*4 HUTCHINSON, Before ROTH ROSENN, Judges. Circuit OF THE COURT OPINION HUTCHINSON, Judge. Circuit Presbytery of New Appellants, Presbyterian Church of the Orthodox “affee- Calvary Pres- to the which had added Orthodox ments (“Presbytery”), (“Calvary”) personal orientation” to the byterian of Wildwood tional sexual Church (“Cum- generally protected David B. and Reverend traits or characteristics Pres- clergyman of the Orthodox mings”), public accommodat discrimination (collectively “plain- byterian ions,2 housing. denomination employment See tiffs”), of the district court appeal (West an order 10:5-4,10:5-12 Supp. §§ NJ.Stat.Ann. dismissing complaint.1 Plaintiffs assert 1994). their prohibits “aid[ingj, The statute also Jersey Law amendments to the New recent abet[ting], incit[ing], compelling] (the “Act”), “LAD” or Against Discrimination coerc[ing]” prohi violations of its others into (West §§ 10:5-42 10:5-1 to NJ.Stat.Ann. against discrimination. N.J.Stat.Ann. bitions Supp.1994), violate the First Amend- 1993 & 10:5-12(n). 12(e); § § see NJ.Stat.Ann. 10:5 — speech. right ment to freedom challenged plaintiffs originally these and they question added to the cate- amendments provisions infringement other as an on the gory impermissible distinctions “affection- right First Amendment to the free exercise al or orientation” to the statute’s ban sexual religion and association as well as the Relying on certain forms discrimination. speech. May to freedom of On rеsponsible state official’s affidavit that on a 1992, they preliminary filed a motion for a *5 against the LAD the state would not enforce injunction May 22 and on filed an amended Presbytery Calvary or as churches or Cum- 11, 1992, complaint. On June the state filed mings pastor, as a church the district court summary judgment along a motion for with a ripe. held that the case was not motion for dismissal. The district court argument heard oral but denied the motion conclude, however, that the con We injunction preliminary holding for a that the troversy arguably because plaintiffs faded to establish both likelihood alleges the statute threatens his as irreparable of success on the merits and against speak out male individual citizen plaintiffs appealed harm. The to this Court and state and female homosexual acts and on December 1992 we affirmed the any expressly refused to offer assurance unpublished district court in an memoran prosecute Cummings it if he will not does so opinion. Presbytery Jersey dum New v. of same, however, church. The outside his (3d Florio, 92-5339, slip. op. No. at 13 Cir. plaintiffs, of the institutional church not true 1992) ”), (“Presbytery Dec. I see 983 F.2d Presbytery Calvary. Accordingly, (3d Cir.1992) (Table). Because of the will the district court’s order and reverse stating state’s affidavit its intention not to proceedings remand for further consistent institutions, against religious enforce the Act opinion applies with in so far as order this its plaintiffs we held that the faded to demon will, however, Cummings. to Reverend possibility irrep strate the of immediate and affirm the district court’s dismissal without harm. 9-10. arable Id. at We also held that pertains prejudice of this action as it to the possibility private enforcement of the plaintiffs. institutional by groups Act activist homosexual was too remote to constitute an immediate threat of and, event, potential any private harm I. parties injunction would not be bound April brought sought. specificady Id. 10-12. We re enjoin suit to enforcement of recent amend- fused to comment on the district court’s dis- caption quite 1. The in this case lists James Florio as 2. Public accommodations are defined filed, Jersey. 5(2). After it was Governor New broadly They § in N.J.Stat.Ann. in- 10:5— Christine Todd Whitman was elected to that of- clude, to, taverns, hotels, but are not limited fice, yet but there has not been a substitution of facilities, camps, day camps, trailer health stores parties. caption The failure to amend establishments, restaurants, pub- retail other respect appeal. doеs not affect this See Fed. theaters, halls, conveyances, pool lic movie 25(d)(1). change pur- R.Civ.P. We note the for schools, etc. See id. poses only. of clarification printing circulating any of success plaintiffs’ of the likelihood statement cussion expresses, directly indirectly, at 13. which the merits. Id. on employment opportunities persons for decision, court Following our the district protected characteristics will be limited. 12(b)(1) Rule argument on the state’s heard 10:5-12(c). § Id. Public accommodations are argued that the motion to dismiss. The state 10:5-12(f). similarly § restrained. See id. standing, the case was not plaintiffs lacked addition, illegal any makes it the federal court abstain ripe and that should individual to refuse to transact business with Commission Texas v. under Railroad groups pro individual who have Pullman, 10:5-12(l) §§ tected characteristics. Id. (1941). granted court L.Ed. 971 The district ,(m). aid, illegal The Act also makes it “to motion and the com- the state’s dismissed abet, incite, compel doing or coerce the Florio, plaint. Presbytery New act, of the acts forbidden under this or to (D.N.J.1993) (“Presbytery F.Supp. 241 10:5-12(e). attempt § to do so.” Id. Still II”). ripe, It held that the case was not applying prohibition another section the Act’s it based on the state’s affidavit that would against aiding, abetting, inciting coercing not enforce the Act the institutional (l) (m) specifical violations of subsection plaintiffs as churches or ly prohibits boycott persons incitements to capacity clergyman Orthodox belong protected groups. who to the Id. Presbyterian Id. at 248-50.3 The Church. 10:5-12(n)(2). Finally, § requires the Act timely appeal. plaintiffs filed a notice of public owners of accommodations and em public
ployers post informing notices em ployees patrons rights of their under the *6 II. 12(j). § Act. Id. 10:5— LAD, originally pro- The enacted exempts religious organizations Act The employment, labor hibits discrimination compliance from in the selection of their own organization membership, public accommoda- permits religious organiza- and it employees estate, financial, tions and real and business tions to restrict rental or use of their own Jersey legis- the New transactions. property to members their own faith. Id. lature added “affectional or sexual orienta- 10:5-5(n). 10:5-12(a), §§ Act The does not race, personal tion” to the characteristics of apply private clubs or for reli- facilities creed, color, origin, ancestry, age, national 5(i). § gious Id. educatiоn. 10:5— sex, previously protected.4 and marital status Act, employer it is unlawful for an may Under the enforce Act’s civil The state itself employ aggrieved “to refuse to hire or or to bar or to in- penalties against violators. An discharge require may begin process to retire” individual en- dividual of civil protected by filing complaint on the basis of a characteristic. forcement state (“DCR”) 10:5-12(a). prohibits Rights proceed- § Id. The Act also the Division on Civil standing 3. did reach the issue of The court not Pullman abstention. Legislature further finds that because of The discrimination, personal people hard- suffer finding legislature’s 4. The and declaration states: grievous ships, and the State suffers a Legislature prac- The finds and declares that Legislature intends that such harm.... The against any tices of discrimination of its inhab- persons protected damages all be available to itants, because of ... affectional or sexual or- liberally be this act and that this act shall [is a] ] ientation ... of concern to the matter[ protec- construed in combination with other State, government dis- and that such available under the laws of this State. tions rights and crimination threatens (West Supp.1994). § N.J.Stat.Ann. 10:5-3 privileges proper of the State of the inhabitants menaces the and foundation of but institutions a free democratic State.... inquire practices § ing directly to state court. Id. 10:5-13 also about the sexual (West 1993). specifically grants prospective employees continuing The Act and are “[a]ny despite standing to sue to individual who has to do so the existence of the 1992 “any against” organi- and amendments. been discriminated represents or acts to further the zation which ¶ 49, Complaint Appellants’ Appendix of individuals who have been dis- interests (“App.”) at 217. and members (West § against.” criminated Id. 10:5-38 congregation “speak out about homosexu- 1993). plaintiff may recover The successful ality, bisexuality out- and heterosexual sex fines, punitive damages, compensatory and marriage, side of make reasonable distinc- 10:5-3; § § attorney fees. Id. id. 10:5- practices, lobby against tions based on such (West (West 1993); § 14.1a id. 10:5-27.1 them, condemning and circulate literature 1993). liberally construed to The Act is to be They encourage, them. aid and abet dis- accomplish purpose eradicating its crimination and reasonable distinctions prohibits. it See id. kinds of discrimination homosexuals, bisexuals hetero- § 10:5-3. engaging marriage.” sexuals in sex outside of ¶ 51, Furthermore, App. Id. at 217-18. Presbyterian The Orthodox Church “[p]laintiffs always past, present- have in the (“OPC”) is a national denomination with 170 ly do and since the amendments have refused churches, Calvary. including member from, knowingly buy contract with or oth- split Presbyterian from OPC Church persons erwise do business with on the basis (U.S.A.) in 1936 over doctrinal difference.5 homosexual, person’s of that bisexual or het- Presbytery religious corpo- is a New ¶ 57, practices.” App. erosexual Id. governing body ration and the formal of OPC always past, pres- Plaintiffs also “have Jersey. plain- At churches New the time ently do and since the amendments have initially complaint, tiffs filed their the OPC employ any prac- refused individual who is 2,113 Jersey. had in New members sin, ticing public including sexual fornica- complaint, plaintiffs allege In their tion, adultery homosexuality, they following. upon Holy Based Bible and make reasonable distinctions based on such doctrine, church the OPC teaches that homo- ¶ 69, App. acts.” Id. at 223. sexuality, bisexuality, and heterosexual sex *7 Initially, plaintiffs contended that various marriage grievous outside of are sins. Plain- First, elements of Act their violated allege they tiffs also that Fifth, Ninth and Fourteenth Amendment always past, presently in have do and rights. allegedly offending sections in- amendments, directly since the 1992 have 10:5-12(a) (c) (applica- cluded: sections and indirectly against or discriminated and 10:5-12(f) employers); (applica- ble to section upon made reasonable distinctions based accommodations); public ble to sections 10:5- homosexuality, bisexuality and heterosexu- 12(e) (n) (prohibition against aiding, and marriage. example, al sex outside of For violations); abetting, inciting or section 10:5- Jersey plaintiffs in New express, speak (notice 12(j) posting provision); and sections preach against homosexuality, and adul- 12(Z) (m) (prohibition boycotts and 10:5— fornication, tery calling variously and it business). and refusal to do sinful_ They abomination and also dis- and speech response plaintiffs’ seminate circulate such and request initial throughout preliminary injunction, distinctions New the Director of the world_ DCR, [T]hey print Stewart, Gregory even and dis- C. filed an affidavit condemning setting seminate materials sexual attorney gener- forth the DCR’s and Plaintiffs, members, sins.... position and their al’s on enforcement of the Act (U.S.A.) Presbyterian ings. support position 5. The Church as well as a These amici the state's on organized religions number of other mainstream the merits of this case. Because we are joint setting jurisdiction appeаl have filed a amicus brief out their concerned with on do opposition to OPC’s doctrinal views and teach not decide the merits. against religious App. institutions. The not, Stewart at 294-96. The affidavit did how- ever, averred that the state did not con- against affidavit disavow enforcement the mem- “public places sider churches accommoda- bers of the public church for their activities relating public preclude tions.” the sections nor it does enforcement inapplicable accommodations were to the in- for his outside the activities plaintiffs. stitutional Stewart further stated Church. exempt
that churches were considered light of the Stewart affidavit and our hiring employees. of internal their Due to I, prior Presbytery decision in parties concerns,” “First Amendment agree scope that the challenge their on the past prosecuted the Division has not merits to significantly the Act has been limit prosecute and has no intention to [under plaintiffs ed. challenge only now section 10:5-12(e), (l) (m)] (e), (f), (j), sections & 10:5-12(e), aid, illegal which makes it “to essentially exempt sincerely- churches for abet, incite, compel acts, or coerce” forbidden religious practice, speech held belief or or 10:5-12(n), section illegal which it makes “to belief, consistent with such or for a refusal aid, abet, incite, compel,, coerce or induce” speech following certain or for boycotts or refusals to do business and section Hence, their tenets- the Di- 2(j), 10 posting provision. notice :5— 1 attempt vision would not even to enforce II, Presbytery 247; 830.F.Supp. at Brief of provisions those the circumstances of Appellants at 6. argue Plaintiffs sincerely-held religious reasons such as first two impermissible sections are restric plaintiffs express here.... speech tions on pro freedom of and the last vision is a violation of the freedom of con App. at 296. Stewart also made the follow- speech. science and forced Before the dis ing general statement: court, however, trict plaintiffs conceded [I]t has been the consistent construction light representations of the of the that, interpretation DCR, of the conso- applicability sections have no legal nant with constitutional plaintiffs Presbytery barriers re- the institutional specting legitimate Calvary. belief and Id. free exercise protected by Amendment, the First regulate
State was not authorized to III. beliefs, religious worship, gover- control nance, norms, practice .liturgical even If ripe, this case is if ostensibly eolorably where at odds with standing have to assert their free prohibited of the LAD categories of claim, speech the district court would have discrimination. subject jurisdiction matter under 28 U.S.C.A. (West 1993)
§§ and 28 U.S.C.A. *8 (West 2201, .1994). §§ 2202 The state con tends, however, the Division has not and no has that the district court lacked jurisdiction intention to determination because the did not judgment present justiciable as to what is or is controversy. not a an Article III church, “religious activity” agreed of a or to deter- district The court dismissed mine what is or is not a “tenet” ground. of case on this Because the district limits, faith. Within First Amendment all plain court did not reach the merits claim, plaintiffs’ religiously-based prejud claimed free tiffs’ the dismissal was without is, however, exercises of faith are unthreatened ice.6 The district court’s order reasoned construction of plaintiffs’ consis- a final resolution of the claims and meaning long jurisdiction tent with its appellate pur enforce- therefore we have 1993). (West history. ment § to 28 suant U.S.C.A. 1291 Generally, 6. when a district court dismisses a elected to stand on the as set forth. prejudice, generally Reading, case City without it is not a final оrder See Borelli v. 532 F.2d 950, (3d Cir.1976) curiam). party seeking appeal specifically (per unless the has 951-52 In a
1462 judicial power limitation of the standing Constitution’s ripeness and
Our review Taylor Ltd. Correct Inv. and controversies. plenary. is to real cases determinations 1285, F.2d Darby Township, 983 Upper ripeness tells us when a analysis v. in terms of — denied, -, (3d Cir.), U.S. cert. 1289 analy party may bring an action and proper (1993); 304, 126 Roe v. L.Ed.2d 252 114 S.Ct. may standing who in terms of tells us sis (3d 857, Rescue, 863 919 F.2d Operation Armstrong World In bring the action. See Cir.1990). 405, dus., Adams, 411 & nn. Inc. v. 961 F.2d (3d Cir.1992); see also Erwin Cheme
12-13
(1989)
99
rinsky, Federal
Jurisdiction
IV.
type of
(“standing focuses on whether the
appeal
is whether
The issue on
injury alleged
qualitatively
is
sufficient
ripe controversy
presented a
plaintiffs have
fulfill
III and
requirements
of Article
juris-
may
III court
assert
that an Article
so
personally
plaintiff has
suffered
whether the
of the claim
the merits
We examine
diction.
harm,
on
ripeness centers
whereas
necessary to determine
only to the extent
yet”).
injury has occurred
Be
whether that
immediacy
any potential for
is
there
whether
related,
concepts
closely
are so
cause these
of harm.
“It
they
or conflated.
is
can be confused
argued
standing
who
is about
sometimes
may only resolve ac
Federal courts
they
ripeness
cаn
while
is about when
sue
and “controversies.” See U.S.
tual “cases”
sue, though it
of course true that if no
can
Const,
Ill, § 2. The existence of a case
art.
occurred,
injury
plaintiff can
told
be
prerequisite to all feder
controversy is a
sue,
cannot
or that she cannot
either that she
actions,
declaratory or
including those for
al
Dep’t Agri
yet.”
sue
v. Wisconsin
injunctive
Co. v.
Smith
relief. See Cardinal Chem.
—Inc.,
U.S. -, -,
Protection,
Int’l,
culture,
113
23
Trade & Consumer
Morton
(1993);
1967, 1974,
Cir.1994)
(7th
124 L.Ed.2d
Skel
S.Ct.
(emphasis in
F.3d
Co., 339
ly
Phillips
v.
Petroleum
U.S.
Oil Co.
original).
plaintiff’s responsibility
It
is the
876, 878-79,
667, 671,
1463
judicial
hardship
par
decision and the
to the
part, adversity
On the first
of inter
“
est,
observed,
withholding court
ties of
consideration.” Ab
have
‘[f]or there to be an
Labs.,
149,
controversy[,]
actual
387
at
87
at
the defendant
bott
U.S.
S.Ct.
must be
parties
so situated that
Ultimately,
the case must
“‘a real
have
involve
adverse
”
legal
Step-Saver,
interests.’
controversy
912
admitting
spe
F.2d at
substantial
(quoting
648
Wright,
10A Charles
through
Arthur
cific relief
a
of a conclusive
decree
Kane,
Mary
Miller &
Federal Practice and
character,
distinguished
opinion
as
from an
(2d
2757,
1983)).
§
Procedure
at 582-83
ed.
advising
upon hypo
what the law would be
a
”
Although
party seeking
review need not
state of facts.’
thetical
North Carolina v.
“completed
have suffered a
harm” to estab
Rice,
244, 246,
402, 404,
404
92
30
U.S.
S.Ct.
interest,
adversity
lish
Armstrong, 961
(1971)
omitted).
(quotation
L.Ed.2d 413
“A
412,
necessary
F.2d at
it is
that there be a
jurisdiction
federal court’s
therefore can be
substantial threat of real harm and that the
only
invoked
when the
himself has
threat “must remain ‘real and immediate’
injury
suffered ‘some threatened or actual
throughout
litigation.”
the course of the
Sal
resulting
putatively illegal
from the
ac
Army Department
Community
vation
v.
Seldin,
490,
422
tion-’”
Worth v.
U.S.
(3d
Affairs,
183,
Cir.1990).
919 F.2d
499,
2197, 2205,
95 S.Ct.
45 L.Ed2d 343
Thus,
intervening
where
events remove the
(1975) (citation omitted).
harm,
possibility of
“the court must not ad
Id.;
now-speculative
dress the
controversy.”
Chemerinsky recog
As Professor
see also
Gas & Elec. Co. v. State
Pacific
nizes, “[rjipeness properly should be under
Energy Resources Conservation & Dev.
involving
question
may
stood as
of when
Comm’n,
190, 201,
1713,
461 U.S.
103 S.Ct.
party
preenforcement
seek
review a stat
1721,
(1983) (threatened
inju
L.Ed.2d 752
regulation.” Chemerinsky, supra,
ute or
at
ry
“certainly impending”).
must be
(emphasis
original).
in
it is not
surprising
ripeness inquiry
often
Second,
parties
must not
declaratory
present
involves
actions which
retain
throughout
adverse interests
the liti
special problems.
Maryland Casualty
See
gation,
“[a]ny
but
contest must be based on a
& Oil Co.,
Co. v.
Coal
312 U.S.
Pacific
‘real
controversy admitting
and substantial
(1941)
510, 512,
61 S.Ct.
Ass’n,
U.S.
”
ripe.’
[Renne]
See
this action
(1981)),
render
facts are
whereas
69 L.Ed.2d
322,]
Cummings. Accordingly, the Court sees against enforcement possibility no of state Adversity interest him. said, plain- Armstrong “[w]here In II, F.Supp. at 248-49. Presbytery contingency, it is tiff’s action is based on a unlikely parties’ interest will be that argues the district court The state that sufficiently give to a case or adverse to rise plain- named correctly held that none meaning Article controversy within that LAD’s an imminent threat tiffs face 411-12. Armstrong, III.” 961 F.2d at prohibitions against incitement or otherwise concluding instant case was not boycotts, that the inducing helping others to induce adjudication, against the district court relied prohibitions discrimi- of its other large part representations of the DCR posting requirement on the will nation or its notice history through support, affidavit and a against the Stewart them. be enforced against complaint reli- and its the LAD’s non-enforcement state contends Cummings only in his giously speakers. allegations terms motivated refer test, Presbyteri- pastor court of an Orthodox Step-Saver capacity the district as it has waived enforce- parties that the had no adverse an Church. Because determined they act in when Cummings’ that ment Despite interest. assertion religious organizations or as capacity as engage their engage will engaged, he has does functions, clergymen performing discrimination, prohibited the court stated: Cummings does not concludes that the state private action or suit has [N]o enforcement enforcement, any imminent threat of but face against [Cummings or been commenced not be yet guarantee that he will refuses plaintiffs] a result. the other outside prosecuted if he as an individual acts they although allege Plaintiffs intend church. future, in similar conduct for constru- Applying without an actual or imminent threat the usual standards give allegations which ing of the statute the constitu- enforcement of all favorable infer- the benefit presented tional in a suffi- issues are
1465 them,8 that can be drawn from we Presbytery, enees ordained minister of the pas- complaint fairly that conclude asserts tor of one its New churches and a Cummings’ rights pastor Reverend as both a plaintiff, no but mention is suing made and a citizen and therefore that the Stewart only as a para- leader an institution. affidavit is insufficient to 14, remove threat graph Cummings is described without against Cummings in of enforcement his indi- limitation capacity to his clergyman as a capacity. vidual 51, paragraph leader. the com-
plaint states: In order to determine what Plaintiff Cummings, pastors other asserts, rights Cummings we turn to the members of their congregations ... do complaint. Complaints amended need not be speak homosexuality, out about bisexuality Rather, precise models of information. a and heterosexual sex marriage, outside of complaint fairly suffices when it serves make reasonable distinctions based on notify the defendants of the facts and the рractices, them, such lobby against See, alleged deprivation. e.g., City Holder v. circulate condemning literature them. Allentown, (3d Cir.1993). 188, 194 987 F.2d They encourage aid and abet discrimina- face, judged when on their com tion and reasonable distinctions ho- plaints should be in construed favor of the mosexuals, bisexuals and heterosexuals en- party defending against a motion dismiss. gaging in sex marriage. outside of (“The reviewing id. test in a motion to Cf. whether, dismiss for failure to state a claim is App. Paragraph at 218. complaint 53 of the reading plead under reasonable alleges: relief.”)
ings, plaintiff may be entitled to circulate, issue, publish, [Plaintiffs display, (citing Upper Darby Township, Colburn v. post printed and mail condemning material (3d 663, Cir.1988), F.2d 665-66 cert. de homosexuality bisexuality and heterosexual nied, 1065, marriage making sex outside of reasonable (1989)); L.Ed.2d 808 Williams New Castle distinctions on based such acts.... Cir.1992). (3d County, 970 F.2d Paragraph complaint
Id. alleges: 57 of the The state contends that the com always past, pres- Plaintiffs have in the plaint Cummings’ rights only asserts ently do and since the amendments have capacity. terms of his institutional A careful from, knowingly buy refused to contract record, however, review of the reveals a dif persons with or otherwise do businеss with Although helpful ferent conclusion. it is person’s on the basis of that homosexual specify if party bringing a practices. bisexual or heterosexual capacity, suit his individual or official allegations Id. at 220. None of these limit any rigid requires are not aware rule that Cummings per- the acts avers he wishes to express capacity. statement of such prosecution reprisal form recognize without fear of Cummings is listed as the perform under the LAD to he would Cummings” caption “Rev. David B. acts Rather, pastor complaint, App. partic at but his as of the OPC. ipation implication allegations, is nowhere limited to his institutional clear of these when capacity.9 Again, plaintiff, paragraph of the com we construe them favor of the as plaint, must, Cummings being is identified past, an we is that in the Company, 8. See v. Northeast Land he counsel stated listed as the "Rev. Markowitz (3d Cir.1990). F.2d Cummings” caption David B. "because Transcript Argument, that is his title.” of Oral 9. Use of the term "Reverend” in written docu- ("Tr.”) March also indicated 5. He generally respectful acknowledgment ments is pastor suing capacity if a in an official he clergyman's calling profession. In the normally pastor would add "as of such and way persons professions same spectfully in other are re- caption. such" in the Id. “doctor,” "attorney,” addressed as “professor,” argument, appellants' etc. At oral *12 1466 460, Thompson, v. engage will currently and the future does Steffel (1974)). 1209, 1216, L.Ed.2d 505 per- S.Ct. and professional in his both
in conduct
declaratory
a
plaintiff seeks
“Where the
of
statute.
run afoul
the
that could
sonal life
respect to the constitutionali
judgment with
complaint that would
nothing in the
seeWe
statute,
the
is
ty
a
even where
attack
of
state
Cummings
that
conclusion
the state’s
support
be
grounds, there must
on First Amendment
preach and teach
only
right to
his
asserts
threat of enforcement
a ‘real and immediate’
clergy-
church as a
of the
the confines
within
(quoting
plaintiff.” Id.
Hardwick
against the
contrary,
To
religious leader.
the
man or
(11th
Bowers,
F.2d
1206-07
Cir.
just quoted
complaint
of the
portions
the
1985),
grounds, 478
rev’d on other
U.S.
individual,
Cummings, as
that
an
indicate
(1986)).
This
92 L.Ed.2d
106 S.Ct.
poten-
that has a
engage in conduct
plans to
throughout
the
must remain extant
threat
ban
incitement
violating the LAD’s
on
tial for
“[wjhere
inter
litigation and
course of the
against male or
prohibited discrimination
conditions, the
vening
removes these
event
employment,
com-
homosexuals
female
now-speculative
must not address the
cоurt
by
public accommodation
places of
merce
(citing Steffel, 415
controversy.” Id.
U.S.
that
provided
boycott or otherwise.10
(remanding
at 1216 n. 10
459 n.
restricting Cum-
a
of enforcement
threat
plaintiff still
of whether
for determination
speech
free
mings’ First Amendment
prosecution)).
faced threat of
exists,
ripe. Fo-
controversy would
the
be
question
ripeness,
solely on the
cusing
affidavit,
paragraph
of the Stewart
however,
for the
not
sufficient
it would
be
of the
the state has forsworn enforcement
Cummings’ rights
merely to
complaint
assert
employment
respect to church
de-
LAD with
must
a credible
There
remain
as a citizen.
states,
then
cisions. Stewart
against him even
threat of enforcement
provision [regarding church
this
Under
by the
were made
though representations
practices],
plaintiffs here
employment
disclaiming any intention
in its affidavit
state
free,
prosecution,
to
are
without fear
against religious insti-
the statute
to enforce
employment
make
decisions which discrim-
tutions.
respecting
prospective
a current or
inate
present
to
“[i]n
that
order
We have held
employee’s
perceived
actual or
sexual or-
seeking
justiciable controversy in an action
Hencе,
“religious
such a
associ-
ientation.
protect against a
declaratory judgment
to
organization” may make
ation or
decisions
event,
dem-
must
future
practice
sincerely-
feared
engage
of its
that
probability of
future
that the
onstrate
beliefs within the limits
held
substantial,
occurring
real and
‘of
event
The Division
of the First Amendment.
immediacy
construing
to warrant
reality
not and has no intention of
sufficient
has
declaratory judgement.’”
enforcing the LAD in
manner
of a
nor
issuance
which,
construed,
liberally
(quoting
would
tend
Army,
is or is not
Thompson,
452,
v.
415 U.S.
94
Steffel
church, or to determine what is or is not a
1209,
(1974),
39
S.Ct.
L.Ed.2d 505
the United
religious
faith.
“tenet”
Supreme
States
Court held that
a
where
App.
Although
paragraph
at 295-96.
plaintiff seeks to exercise the First Amend
fairly be construed to remove the
could
guarantee
expression,
ment’s
of freеdom of
against the church and
threat of enforcement
prosecute
the state need not
in order to
activities,
religious
we think it fails to
its
459,
present
ripe controversy.
a
Id. at
94
against speech or
eschew enforcement
ex-
at
Steffel,
plaintiff
S.Ct.
1215-16.
pressive
setting
conduct outside the
of a reli-
attempted in
shop
distribute handbills
gious
Similarly,
para-
institution or office.
ping
protesting
center
the United States’s
affidavit,
graph
his
13 of
Stewart avers
involvement Vietnam.
Id. at
94 S.Ct.
past prosecuted
Division
not in the
“the
has
prior
at 1213-14. After a
encounter with
essentially
prosecute
and has no intention to
police, plaintiff
companion.
returned with a
sincerely-held religious
exempt churches for
police
Id. The
arrived and informed the
practice,
speech
belief or
consistent with protestors
they remained, they
that if
would
belief,
engage
such
or for a refusal
in be
although
arrested.
Id. Plaintiff left
his
speech
following
religious
certain
or for
their
companion stayed and was arrested.
Id. at
tenets,
all within
the limits
the First
456,
tiffs’
circumstances,
necessary
peti
it is not
davit?
expose
tioner first
himself to actual arrest or
MR. LORENTZ:' That the state has not
prosecution
challenge
to be entitled to
a stat
against
waived enforcement
unnamed indi- ute that he claims
deters the exercise
viduals,
Reverend
rights.”
constitutional
Id. at
94 S.Ct. at
pastor
in his role outside of
because there’s
1216;
McKay Heyison,
see also
F.2d
nothing
anywhere
(3d Cir.1980) (“
“When
the case that
indicates that he has
alleged
an intention to
Certainly,
other role.
is an
he
individual.
conduct, arguably
course of
with a
affected
interest,
proscribed by a
constitutional
but
Tr. at 25-26.11
statute, and there exists a credible threat of
go
prosecution thereunder,
literal terms of the
DCR waiver
no
he “should not be
required
undergo
further
than the
activities of the
to await
a criminal
argument
prosecution
seeking
institutional
and at oral
as the sole means of
’” (quoting
reiterated the
counsel
limits
the waiver
relief.”
Babbitt v. United Farm
colloquy
originally
11. The
continues:
launched on the statute
before it was
[appellants] argued
severely
anything
THE COURT: But
but
constricted was
morning ...
that the title of "Reverend” in
institution.
complaints
only descriptive
[sic]
that
he still remains as an individual
is
in that
Obviously,
protection
because
institutional
plaintiff.
religion
greater
under the first amendment
sophistry
is that
merit
Now
that?
or is there some
are re-
than it is for individuals.
Individuals
general application.
quired
obey
laws of
MR. LORENTZ: It is not our—we don’t un-
Tr. at 26.
derstand that the thrust of the attack that was
Step-Saver
Union,
289, 298,
satisfy
prong of the
99 to
the first
Nat’l
Workers
(1979)
inquiry.
(quot
ing Doe v.
(1973)));
739, 745,
Chemerin
L.Ed.2d
2. Conclusiveness
(“[I]t
established
is well
sky, supra at
of the substantial
because
Step-Saver
that a case
factor re
second
denying preenforcement review
judicial
hardship to
ac
quires us to determine whether
choose between
is forced to
person
present
time would amount to
when
tion at the
activity
risking
lawful
forgoing possibly
advisory opinion
upon a
more than an
based
sanctions.”).
Step-Saver,
hypothetical set of facts. See
substantial
*14
supra, pre
mentioned
in
future was
to
insufficient
render the
judgment resolving
challenge
the facial
to the
ripe.
at 2338-39.
case
Id.
S.Ct.
inquiry
Act.
In this
consider
we
“whether
plans
likely
parties’
of actions are
to be
Renne,
Here,
Cummings alleges
unlike
by
declaratory judgment.” Step-
affected
currently
in
engages
speech
that he
and acts
Saver,
denial
relief
Cummings’
Reverend
first amendment free-
parties
Step-Saver
affect the
and thus this
expression
jurisdic-
dom of
claims for lack of
weighs
factor also
in favor of our conclusion
*16
proceedings
tion and remand for further
com
controversy
ripe.
express
that this
We
no
opinion.
repre-
case,
sistent with
The state’s
opinion
of this
on the merits
a task
clearly
sentations
show that the claims of the
meaning
interpretation
involves the
and
of
plaintiffs, Presbytery
institutional
statutory provisions
and Calva-
under attack and
Stewart,
ry
ripe.
are not
the Director of
their effect on our fundamental constitutional
right
speech.
Rights
Department
think
Division on Civil
to freedom of
of
performed by
Safety
task
be
Law and Public
of
should
district
the State of New
court in the first instance.
and an officer of the court swears:
jurisprudence
injury "fairly
challenged
13. Current First Amendment
does
can be traced to the
require
defendant,”
willing
not
a Thoreau or a Gandhi who is
action of the
and has not resulted
go
jail
permits
for his beliefs but
the more
independent
"from the
action of some third
among
cautious Emersons
us to assert our fears
court”[;]
(3)
party not before the
and
a likeli-
rights
of
with our
interference
fundamental
injury
by
hood that the
will be redressed
atmosphere
the civilized
of a court before sub-
decision, by
favorable
which we mean that the
jecting
jail.
ourselves to the risk of arrest and
obtaining
"prospect
injury
of
relief from the
as
ruling"
a result of a favorable
is not "too
concluding
14. Our reasons for so
also establish
speculative!)]”
Cummings’ standing to assert a violation
his
Chapter
Fla.
Northeastern
Assoc. Gen. Contrac
rights.
party
First Amendment
In order for a
—
Jacksonville,
-,
City
tors Am. v.
U.S.
present
justiciable controversy,
litigant
-,
2297, 2301-02,
113 S.Ct.
be
to have the
must
"entitled
court decide the
(1993).
L.Ed.2d 586
It is clear that
dispute
particular
merits of the
or of
issues."
and,
Setden,
490, 498,
rights
can assert his own
as an individual
Worth v.
95 S.Ct.
2197, 2205,
(1975).
light of our
that the state has
N.J.S.A. primary courts Federal consider fac three fore, will affirm the court’s deci- district reviewing declaratory judgment tors when plaintiffs. applies it to the institutional sion as (1) ripeness: adversity action for interest (2) defendants, between conclu ROSENN, Judge, dissenting. Circuit (3) sivity, utility. Sys Step-Saver Data tems, Wyse Technology, Inc. v. 912 F.2d majority correctly that this concludes (3d Cir.1990).1 weighs The court these respect ripe suit is not to the institution- if and other relevant factors to determine However, disagree I with the parties. al Here, ripe. ripe issue is the case is not controversy majority’s that “the conclusion adversity no of interest exists be because Cummings argu- David ripe” because Rev. parties light tween the involved in this suit in ably alleges an individual that the statute protection of the extensive afforded New speech. This conclu- threatens (LAD) Jersey’s Against Discrimination Law completely allegations in the ignores sion plaintiffs’ religious from interference with suing pastor as the complaint that he is practices. the Director of New Presbyterian Church of New the Orthodox Jersey’s Rights repre Division on Civil Jersey. respectfully I therefore dissent be- past sented that has not State I believe this case is not for cause prosecuted prosecute and has no intention to judicial disposition. exempt religious organizations III, Article section of the United States beliefs, Therefore, practices, speech. jurisdiction limits federal to ac- Constitution utility judgment of a ren conclusiveness tual “cases” and “controversies.” U.S. dered at this time are doubtful. Const, § art. Ill it forbids the advisory opinions. issuance of “The case or majority correctly *17 The notes that the State controversy requirement must be met re- Jersey expressed its of New has intention gardless type sought, of of relief includ- the Cummings prosecute not to Rev. for actions ing declaratory Armstrong relief.” World clergy engaging as a member of the in taken (3d Indus., Adams, Inc. v. 961 F.2d performance of functions and Cir.1992) (citation omitted). Additionally, to waive enforce- that the State refused declaratory judgment clarify “even if a would Cummings against ment as an indi- ordinarily parties’ legal rights, it should majority properly vidual. The concludes that plans granted parties’ not be unless ‘the of Cummings pursue rep- this suit as a cannot by likely are to be affected a declara- actions majority, church. The resentative of the ” (citation tory judgment.’ Id. at 412 omit- however, strains in an effort to conclude that ted). Also, concerning in cases the Constitu- Cummings capacity in has sued his individual statutes, tionality of this court should state capacity pursue in that can this case. and advantage permitting “the state consider Cummings clearly is identified in the com- opportunity courts further construe Cummings.” plaint B. See as “Rev. David challenged provision perhaps pro- and e.g., plaintiffs’ caption in First Amended materially question to decid- cess alter the bе ¶¶ (citation omitted) Complaint complaint 1 and 4. The (quotation ed.” Id. omit- ted). allege- in a secular Finally, presume this court must that does not that he sues See, risprudence. majority opinion at 1462-64 for a thor- ough ripeness ju- and informative discussion of that indi- church member. The district court observed
capacity as an individual
appellant
of the
churches
when this court heard an earlier
vidual members
appeal
plaintiffs
Presbytery
from were not
in this action.
appeal in this same case on an
application
Presbyterian Church v.
denying
plaintiffs’
N.J.
Orthodox
an order
(D.N.J.1993).
Florio,
injunction,
F.Supp.
preliminary
its memoran-
for a
First,
Cummings only
supports
in
The
this
opinion
dum
addressed
record
observation.
Presby-
complaint’s caption
individ-
as “an ordained minister of the
lists
one
role
ual,
Second,
Cummings.3
tery
pastor
the'
of its member
Reverend
the rec-
one
appeal,
demonstrating
no
appellants
churches.” In that
did not
ord contains
information
repre-
Cummings
acting
any
that
was
as an
that
of the church members are
maintain
appellants
by
amend-
sented
the named
or have con-
individual and
have never
’
complaint
Cummings
to include
sented to inclusion
this law suit.4 The
ed their
plaintiffs. Paragraph
properly
as individual
district court
noted that a
de-
others
complaint
specifically
claratory judgment
requires
of the
in this case
av-
action
“a ‘real
“plaintiff,
Cummings
Rev. David B.
and immediate’
threat
of enforcement
ers:
Presbytery,
F.Supp.
an
at 249
ordained minister
plaintiff.”
pastor
(quoting
Army
Department
of one of its
Salvation
New
(3d
Community Affairs,
No
him
churches.”
reference is made to
as
919 F.2d
Cir.1990))
court).
any
question
(emphasis
by
an individual.
If
residual
still
added
district
point
Cummings’
Cummings brought
remains
this
as to
status
this suit as an institution-
litigation,
dissipated
paragraph
representative.
this
it is
al
After the
affidavit
State’s
complaint.
prosecute
45 of
It
it
states:
individ-
averred that would not
him un-
“[t]he
plaintiff [Cummings]
agent
pastor,
ual
is an
of these
der LAD for
as a
actions taken
no
legitimate
controversy
[the churches].”
entities
case or
remained.
majority
point
Cummings
pursued
does not
lan-
Even if
had
case
guage
beginning,
that describes
an indi-
as
as
individual from the
it is not
fact,
para-
ripe.
vidual.2 In
the first of the three
“Where the
seeks- declarato-
graphs
complaint quoted by
ry judgment
respect
from the
to the constitution-
majority
statute,
support
begins
ality
of their conclusion
of a state
even where the attack
“[p]laintiff Cummings,
pastors
grounds,
other
is on First Amendment
there must
” ¶
congrеgations....
members of their
51 be a ‘real and immediate’ threat of enforce-
added).
(emphasis
plain-
Army,
ment.” Salvation
In addition to decision, judicial not fit for
this case are * rehearing. Rosenn, voting panel Judge, was limited to Circuit United States Hon. Max