Legislature, or of the Executive the opinion In we will forcement of section 4. convened) Legislature against cannot be do- decide whether the circumstances of the mestic Violence. any cognizable injury, Appellants call led to but will first have that section 4 of the religion, Texas a state on the 1978 call. See infra section III—C. constitution establishes focus which is tantamount to the creation of a theo- standing Society is not affected derogation guarantee. cratic state of this Al- fact there is no evidence in the record though general as a matter courts should de- any specific allegation factual in the com- or plaint first, standing standing cide issues doctrine support the claim that atheists other component concept justiciabil- is but a ity. jury than O’Hair were excluded from service. Tribe, See L. American Law Constitutional See infra section IV. 3-7, 3-16, (1978). Consequently, 3-17 if an §§ clearly nonjusticiable issue is other reasons O’Hair, 168,020 (Tex.Dist.Ct.). 8. Texas v. No. standing than lack of a court its make pro tried to remove the state criminal O’Hair reaching standing ques- decision without court, ceeding the district court to federal tion. appeal remanded the case to state court. presents situation, This claim such a for suits originally consolidated from that decision was arising guarantee clearly under clause case, O’Hair, No. 79-1823 with this Texas v. present nonjusticiable political questions. E.g. (5th 1979), but that order was later Cir. June Borden, (7 How.) Luther 48 U.S. L.Ed. Tex vacated and the two cases were severed. see also Pacific States Tel. & Tel. O’Hair, (5th as v. No. 79-1823 Cir. Oct. Oregon, Co. v. 1979). panel Subsequently a of this court sum (1912). Note, generally 56 L.Ed. 377 A marily remand order of the district affirmed the Clause, Niche for the Guarantee Harv.L.Rev. O’Hair, (5th 607 F.2d 1005 Cir. court. Texas v. We will no' discuss this claim 1979) (denial supplement motion to record further. denied, affirmance), cert. and rule 21 905, prop- 6. We assume that the defendants are the parties against allegations er whom to raise the case en banc appellants.9 appel- We have considered this both The essence of First, have grievance decide three issues. does O’Hair proceedings lants’ is that these challenge constitutionality process equal violate their due and protec- or as applied? either on its face section section 4 operates because Second, standing to Society does the have judiciary exclude atheists from the and Third, if appel- 4? even challenge section jury Appellants service. contend that standing, lants federal should intimately claims that relate to their activ- court invoke the abstention doctrine and concerning religion ism matters are con- merits of the reaching refrain from sequently being by people tried who ease? against Standing biased predi- atheists. subjection cated appellants trial,

allegedly unfair pecuni- threat of II. loss if ary any of the civil cases is resolved reflects concern The doctrine of them, potential loss power about of the federal court liberty O’Hair’s if she convicted in lawsuits, as the proper entertain as well criminal case. place the federal court our democratic society. Thus the doctrine has its action, The district court dismissed this origins in “both constitutional limitations concluding subject lacked matter jurisdiction court prudential federal jurisdiction over state defendants limitations on its Warth v. exercise.” Sel judges, defendant that it should abstain din, respect with to the other A defendants.10 (1975) (citing Barrows Jack panel affirmed, divided of this court son, Hill, (5th holding F.2d 307 Cir. accord, (1953)); 97 L.Ed. 1586 Ko appellants that: no standing had to chal- Briscoe, rioth v. 523 F.2d lenge under establishment 1975). Despite relatively recent clause or to salary payments spate Court decisions elections; or state the court should abstain opaque doctrine remains and does not equal dealing protection, from with the due easy application.11 admit of process, claims; jury seating and guar- antee clause nonjusticiable claim raised a Perhaps the most fundamental as political question; there proof and was no pect of the doctrine is that it monetary in the damages record of attrib- particular plaintiff focuses seeking on utable to a of appellants’ violation civil court, bring to his claim before the federal rights. not on the issues or merits of the case.12 very suit, O’Hair, 9. The record discloses little information final v. basis of the Murchison No. appellants’ about the 273,748 clear, four civil cases aside (Tex.Dist.Ct.), ap- is not they assertion that are harassment de suits pears judgment that a default was entered signed to interfere with activities appellants, both and then set aside with O’Hair, Friday Society. O’Hair and the v. No. Society. respect 279,345 (Tex.Dist.Ct.), has been to trial. It 269,196 appears O’Hair, v. Frazer No. Hill, (W.D. 10. v. See O’Hair No. A-78-CA-220 (Tex.Dist.Ct.), only naming the other case 27, 1978). Tex. Dec. defendant, O’Hair as is dormant. cases, The other two both name Scott, Standing generally in the See Su- Society defendants, O’Hair and the as Analysis, preme Court —A Functional 86 Harv. relatively plaintiff been The active. in Strobel 645, Tushnet, (1973); L.Rev. 660-69 The New O’Hair, 271,161 (Tex.Dist.Ct.), v. No. al- who Abandonment, Standing: Law of A Plea for leged appellants her, slandered was award- 663, Cornell L.Rev. 663-65 damages $45,000. ed That award was over- appeal improper turned on dling because han- 11, Tushnet, 663-64, supra 12. But at see note judge. of a recusal motion the trial 681-88, (decisions concerning 699-700 stand- Society Separationists, Strobel, Inc. v. disposition ing surrogate aas on the serve (Tex.Civ.App.1980). S.W.2d 855 No further merits). proceedings appear place. to have taken The solely by rights existing virtue of a statute standing question whether gist The “Essentially, “alleged personal such a or appellants have constitution. question cases whether the consti- controversy in such in the outcome stake statutory provision on which the adverseness which tutional or that concrete assure be understood as properly of issues claim rests can sharpens presentation position a largely depends granting persons plaintiff’s for illu- which the court so Seldin, relief.” Warth v. ques- judicial mination of difficult Carr, 204, 500, 82 422 at 95 S.Ct. at 2205. Baker v. U.S. U.S. tions.” accord, (1962); princi These abstract constitutional v. Duke Power Co. Carolina Environmental ples, which reflect traditional mistrust of Group, Study judicial advisory commissions roving Cohen, (1978); Flast v. been distilled into two- opinions,14 have 1942, 1952, 20 U.S. part analytical framework Briscoe, (1968); v. Korioth judicial power Court. the federal Because must F.2d at 1274-75. While court remedy complain only injury to a exists appellants prop- determine whether are the ing in its party, the doctrine con parties constitutionality er requires stitutional sense a “distinct and of section rather than whether the issues palpable injury” plaintiff. to a Warth v. Cohen, Flast v. they justiciable, raise are 2206; Seldin, at at at 88 S.Ct. at accord, Valley Forge College Christian nature source of claims are rele- Separation Americans United for of Church Seldin, vant. Warth v. - State, Inc., -, L.Ed.2d Pevsner Lines, Inc., The constitutional dimension of the Air 493 F.2d Eastern 1974). doctrine derives from the “case or also doctrine mandates controversy” requirement jurisdiction of article III of federal court be invoked only the federal presents palpable injury Constitution thus when that distinct and the federal with a question fairly challenged court threshold can be traced to the con duct, concerning its power power entertain the law of federal so exercise power injuries. suit before it. remedial that case will redress the only Metropoli court Arlington Heights exercised behalf of a Village plaintiff who Development Corp., has suffered tan Housing threatened allegedly actual from an ac illegal Seldin, 498-99,

tion. Warth 422 (1977); Kentucky v. U.S. at v. Simon Eastern Welfare 2204-05; 26, 40-42, 95 at Regents Rights S.Ct. see Organization, 426 U.S. 96 University Bakke, 1925-26, 1917, (1976); v. 48 California 438 U.S. S.Ct. L.Ed.2d 450 265, n.14, 2733, n.14, Laboratories, Inc., 280 Payne 98 S.Ct. 2742 57 v. Travenol 565 (1978). denied, 750 injury 895, (5th Cir.), L.Ed.2d That may be to F.2d 898 cert. 439 Metromedia, City Diego, Washington 13. See Inc. v. of San to advise President Court’s refusal 490, 540, 2882, 2912, 453 U.S. 101 informally questions relating S.Ct. 69 to American J., (1981) (Stevens, dissenting); L.Ed.2d 800 neutrality. See Letter from Justice John Chief Oklahoma, 601, 610-11, v. Broadrick 413 U.S. Jay and the Associate Justices to President 2908, 2914-15, (1973); 93 S.Ct. 37 L.Ed.2d 830 8, 1793), Washington reprinted George (August Younger Harris, 37, 52, 746, v. 401 U.S. 91 S.Ct. Bator, Mishkin, Shapiro P. and H. P. D. 754, (1971); Cooper Depart 27 L.Ed.2d 669 v. Wechsler, Hart & Wechsler’s The Federal Navy States, ment of the of the United F.2d 594 (2d System Courts and the Federal 65-66 ed. 484, Cir.), denied, (5th 488 n.2 cert. 444 U.S. rejected 1973). The Constitutional Convention 926, 266, (1979). 100 S.Ct. 183 62 L.Ed.2d proposal which would have allowed the advisory opinions. See I courts to render See, e.g., States, v. United Muskrat 219 U.S. 1787, Federal 21 Records of the Convention 346, 250, (1911). 31 S.Ct. 55 L.Ed. 246 This 1911). (M. Farrand ed. salutary genesis Supreme rule has its

687 835, 118, 99 U.S. S.Ct. 58 L.Ed.2d 131 may institutions be competent more to ad (1978).15 questions dress the though judicial and even unnecessary intervention protect Although palpable injury rights,” Seldin, individual Warth v. 422 U.S. forming the basis for is most often 500, 2205, at 95 S.Ct. Court economic harm resulting from some official imposed has also prudential certain barriers conduct, see, e.g., Collins, Barlow v. 397 First, standing. the Court has held that 159, 832, 90 (1970), U.S. S.Ct. 25 L.Ed.2d 192 when injury the asserted a generalized the Supreme Court has established that a grievance substantially shared in equal person may have requisite personal citizens, measure by all or most that injury stake in the controversy inju as a result usually provide will not suffice to standing. ry aesthetic, conservational, or recrea Schlesinger v. Reservists Stop Committee to Morton, tional values. See Sierra Club v. War, 208, 220, 2925, 418 U.S. 94 727, 734, S.Ct. 1361, 1365, 405 92 U.S. S.Ct. 31 2931, (1974); parte 706 Ex (1972); L.Ed.2d 636 Lev Association of Data itt, 633, 634, Processing 1, 302 Service 82 Organizations Camp, v. S.Ct. L.Ed. 150, 153-54, 827, 829-30, (1937); Finch v. Mississippi S.Ct. State Medi (1970); L.Ed.2d 184 Association, United 765, (5th States v. cal 585 F.2d Cir. Gurney, 1202, (5th 558 F.2d 1977), Cir. 1978).17 Second, a plaintiff generally may denied, cert. 435 U.S. 98 S.Ct. 56 not rest his claim legal to relief on the (1978); L.Ed.2d 59 Scenic Hudson Preserva parties of third even if he FPC, Conference v. 354 F.2d 616 injury satisfy sufficient article III. (2d 1965), denied, Cir. cert. 384 U.S. Seldin, Warth v. S.Ct. at 1462, 16 (1966).16 L.Ed.2d 540 While it 2204; Brockette, Rogers 588 F.2d is clear that abstract injury is not enough to (5th denied, Cir.), 1060-62 cert. 444 U.S. establish standing, e.g, Littleton, O’Shea v. (1979); see 488, 493, 414 U.S. 94 S.Ct. Ullman, Tileston v. (1974); Cockrell, Pollard v. 578 493, 494, (1943). pru L.Ed. 603 These F.2d it is equally restraints, dential self-imposed concerns are clear that actual harm to individual values however, mandates; not constitutional they of an abstract or esoteric pro nature can may give way important to more considera vide the basis for standing. long tions as as the minimum constitutional

Wary being requirements See, e.g., “called are met. to de Eisenstadt cide questions Baird, abstract 438, 443-46, of wide sig 405 nificance though even governmental other (1972). 31 L.Ed.2d 349 Note, generally 15. See The Causal Nexus: values such as environmental concerns sufficed What Standing Must Be Shown for to Sue in requirement. to meet in fact Courts, Federal 29 U.Fla.L.Rev. 250 Study Duke Power Co. v. Carolina Envtl. 59, 73-74, Group, 438 U.S. 2630- Morton, In Sierra Club 57 L.Ed.2d 595 United States v. Challenging Regulatory Agency Students Pro- Court stated: (SCRAP), 669, 685-87, cedures Aesthetic well-being, and environmental well-being, like important economic in- That Sierra Club and SCRAP were cases con- gredients quality society, of life in our cerning section 10 of the Proce- Administrative particular and the fact that environmental Act, bearing dure has no on our § U.S.C. by many interests are shared the rather than acceptance injury of to abstract values as the the deserving few does not them make less of standing basis for the outside of context of legal protection through judicial process. of review administrative actions. See United Although deny Court went on to SCRAP, n.14, v. States 412 U.S. at 689 93 S.Ct. plaintiff in that suit because the had failed to allege at 2417 injured n.14. by that challenged was action, this statement has had tremendous im- Morton, 17. But see Sierra Club v. 405 U.S. pact development on the standing. of the law of 1361, 1365, S.Ct. 31 L.Ed.2d In two other cases the Court reached similar injury conclusions and held that to abstract A. pruden- the constitutional

With both mind, in we principles tial turn to the case voting rights The thrust of O’Hair’s before us. operates to claim is that because section in Tex holding exclude atheists from office III. running for precluded as she is from Appellant alleges that section 4 casting her ballot for athe office and from injures ways her several in and that she right istic candidates. Because a “citizen’s consequently challenge to its impairment by arbitrary to vote free of First, constitutionality. alleges she that the judicially recognized state action has been challenged provision interferes with her Constitution,” right by as a secured Second, right fundamental to vote. she Carr, Baker v. at 82 S.Ct. at 369 U.S. alleges prevents that her section 4 (three listed),19 there can be examples receiving a fair trial in the pending state complaint alleges that no doubt proceedings, civil and criminal thus violat- injury necessary in fact to demonstrate ing her process under the due “personal stake in the outcome of O’Hair’s Third, equal protection alleges clauses. she id. at at controversy.” See 82 S.Ct. she jury was excluded from service fun injury 703. to O’Hair’s Certainly because of her refusal to acknowledge the palpa is at least as right damental to vote supreme existence of a being. We will environmental, injuries recrea ble as the inspect each contention separately, accept- tional, in other values that have aesthetic ing true allegations as the material provide standing.20 cases sufficed to complaint construing complaint in See, that even if e.g., Warth v. argues favor of of Texas appellants. State Seldin, 2206; requisite in- complaint alleges O’Hair’s Cockrell, Pollard v. 578 F.2d at jury 1006.18 in fact it failed to demonstrate Appellants they recently argument have also have This was foreclosed Valley Forge the facial Col- constitutionali- Court. In Christian ty Separation of section 4 lege under the establishment clause. v. Americans United argument appeared State, Inc.,-U.S.-, At one time this tenable. 102 S.Ct. Church and Cohen, 83, 114, See 1942, 1959, (1982), rev’g Flast v. 392 U.S. 88 S.Ct. Americans 70 L.Ed.2d 700 (1968) (Stewart, J., State, 20 L.Ed.2d 947 Separation Inc. United for of Church concurring) (establishment “per- clause created HEW, (3d v. 619 F.2d 252 Court right” sonal constitutional to be free from excess organ- rejected argument an a similar raised entanglement state); of church and Association enjoin brought ization that had suit Processing Orgs. Camp, of Data Service v. religious public property insti- transfer of 150, 154, 827, 830, 90 S.Ct. 25 L.Ed.2d 184 that a claim under tution. The Court stated (1970) (individual may spiritual stake allege establishment clause failed first amendment values sufficient to confer controversy comported with the case or standing); Kurtzman, cf. Lemon 403 U.S. -, requirement. at 766. Id. at 602, 623, 2105, 2116, however, Valley Forge, our does not affect (1971) (establishment religion pecu- creates holding case that O’Hair has envelop liar likelihood that sectarian strife will voting rights and her claims raise her specific claim political sphere); Abington School Dist. of religious discrimination. instances Township Schempp, 374 U.S. (1963) (Bren- Sanders, Wesberry nan, J., concurring) (government sponsorship (1964): 526, 534-35, 11 L.Ed.2d religious of nonsponsored view diminishes attractiveness of country precious right free No more Vitale, views); Engel v. having a voice in the election than that of 421, 429-31, which, laws under those who make the (1962) (establishment religion tends to citizens, rights, good must live. Other we destroy government, degrade religion, and basic, illusory if the even most place pressure upon religious indirect coercive to vote is Our Constitution undermined. sponsored view); minorities to conform to Illi- people in leaves no room for classification Educ., nois v. Board of right. way unnecessarily abridges this (1948) (protection 92 L.Ed. 649 minority groups goal is crucial of first accompanying supra text. 16 and 20. See note religion clauses). Compare amendment cases supra cited note 16. alleged inju- specific causal between the restriction on ability connection her to vote. ry challenged and the conduct. It beyond Further, she asserting right her own however, peradventure, alleged that the in- vote, parties. not the of third jury directly stems from the existence of important Far more than specific these section 4 in the state constitution. O’Hair considerations, however, is the fact avers, and we agree, that the diminution of O’Hair has an impingement upon a her voting rights fairly can be traced to the right fundamental that is removed from the alleged exclusion of all atheists from candi- rough political process and tumble of the Texas, dacy for office in precludes judiciary: committed to the representation effective of that class. Cf. Martin, 399, 403-04, very purpose Rights Anderson v. of a Bill of was 454, 456-57, (1964) S.Ct. subjects withdraw certain from the (state may invidiously not limit preclude political vicissitudes of controversy, to the opportunities of racial run minorities to place beyond majorities them the reach of public office).21 event, for In the caus- and officials and to establish them as al connection between section 4 and the legal principles applied by to be alleged diminution of voting rights O’Hair’s life, courts. liberty, One’s is no less attenuated than the connection property, to free speech, press, a free Supreme Court found pro- sufficient to freedom worship assembly vide standing in Duke Power Co. v. Caroli- other rights may fundamental not be sub- na Environmental Study Group, 438 U.S. at vote; they depend mitted to out- 73-81, 98 (causal S.Ct. at 2630-34 connec- come of no elections. tion found between thermal pollution in Virginia West Board of v. State Education two North Carolina lakes and statutorily Barnette, limited liability power of nuclear plant op- Wesberry L.Ed. 1628 see erators in event of accident). Thus, nuclear Sanders, 17-18, O’Hair has met both wings of the constitu- 534-35, requirement tional The con- for by estab- lishing a direct and cerns that motivated the palpable Court injury that is causally related to challenged deny Schlesinger conduct. Reservists War, Stop Committee to 418 U.S. The next issue we must decide is whether 2931-32, perti- are not prudential considerations defeat O’Hair’s nent to this case. We do not believe that bring this action. As the Su- prudential notions of self-restraint preme stated, Court has the nature and area of invoked in properly source of the alleged injury has a direct involving cases the dilution of an individu- bearing on inquiry. Seldin, Warth v. voting al’s when a rights: fundamental U.S. at 95 S.Ct. at 2205. In this case, complaint alleges injury stemming from a prudential considerations are present to clogged process, counsel democratic it would be finding standing to sue. grievance O’Hair’s general- require plaintiff not a anomalous to to seek citizens, ized one O’Hair, shared all political but is a relief from institutions.22 Tribe, supra substantially also L. note § 13-19. ment even if new districts are legitimate equal size). States regulating have a interest office, public number of candidates for Bull- Seldin, 22. See 499- also Warth v. Carter, 134, 145-46, ock v. (1975) 849, 856-57, 31 (courts abstract decisions other should avoid people eligibility exclude a class of for governmental institutions are more able to religious office for such reasons as their make). frequently starting point For a cited for Gaffney Cummings, beliefs. Cf. analysis see United States v. Carolene Products 735, 751-52, Co., n.4, n.4, (1973) (state legislative redistricting (1938) (“There may 82 L.Ed. narrower deprives political group preexisting racial or scope operation presumption of con- voting power may violate fourteenth amend- stitutionality legislation appears when on its specific prohibition face to be within a 690 pleadings much or more in her as these whose to vote is any person

“like Gray v. standing to sue.” impaired, prior plaintiffs, any approach and other to 801, 805, Sanders, 83 372 U.S. S.Ct. pleadings overly would be technical.23 (citations omitted). (1963) 9 L.Ed.2d 821 McKeithen, 395 Jenkins v. U.S. See 421-23, 1843, 1848-49, 23 L.Ed.2d alleges that section 4 89 Although O’Hair S.Ct. voting rights, her she operates to restrict provide 404 These cases direct au- that to allege fails to either she intended supporting finding our thority run for office or that she was unable to in this case. for a individual candidate. particular vote believe, however, We the inart do not B. pleadings will fulness of defeat O’Hair’s Fouche, standing to sue. In Turner v. 396 next claim is that sec O’Hair’s 90 24 567 U.S. S.Ct. L.Ed.2d all atheists operates tion 4 to exclude Supreme Georgia Court considered a This, judicial jury service. she con and statute that allowed counties to limit mem tends, subjects her to trial before biased freeholders, bership on the school board to judges jurors repre not from a and selected although nonfreeholders could serve on community, sentative cross section of the grand jury that selected the school board derogation process equal her due explicitly upheld members. The Court It protection rights. settled both standing to challenge nonfreeholder’s litigants criminal defendants and civil though allegation restriction even was composition of challenge to made that the nonfreeholder to wished juries judges qualifications and the serve on the board or that he was harmed grounds. process equal protection due way by other limita freeholder Shore, See, e.g., Hosiery Parklane Co. v. 439 n.23, tion. Id. at 361 90 at 540 n.23. 322, 349, 645, 660, 58 L.Ed.2d U.S. 99 S.Ct. summarily Court has also af J., (1979) (Rehnquist, dissenting); 552 Pe judgment holding allegation firmed a 493, 502-04, Kiff, ters v. 92 U.S. citizenship give was sufficient 2163, 2168-69, (1972) (plurali plaintiff standing challenge reappor ty opinion); Avery Georgia, legislature. tionment of the state Mat 560-61, 891, 892, 97 L.Ed. 1244 thews Handley, York, (1953); Fay v. New (1959) (mem.), L.Ed.2d aff’g 287-89, 1627-28, L.Ed. (three F.Supp. (N.D.Ind.1959) judge (1947); Co., Thiel v. Pacific Southern court). significant It is that Matthews was 90 L.Ed. cited as authority finding for the of stand (1946); Virginia, v. West Strauder Carr, n.28, at 207 ing in Baker v. (1880). We 25 L.Ed. 664 that, 82 S.Ct. at 704 n.28. We believe taken point by going through need not belabor together, require these three cases that we analysis. Warth O’Hair has demand the articulation subsidiary facts her support general impact upon of section 4 allegation of a voting rights violation. trials. Constitution, plaintiffs such as those of the first based ten in those cases was Amendments, equally specif- injury which are allegation deemed all common to citizens ic when allega- held to be embraced necessarily implied by general within the Four- was teenth.”) generally Ely, Democracy supra See J. voting rights. injury See tion of an Tribe, supra Distrust 75-77 gen- L. note accompanying notes 19-21. O’Hair’s text 11-1 to §§ 16-6 to For a 16-13. discus- voting rights was eral claim of to her Pape, sion of a related issue see Monroe v. put and the defend- sufficient both the court concrete the existence of a ant on notice of (1961) (state adequate remedies that are in the- 8(e); Cleary, dispute. Plead- Fed.R.Civ.P. ory may reality). be unavailable in Essay ing Presuming: in Juristic Imma- An turity, Stan.L.Rev. possible Turner, reading

23. Another Mat- thews, and Baker is that

c. cause it and its members are in every practical sense identical. Association O’Hair’s final asserted for basis through ... the medium which its Standing is that section 4 caused her to to individual members seek make more jury duty excluded from because she refus effective the of expression their own ed swear to supreme her belief in a views. being. The fourteenth amendment “reach 449, 1163, 459, 1170, 357 only es 78 arbitrary class U.S. exclusions from accord, (1958); color, L.Ed.2d 1488 Sierra jury service based on race or Club but also v. Morton, 739, all 405 U.S. at 92 S.Ct. at ‘single any other exclusions which out’ (“an persons organization whose members are class of ‘for in- different treatment not ” jured represent members in based on some those a reasonable classification.’ review”); judicial for Florida, proceeding 57, 59-60, v. National Hoyt 368 U.S. 82 S.Ct. Freight 161, Motor Traffic v. 159, Association United (1961) L.Ed.2d 118 (quoting Her States, 372 U.S. 83 S.Ct. Texas, 475, v. 478, nandez 74 S.Ct. (1963) (association proper 670, rep- L.Ed.2d 709

667, (1954)). L.Ed. 866 as resentative of the of its interests members aggrieved by being excluded jury duty standing challenge with bring district because of her religious lack of belief as she court); Button, NAACP v. is aggrieved by being by juries tried chosen (1963) 9 L.Ed.2d system a under that excludes atheists. She (corporation legal has seek standing to re- clearly has standing sys infringement dress for of tem. Cf. Carter Jury Commission, other on and its behalf of itself mem- 320, 329-30, bers).24 (1970) (people excluded from jury service because of race aggrieved as as Neither v. Alabama NAACP nor those indicted juries and tried by chosen cases, subsequent however, have created a system under exclusion). racial per se granting organization rule an stand ing to sue behalf of its members

IV. Rather, any injury. organization for will standing Until have behalf of point this we sue on its only have dealt with members when: O’Hair’s to sue in her individ ual capacity, neglected and have (a) status its members have would otherwise Society as a litigant. Although, right; (b) to sue in their own rule, general a litigant may not raise protect ger- interests seeks to are rights of a third party, Singleton Wulff, organization’s purpose; mane (c) neither the claim nor asserted Ullman, Tileston v. requested requires participation relief an exception individual members in lawsuit. organizations allows to sue on behalf Washington Apple Hunt v. State Advertis- members who injured been Commission, ing challenged Alabama, action. In NAACP v. Applying recognized Court this associa hand, principles these to the we case at find tional and stated: Society has to seek re- petitioner’s If rank-and-file mem- dress violation of its mem- are constitutionally bers rights. entitled to voting every bers’ Under this claim [as- given right] sert it is ... manifest that Society member of the suffers individual right is properly assertable to his or her fundamental Association. . . . Petitioner appro- participate process is the in a democratic priate party to assert these be- rights, religious free from invidious official dis- deTocqueville, Democracy A. principle in Ameri- “the than association” has the (2d 1863) (no States). country ca 242 ed. other United broadly successfully more or more relied Society was or-

crimination.25 Because The abstention doctrine is exactly this which several re ganized to defend kind rather loose rubric under harm, grouped.26 requirements yet concepts it satisfies the lated distinct upon by relied NAACP branch of the doctrine Hunt and v. Alabama has The panel court was first litigate and the district standing to these claims. See Gres- developed in Texas Railroad Commission Community Organization ham Park Ho- Co., v. Pullman well, 1981). 652 F.2d 1233 n.8 “ ‘scrupulous 85 L.Ed. 971 out of a addition, Society In regard independence for the rightful process challenge equal protec- on due governments’ state and for smooth grounds the in which two civil suits working judiciary,” and- in federal was named a defendant. re hope “furthering the harmonious believe, however, We do not that the So- authority.” lation between state and federal ciety has to raise O’Hair’s individ- 645; 501, Id. at 61 at see Simmons v. S.Ct. process protection ual due and equal claims Jones, 321, (5th 478 F.2d 327 & n.5 Cir. join injunction seeking against or to modified, 1973), (1975). 52 519 F.2d This proceedings pending further state when a doctrine “authorizes abstention fed require- Hunt trials O’Hair. The eral court faces a constitutional for ments associational ambiguous which is with an intertwined met because both asserted the claims issue of state law and there is likelihood sought require the relief O’Hair’s individual law will that clarification of the state moot participation in lawsuit. This conclu- substantially question.” or the federal alter supported by sion is an examination of the 691, Poythress, (5th Duncan v. 657 F.2d 696 standing. rationale associational The 1981), granted,-U.S.-, cert. Cir. 102 affect constitutional violations 1426, (1982); 71 L.Ed.2d 647 Gibson v. S.Ct. legal alone and do not have Jackson, 1045, (5th 578 F.2d 1048 Cir. practical significance for the rest of the denied, 1119, 1028, 439 99 cert. U.S. S.Ct. 59 Society’s posi- membership. O’Hair is in (1979).27 and, indeed, represent tion to herself Despite many occasions in representative personal best her inter- arise, questions concerning state law ests. from the exercise federal (cid:127)“[a]bstention jurisdiction is not the rule.” exception, V. Water E.g., Colorado River Conservation 800, States, 813, appellants The state contends if v. 424 that even District United U.S. 1236, 1244, (1976); 483 bring this suit the court 96 47 L.Ed.2d S.Ct. 241, Koota, 248, nonetheless should abstain from v. reaching Zwickler 389 U.S. 88 391, 395, (1967); the merits of the 19 444 High claims. district court L.Ed.2d S.Ct. agreed prior Times, Busbee, 135, panel and the Inc. v. 621 F.2d affirmed that Ol’ 139 decision, Jackson, (5th 1980); stating that a on the v. 578 decision mer- Cir. Gibson F.2d only its could “be based tentative at 1048-49. While deference to state court interpretation adjudication may that should when proper state law” be resolution by Hill, made the state question courts. O’Hair of the federal constitutional is de at F.2d 310. pendent upon an uncertain issue state supra accompanying 25. See note 21 and Texas constitution. text. issue is found state has been invoked to allow courts doctrine Note, provisions See Federal interpret Abstention: Jus- Question both state Era, tice Frankfurter's See, County Doctrine in an Activist e.g., Harris and state statutes. 604, (1967). gener- Harv.L.Rev. Moore, 621-22 Comm’rs. Court v. ally Wright, The Abstention Doctrine Reconsid- 870, 876, Reetz 95 S.Ct. 43 L.Ed.2d ered, 37 Tex.L.Rev. 815 Bozanich, 788, 789, properly invoked Whether abstention is here by is not affected the fact that the state law at law,28 Forssenius, by courts, state law invoking Harman abstention doctrine is tantamount to “shirk Education, (1965); McNeese v. Board of ing responsibility solemn of the federal 673-74, 1436-37, enforce, ‘guard, courts to protect every (1963); Johnson v. American right granted or secured the constitution ” Co., (5th Credit 581 F.2d 529-30 of the United Kusper States.’ v. Pon 1978), Pullman does not call for abstention tikes, at (quot at 306 unambiguous, when state law is or has been ing Robb v. Connolly, 111 U.S. authoritatively construed the state (1884)); ac Id. courts. Abstention is not even re cord, Koota, Zwickler v. 389 U.S. at quired every case in which the state 397; at Harman v. Fors question interpreted statute in has not been senius, ,U-S. 534-35, 85 S.Ct. at 1181- Forssenius, by the state courts. Harman v. 82; Southwest Airlines Co. v. Texas Inter 1181-82; S.Ct. at Airlines, Inc., national 546 F.2d v. Hodge, Doud 1977), denied, 832, Cir. cert. 434 U.S. 98 491, 492, (1956); 100 L.Ed. 577 BT Invest 117, (1978).29 S.Ct. 54 L.Ed.2d 93 Lewis, 950, ment Inc. v. Managers, 559 F.2d (5th 1977). 954 Cir. Unless state law in Turning us, to the case before we question fairly susceptible is of an interpre conclude that the district court properly might tation that avoid or substantially abstained from reaching the merits of cer modify the question, federal constitutional tain by appellants. claims raised At the federal courts should exercise their properly time, however, same appellants have raised jurisdiction. tikes, Kusper invoked v. Pon several claims that application do not allow 51, 55, 303, 306, 414 94 S.Ct. 38 L.Ed.2d of the Pullman abstention doctrine. Conse (1973). Respect 260 for the primary role of quently, the district application court’s expositors state courts as of state law im the doctrine must partially be reversed. plies disregard the primacy of the Abstention is proper appellants’ as to judiciary deciding questions federal voting rights nothing claim. There is am- Forssenius, federal law. Harman v. 380 535, 1182; biguous about section 4. Either that consti- England U.S. at 85 S.Ct. provision tutional Louisiana Board of excludes atheists from State Medical Examin ers, 411, 416, not; 461, 465, public office in 375 U.S. Texas or it does S.Ct. (1964). L.Ed.2d 440 When possi challenge presents there is no to section 4 a straight- bility of a constitutional construction of a forward issue of federal constitutional law purpose judgments. The of abstention under this set of the state court But our First “unnecessary circumstances is to avoid Congress differently friction resolved and created the relations, in federal-state interference with im system granted federal court time portant functions, tentative decisions on jurisdiction, federal courts various heads of questions law, premature of state constitu today involve most federal constitu- adjudication.” Forssenius, tional Harman v. rights. tional 528, 534, 1177, 1181, 380 U.S. negate history .. . We would (1965). appro Abstention enlargement jurisdiction of the federal priate in other if circumstances the case courts, district if we held the federal court presents bearing difficult issues of state law stay ques- should its hand and not decide the problems concern, of substantial the im invalidity unambigu- the facial of an [of portance of which transcends result a ous state the state before courts de- statute] given case. Colorado River Water Conserva cided it. States, 800, tion Dist. v. United 814- (footnotes Id. at 91 S.Ct. at 510-11 16, 96 S.Ct. 47 L.Ed.2d 483 omitted), quoted Poythress, in Duncan v. (1976). 691, (5th granted, F.2d Cir. cert. - -, 71 L.Ed.2d Constantineau, 29. See Wisconsin v. (1982). Field, generally See Abstention in Con Scope stitutional The of the Pullman Cases: could, course, Congress have routed all Doctrine, Abstention 122 U.Pa.L.Rev. questions through federal constitutional 1080-1147 systems, saving Supreme] state court to [the say Court the final when it came to review of majority possi panel argued that the no room in which the state and there the neces- could maneuver obviate courts bility adequate remedy at state law adjudication. We fur- sity of constitutional reason to provided for this claim sufficient high costs involved in abstain- ther note the avail disagree. Although abstain. We challenge in- ing when the is a of an alternative state forum ability facially allegations impermissible cludes abstention, Duncan necessary condition for on the right discrimination and restrictions n.4, mere Poythress, 657 F.2d at 696 to vote. As abstention “involves discre- remedy availability of an alternative state equity powers,” tionary exercise of court’s is not a sufficient basis to abstain. Lake Bullitt, Baggett v. MacMullan, Association v. Carriers' applied only in the extraor- should be most Henckel, Moreno v. 431 F.2d dinary circumstances when fundamental Furthermore, in this case it is far 1300-01. voting rights such as are involved. appellants adequate have an from clear that Independent Ross v. Houston School District, (5th sec remedy 559 F.2d 942-43 Cir. at state law because article Henckel, 1977); Moreno v. 431 F.2d purports tion 29 of the Texas constitution (5th 1970) (civil rights Cir. cases are rights, in which to make the state bill of abstention); likely candidates for the least found, change.31 invulnerable to Wallace, Kirkland v. 403 F.2d jury system to the Texas Martinez, 1968); see also Procunier v. matter. The related claims that different juries that appellants being tried (1974) (high cost of abstention and that was include atheists O’Hair repugnance when facial concerns juror opportunity denied the to serve as a amendment); Koota, to first Zwickler v. 252, (prohibition 389 at 88 at 397 that predicated upon assumption U.S. S.Ct. of political distribution of certain hand- jurors 4 jury section affects service because Bullitt, bills); Baggett v. 377 at 376- positions public of trust. The hold office or (statute 84 required 1325-26 courts, however, have Texas state raised employees incorporating state to take oath possibility apply that section 4 does not act).30 person state subversive jurors. State, Craig In v. 480 680 S.W.2d the Society Both O’Hair and have claimed (Tex.Cr.App.1972), an atheist claimed that being by judges that tried who took office rights his under the first and fourteenth their under section violates to a fair being violated because amendments were trial. is not as to appropriate Abstention phrase help “so me the inclusion of these claims because there can be no ration- oath to the statutory jury God” in the led placed upon al construction the terms “of- systematic exclusion of nonbelievers from fice” “position public or of trust” that could jury service. The court held that defend- exclude judges from ambit section merit because it ant’s claim was without agree Judge We with Clark that even “[n]ot jurors constitutionally permissible was sweep juror . . . broadest decisions addition, than swear. In to affirm rather could convince that a Texas court could [us] Kern, Madeley this court in v. 488 F.2d 865 say explicit that the Texas Constitution’s corpus dismissed habeas holding exclusion of atheists from ‘office’ petition claiming religious discrimination in Hill, does judges.” not cover O’Hair juries empaneling of Texas because (concurring F.2d at in part and dissent- ing part). jurors required in were to take an oath con- Note, high supra (special guard against transgression 30. See note at 607-11 To delegated, exception powers civil declare that to the abstention doc- herein we trine). excepted everything Rights” “Bill general powers government, and out of the and all law shall forever remain inviolate ... 31. Article section 29 of the Texas constitu- contrary be void. provides: thereto shall me phrase help proceedings long-standing policy “so God.” The taining Craig limiting injunctions court noted that v. State had con- was designed to avoid.” juror’s Mackell, strued section to mean Samuels in oath should be administered the manner 764, 767-68, binding most on the individual conscience. Although Younger reading 866. A doctrine has plausible

Id. at of these respect been jury not an invoked with to certain civil cases is service is office or position proceedings in which vital meaning trust within state interests involved, see, Sims, 4 of the were e.g., Texas constitution. Be- Moore v. such an interpretation cause would moot U.S. L.Ed.2d question the constitutional raised appel- (1979) abuse); (protection of victims of child case, proper. Ap- lants in this abstention Vail, Juidice v. will

pellants pursue have to their jury (state (1977) 51 L.Ed.2d 376 contempt proc claims state court. Pursue, ess); Inc., Huffman v. (1972) (quasi- A problem sepa final concerns a criminal proceeding), ap should not be rate general strand federal absten plied to the civil suits that are at issue Appellants tion doctrine. have sought this case. comity Certain considerations of enjoin further proceedings in four civil in civil apply proceedings federalism cases one prosecution. Injunc criminal prosecutions, well as in criminal “the respect tive relief with pros to the criminal offense to likely state interests is less ecution O’Hair is explicitly by barred Harris, in a civil Younger v. proceeding.” Harris, Younger n.2, S.Ct. at 757 n.2 In case the (Stewart, J., concurring). In those cases Court stated that concerns of com which the Supreme applied Court has ity judicial between the federal and state Younger civil systems required litigation, doctrine to that federal courts abstain and, enjoining state criminal state was a more proceedings party importantly, a showing prosecution, absent of bad faith was seeking important to vindicate harassment, extraordinary instances of policies.32 The civil cases irreparable harm. Id. at the Society wholly private involve dis 755; accord, Fitzgerald Peek, putes appear and it does not that federal 754— (5th denied, Cir.), F.2d cert. any court intervention would affect impor Henry tant state interest. See v. First (1981); Henry v. First National Bank of Clarksdaie, National Bank of 595 F.2d at Clarksdale, (5th F.2d Cir. 300-01. we conclude Accordingly, that denied, cert. apply district court not Younger should prosecution private doctrine to disputes the four now O’Hair for disorderly arising conduct from pending in the state courts of Texas.33 disruption a city council meeting does stringent not meet re VI. quirement. her Consequently, claim for in junctive We relief have concluded that must be denied and decision she will raise have to her the district court to dismiss this lawsuit constitutional claims in time, the state must be the same we proceeding. parallel O’Hair’s reversed. At claim declaratory emphasize for that is a relief must be dis our decision narrow one as well declaratory missed because “a that does not merits of judg any reach the claim ment precisely result in We have appellants. same raised held that [would] disruption appellants interference with and to sue in their Wright, Cooper, imply plaintiffs 32. C. A. Miller & E. We do not 33. that are entitled injunctive demonstrating Federal Practice and Procedure § relief without that Anti-Injunction these civil suits fall outside the Act, 28 § U.S.C. allege, disregards not claims, she does and, claims for some capacities, individual I, Article section We do construction of capacities. tenable representative in their would ei- opinion as to whether any of the Texas Constitution not intimate deprived any question, has been the federal constitutional appellant ther avoid in injured has been right or failure to demonstrate ignores O’Hair’s made decision must be That at law for any adequate remedy manner.34 she has no that proceed- court after further the district litigant as a she advances the claims ings. following parts three Texas courts. The they are identi- claims discuss O’Hair’s complete also determined We have opinion. majority III of fied in Part in this case. appropriate is not abstention to the classification While I would adhere does not re- Again, such a determination panel opinion, out of claims set claim. any on the merits of flect a decision Hill, 1981),I 641 F.2d 307 O’Hair court to determine It is for the lower for framework here adopt majority’s deny operated 4 has whether section convenience. Society a fair trial or to or the O’Hair Society’s or the members of deprive O’Hair Whether there is voting rights.

their I. necessarily will turn on that right to relief reiterate that our deci- determination. We A. concerning standing and abstention

sions claim the first majority characterizes viewed in the pleadings are based claim, rights saying that O’Hair voting as a light appellants, favorable to the most both from vot- precluded alleges that she re- only will be entitled to appellants and from hold- ing for atheistic candidates allegations.35 upon proof lief Of their fact, the in Texas.1 In ing elective office PART, IN AFFIRMED IN REVERSED appear in the com- word “vote” does PART, AND REMANDED. allegation even plaint, and O’Hair makes that she is remotely resembling a claim TJOFLAT, Judge, Circuit with whom vote atheistic deprived of GARZA, Judges, join, con- FAY and Circuit com- Although cryptic candidates. O’Hair’s dissenting part: curring part interpretation, plaint generous demand does manufac- majority in this instance provide In its zeal to a forum for the pleaded. I there- values, tured a claim she never first amendment vindication of “voting my over established fore limit discussion majority roughshod rides allegation did with claim” to the standing requirements, endows O’Hair prove example, appellants will have to Although 35. For do not now decide we unconstitutional, actuality led to the exclusion 4 is is difficult to distin- section 4 in Watkins, guish Appellants judicial this case from Torcaso v. service. of atheists (1961): by 81 S.Ct. tried not entitled to have their cases merely right They be atheists. repeat again neither a We reaffirm that by judges a were not selected from who tried consti- State nor the Federal Government can group were excluded. Cf. from which atheists profess tutionally person a belief force a “to Texas, Akins v. religion.” can or disbelief Neither 1276, 1279, (defendant (1945) has constitutionally pass impose require- 89 L.Ed. laws or proportional representation against of his religions no ments which aid all believers, as non- systemati- may religions jury, not race on but state and neither can aid those own jury cally ser- of minorities based on a belief existence God exclude racial religions vice). those founded different beliefs. (footnote omitted). Id. at 81 S.Ct. at 1683 quarrel with the treatment I have no 1. Because Dist., Indep. See also Roe v. Klein School No. Society Separationists IV of in Part of 30, 1981) (S.D.Tex. (question Dec. H-80-1982 majority opinion, were write as if O’Hair I application inquiring on teacher form whether only plaintiff. applicant supreme being believed in a unconsti- tutionally applicant’s privacy interferes with rights). make, ity that 4 excludes her from relies on three cases extraordinarily elective office. flimsy precedential value. standing lacks to assert this claim. standing entire discussionof in Turn- III Article of the federal Constitution “re- Fouche, er 90 S.Ct. quires the who invokes party the court’s (1970), L.Ed.2d the majority’s principal authority personally to ‘show that he has a authority, occupies single footnote: some or suffered actual threatened Georgia’s contention no appellant that putatively illegal as a result of the conduct has to raise claim that the [the defendant,’ Gladstone, Realtors v. membership limitation of school-board Bellwood, 91, 99, Village of Equal freeholders violates the Protection Clause the fourteenth amendment] injury ‘fairly that the can be to the traced without merit. The appellant Calvin challenged likely action’ and ‘is be re- freeholder, is a appellant Turner but the decision,’ by dressed a favorable Simon Joseph Heath is not. Heath’s motion to Rights Org., Eastern Welfare Kentucky was granted by intervene the District express Court purpose adding a (1976).” Valley Forge Chris- party plaintiff to the case to ensure that College tian Sepa- Americans United for the court could reach the merits State, Inc.,-U.S. ration of Church Georgia issue. argues also that the ques-

-,-, properly tion is not before us because the The plaintiff must record is devoid of evidence that the free- specific, allege concrete facts demonstrat- requirement holder actually operated has ing challenged practices harm anyone to exclude from the Taliaferro [her], and that personally would [she] County board of ap- education. But the tangible in a way benefit from the court’s pellant allegation Heath’s that he is anot necessary intervention. Absent the alle- uncontested, Georgia freeholder demonstrable, gations particularized hardly urge county can her officials injury, there can be no confidence of a depended ignore provision on to power “real need judi- to exercise the law. cial review” or that relief can be framed n.23, “no required pre- than U.S. at n.23. by the [broader] cise facts This brief ruling analysis to which the discussion includes court’s applied.” would be requirement and has been cit- ed no relevant case in the Seldin, Warth v. twelve years since Turner was decided.2 2197, 2210, 45 (1975) (footnote Moreover, if Turner had person held omitted). and citation to challenge the constitution- allege O’Hair does not that she has at- ality disqualifying of a law from public him tempted to or intends to seek elective of- alleging demonstrating office without facts fice. Nor she does otherwise allege harm prospective individual benefit from actual or injury necessary threatened interference, judicial it would have been however, confer standing. majority, Seldin, supra. overruled Warth v. But insufficiency characterizes the of O’Hair’s Turner not did so hold. inartfulness, pleading as mere and holds allege Turner, the failure specific facts dem- In the school board members onstrating particularized elected, harm not bar were appointed by does but were O’Hair’sclaim. For holding, major- county grand jury. qualifications the only only any standing proposition having Turner has cited in been one not for to do with the any case specificity plaintiffs of sort. In de allegations, Ciudadanos Unidos San of a but for Comm’rs, Hidalgo County Jury Juan proposition may v. Grand a the that civil suit be main- 807, denied, by exclusionary 622 F.2d cert. tained the victims of a state’s 964, practices. 67 L.Ed.2d (1981), panel a of this court cited Turner Carr, supra, v. that residents Baker held membership residency were and

for board There is no indication status. freeholder in Tennessee who were of certain counties applied for board members prospective that to vote for members Gener- qualified advanced their or otherwise position the a suit Assembly standing had to maintain al Heath, Thus, the nonfree- own candidacies. an state law effected for a declaration that challenge standing to who had holder equal them deprived that of apportionment apparently had al- requirement, freeholder application limited protection. Whatever everything nonfreeholder could leged3 v. have to O’Hair’s stand- might Carr Baker met all alleged: that he possibly have voter, rights as her a ing to sue vindicate except membership qualifications for board whatever to the application has no the case status, grand jury that the could freeholder namely, that sec- allege, did claim O’Hair lawfully appoint him to school not office. 4 excludes her from tion board, appointed. he been and that had not Stop Schlesinger v. Committee to Reservists of acted on The exclusion nonfreeholders War, 223 n. separated directly. Since he was Heath (1974).4 n. by any neither oth- membership from board by a qualification, er nor declara- personal Thus, holding that majority’s election, candidacy, nor by only of a challenge section 4 as has him, appoint by grand jury’s failure to is prospective for elective office candidate was, requires, directly he as Warth Seldin support. a devi- precedential without Such challenged individually by harmed standing requirements ation from settled contrast, practice. By allegations O’Hair’s notion only can be to the that the ascribed suggest directly do that she not is harmed first amendment vindication cherished by exclusionary the asserted effect sec- of those re- values counsels a relaxation Heath, separated tion 4. Unlike she is Supreme expressly Court quirements. The office, impact and from the asserted Valley Forge repudiated this notion by attempt, the absence intention, to even an run for elective office. College v. Americans United for Christian - State, Inc., Separation of Church majority The other two cases cited -, 752, 7Q L.Ed.2d 700 disposed quickly. more Mat- plaintiff alleging which that a held Handley, thews v. (1959) (mem.), aff’g violation must an Establishment Clause (N.D.Ind.1959) F.Supp. (three-judge “as a identify personal suffered court), nothing to do with whatever consequence standing. Matthews, In the district court error, psychological other conse- than failure dismissed for to state a claim a quence produced by observation presumably complaint by taxpayers alleging Indiana disagrees.” of conduct Id. with [he] income the state tax was unconstitu- at-, at 765. had legislature tional because can be distin- Nor cases] [earlier as reapportioned required by been the Indi- guished on consti- ground [other Carr, ana Constitution. See Baker v. provisions] way in some less tutional n. 702 n. “fundamental” the Establishment than opinion dis- a norm Each of con- Clause. establishes no standing, trict court makes mention of government duct which .. bound . the affirmance Court greater memorandum honor —to no or lesser extent decision. support infirmity any propo- subsidiary general authority tion of facts to Turner’s violation,” Majori- concerning specificity allegations allegation voting sition aof necessary compounded by recognize ty Opinion p. appears to confer Handley the fact the case nowhere discloses Baker Carr have Matthews allegations. Heath’s bearing on O’Hair’s public office. her exclusion from that, majority, 4. The which states “these three require cases that we the articula- not demand any than other B. inscribed Constitu- tion. To the Appeals extent the Court of Even if O’Hair had relied on a view of under which section the district court nonetheless the Art. Ill burdens diminish as the “im- properly reaching abstained from the mer- portance” of the claim on the merits in- claim, its of her because a decision on the creases, reject we that notion .... [W]e only merits could be based a tentative know principled of no basis on which to interpretation of state law that should be create a hierarchy of constitutional values by made the state I quarrel courts. have no or a complementary “sliding scale” of majority’s with the princi- discussion of the might permit respondents abstention, ples of only with its conclu- judicial power to invoke the of the United sion that section 4 unambiguously excludes States. public atheists from office in Texas. On at-, Id. Although 102 S.Ct. at 764-65. contrary, section fairly susceptible 4 is majority pays lip Valley service to of an interpretation that would avoid the footnote5, Forge in a holding its flies in the question. federal constitutional face of that decision. I, Article section of the Texas Constitu- requires plaintiff Article III al- provides: lege only injury, inju- but also that the religious No test shall ever required be ry results putatively illegal from the con- qualification office, as a any public defendant, duct of the can fairly be traced trust, State, anyone in this nor shall be challenged action, to the likely and is to be holding excluded from office on account redressed Slip favorable decision. See sentiments, religious provided his he op. p. p. supra. Having in- acknowledge Supreme the existence of a dulged the fiction that alleges injury Being. traceable to majority section com- pounds its error by simply ignoring the fact added). (emphasis that her complaint imply does not even majority asserts that the italicized any defendant engaged in or threatens language unambiguously of section 4 ex- engage illegal conduct. The district Texas, public cludes atheists from office in court cannot conceivably fashion relief that and that “there is no room in which the will stated, benefit Crudely O’Hair. it is state courts could maneuver to obviate the impossible to ascertain what she would have adjudication.” necessity of constitutional the district court do to whom. Since O’Hair disagree. I Majority p. 694. Opinion does not allege that any of the defendants one of its two ambiguous, Section 4 is has engaged in or engage threatens interpretations conforms first unlawful her, conduct injure that would amendment. injunctive relief would inappropriate. be Indeed, language may readily if O’Hair The italicized should ever run for office and be operation interpreted specify only excluded that one who there is no of a suspect acknowledges reason to existence will be through the conduct Being shall not be excluded from office on defendants in sentiments, Similarly, case. religious the ben- account of his with no efit she would derive declaratory from a provision way one or the other for one who judgment, other This, than psychological indeed, gratifi- acknowledge. does not so cation, altogether words; Thus, indeterminate. meaning the literal the exclu- the conclusion that O’Hair lacks standing acknowledge sion of those who do not because alleges she no Supreme Being is reinforced a mere inference from by the fact that she alleges illegal language con- of section 4. Just as the duct from which a statement, favorable might ejected decision person “No shall be provide relief. library, provided quiet,” he is does not Majority Opinion p. n. II. quiet who is that one not imply

necessarily 4 does section not neces- so ejected, will be deprived that is alleges next she O’Hair not one who does acknowl- that sarily imply to trial a fair of her constitutional Supreme Being shall of a the edge existence who prevents those section Texas because that account. hold on not office Supreme Being acknowledge a do not interpretation the literal that recognize I at face majority takes being judges.6 meaning, its natural 4 is not of section itsof that because allegation value O’Hair’s the meaning. intended But may not be its against discrimination unconstitutional suggested whether not the inter- question is to her atheists, operates deprive section “correct,” it but rather whether pretation is fact, process In due a trial. O’Hair’s fair sufficiently require tenable to construc- is challenge the constitutionali- not claim does is, if by state It because the court. ty 4. section had the inter- opportunity to Texas courts Texas, litigating to each case she As 4, they interpret to seek pret section would can- she process due claim that O’Hair’s as to be it so constitutional. presiding get not a fair trial because to construe stat Texas courts undertake attempting her. against biased In judge is legislative so that the intent to enact utes claim, under- to her O’Hair establish laws out. will be carried is biased prove judge take to Texas, (Tex. Faulk v. S.W.2d may of- against atheists generally. banc). Cr.App.1980)(en even Consequently, against fer of this bias atheists as evidence face, on if a state law is unconstitutional its I, section of the Texas Article Constitu- it Texas courts will seek construe so as to deciding a Conceivably, tion. court Groves, parte constitutional. Ex process con- might due claim even O’Hair’s (en (Tex.Cr.App.1978) S.W.2d that section 4 creates such a likelihood clude banc). underlying policy Because the is to appearance of unfairness as such an legislative purpose effect the to enact con presumption raise an irrebuttable statutes, principle ap stitutional must dis- judge affected is biased therefore ply to the equally construction qualified. propriety event is But in no constitution, leading purpose for the in con hearing case particular judge of a O’Hair’s struing provision a constitutional likewise constitutionality of sec- determined Gragg to effect the intent of the drafters. not tion 4. If section 4 does violate Dist., Cayuga Independent School a yields amendment but nonetheless first dismissed, (Tex.), appeal S.W.2d judge, process permit due will not biased 50 case; preside over O’Hair’s judge Robinson, Tex. Cox conversely, even violate if section does Thus, W. there is no amendment, claim process due first O’Hair’s sufficiently but that 4 is question section judge. for fails as unbiased Seen ambiguous that court con might Texas is, challenge what it O’Hair’s to the fairness it to be so as There strue constitutional. poses thus fore, significant of her Texas trials correctly the district court declined to question, jurisdiction. or abstention because Kusper its exercise v. Pon tikes, constitutionality of challenge not does 4.7 alleges litigant allegation claims to the cannot O’Hair’s 6. O’Hair also she receive judges. concerning systematically fair trial because Texas discrimi- jurors. majority nates atheistic majority propo- cited The cases claim must be on dismissed holds that civil liti- that criminal defendants sition Although grounds. disagree I with abstention composi- gants analysis majority’s as a of O’Hair’s claims judges juries qualifications and the tion of jury litigant, agree that claim must be I protection grounds, process equal see due my discussion of I therefore restrict dismissed. Opinion p. Majority contrary. None the cited cases involves inadequate. states, majority pan- remedies O’Hair The “The The seeks for the process injunctions due violations are argued that majority possibility el anof against proceedings pending against adequate remedy at state law for this claim her. These equitable should be remedies provided sufficient reason to We abstain. because jurisprudence denied sound re- Although disagree. availability of an quires “that equity courts of not act should alternative forum is a necessary state condi- moving . . . when the an ade- party has abstention, availability tion for the mere of quate remedy at law suffer and will not remedy an alternative state is not a suffi- irreparable injury if re- equitable denied abstain.” Majority Opinion cient basis to Harris, Younger lief.” 43- (citations p. omitted). majority The (1971). 27 L.Ed.2d 669 badly the argument. misconceives The Littleton, See also O’Shea v. contend, I panel majority did not nor do (1974). now, availability that the of an alternative has readily O’Hair an ade- available to her remedy at law calls for federal abstention. quate remedy at law: a in each motion rather, an point, party The is that a with Texas court where to litigant she is a dis- remedy at adequate law should be denied qualify judge on the that he ground is equitable equi- This is a doctrine of relief. biased her. O’Hair that she argues ty, comity. majority’s not The cases do of required should not be remedy to seek this adequate remedy illustrate an state is that very judge alleges from the whom she abstention, basis for insufficient biased. This contention merit. is without they nothing whatever do with to to Motions recuse are routinely made to the equitable withholding remedies. judges who are allegedly disqualified, and judicial system our assumption demands the majority’s response second to the set- judges that will hear such fairly. motions equity should not act when tled rule that adequate remedy there is an at law is that I my rejection have indicated the no- of it is that O’Hair has a reme- not clear such tion that O’Hair’s challenge to the fairness I, section Tex- dy because Article of the of her Texas trials is a on the direct attack purports to state as Constitution make the constitutionality of section even 4. But ac- 4, in- rights, bill of which includes section notion, cepting does, as the majority change. argument vulnerable This fails equitable to sought relief should be with- First, light judges held in for two since Texas adequate remedy at law reasons. to uphold available O’Hair. must majority’s presumed treat- be the federal ment of this principle altogether constitution8, settled presume we must that a Tex- qualification presume they judge attack on the do to hear a courts should not will of a selection, nearly case based nor method his this court otherwise. As announced any remotely Alford, suggest does twenty years ago cases that a Nesmith v. process challenge impartiality denied, judge’s due to a F.2d cert. may put constitutionality issue Finally, do, state law. must, none of cases the cited assume Su that under the “We implies Constitution, Clause, other than premacy values Article 6 of the process indirectly due vindicated will construe state statutes courts [state] process judge’s qualification. due attack on the keeping federally para with ordinances principles.” mount constitutional judges that, judges judges State as well as or affirm .. . federal swear swear “I All Texas allegiance ability my preserve, protect, to the Constitution of United will to the best States, and there is no reason think that and laws and defend the Constitution ” frequent opin- because their differences and of this State. ... Tex. United States Const, XVI, as to how ions be in- That oath or affirmation document should art. 1.§ sup- terpreted doing that all are or affirmation to their mortal is in the oath substance discharge port best their oath States re- of office. of the United the Constitution Mata, VI, Hodge quired by Sumner v. Van art. cl. 3. U.S.Const. Texas, Tex.Cr.App. This S.W.2d state- merely prin- ment a recent reiteration of ciple required judges light Supremacy that since state In Clause Constitution, uphold judges, Su- the United States federal taken oaths of office IV. one not decline strike down will judge as uncon- the Texas Constitution

section of summary, alleges no claim that In another section of because stitutional deprived she is to vote for him it is inviolate. tells Texas Constitution atheistic candidates office. She I, complain that sec- lacks Article judge will not enforce Just as a Texas 4, of the Texas Constitution ex- unconstitutional, so he will not 4 if it is office, her from elective because she cludes duty merely from his constitutional shrink intent to run for alleges attempt such purports to make section because section office, and no relief district because Second, change. major- impervious 4 to will benefit her. Even court could fashion “it is far from ity, which concludes that challenge section 4 if she to on had adequate remedy clear that an [O’Hair has] basis, ambiguity of section man- this law,” erroneously places at state abstention. dates federal that there is defendants the burden show equitable entitled to the is not O’Hair remedy. party seeking equita- such a The presided Texas trials relief she seeks from requisites ble the basic relief must establish judges, because she biased by allegedly over relief, including inadequacy of equitable remedy at law for that adequate has Littleton, 414 legal of remedies. O’Shea v. claim. 488, 502, 669, 679, 38 L.Ed.2d U.S. (1974). Thus, to the extent lacks I that O’Hair would hold clear,” unconstitutionally effect of section 29 is “far from complain that she However, I jury service. O’Hair has not carried her burden to show excluded properly ab- court agree that district adequate remedy that she has no at law. that claim. deciding stained from so, being equitable That relief must be de- nied. court’s affirm the district I would Since I dissent complaint,

dismissal of O’Hair’s judg- majority portions from those III. contrary. ment to the O’Hair’s final claim is that she is exclud- jury duty ed from because she does not REAVLEY, whom Judge, with Circuit acknowledge Supreme Being. major- a RANDALL, RONEY, GEE, and GARZA ity holds district court must ab- join, dissenting: Judges, Circuit deciding stain from this claim because it is I affirm the district summarily would jury position uncertain whether service is a lack both plaintiffs court’s dismissal. of public trust within section 4. I would controversy ripe for remedi- standing and a hold that lacks assert courts. by al intervention the federal alleges claim because she not that she (cid:127) remain Standing ripeness may jury has been excluded from service but it; but with- “opaque,” majority puts as the However, only agree that she would be. I has plaintiff allegation out an that even if standing, O’Hair has abstention been, be, injured or in likelihood will all proper, both because of the uncertain unconstitutional supposed because of the application majori- section noted conduct, we are to says I read the law ty ambiguous meaning and because of the Valley Forge complaint. dismiss the I discussed in Part of this College Christian v. Americans United - State, Inc., Separation dissent. Church preme state long affirmed that relations between Court has maintained that “federal liberty presume judiciaries not be disturbed courts are ‘not at ... and federal should equal- by “unnecessary courts conflict between decision of the state court would other- rights required by ly guard protect secured wise law than is the fundamental bound - Councilman, Lundy, Schlesinger U.S. Rose v. the land the Constitution.” -, -, 71 L.Ed.2d 43 L.Ed.2d Royali, (1975), parte parte Royali, (1982), quoting quoting Ex Ex 6 S.Ct. at 740. 29 L.Ed. 868 -, I, ticle of. the 70 L.Ed.2d Section Texas Constitu- Seidin, (1982); Warth v. proscribes the constitutional similarly Plaintiffs and others situated to systemat- fair trial as an incident opin- When Court writes an (sic) against ic those descrimination who provision ion that holds in a state consti- acknowledge do not the existence of a tution conflict with the United States supreme being judge- exclusion from Constitution, presume federal courts should ships, juries and other offices or that state officials follow the will Constitu- of Texas. trusts of State declared, tion so unless and until some official refuses or so. fails to do The Su- Nothing actually is said about an atheist preme Watkins, Court held in Torcaso v. being holding Nothing barred from office. 6 L.Ed.2d 982 about a vote denied or cast for a candidate (1961) that a state office not be denied taking barred from office. Just a clause in to one express because refusal to a belief plaintiffs the Texas Constitution that feel supreme being. We not employ need they “descriminates” them because the vast prolixity apparatus of the fed- being. do not acknowledge supreme This eral judiciary to repeat holding simply will keep plaintiffs in court exist- under because we find an unedited constitution ing precedent, Tjoflat Judge demon- clause, with a presence nullified strates. objectionable is to one who sues. It It bemay majority permits that the only is salutary purpose re- the district court to declaratory render a quirement that we not entertain lawsuits judgment constitutionality about the grievance where there or concrete clause in the Except Texas Constitution. dispute warranting judicial resolution and judicial for the waste of effort to do the remedy. It a peculiarly appropriate re- obvious, that judgment would itself do no quirement suit now before us. However, harm. the language in the ma- say Plaintiffs they threatened jority opinion allowing about this “chal- against by discriminated the Texas Consti- lenge” system to a that excludes atheists tution, they particularize. never Their judicial system duties and to a complaint pleaders’ rambles on about process denies protection due and equal dissatisfaction with the laws and officials of an atheist because of the unconstitutional Texas and about plaintiffs what want— composition juries and selection of from order halting against suits them to judges talk, is disturbing indeed. It —this $5,250,000 an award of for violation of their disturbing because it invokes policy a new rights. civil They aver: inviting in this circuit broadside court chal- By systematic reason of the descrimi- lenges “systems” thought disliked (sic) judges juries nation as to in said to conflict with the Constitution. And it is against persons courts who do not ac- disturbing may suggest because it that the

knowledge the supreme existence of a supposed district court is “a sys- correct being, deprived Plaintiffs are of their tem that excludes atheists” striking to a fair trial in each system officers, down the judges and all. — of said courts and as each of the above I dissent. stated cases now pending in said courts I, Enforcement of Article Section of

the Texas Constitution is intentionally

descriminatory (sic) against a cognizable person

class of religion on the basis of

whereby real injury and immediate is sus-

tained or direct is threatened to

the property rights Ar- Plaintiffs.

Case Details

Case Name: Madalyn Murray O'Hair and Society of Separationists, Inc. v. Mark White

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 12, 1982

Citation: 675 F.2d 680

Docket Number: 79-1397

Court Abbreviation: 5th Cir.