Rims BARBER; Carol Burnett; Joan Bailey; Katherine Elizabeth Day; Anthony Laine Boyette; Don Fortenberry; Susan Glisson; Derrick Johnson; Dorothy C. Triplett; Renick Taylor; Brandilyne Mangum-Dear; Susan Mangum; Joshua Generation Metropolitan Community Church, Plaintiffs-Appellees, v. Governor Phil BRYANT, State of Mississippi; John Davis, Executive Director of the Mississippi Department of Human Services, Defendants-Appellants. Campaign for Southern Equality; The Reverend Doctor Susan Hrostowski, Plaintiffs-Appellees, v. Phil Bryant, in His Official Capacity as Governor of the State of Mississippi; John Davis, in His Official Capacity as Executive Director of the Mississippi Department of Human Services, Defendants-Appellants.
No. 16-60477, No. 16-60478
United States Court of Appeals, Fifth Circuit.
June 22, 2017
860 F.3d 345
Before SMITH, ELROD, and HAYNES, Circuit Judges.
The problems don‘t end there. Think about the potential problems with extrapolation methodologies employed by private contractors who are awarded bounties for finding purported overpayments and whose findings are presumed valid.4 Consider also the effect of multiple tiers of de novo agency review, which render non-Council decisions and proceedings all but useless. Finally, if a provider endures until judicial review, the courts’ highly deferential standards of review offer the vast majority of providers little hope of success.
Are these redundant, time-consuming, and costly procedures worthwhile for program integrity or providers? One is reminded of Prof. Gilmore‘s aphorism: “In Hell there will be due process, and it will be meticulously observed.” Grant Gilmore, The Ages of American Law 111 (Yale 1977).
***
For the foregoing reasons, the district court‘s grant of summary judgment and denial of the motion to amend or alter the judgment are AFFIRMED.
Robert Bruce McDuff, Esq., Sibyl C. Byrd, Esq., Jacob Wayne Howard, Esq., McDuff & Byrd, Jackson, MS, Elizabeth Littrell, Lambda Legal Education & Defense Fund, Atlanta, GA, Beth Levine Orlansky, Mississippi Center for Justice, Jackson, MS, Susan L. Sommer, Lambda Legal Defense & Education Fund, Incorporated, New York, NY, for Plaintiffs-Appellees.
Jonathan F. Mitchell, Dean John Sauer, James Otis Law Group, L.L.C., Saint Louis, MO, James Andrew Campbell, Kevin Hayden Theriot, Alliance Defending Freedom, Scottsdale, AZ, Drew Landon Snyder, Office of the Governor for the State of Mississippi, Jackson, MS, Daniel Bradshaw, Mississippi Department of Human Services Executive Director‘s Office, Jackson, MS, Tommy Darrell Goodwin, Esq., Assistant Attorney General, Office of the Attorney General for the State of Mississippi, Jackson, MS, for Defendants-Appellants.
Kimberlee Wood Colby, Christian Legal Society, Springfield, VA, for Christian Legal Society, National Association of Evangelicals, Amici Curiae.
Scott A. Keller, Solicitor, Office of the Solicitor General for the State of Texas, Austin, TX, for State of Texas, State of Arkansas, State of Louisiana, State of Nebraska, State of Nevada, State of Oklahoma, State of South Carolina, State of Utah, Paul R. LePage, Governor of Maine, Amici Curiae.
Deborah Jane Dewart, Attorney, Swansboro, NC, for North Carolina Values Coalition and Liberty, Life, and Law Foundation, Amici Curiae.
John Allen Eidsmoe, Senior Counsel, Foundation for Moral Law, Montgomery, AL, Foundation for Moral Law, Amicus Curiae.
James William Manuel, Esq., Michael James Bentley, Esq., Bradley Arant Boult Cummings, L.L.P., Jackson, MS, for Sanderson Farms, Incorporated, John N. Palmer, Sr., Jack Reed, Jr., William A. Percy, II, Tim C. Medley, Sharpe & Wise, P.L.L.C., Kelly Kyle, Hal Caudell, Talamieka Brice, Amber Kirkendoll, Jessica Kirkendoll, Amici Curiae.
Joshua Adam Matz, Robbins, Russell, Englert, Orseck, Untereiner & Sauber, L.L.P., Washington, DC, for Caroline Mala Corbin, Ira C. Lupu, Micah J. Schwartzman, Richard C. Schragger, Elizabeth Sepper, Nelson Tebbe, Robert Tuttle, Amici Curiae.
James H.R. Windels, Esq., Davis, Polk & Wardwell, L.L.P., New York, NY, for Gay Men‘s Health Crisis, Incorporated, Aids Services Coalition, Grace House, Incorporated, My Brother‘s Keeper, Incorporated, Amici Curiae.
Andrew O‘Connor, Ropes & Gray, L.L.P. Boston, MA, for GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, American Civil Liberties Union, Amici Curiae.
Charles C. Lifland, Esq., Justine M. Daniels, O‘Melveny & Myers, L.L.P., Los Angeles, CA, for American International Group, Incorporated, Belhaven Residential, L.L.C., Bloomberg, L.P., Byrne and Associates, P.L.L.C., Chism and Company, Incorporated, Choice Hotels International, Incorporated, CVS Health Corporation, David Neil McCarty Law Firm, P.L.L.C., First Natchez Radio Group, Incorporated, Front Porch Fodder Publishing, L.L.C., Glassdoor, Incorporated, International Business Machines Corporation, Levi Strauss & Company, Mantle, L.L.C., Molpus Woodlands Group, Ocean Springs Seafood Market, Incorporated, Paracosm Entertainment, L.L.C., Pfizer, Incorporated, Pritchett Engineering & Planning, L.L.C., Replacements, Limited, T Enterprises, Incorporated, Mitchell Gold Company, Doing Business as Mitchell Gold + Bob Williams, ‘Sip Magazine, L.L.C., Two Rivers Realty, L.L.C., Amici Curiae.
Nicole Erica Schiavo, Hogan Lovells US, L.L.P., New York, NY, for Anti-Defamation League, Americans United for Separation of Church and State, Bend the Arc, Central Conference of American Rabbis, Hadassah, Interfaith Alliance, National Council of Jewish Women, People for the United Way Foundation, T‘ruah: the Rabbinic Call for Human Rights, Women of Reform Judaism, Women‘s League for Conservative Judiasm Interfaith Alliance, Hindu American Foundation, Amici Curiae.
George Andrew Lundberg, Latham & Watkins, L.L.P., Los Angeles, CA, for E. Tendayi Achiume, Katherine R. Allen, Nadav Antebi-Gruska, Emily A. Arnold, M.V. Lee Badgett, Amici Curiae.
JERRY E. SMITH, Circuit Judge:
The Governor of Mississippi and the Executive Director of the Mississippi Department of Human Services appeal a preliminary injunction. Because the plaintiffs do not have standing, we reverse the injunction and render a judgment of dismissal.
I.
A.
The plaintiffs challenge the constitutionality of a Mississippi statute, HB 1523, under the Establishment Clause and the Equal Protection Clause of the Fourteenth Amendment. HB 1523 provides that “[t]he state government shall not take any discriminatory action” 1 against persons who act in accordance with certain beliefs in an
(a) Marriage is or should be recognized as the union of one man and one woman; (b) [s]exual relations are properly reserved to such a marriage; and (c) [m]ale (man) or female (woman) refer[s] to an individual‘s immutable biological sex as objectively determined by anatomy and genetics at time of birth.
Section 3 defines the set of circumstances in which adverse state action is restricted. Religious organizations are protected when they make decisions regarding employment, housing, the placement of children in foster or adoptive homes, or the solemnization of a marriage based on a belief listed in Section 2.
Section 3 also protects any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms.
B.
The plaintiffs are residents of Mississippi and two organizations who do not share the Section 2 beliefs. The district court discussed the individual plaintiffs in three categories: (1) religious leaders who do not agree with the Section 2 beliefs, (2) gay and transgender persons who may be negatively affected by HB 1523, and (3) other persons associated with the Section 3 circumstances who do not share the Section 2 beliefs. The organizational plaintiffs are Joshua Generation Metropolitan Community Church, a religious organization that objects to the Section 2 beliefs, and the Campaign for Southern Equality (“CSE“), whose brief describes it as “a non-profit organization that works across the South to promote the full humanity and equality of lesbian, gay, bisexual, and transgender people in American life” (internal quotation marks omitted).
The plaintiffs filed two suits, later consolidated, against state officials who would have a role in the implementation of HB
The district court issued a preliminary injunction against the implementation of HB 1523. The state defendants appeal.
II.
“[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[.]” Id. (internal quotation marks and citations omitted). “Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Id. (internal quotation marks and citations omitted). “Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks and citation omitted).
Plaintiffs always have the burden to establish standing. Id. “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff‘s case, each element must be supported ... with the manner and degree of evidence required at the successive stages of litigation.” Id. Because a preliminary injunction “may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” the plaintiffs must make a “clear showing” that they have standing to maintain the preliminary injunction.3 None of these plaintiffs has clearly shown an injury-in-fact, so none has standing. It follows that “[w]e do not—indeed, we may not—reach the merits of the parties’ [constitutional] arguments.” Hotze v. Burwell, 784 F.3d 984, 991 (5th Cir. 2015).
III.
A.
The Establishment Clause is no exception to the requirement of standing. Valley Forge, 454 U.S. at 484. “It is not enough simply to argue that there has been some violation of the Establishment Clause; [the plaintiffs] must allege a personal violation of rights.” Croft v. Governor of Tex., 562 F.3d 735, 745 (5th Cir. 2009). The plaintiffs claim they have suffered a stigmatic injury from the statute‘s endorsement of the Section 2 beliefs. That stigma can be a cognizable Establishment Clause injury, but even such stigmatic injury must be concrete and particularized. See, e.g., Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991).
“[T]he concept of injury for standing purposes is particularly elusive in Establishment Clause cases,” but we are not without guidance. Id. (quoting Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987)). In cases involving religious displays and exercises, we have required an encounter with the offending item or action to confer standing. See id.; Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 494, 497 (5th Cir. 2007) (en banc) (addressing religious invocations). But these religious display and exercise cases represent the outer limits of where we can find these otherwise elusive Establishment Clause injuries.4 Where a statute or government policy is at issue, the policy must have some concrete applicability to the plaintiff. See Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 294 n.31 (5th Cir. 2001). Taxpayers have standing for the limited
The plaintiffs analogize their purported stigmatic injury to the injuries in the religious-display and religious-exercise cases. Here, however, there is not a similar item or event to “encounter.” That does not excuse the plaintiffs from showing an injury in fact that is both “concrete and particularized.”5 To determine whether they have made such a showing, we must examine their alleged injury in light of our caselaw. Because the challengers have failed to provide sufficient evidence of an injury-in-fact from HB 1523 under any of the aforementioned categories, they have not made a clear showing of standing.
B.
A plaintiff has standing to challenge a religious display where his stigmatic injury results from a “personal[ ] confront[ation]” with the display. See Murray, 947 F.2d at 150-51. For comparison, the caselaw offers some examples of such a confrontation. There is standing where a plaintiff personally encounters a religious symbol on his public utility bill. Id. at 150. Personally encountering a religious message on the currency a plaintiff regularly handles is also sufficient.6 But once that display is removed from view, standing
The plaintiffs maintain that the stigmatic injury caused by Section 2 is analogous to the injury-in-fact in the religious-display cases. But they make no clear showing of a personal confrontation with Section 2: The beliefs listed in that section exist only in the statute itself.
Just as an individual cannot “personally confront” a warehoused monument, he cannot confront statutory text. See Staley, 485 F.3d at 309. Allowing standing on that basis would be indistinguishable from allowing standing based on a “generalized interest of all citizens in” the government‘s complying with the Establishment Clause without an injury-in-fact. See Valley Forge, 454 U.S. at 483. That, we know, “cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.” Id. The religious-display cases do not provide a basis for standing to challenge the endorsement of beliefs that exist only in the text of a statute.7
C.
For standing, the religious-exercise cases require the same type of person-
At oral argument, the plaintiffs asserted that Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), a religious-exercise case, was the strongest authority supporting their claim that a stigmatic injury is sufficient for Establishment Clause standing.8 In Santa Fe, id. at 309-10, 314, the Court used broad language to describe the injury non-adherents may suffer from witnessing a prayer at a school football game and the ability of the plaintiffs to bring a facial challenge to that policy. But Santa Fe does not address the standing of the instant plaintiffs, and its broad language does not eliminate the injury-in-fact requirement. In fact, we are bound by Tangipahoa Parish, 494 F.3d at 497, to require proof of a personal confrontation with the religious exercise. Neither the religious-exercise cases generally, nor Santa Fe specifically, provides support for these plaintiffs’ standing.
D.
Alternatively, the plaintiffs could establish injury-in-fact by clearly showing
In Littlefield, the plaintiffs challenged a public school district‘s uniform policy on, inter alia, Establishment Clause grounds. They contended that the policy‘s opt-out for those with religious objections to the dress code impermissibly “favor[ed] certain organized religions....” Littlefield, 268 F.3d at 294 n.31. Their “direct exposure to the policy satisfie[d] the ‘intangible injury’ requirement to bring an Establishment Clause challenge.” Id. Unlike the instant plaintiffs, the Littlefield plaintiffs were required to conform to the dress code unless they fit the criteria of the opt-out. But HB 1523 does nothing to compel the behavior of these plaintiffs; it only restricts the actions of state government officials.
The decisions in Awad v. Ziriax, 670 F.3d 1111, 1120-24 (10th Cir. 2012), and International Refugee Assistance Project v. Trump, 857 F.3d 554, 583 (4th Cir. 2017), are similarly unavailing. The plaintiff in Awad had standing to challenge an amendment to the Oklahoma Constitution that forbade state courts from considering Sharia law. Awad, 670 F.3d at 1123-24. But he had alleged that the amendment would prevent the Oklahoma courts from probating his will. Id. at 1119. The plaintiff in International Refugee alleged that his wife, who had an approved visa application, was barred by an Executive Order from entering the United States, thus “prolong[ing] their separation.” Int‘l Refugee, 857 F.3d at 583. Those are the sort of concrete injuries-in-fact that the plaintiffs have not alleged in this case.9
It is true that HB 1523 protects Section 2 beliefs by restricting the ability of state officials to take action against those who act in a Section 3 circumstance in accordance with those beliefs. But there is no evidence in the record of an injury-in-fact under this theory. The plaintiffs’ affidavits only allege offense at the message Section 2 sends, and they confirmed at oral argument that they are relying on that purported stigmatic injury for standing. Because they have claimed no Establishment Clause injury from Section 3, we do not decide whether there could be standing on that basis. The plaintiffs have not clearly shown injury-in-fact.
E.
The CSE plaintiffs also claim to have taxpayer standing under Flast. “[T]o establish taxpayer standing to challenge the constitutionality of a state statute on the basis of the Establishment Clause, a party must show that ‘tax revenues are expended on the disputed practice.‘” 10 A
HB 1523 does not fall within Flast‘s “narrow exception’ to ‘the general rule against taxpayer standing.‘” 14 The only spending HB 1523 authorizes is compensatory damages and attorneys’ fees against state officials who engage in prohibited discriminatory conduct. Those hypothetical expenditures that may arise from lawsuits against state officials are “incidental” to the overall statutory scheme. See Flast, 392 U.S. at 102. The expenditures do not resemble the kind of direct spending program that, if enacted by Congress, would be based on the taxing and spending power. The plaintiffs do not have taxpayer standing to challenge HB 1523.
IV.
A.
The Barber plaintiffs claim standing under the Equal Protection Clause. The three elements of Article III standing are the same under any clause of the Constitution, but the analysis “often turns on the nature and source of the claim asserted.” Moore v. Bryant, 853 F.3d 245, 250 (5th Cir. 2017). The “Equal Protection and Establishment Clause cases call for different injury-in-fact analyses” because “the injuries protected against under the Clauses are different.” Id. “[E]xposure to a discriminatory message, without a corresponding denial of equal treatment, is insufficient to plead injury in an equal protection case.” Id.
In Moore, we rejected a claim that the inclusion of the Confederate battle flag on the Mississippi state flag conferred standing under the Equal Protection Clause, reasoning that the plaintiff had not alleged any unequal treatment. Id. at 248. “[W]hen plaintiffs ground their equal protection injuries in stigmatic harm, they only have standing if they also allege discriminatory treatment.” Id. at 251 (citing Allen v. Wright, 468 U.S. 737, 755 (1984)). This allegation is required regardless of how “personally and deeply [the plaintiffs]
Future injuries can provide the basis for standing, but they “must be certainly impending to constitute injury in fact,” and ” ‘[a]llegations of possible future injury’ are not sufficient.” Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 1147 (2013) (quoting another source). An injury that is based on a “speculative chain of possibilities” does not confer Article III standing. Id. at 1150; see also Allen, 468 U.S. at 756-59. Such allegations also must be contained in the record. See, e.g., Tangipahoa Par., 494 F.3d at 499.
The Barber plaintiffs claim that their stigmatic injury arises from the statute‘s “bestowing legal privileges and immunities on those who would discriminate against members of the targeted groups....” But their affidavits only claim offense at the “clear message” of disapproval that is being sent by the state. In Moore, 853 F.3d at 251, this court has already foreclosed that argument for Equal Protection Clause standing. The affidavits contain no statement that any of the plaintiffs plans to engage in a course of conduct in Mississippi that is identified in Section 3.
Plaintiff Rennick Taylor comes the closest by stating his intention to marry, but that alone is insufficient. He does not allege that he was seeking wedding-related services from a business that would deny him or that he was seeking a marriage license or solemnization from a clerk or judge who would refuse to be involved in such a ceremony, or even that he intended to get married in Mississippi. Without more, we are left to speculate as to the injuries he and the other plaintiffs might suffer. That we cannot do. See Clapper, 1147. On this record, the plaintiffs are in no better position to claim Equal Protection standing than was the plaintiff in Moore.
B.
The Barber plaintiffs assert that some of the individual plaintiffs have Equal Protection standing because they live in a jurisdiction, or work for a state university, that has an anti-discrimination policy that is preempted by HB 1523 to the extent the relevant action is covered by Sections 2 and 3. The cities of Jackson, Hattiesburg, and Oxford and the University of Southern Mississippi have such policies.
The Barber challengers analogize the partial preemption of the local anti-discrimination policies to the Colorado constitutional amendment struck down on equal-protection grounds in Romer v. Evans, 517 U.S. 620 (1996). That amendment “prohibit[ed] all legislative, executive, or judicial action at any level of state or local government designed to protect” individuals on the basis of sexual orientation. Id. at 624. The Court held this violated the Equal Protection Clause because “[i]t identifies persons by a single trait and then denies them protection across the board.” Id. at 633. HB 1523 is similar to the Colorado amendment in that it restricts the availability of anti-discrimination remedies, but
The Court did not address standing in Evans, and we are not bound to find standing in a similar circumstance in the absence of such a holding. See Tangipahoa Par., 494 F.3d at 498. Even assuming there was standing in Evans, its reasoning does not extend to HB 1523, because its limited scope does not provide the same certainty that any member of an affected group will suffer an injury. HB 1523 preempts the local anti-discrimination policies only in the circumstances enumerated in Section 3. At a minimum, the challengers would have to allege plans to engage in Section 3-related conduct in Mississippi for which they would be subject to a denial of service and would be stripped of a preexisting remedy for that denial.16 The failure of the Barber plaintiffs to assert anything more than a general stigmatic injury dooms their claim to standing under this theory as well.
V.
“The exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, is ... restricted to litigants who can show ‘injury in fact’ resulting from the action which they seek to have the court adjudicate.” Valley Forge, 454 U.S. at 473. Under this current record, the plaintiffs have not shown an injury-in-fact caused by HB 1523 that would empower the district court or this court to rule on its constitutionality. We do not foreclose the possibility that a future plaintiff may be able to show clear injury-in-fact that satisfies the “irreducible constitutional minimum of standing,” Defenders of Wildlife, 504 U.S. at 560, but the federal courts must withhold judgment unless and until that plaintiff comes forward.
The preliminary injunction is REVERSED, and a judgment of dismissal for want of jurisdiction is RENDERED.