CARLOS E. MOORE v. GOVERNOR PHIL BRYANT, in his Official Capacity
CAUSE NO. 3:16-CV-151-CWR-FKB
September 8, 2016
MEMORANDUM OPINION AND ORDER
Plaintiff Carlos Moore filed this lawsuit against Governor Phil Bryant challenging the constitutionality of the Mississippi state flag. The flag includes the Confederate battle emblem in the top left corner. Moore alleges that the incorporation of the Confederate battle emblem in the state flag violates the
Before reaching the merits of the case, the Court asked the parties to submit simultaneous briefing on standing and the political question doctrine. The parties did so and presented oral argument on April 12, 2016.1 After considering the briefing, oral argument, and applicable law, the Court is ready to rule.
I. Factual and Procedural Background
A. The Parties
Carlos Moore is an African-American attorney and Mississippi native who has lived in the state for most of his life. He resides in Grenada, Mississippi where he operates his own law firm and represents clients in state and federal courts throughout Mississippi.
Governor Phil Bryant, the chief executive officer of the state, is sued in his official capacity. He is statutorily mandated to “see that the laws are faithfully executed.”2
B. Constitutional Claims
Moore contends that Mississippi‘s state flag “is tantamount to hateful government speech [which has] a discriminatory intent and disparate impact” on African-Americans, in violation of the Equal Protection and Privileges and Immunities Clauses of the
To support his allegation that the Confederate battle emblem incites racial violence, Moore points to the June 2015 mass killing of nine African-Americans at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. In addition, he cites a November 2015 incident at a Wal-Mart in Tupelo, Mississippi when a man set off an explosive to protest Wal-Mart‘s decision to cease the sale of Confederate-themed merchandise. Finally, Moore references a 2014 hate crime at the University of Mississippi where university students draped a noose and the former Georgia state flag—which contained the Confederate battle emblem—around the neck of a statue of James Meredith, the University‘s first African-American student.7
Moore argues that the Governor should be enjoined from enforcing state statutes that adopt the flag‘s design and mandate or allow it to fly on public property.8
Although the Governor has not been required to answer these specific allegations, he has filed a motion to dismiss contending that Moore‘s allegations fail to state a plausible claim for relief.
II. Historical Context
A. The Origin of the Confederate Battle Flag
Moore‘s claims challenge the constitutionality of the Mississippi state flag; however, his allegations hinge on the Confederate battle emblem contained in the state flag. Thus, the appropriate starting point is the historical landscape which spawned such a divisive emblem.
On January 9, 1861, Mississippi followed South Carolina‘s lead and became the second state to secede from the Union. Some argue that Mississippi‘s decision to secede was not at all connected to slavery, and instead assert that it was in response to an overreach of the federal government. Those who put forth this narrative need only read Mississippi‘s Declaration of Secession. It said:
In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course.
Our position is thoroughly identified with the institution of slavery—the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation.
There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin.9
To put it plainly, Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated upon white supremacy. As Confederate Vice President Alexander H. Stephens stated in March 1861, the “corner-stone” of the Confederacy “rests upon the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition. This, our new government, is the first in the history of the world, based upon this great physical, philosophical, and moral truth.”10 Although America‘s Constitution initially fell short of its promise to treat all people equally,11 the Constitution of the Confederate States of America was a definitive step backward. It “overtly protected ‘Negro slavery‘”12 by codifying the exclusion of people of African descent from civil protections in perpetuity.13 In short, a core tenet of the Confederate Constitution “was the interminable white man‘s right to own black slaves.”14
At his inauguration in February 1861, Confederate President Jefferson Davis said, “[t]he time for compromise has now passed, and the South is determined to maintain her position, and make all who oppose her smell Southern powder and feel Southern steel.”15 On April 12, 1861, the Civil War began at Fort Sumter in South Carolina. A bloody four years followed, during which more American soldiers died than in any war before or since.16 In reflection of the war, President Lincoln noted: “All dreaded it, all sought to avert it. . . . Both parties deprecated war but one of them would make war rather than let the nation survive and the other would accept war rather than let it perish, and the war came.”17
The banner commonly referred to as the “Confederate flag” was not the flag of the Confederacy; it was adopted primarily for use by Confederate armies during battle.18
B. Keeping the Spirit of the Confederacy Alive
Upon the readmission of the Confederate states to the Union, the South committed itself to two “new” causes—the continuation of a racial caste system and the endurance of Antebellum culture. During Reconstruction, organizations like the Ku Klux Klan, Knights of the White Camellias, and the White League sought to preserve white supremacy by using intimidation and violence to terrorize African-Americans.20
In 1866, there were riots in Memphis and New Orleans; more than 30 African-Americans were murdered in each melee.21 In 1874, 29 African-Americans were “massacre[d]” in Vicksburg, according to Congressional investigators.22 The next year, “amidst rumors of an African-American plot to storm the town,” the Mayor of Clinton, Mississippi gathered a white “paramilitary unit” which “hunted” and killed an estimated 30 to 50 African-Americans.23 Violence also broke out in Meridian, Austin, and Yazoo City, among many other towns in Mississippi.24 The death and destruction, moreover, were not confined to the borders of the Southern states.25 Racial violence continued through the 1870s as local Klan groups lynched, beat, burned, and raped African-Americans.26 Despite
To be clear, these organized groups were not the only perpetrators of this terror. “[L]ynchings and whippings, . . . arson and random shooting[s], were just as frequently carried out by ad hoc mobs or even individuals.” Bell, supra, at 230; see generally Ralph Ginzburg, One Hundred Years of Lynching (1988) (reprinting hundreds of newspaper articles chronicling lynchings throughout the United States); O‘Reilly, supra, at 122 (noting nearly 4,000 lynchings in the United States between 1889 and 1941); Mark V. Tushnet, Thurgood Marshall: His Speeches, Writing, Argument, Opinions and Reminiscences ix (2001) (writing that between the 1880s and the 1930s more than 4,700 persons were lynched). One of the most pernicious things about these killings is that they were public spectacles, open to the community at large, with women and children as gleeful participants. See Manfred Berg, Popular Justice: A History of Lynching in America 91 (2011) (“During the decades between the end of Reconstruction and the 1920s ‘spectacle lynchings’ before large crowds, often involving drawn out torture, mutilation, burning, and the dismemberment of the victim‘s body, occurred regularly in the New South); Barbara Holden-Smith, Lynching, Federalism, and the Intersection of Race and Gender in the Progressive Era, 8 Yale J. L. & Feminism 31, 36-37 (1996) (“Men constituted the majority of the actual lynchers, . . . women and children took an active role in the murders by cheering on the lynchers, providing fuel for the execution pyre, and scavenging for souvenirs after the lynchings.“).
Alongside the terror permeating the South, there was a prominent movement to ensure the “proper” historical recollection of the Civil War—that the Southern cause had been just and necessary. This campaign was taken up by Confederate veterans and social groups.28 Women‘s auxiliary groups initially organized locally, but evolved into an influential national organization called the United Daughters of the Confederacy (UDC).29 By 1912, the UDC had 45,000 members spread across over 800 chapters.30 It raised funds for Confederate monuments, promoted the celebration of Confederate holidays, maintained Confederate museums, and established “Children of the Confederacy” educational programs.31 Children in these programs learned history in the form of catechisms (a series of fixed questions and answers used for instruction), a method typically reserved for teaching religious doctrine.32 As one historian noted, “to the children memorizing the UDC‘s catechisms, not only did the correct answers come from the truth-telling chapter leaders, but more importantly, they came straight from God.”33
What the South lost on the battlefield, it sought to recover in the collective memory of the next generation. “We have pledged ourselves to see that the truth in history shall be taught,” proclaimed UDC officer Kate Noland Garnett, and there “shall be no doubt in the minds of future generations
The UDC also defended the KKK. One set of catechisms ended with a lesson teaching children that the Klan “protected whites from negro rule.”35 At a speech at the 1913 UDC Convention, UDC Historian General Mildred Rutherford stated, “[t]he Ku Klux Klan was an absolute necessity in the South at this time. This Order was not composed of ‘riff raff’ as has been represented in history, but of the very flower of Southern manhood. The chivalry of the South demanded protection for the women and children of the South.”36
How the War would be remembered continued to be a point of contention between Union and Confederate veterans. At an event in 1900, Union veteran Albert D. Shaw argued that “the keeping alive of sectional teachings as to the justice and rights of the cause of the South, in the hearts of the children, is all out of order, unwise, unjust, and utterly opposed to the bond by which the great chieftain Lee solemnly bound the cause of the South in his final surrender.”37 Confederate veteran John B. Gordon responded,
In the name of the future of the manhood of the South I protest. What are we to teach them? If we cannot teach them that their fathers were right, it follows that these Southern children must be taught that they were wrong. Are we ready for that? For one I am not ready! I never will be ready to have my children taught I was wrong, or that the cause of my people was unjust and unholy.38
Even into the 20th century, Southerners continued to defend secession and their supposed God-ordained supremacy. In 1904, Mississippi Congressman and later United States Senator John Sharp Williams offered the following reason for the war: “This other thing for which we fought was the supremacy of the white man‘s civilization in the country which he proudly claimed as his own; ‘in the land which the Lord his God had given him;’ founded upon the white man‘s code of ethics, in sympathy with the white man‘s traditions and ideals.”39
Another piece of the South‘s revisionist campaign was the movement to construct Confederate monuments throughout the country.40 The construction of these memorials happened in waves connected to the racial climate of the South.41 The first
In the 1940s, the Confederate battle flag became the emblem of the States’ Rights Democratic Party, often referred to as the Dixiecrats.45 What the Dixiecrat Party lacked in electoral votes, it made up for by energizing the next generation of segregationists.46 Student delegates entered the 1948 Democratic National Convention carrying images of the Confederacy.47 Dixiecrat opposition to the budding Civil Rights Movement breathed new life into the Confederate battle emblem.48
Inspired by the Dixiecrats, after the Convention, University of Mississippi students adopted the Confederate battle emblem as a prominent symbol, synonymous with their school spirit. It remained on campus for decades.49
In this era, States also hoisted the Confederate battle emblem in symbolic defiance of changing laws that threatened Jim Crow. In 1956, Georgia redesigned its flag to include the Confederate battle emblem, and in 1962, South Carolina placed the Confederate battle emblem atop its State Capitol.50 Alabama followed suit in 1963, when Governor George Wallace raised the
The centennial of the Civil War gave Southern states yet another reason to commemorate the Confederacy. By early 1960, every Southern state had a commission to coordinate local centennial events.52 Mississippi‘s commission included state agencies and civic organizations, and it received $200,000 in state appropriations to support its efforts.53 Governor Ross Barnett noted during a speech to the delegates of the Confederate States Civil War Centennial Conference that everyone was welcome to come to Mississippi to celebrate the centennial—except the freedom riders.54 In Jackson, Governor Barnett led a Secession Day parade as he rode in a horse-drawn carriage. Hundreds of white Mississippians dressed in Confederate uniforms marched behind a large Confederate battle flag borrowed from the University of Mississippi.55
The Confederate battle emblem‘s meaning has not changed much in the intervening decades. It should go without saying that the emblem has been used time and time again in the Deep South, especially in Mississippi, to express opposition to racial equality. Persons who have engaged in racial oppression have draped themselves in that banner while carrying out their mission to intimidate or do harm.
C. The Mississippi State Flag
1. 1890 Constitutional Convention and Adoption of the State Flag
Now, let us turn to Mississippi‘s banner. In 1890, Mississippians held a Constitutional Convention. Its purpose was clear. “Our chief duty when we meet in Convention, is to devise such measures, consistent with the Constitution of the United States, as will enable us to maintain a home government, under the control of the white people of the State,” said State Senator Zachariah George.56 In other words, the Convention was not intended to ensure the proper implementation of the post-Civil War Constitutional Amendments, but rather to permit “white people” to take back their state from the multi-racial coalition which had governed Mississippi after the War.57
During the Convention, delegates adopted voting laws that imposed landownership, poll tax, and literacy requirements, and excluded persons with certain criminal convictions.58 These voting restrictions guaranteed the exclusion of African-Americans from the electoral process; Nicholas Lemann concluded that there was only one “Mississippi election in the century following emancipation in which there was truly free Negro voting.”59 It was not until the passage, implementation, and enforcement
Against this backdrop of legalized segregation, the current Mississippi state flag was adopted in 1894.61 Senator E.N. Scudder is credited with its design. He “loved the memory of the valor and courage of those brave men who wore the grey,” his daughter later remembered.62 “He told me that it was a simple matter for him to design the flag because he wanted to perpetuate in a legal and lasting way that dear battle flag under which so many of our people had so gloriously fought.”63
The flag adopted during that special session has remained, either officially or unofficially, the state banner.
2. Legal Challenges to the State Flag and the 2001 Referendum
This is not the first time parties have sought to litigate the constitutionality of the Mississippi flag.64 The most notable of those challenges is the 1993 case brought by the Mississippi State Conference of NAACP Branches; the Jackson, Mississippi NAACP Chapter; and 81 individual plaintiffs, Mississippi Div. of United Sons of Confederate Veterans v. Mississippi State Conference of NAACP Branches.65 In that case, the Mississippi Supreme Court concluded that the 1894 statute creating the state flag had technically been repealed in 1906 when the legislature voted to repeal all statutes not brought forward as part of the Mississippi Code of 1906.66 The Court, however, determined that it was the responsibility of the legislative and executive branches to keep or change the state flag.67
Following the Supreme Court‘s decision, Governor Ronnie Musgrove appointed a special commission to examine the issue, determine an alternate design, and make a recommendation to the legislature.68 The commission convened public hearings and heard from citizens across the state.
In February 2001, the Mississippi legislature set a special election for April 17, 2001, where voters had the option of selecting the current flag or an alternate design as the state‘s official emblem.72 The special election results substantially favored the 1894 flag, with 65% voting to keep it and 35% favoring the alternate design.73 It once again was the State‘s official banner.
3. Charleston Shooting
Although the Confederate battle emblem has been debated for decades, it was the June 2015 mass murder of nine African-Americans during Wednesday night prayer and Bible study at Charleston‘s Emanuel AME Church that forced the country‘s most recent reevaluation. Shortly after the massacre, a photo emerged of the alleged shooter holding the Confederate battle emblem. The media also reported that the shooter had intended to start a “race war.”74
The massacre had the opposite effect. Shocked and appalled, Americans came together with renewed appreciation for the racial divisiveness of the Confederate battle emblem. South Carolina and Alabama took action to remove the racially-charged symbol from their respective state houses.75 Flag manufacturers announced they were going to discontinue the production of the emblem.76 Several national retailers followed suit and announced they would stop selling Confederate battle emblem merchandise.77 The vicious slaughter in Charleston had shifted the tide. Regardless of whether some viewed the flag as a way to honor their heritage and fallen ancestors, its connection to racial hatred and white supremacy could no longer be ignored.
Today, Mississippi stands alone. It is the only state to include the notorious “stars and bars” in its official flag.78
While waiting on the State to act on the flag, Mississippi‘s cities, counties, and universities took action. They did not want to stand alone. Instead, they understood the divisiveness of the flag and voted to remove it from their property.79
Today, all but one of Mississippi‘s public universities—including traditionally white institutions like the University of Mississippi, the University of Southern Mississippi, and Mississippi State University—have removed the state flag from their campuses.80 Considering the University of Mississippi‘s long history with the Confederate battle emblem, it is noteworthy that students and faculty recognized its impact and voted to remove it.81
In Tupelo, racial tension has continued to swell following the shooting of an unarmed African-American man by a police officer.82 During a recent public rally, the city lowered the flag because officials believed it aggravated racial discord.83 On a separate occasion, Mayor Jason Shelton removed it from the city council chambers during a meeting. “You know there is no question that the state flag is offensive to a very large segment of the population,” he commented.84 “The people in the room today were universally opposed to the current state flag. I thought it was a gesture of respect to the people in the room today.”85
Religious entities in Mississippi have also revisited the issue. The Episcopal Diocese of Mississippi urged state leaders to adopt a flag that “represents, unites, and respects” all Mississippians.86 The Mississippi United Methodist Convention approved a resolution urging state leaders to change the state flag.87 At the national level, the Southern Baptist Convention passed a resolution calling “brothers and sisters in Christ to discontinue the display of the Confederate battle flag as a sign of
When the national discussion about the Confederate battle emblem came to Mississippi in 2015, Mississippi‘s highest political leaders also weighed in. Governor Bryant stated, “[a] vast majority of Mississippians voted to keep the state‘s flag, and I don‘t believe the Mississippi Legislature will act to supersede the will of the people on this issue.”90 Philip Gunn, Speaker of the Mississippi House of Representatives, however, came out in support of changing the flag. “We must always remember our past, but that does not mean we must let it define us,” he wrote. “As a Christian, I believe our state‘s flag has become a point of offense that needs to be removed. We need to begin having conversations about changing Mississippi‘s flag.”91 As Gunn suggested that conversations were welcome, Lieutenant Governor Tate Reeves, who presides over the Mississippi Senate, was of the view that those discussions had occurred 14 years ago, and added that the flag issue should not be decided “by outsiders or media elites or politicians in a back room.”92
January 2016 came. The Mississippi legislature convened with an opportunity to change the state flag. And to that end, at least 16 bills were introduced regarding the flag. The bills varied, yet generally fell into three categories: proposing a new state flag design;93 creating a commission to recommend a new flag design or proposing a referendum;94 or requiring public universities and municipalities to display the flag or suffer financial penalties.95 Despite their differences, they suffered the same fate—they all died in committee, unable to clear even the first hurdle of the
It was in February 2016, the month designated as Black History Month, that Governor Bryant declared that April would be celebrated as Confederate Heritage Month.97 This combination of legislative inaction and executive decree motivated Moore to file this suit.98
After the session, Speaker Gunn expressed his disappointment that action was not taken on the state flag.99 At this summer‘s Neshoba County Fair, “Mississippi‘s Giant House Party,”100 Governor Bryant concurred. “I think this November would have been a great opportunity (for people to vote on the state flag); we would have had more people turning out than almost any election,” he said. “I‘m sorry that we don‘t have it on the ballot, and the people‘s voices won‘t be heard.”101
III. Discussion
The Court, acting sua sponte, ordered the parties to brief two procedural issues—standing and the political question doctrine. Finding that standing is the controlling question, the Court will limit its analysis to this single issue.
It is well-established that standing requires the plaintiff to demonstrate three elements: (1) an injury in fact that is concrete and particularized as well as actual or imminent; (2) a causal connection between the injury and the conduct of the defendant; and (3) a likelihood that the injury will be redressed by a favorable judicial decision.106 “The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.”107
For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. At the same time, it is within the trial court‘s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff‘s standing. If, after this opportunity, the plaintiff‘s standing does not adequately appear from all materials of record, the complaint must be dismissed.108
In other words, courts may dismiss due to lack of subject matter jurisdiction on any of the following bases: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court‘s resolution of disputed facts.”109
Because standing is a jurisdictional issue, the Court may act on its own motion and it must dismiss where subject matter jurisdiction is lacking.110
A. Injury in Fact
To demonstrate an injury, the plaintiff must suffer “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”111
An injury is particularized if it “affect[s] the plaintiff in a personal and individual way.”112 To meet the concreteness requirement, an injury must be “real, and not abstract.”113
“Concreteness, therefore, is quite different from particularization.”114 Intangible injuries can meet the
To demonstrate an actual or imminent injury, “[t]he plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.”116 “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.”117
In his third amended complaint, Moore contends that the state flag violates his
Because the State is saying, We endorse the system, the oppressive regime that brutalized, enslaved your ancestors, not only by lynching them, raping them, murdering them, forcing them to inservitile [sic] labor. I support that. That was something I‘m proud of. This is Confederate Heritage Month. We still relish the good ol’ days in Mississippi and it‘s almost a constant threat and reminder that we could take you back to those days.120
1. Fear for his Safety
In light of the June 2015 mass shooting in Charleston, the November 2015 Wal-Mart bombing in Tupelo, and the 2014 noose brandishing at the University of Mississippi, Moore alleges he fears for his safety.121
Without question, each of these incidents was an atrocious act of violence or intimidation with clear racial overtones. In the University of Mississippi case, the students ultimately pled guilty to charges reflecting the racial motivation of their conduct, and they have been punished.122 Similarly, the alleged Charleston shooter is currently facing charges on multiple criminal counts, including federal hate crime charges.123 If he is convicted, he
These incidents, however, cannot show that Moore is particularly at risk of harm as a result of the Confederate battle emblem.125 An act of racial or ethnic violence does not establish a constitutionally-recognized injury for anyone who falls into the racial or ethnic group. He does not allege he was in the vicinity when any of these events occurred; he likely heard about them from news coverage as did thousands of other citizens. Because there is nothing showing that fear of racial violence is particular to him, Moore lacks standing to make this claim.126
Moore also does not show that any injury is imminent. He says that “[t]ime is of the essence for the removal of the current state flag” because of the Charleston shooting, but does not demonstrate how that incident increased the imminent threat of a similar attack.127
To find an injury based on this plaintiff‘s fear for his safety would stretch the elasticity of imminence well beyond its purpose. Sadly, any person can be a victim of violence. And, while there are countless examples of violence against minority groups, including African-Americans, Moore‘s fear that the State flag and its continued display will lead to imminent violence against him falls short of Constitutional standing.
2. Denial of Equal Treatment
Next, the Court considers Moore‘s allegations that he has been deprived of equal dignity and equal treatment in violation of the
Courts have recognized stigmatic injuries, which are often intangible, as sufficient to meet the Article III injury requirement.128 “Stigmatic injury stemming from the discriminatory treatment is sufficient to satisfy standing‘s injury requirement if the plaintiff identifies some concrete interest with respect to which he or she is personally subject to discriminatory treatment and that interest independently satisfies the causation requirement of standing doctrine.”129 This Court, for example, has previously found that same-sex marriage bans stigmatized same-sex couples by denying them an equal opportunity to receive a State-issued marriage license and the rights and benefits associated with that license.130
Moore points to the Sixth Circuit‘s decision in Smith v. City of Cleveland Heights to support his argument that he has suffered a stigmatic injury.131 In that case, Cleveland Heights passed policies to maintain the city‘s racial composition of 75% white and 25% African-American residents.132 Potential white residents were
Moore contends the Mississippi flag has the same effect on him, but the cases are not analogous. In Smith, the plaintiff‘s stigmatic injury was directly related to a city policy that expressly denied equal treatment to him on the basis of race.136 In other words, it was “a stigmatic injury suffered as a direct result of having personally been denied equal treatment.”137
In contrast, Moore has failed to allege any specific facts or incident where he was denied equal treatment due to the state flag or the message it communicates. Because the third amended complaint lacks such allegations, at oral argument, the Court asked him how he has been denied equal treatment. Moore was unable to provide an example of a deprivation of a legal right.
Moore also claims a right to “equal dignity” based on the Supreme Court‘s recent same-sex marriage decision, Obergefell v. Hodges.138 “Prior to Obergefell,” he said at oral argument, “I had no knowledge that I had a right to equal dignity under the law.”139 Moore also references Loving v. Virginia and Brown v. Board of Education as examples of when the federal courts had to intervene to protect individuals’ Constitutional rights and dignity.
The Court is well-aware of those cases, but Moore‘s argument attempts to contort their holdings beyond recognition. All of those cases involved a legal right guaranteed by the
3. Physical Injuries
Moore says he feels “great concern and anxiety when I enter public property adorned with the state flag,” which “has probably contributed to or caused the exacerbation of medical ailments, including but not limited to hypertension, insomnia and abnormal EKGs.”141 He adds that “since what happened in South Carolina and since what happened in Walmart in Tupelo in November, I have experienced abnormal EKGs.”142
To the extent Moore experiences stress because of the state flag, he appears willing to experience it for economic gain. When the Court asked about limiting his practice to federal court, where he would not necessarily encounter the state flag, he said that his wife “has got accustomed after 15 years of marriage to a certain quality of life. And it‘s not fair to her” to accept “a lower standard of living because I only had certain cases in federal court.”145
Moore‘s arguments are phrased as constitutional claims, yet his allegations of physical injuries suggest that he is making an emotional distress tort claim. To succeed in constitutional litigation, however, Moore needs to identify that part of the Constitution which guarantees a legal right to be free from anxiety at State displays of historical racism.146 There is none. We are again back at a stigmatic injury untethered to a legal right, and that—even a stigmatic injury causing physical ailments—is not sufficient for standing.
B. Injury Traceable to Conduct
Even assuming that there is a cognizable injury in this case, that injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.”147
The current state flag has been flying in Mississippi for Moore‘s entire lifetime. He did not file the instant case until February 2016, when he was 39 years old. The catalyst for this suit was evidently his fear resulting from recent instances of racial violence and intimidation in South Carolina and Mississippi, and the lack of action by Mississippi‘s leaders. Moore‘s fear and the necessity of this suit were apparently compounded by the Governor‘s proclamation of April as Confederate Heritage Month during Black History Month.148
During oral argument, the Court inquired into the start date of Moore‘s physical injuries to determine how they are traceable to the state flag. Plaintiff‘s counsel stated that they were ongoing injuries that did not begin on a specific date.149 She said Moore was injured by his birth in Mississippi, the 2001 flag referendum, local entities declining to remove the flag, and the
failed legislative bills in the 2016 session.150 Later, Moore himself argued that his physical injuries and associated stress began and have continued to mount since 2002, when he was sworn into the Mississippi Bar.151 He added, “[b]ut this specifically what happened in the month of February before I filed the lawsuit. There was the legislature refusing to act and then the Governor declaring Confederate Heritage Month. I went to the doctor around that time and I had these abnormalities.”152
A problem with Moore‘s argument is that any number of factors can contribute to these types of chronic health conditions: genetics, stress, the practice of law, diet, and lack of exercise, to name a few. Even the stress and anxiety he experiences when entering a courthouse (or awaiting a Court‘s ruling) could easily be attributable to concern about a pending proceeding. Moore offers no plausible allegation that these physical injuries are directly attributable or even exacerbated by the state flag, when there are so many other competing explanations of their cause. Thus, it is impossible for the Court to see how Moore could establish those injuries as fairly traceable to a flag that has been in existence for his entire life.
Lastly, Moore is again unlike the gay couples in the same-sex marriage cases. In those cases, the plaintiffs’ injuries were traceable to state statutes and constitutional amendments which explicitly forbade governmental officials from issuing marriage licenses to gay couples, effectively giving government officials a license to discriminate. There is no comparable legal injury here, much less an injury traceable to the state flag.
C. Redressability by Favorable Judicial Decision
The final prong of standing requires the plaintiff to demonstrate that a favorable judicial decision is likely to redress his injury.153 The determination of redressability turns on the specific facts plaintiff presents.
Here, Moore contends,
[a] favorable decision would eliminate the discriminatory laws, eliminate stigmatic injury, eliminate the imminent threats to Plaintiff, his health, and his family, as well as eliminate the potential
of Plaintiff inadvertently violating his oaths due to his inability to support the discriminatory laws of the state that he is currently bound by oath and statute to support.154
At oral argument, when Moore was asked whether the removal of the flag would improve his insomnia, EKGs, and stress, he responded, “[i]mmediately.”155
As the Court has discussed in detail, the injuries alleged by Moore are untethered to a legal right. In instances where this Court has found that a plaintiff‘s stigmatic injury could be redressed by a favorable judicial decision, the injury has been connected to a fundamental right. On the facts of this case, however, there is no legal right at issue which the Court can remedy. For these reasons, Moore does not have standing to bring this action.
IV. Motion to Amend Complaint
Lastly, Moore filed a motion seeking leave to amend his third amended complaint. “The court should freely give leave when justice so requires.”156 Leave to amend is guided by the following factors: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure
deficiencies by previous amendments; (4) undue prejudice to the opposing party; and (5) futility of the amendment.157
Since the Court found no standing based on Moore‘s third amended complaint, the present analysis focuses on whether the proposed fourth amended complaint would confer standing. If it would not, allowing Moore to amend would be futile.
Moore‘s fourth amended complaint adds his minor child, A.M., as a plaintiff and the State Superintendent of Education and the Grenada Public School System as defendants.158 Moore explains that his daughter is five years old and set to begin kindergarten in the Grenada Public School system in fall 2016.159 He then identifies two state statutes that allegedly violate A.M.‘s
place for academic discourse and critical thinking. On its face, a statute requiring children to be taught about the history of the Mississippi flag does not encroach upon a constitutional right.
The same is true for
Because Moore‘s proposed fourth amended complaint does not cure the issue of standing, allowing him to amend would be futile. The motion is denied.163
V. Conclusion
To millions of people, particularly African-Americans, the Confederate battle emblem is a symbol of the Old Mississippi—the Mississippi of slavery, lynchings, pain, and white supremacy. As Justice Fred Banks noted, the Confederate battle emblem “takes no back seat to the Nazi Swastika” in its ability to provoke a visceral reaction.164
The emblem offends more than just African-Americans. Mississippians of all creeds and colors regard it as “one of the most repulsive symbols of the past.”165 It is difficult to imagine
how a symbol borne of the South‘s intention to maintain slavery can unite Mississippians in the 21st century.166
Since the Civil War, this nation has evolved and breathed new life into “We the People” and “all men are created equal.”167 Mississippi is known for its resistance to that evolution. Part of that resistance stems from electing demagogues and those with empty rhetoric and false courage. The result is a State increasingly isolated from the rest of the nation.
At times there is something noble in standing alone. This is not one of those times. The Confederate battle emblem has
For that change to happen through the judiciary, however, the Confederate battle emblem must have caused a cognizable legal injury. In this case no such injury has been articulated.168 Whether that could be shown in a future case, or whether “the people themselves” will act to change the state flag, remains to be seen.169
This case is dismissed. A separate Final Judgment will issue.
SO ORDERED, this the 8th day of September, 2016.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE