UNIVERSAL LIFE CHURCH MONASTERY, et al. v. NABORS, et al.
Nos. 21-5048/5055/5057/5058/5059/5100
United States Court of Appeals, Sixth Circuit
May 27, 2022
Argued: December 9, 2021
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0115p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNIVERSAL LIFE CHURCH MONASTERY STOREHOUSE, a Washington non-profit corporation; ERIN PATTERSON and GABRIEL BISER, individuals,
Plaintiffs-Appellees/Cross-Appellants,
Plaintiffs-Appellants (21-5100),
v.
WAYNE NABORS, in his official capacity as County Clerk of Putnam County, Tennessee (21-5059/5100); LISA DUKE CROWELL, in her official capacity as County Clerk of Rutherford County, Tennessee (21-5057/5100); WILLIAM F. KNOWLES, in his official capacity as County Clerk of Hamilton County, Tennessee (21-5058/5100); ELAINE ANDERSON, in her official capacity as County Clerk of Williamson County, Tennessee (21-5055/5100); HERBERT H. SLATERY III, in his official capacity as Attorney General of the State of Tennessee, JENNINGS H. JONES, in his official capacity as District Attorney General of Rutherford County, Tennessee, NEAL PINKSTON, in his official capacity as District Attorney General of Hamilton County, Tennessee, BRYANT C. DUNAWAY, in his official capacity as District Attorney General of Putnam County, Tennessee, and KIM R. HELPER, in her official capacity as District Attorney General of Williamson County, Tennessee (21-5048/5100),
Defendants-Appellants/Cross-Appellees,
BILL LEE, in his official capacity as Governor of the State of Tennessee,
Defendant-Appellee (21-5100).
Nos. 21-5048 /5055 /5057 /5058 /5059 /5100
Appeal from the United States District Court for the Middle District of Tennessee at Cookeville.
No. 2:19-cv-00049—Waverly D. Crenshaw Jr., District Judge.
Argued: December 9, 2021
Decided and Filed: May 27, 2022
Before: SUTTON, Chief Judge; STRANCH and BUSH, Circuit Judges.
COUNSEL
ARGUED: Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Herbert H. Slatery III, et al. Lisa M. Carson, BUERGER, MOSELEY & CARSON, PLC, Franklin, Tennessee, for Elaine Anderson. Jeffrey G. Jones, WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC, Cookeville, Tennessee, for Wayne Nabors. Ambika K. Doran, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, for Universal Life Church Monastery Storehouse, et al. ON BRIEF: Matthew D. Cloutier, Leslie Ann Bridges, Steven A. Hart, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Herbert H. Slatery III, et al. and Bill Lee. Lisa M. Carson, Lee Ann Thompson, BUERGER, MOSELEY & CARSON, PLC, Franklin, Tennessee, for Elaine Anderson. Jeffrey G. Jones, WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC, Cookeville, Tennessee, for Wayne Nabors. Ambika K. Doran, Bruce E.H. Johnson, Robert E. Miller, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, Rocklan W. King III, ADAMS AND REESE LLP, Nashville, Tennessee, Lucian T. Pera, ADAMS AND REESE LLP, Memphis, Tennessee, for Universal Life Church Monastery Storehouse, et al. Nicholas C. Christiansen, Daniel W. Ames, HUDSON, REED & CHRISTIANSEN, PLLC, Murfreesboro, Tennessee, for Lisa Crowell. Rheubin M. Taylor, Mary Neill Southerland, Sharon McMullan Milling, HAMILTON COUNTY ATTORNEY’S OFFICE, Chattanooga, Tennessee, for William F.
OPINION
JOHN K. BUSH, Circuit Judge. Universal Life Church Monastery (“ULC”) permits anyone who feels so called to become ordained as a minister—over the Internet, free of charge, and in a matter of minutes. Should the newly minted minister wish to solemnize a marriage in Tennessee, however, she will encounter a problem. Tennessee law permits only those “regular” ministers—ministers whose ordination occurred “by a considered, deliberate, and responsible act”—“to solemnize the rite of matrimony.”
Asserting that those restrictions violate the federal and Tennessee constitutions, ULC and various of its members sued several Tennessee officials to pursue an
event, plaintiffs lack standing to sue. The district court rejected those contentions by and large, entering a preliminary injunction against several defendants. We are now asked to take up the same questions and reverse the district court. And, indeed, we hold that many of plaintiffs’ claims must be dismissed for lack of standing. But we also hold that as to the remaining claims presenting a live case or controversy, the district court properly denied sovereign immunity. We will thus remand a narrow portion of plaintiffs’ suit for further proceedings below.
I.
Tennessee’s tradition of regulating who may solemnize marriages is evidently nearing its two-hundred-fiftieth anniversary. A 1778 act1 authorized “all regular ministers of the gospel of every denomination, having the care of souls, and all justices of the peace, to solemnize the rites of matrimony.” First Br. [21-5048] at 6 n.1 (quoting Bashaw v. State, 9 Tenn. 177, 183 (1829)). That language remains substantially the same today, though it is now somewhat more ecumenical in scope. As
ULC’s objection to that language is of more recent vintage. A non-profit corporation now headquartered in Seattle, ULC espouses two key tenets: to do “that which is right” and that everyone has a right “to practice their beliefs.” SAC ¶¶4, 23–24, R. 80 Whether ULC has any other views is unclear. But at least one thing it strongly advocates is that anyone “who feel[s] so called can become [a] minister[] through the Church.” SAC ¶26, R. 80. ULC will thus ordain as a minister—for free and over the Internet—anyone who completes a simple, online form.
For its part, the Tennessee Attorney General’s office appears to have first opined upon ULC’s practices in September 1997. In its Opinion No. 97-41, it considered whether ULC ministers could solemnize marriages under an earlier version of
(explaining that Tennessee Attorney General opinions, though nonbinding, are entitled to “considerable deference” (citing State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995))). It determined that they could not, reasoning that the statute’s text at the time implicitly required ordination to be “a considered, deliberate, and responsible act.” AG Op. No. 15-14, R. 123-7. Because ULC’s ordination process, in the Attorney General’s view, is none of those things, the opinion concluded that “ministers of the Universal Life Church are not permitted to solemnize marriages.”
A month later, the Attorney General released further opinions addressing related issues: First, assuming that a ULC minister does solemnize a marriage, is that putative marriage necessarily invalid? See AG Op. No. 97-138, R. 123-6. And second, do the county clerks who issue and record marriage licenses have the power or duty to enforce
Opinion No. 97-139 then answered the second question—whether “county clerks have discretion to examine the qualifications of officiants to determine that the person is a minister of the gospel under
it explained, “has not given county clerks the authority to examine the qualifications of a person seeking to solemnize a marriage.”
Soon after, the Tennessee General Assembly inserted that “considered, deliberate, and responsible act” construction from Opinion No. 97-41 into the statute itself with a 1998 amendment to
Nonetheless, in February 2015 the Attorney General issued Opinion No. 15-14, which considered whether and how the 1998 amendment to
In 2019, the General Assembly then enacted two measures targeting ULC even more directly than did its 1998 revision. First was an amendment to
Plaintiffs brought a pre-enforcement challenge in response, naming certain Tennessee officials as defendants, including Governor Bill Lee, Attorney General Herbert Slatery, and several counties’ district attorneys general and county clerks, all in their official capacities. Plaintiffs filed their initial complaint in June 2019, and later an operative, second amended complaint (“SAC”) in July. See Amended Compl., R. 55; SAC, R. 80. Suing under
They also asserted pendent state-law claims alleging violations of the Tennessee constitution.3 Id. ¶¶81–90.
While these theories have remained steady throughout the lawsuit, the personnel asserting them has not. Plaintiffs at first comprised ULC itself; ULC ministers Erin Patterson, Gabriel Biser, and James Welch; and a couple, Gale Plumm and Timeaka Farris, who had been married by a ULC minister. Id. ¶¶4–8, R. 80. Together, they alleged that Tennessee had unconstitutionally “draw[n] a line between favored and disfavored religious groups” with its antagonism of ULC. Id. ¶33. More specifically, Patterson, Biser, and Welch all alleged that they wished to solemnize future marriages in their home counties—Rutherford, Hamilton, and Putnam, respectively—but that they had been deterred from doing so by the 2019 amendments. See id. ¶¶38–39, 43–44, 50–51. Plumm and Farris, for their part, alleged
Eventually the district court held the requested hearing and issued an order containing three pertinent rulings. Order, R. 53. First, it ordered that “the STATUS QUO SHALL BE MAINTAINED” until the district court had “issue[d] a ruling after the trial.”
Id. at 1. (Though we understand this order as a negative injunction blocking enforcement, one county clerk has apparently interpreted it as an affirmative injunction to issue marriage licenses to couples whose proceedings were ULC-minister-solemnized. See Knowles Trial Br. at 5 n.3, R. 139.) Second, the district court held that the TRO request would be “CONSOLIDATED with a trial on the merits,” which the district court later suggested would take place on an accelerated schedule. Id. at 1, R. 53. And third, the court ordered that “[b]ecause the parties’ focus should be on the trial on the merits, NO DISPOSITIVE MOTIONS shall be filed without leave of the Court.”
This order proved problematic for defendants. Given their belief that they are entitled to sovereign immunity, that plaintiffs lack standing to sue, and that the ordination requirements have no enforcement mechanism, defendants wished to assert those arguments in pretrial motions. See, e.g., Mot. for Leave to File Mot. to Dismiss, R. 99. The district court eventually granted defendants leave to file such motions, but it then refused to adjudicate them. Order, R. 109. Instead, it apparently reasoned that the earliest it could rule on sovereign immunity was at the trial itself. Order, R. 140. Defendants, however, filed an interlocutory appeal seeking a stay of the case until the district court ruled on the immunity motions. Not. of Appeal, R. 141. As the appeal was pending, the district court voluntarily granted a stay and agreed to rule on the immunity motions before the case proceeded. Order, R. 194. So we remanded the case for the immunity ruling. Universal Life Church Monastery Storehouse v. Nabors, No. 19-6217 (6th Cir. Aug. 3, 2020) (order).
The district court then issued the decision now under review. Its corresponding opinion also contains three pertinent rulings. The district court first dismissed the claims of plaintiffs Plumm and Farris as “moot,” though later remarking that it was probably more accurate to say that they “lacked standing.” Universal Life Church Monastery Storehouse v. Nabors, 508 F. Supp. 3d 221, 230–31 (M.D. Tenn. 2020); id. at 231 n.5. That was because by the time that Plumm and Farris had entered the case, Jackson County had already issued them a marriage license.
potential invalidation.
Second, the district court ruled that the remaining plaintiffs—ULC, Erin Patterson, and Gabriel Biser—did have standing to sue. Universal Life Church, 508 F. Supp. 3d at 231–36. Not among that list, of course, was by-then former plaintiff James Welch. See
Last, the district court held that of all the defendants, only Governor Lee was immune from suit. Universal Life Church, 508 F. Supp. 3d at 236–41. Analyzing the immunity issues under Ex parte Young, the district court recognized that plaintiffs may seek injunctive relief against state officials only if those officials have some “connection” to the contested law’s enforcement.
Defendants below (minus the Governor) timely filed the present interlocutory appeal to contest most of that ruling. They all contend that they are entitled to sovereign immunity, as
they either have not threatened enforcement of, or lack an enforcement connection to, the contested laws. See, e.g.,
II.
We have statutory jurisdiction over the district court’s denial of immunity by virtue of
III.
Three standards of review are relevant to this appeal. First, we review questions of standing and mootness de novo. Sullivan v. Benningfield, 920 F.3d 401, 407 (6th Cir. 2019). Because this appeal comes to us on a motion to dismiss, we take as true the well-pleaded allegations in the complaint and ask whether plaintiffs plausibly alleged their standing to sue. Ass’n of Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 543–44 (6th Cir. 2021). Second, we likewise consider de novo the denial of sovereign immunity. Mingus, 591 F.3d at 481. And last, our review of a decision dismissing a complaint is, again, de novo. See Giasson Aerospace Sci., Inc. v. RCO Eng’r Inc., 872 F.3d 336, 338 (6th Cir. 2017). We thus “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016).
IV.
A. Standing
On interlocutory appeal, we review both the disputed collateral order and any other issue that we must examine “to ensure meaningful review” of the collateral order. Swint, 514 U.S. at 51. Because we believe that standing is one such issue here, we will consider it first before turning to sovereign immunity. See, e.g., Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 531–32 (2021) (plurality) (quoting Swint, 514 U.S. at 51); Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019) (explaining that subject-matter-jurisdictional inquiries may be raised “at any point in the litigation”).
As the Supreme Court has reminded us, “standing is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). Rather, plaintiffs “must demonstrate standing for each claim [they] seek[ ] to press.” DaimlerChrysler Corp v. Cuno, 547 U.S. 332, 352 (2006). And they must do so “separately for each form of relief sought.”
1. Governor Lee
Plaintiffs’ allegations against Governor Lee are sparse. The SAC simply asserts that Governor Lee “is an elected official, invested with the supreme executive power of the state,” and that he must take “care that the laws be faithfully executed.” SAC ¶57, R. 80 (quoting Doe v. Haslam, No. 3:16-cv-02862, 2017 WL 5187117, at *6 (M.D. Tenn. Nov. 9, 2017); then quoting Tenn. Const., art. III, § 10). Yet such a general allegation about the Governor’s “take care” power does not suffice to invoke federal jurisdiction. We need specific, plausible allegations about what the Governor has done, is doing, or might do to injure plaintiffs.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); Ass’n of Am. Physicians & Surgeons, 13 F.4th at 543–44. Without them, plaintiffs have shown no basis on which they can seek an injunction—an in personam decree coercing the Governor to act or refrain from acting—or a declaratory judgment, the “real value” of which is to influence the future “behavior of the defendant towards the plaintiff.” Hewitt v. Helms, 482 U.S. 755, 761 (1987). To the extent plaintiffs have been injured, in other words, they have not explained how the Governor caused the injury. They have also failed to show what a federal court could order the Governor to do or refrain from doing to give them relief—a redressability defect. No Article III case or controversy exists, therefore, against Governor Lee.
2. Attorney General Slatery
Plaintiffs’ standing to sue Attorney General Slatery is a more difficult question. What plaintiffs must show to have standing to seek an anti-enforcement injunction (or related declaratory relief) is that Slatery can and may take some enforcement action against them. See Doe v. DeWine, 910 F.3d 842, 848–49 (6th Cir. 2018) (quoting Russell v. Lundergan-Grimes, 784 F.3d 1037, 1048 (6th Cir. 2015)). But how he might do so is far from clear. One might think that he, as the state’s chief law-enforcement officer, could bring a false-statements prosecution against ULC ministers. Yet it turns out that the Tennessee Attorney General does not have the power to initiate criminal prosecutions. See First Br. [21-5100] at 18;
Plaintiffs resist that conclusion by emphasizing that the Attorney General is, under
not shown standing to seek equitable relief against the Attorney General decreeing that he refrain from enforcement.
Other avenues for standing are similarly unpromising. Plaintiffs could show standing to sue the Attorney General—even if he could not initiate the prosecutions himself—if he could still bring about those prosecutions by commanding the district attorneys general to prosecute. Here at least, however, neither law nor fact supports that theory of standing. The Tennessee Constitution and
codified into the statute itself, the district attorneys general would still have the same duty to “prosecute according to law.” Tenn. Const. art. IV, § 5.
The last and perhaps least persuasive theory of standing to sue Slatery is that the interpretive opinions cajole or entice the clerks to deny marriage licenses to couples whose marriages were solemnized by ULC ministers. Second Br. [21-5055] at 4–6. But this theory has all the previous problems and then some. As for traceability, the Attorney General’s office has explicitly told the clerks that they have no authority, much less a duty, to inspect officiants’ credentials before issuing the licenses. See AG Op. No. 97-139, R. 116-1. To the contrary, Opinion No. 97-139 calls the issuance of licenses “a ministerial duty” and one the clerks must perform irrespective of “the qualifications of [the] person[] solemnizing the marriage.”
3. Williamson County District Attorney General Kim R. Helper
Likewise, no plaintiff may seek injunctive or declaratory relief against Williamson County District Attorney Kim R. Helper. Helper has not denied licenses or issued interpretive opinions; rather, the relevant theory of injury is that Helper could initiate a false-statements prosecution against a ULC minister who solemnized a marriage and completed the associated license in Williamson County. So the corresponding relief would have been either an injunction restraining that proceeding or a declaratory judgment explaining that such a proceeding would be unconstitutional. Plaintiffs claim three possible avenues to establish their standing for such relief: individual standing through the remaining individual plaintiffs (Patterson and Biser), individual standing on ULC’s behalf on the theory that such a prosecution would injure ULC itself, and ULC’s associational standing to sue on behalf of its injured members. See, e.g., Second Br. [21-5055] at 30. But none of those theories applies to Helper.
Take first the claims about Patterson and Biser. Establishing that either had individual standing to sue Helper would have required allegations that Patterson or Biser plans to solemnize future marriages in Williamson County. But the SAC contains no such allegations. Biser has alleged only that he “resides in Hamilton County and intends to solemnize weddings there in the
future.” SAC ¶44, R. 80 (emphasis added). He said nothing about his plans in Williamson County. Patterson, too, has alleged only that she “performed multiple
ULC’s theories of individual and associational standing present the same problem. ULC argues that it has individual standing because ULC itself would suffer an injury-in-fact from a prosecution of one of its ministers or that, even without an injury to itself, it can sue on behalf of its ministers through associational standing to prevent the ministers’ prosecution. See, e.g., Second Br. [21-5055] at 30. Each is essentially the same theory. The SAC never alleges that ULC itself may undertake some action subjecting it to criminal liability as an association. So both the individual- and associational-standing theories hinge on a minister becoming subject to criminal prosecution. Only then could ULC itself be injured by a prosecution that injures a member. To obtain a decree restraining Helper from initiating such a proceeding, ULC thus needed to allege that some named member (whether a party to the suit or not) plans to solemnize a future marriage in Williamson County. See Waskul v. Washtenaw Cnty. Comty. Mental Health, 900 F.3d 250, 253 (6th Cir. 2018). But ULC has identified no named member that plans to do so. We have no basis, therefore, to conclude that ULC has standing to protect itself or one of its members from prosecution in Williamson County.
4. Hamilton County District Attorney General Neal Pinkston
Gabriel Biser’s bid for relief against Hamilton County District Attorney General Neal Pinkston, however, is a different story. The SAC does allege that Biser “resides in Hamilton County and intends to solemnize weddings there in the future.” SAC ¶44, R. 80. So Biser is subject to a potential false-statements prosecution in Hamilton County if he were to claim on a marriage license that he “solemnized” a proceeding, despite knowing that he lacks such
authority. See
First, Biser has plausibly alleged that he is “able and ready” to violate the contested statutes. Carney v. Adams, 141 S. Ct. 493, 500 (2020). He has previously “solemnized four marriages as a ULC Monastery minister in Tennessee.” SAC ¶41, R. 80. He was also asked to perform another ceremony relatively recently, “but canceled after learning of” the anti-online-ordination amendment.
Second, surrounding factual circumstances show that a fear of prosecution is plausible. The Tennessee legislature’s 2019 amendments explicitly ban online ordination. See
Last, defendants have never provided clear assurances that they will not prosecute ULC ministers. As plaintiffs note, “the State Defendants [have] refused to disavow intent to prosecute ministers criminally” or “to stipulate to the law’s unconstitutionality” and contest only sovereign immunity. See Second Br. [21-5100] at 23, 25. Indeed, both before this suit was filed and in the district court below, defendants took no meaningful steps—like submitting an affidavit forswearing prosecution—to mitigate plaintiffs’ fears. Nor could counsel for the state defendants provide such assurances when given a final opportunity at oral argument.
Clearer, at least, is defendants’ claim that no future prosecution is imminent because there has never been a ULC minister prosecuted in the past for violating
It’s also not clear that before 2019 prosecutors had even realized they could collaterally enforce
before 2019. So unlike the “commonly and notoriously” violated contraception statute in Poe that posed no obstacle to “ubiquitous, open, public sales” of birth control, 367 U.S. at 502, no evidence on this record reflects that prosecutors have deliberately turned a blind eye to ULC ministers’ solemnization.
The only remaining question is whether ULC itself, in addition to Biser, may likewise sue Pinkston for an injunction. To establish associational standing, ULC must show “that: (1) its ‘members would otherwise have standing to sue in their own right’; (2) the ‘interests’ that the suit ‘seeks to protect are germane to the organization’s purpose’; and (3) ‘neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’” Ass’n of Am. Physicians & Surgeons, 13 F.4th at 537 (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 342–43 (1977)).
As to plaintiffs’ claim against Pinkston, ULC’s associational standing under these elements is straightforward. Because Biser has individual standing, at least one named member of ULC has “standing to sue [Pinkston] in [his] own right.”
5. Rutherford County District Attorney General Jennings H. Jones
For the same reasons, Patterson has standing to sue Rutherford County District Attorney General Jennings H. Jones. Patterson has alleged that she resides in Rutherford County, “has performed multiple weddings in Rutherford County[,] and plans to perform more.” SAC ¶¶6, 39, R. 80. She also apparently began to “make changes to her approximately eight-acre property” in Rutherford County to “allow her to host weddings,” but she later “halt[ed]” those plans after the 2019 amendment.
preventing that possibility is “germane” to ULC’s purpose, it has associational standing to sue Jones as well. Ass’n of Am. Physicians & Surgeons, 13 F.4th at 537.
6. Putnam County District Attorney General Bryant C. Dunaway
We turn now to whether ULC has associational standing to seek declaratory and injunctive relief against Putnam County District Attorney General Bryant C. Dunaway. We hold that it does. In the SAC, former plaintiff James Welch alleged that he had solemnized weddings before, felt deterred from doing so by the 2019 amendment, “resides in Putnam County[,] and intends to solemnize weddings there in the future.” SAC ¶¶46, 50–51, R. 80. Welch thus had individual standing to sue Dunaway for the same reasons that Biser and Patterson have individual standing to sue Pinkston and Jones, respectively. And ULC had associational standing, via Welch, to sue Dunaway as well.
The more difficult question is whether there continues to be a case or controversy between ULC and Dunaway. Over a year after plaintiffs filed the SAC, defendant clerk Wayne Nabors procured an affidavit from Welch conveying Welch’s intent to withdraw from the lawsuit. Welch Affidavit, R. 218-1. And the district court granted Welch’s request. Order, R. 235. So Welch’s individual claims for relief are now moot.
7. Rutherford County Clerk Lisa Duke Crowell, Williamson County Clerk Elaine Anderson, and Hamilton County Clerk William Knowles
Though plaintiffs have established standing to sue three of the four district attorneys general, they have not established standing to sue three of the four county clerks—Lisa Duke Crowell, Elaine Anderson, and William Knowles. As these defendants point out, the SAC presents no specific allegations against them. See First Br. [21-5055] at 6; First Br. [21-5057] at 7–8; First Br. [21-5058] at 4. It alleges just that Crowell is the clerk in Rutherford County, Anderson the clerk in Williamson County, and Knowles the clerk in Hamilton County. SAC ¶¶10–12, R. 80. The SAC does later imply that this trio has either dissuaded or will dissuade couples from seeking the service of ULC ministers or that they may refuse to issue licenses should a ULC minister solemnize the proceedings.
All the clerks here agree on that point. See First Br. [21-5055] at 5–6; First Br. [21-5057] at 37; First Br. [21-5058] at 27; First Br. [21-5059] at 11. They all describe their license-issuance duties as ministerial and they all agree that they lack the authority to deny a license just because a ULC minister solemnized the proceeding.
Plaintiffs resist this conclusion by contending that the county clerks enjoy statutory authority to deny the licenses for two reasons, both found in
statute explains that clerks are “authorized to record and certify any license used to solemnize a marriage that is properly signed by the officiant when such license is returned to the issuing county clerk.”
Second, plaintiffs note that
Given the clerks’ lack of de jure authorization to reject ULC-solemnized marriages, we would have needed allegations that the clerks still act as though they have such authority and deny licenses on that basis. And we would have taken those allegations as true, no matter the
content of Tennessee law, as we are on a motion to dismiss. See Courtright, 839 F.3d at 518. But those allegations are just what the SAC does not contain, at least as to Crowell, Anderson, and Knowles. As a result, it never articulates how these three clerks, simply by issuing the exact licenses that couples are asking for, inflict injury-in-fact on the remaining plaintiffs.
Perhaps realizing this issue, plaintiffs have expanded their theory of injury on appeal. They now say that the clerks inflict injury even if they issue every license ever requested. First Br. [21-5055] at 12. That’s because when the underlying marriage was solemnized by a ULC minister, the validity of the marriage is subject to doubt.
Creative as it is, however, this theory fails both the causation and redressability requirements. The marriage licenses and associated marriages are potentially invalid because of the underlying statute banning ULC ordination—not because of anything the clerks do. The clerks have no authority to modify or repeal
8. Putnam County Clerk Wayne Nabors
Unlike with the compliant clerks, the SAC contains more specific allegations against Putnam County Clerk Wayne Nabors. Former plaintiffs Plumm and Farris alleged that they selected former plaintiff Welch to solemnize their marriage. SAC ¶47, R. 80. In May 2019, Plumm “left work early so the couple could obtain a marriage license from the Putnam County Clerk before the office closed.”
“that a ULC Monastery minister [would] marry the couple . . . refused to issue them a marriage license.”
Nabors strenuously contests that view of the facts. See Third Br. [21-5059] at 13–16. He admits that his staff member gave Plumm and Farris a copy of the Attorney General opinion, but he denies that he or his staff ever “refused to issue the license.”
With Plumm and Farris gone from the suit, the more pressing question is whether anyone has standing to sue over such alleged behavior. ULC claims associational standing, which hinges on whether it has identified any individual member that could sue Nabors for declaratory or injunctive relief. See Ass’n of Am. Physicians & Surgeons, 13 F.4th at 537. And we believe it has. ULC’s associational standing derives from the combination of Welch and Veal. Again, the SAC alleges that “Welch resides in Putnam County and intends to solemnize weddings there in the future.” SAC ¶ 51, R. 80. And Welch’s affidavit withdrawing from the case never disclaims that intention—only his desire to remain a plaintiff. See Welch Affidavit, R. 218-1. So taking the SAC’s well-pleaded allegations as true, Nabors may again withhold a marriage license simply because Welch, a ULC minister, solemnized the proceeding. See SEC v. Wash. Cnty. Util. Dist., 676 F.2d 218, 227 (6th Cir. 1982) (noting that “[p]roof of past violations of the . . . laws serves as a basis for an inference that future violations may occur”). Likewise, Nabors may also decline to issue licenses simply because of Veal’s involvement. So even if ULC needed to identify another named member after Welch’s withdrawal, Veal fits the bill.
Last, both Welch and Veal would have had claims for declaratory and injunctive relief against Nabors in their own right. As to injury-in-fact, the argument is that Nabors’s future denial of licenses to couples—predicated on his alleged discrimination against ULC—would violate the ministers’ own First Amendment rights. This is not a third-party-standing case, in other words, where the ministers seek to redress the couples’ interest in obtaining a license. Cf. Ass’n of Am. Physicians & Surgeons, 13 F.4th at 547. The ministers instead would have had standing to assert their own rights against what they allege
Likewise, combatting discrimination against ULC’s ministers is surely “germane” to its purpose as an organization.
B. Sovereign Immunity
We now turn to the purported sovereign immunity of the remaining defendants against which there exists a live case or controversy.
1. District Attorneys General Dunaway, Pinkston, and Jones
The remaining district attorneys general argue that they cannot be sued because of sovereign immunity. See, e.g., First Br. [21-5048] at 13. Sovereign immunity is, of course, an immunity of the sovereign; in this case, Tennessee. But sovereign immunity can also apply to suits brought against state officers in their official capacities on the theory that because the state necessarily must act through its officers, such officer suits are really suits against the state. Pennhurst State Sch. & Hosp., 465 U.S. at 101. For over a hundred years, the retort to that
argument has been the Ex parte Young framework. It allows plaintiffs to sue officers, irrespective of immunity, to enjoin their future actions on behalf of the state if those actions would violate the federal constitution. Ex parte Young, 209 U.S. at 167.
As the theory goes, despite the officer’s actions being taken pursuant to state authority, they are treated as if they were the officer’s purely personal actions—thus undeserving of immunity—on the assumption that the state cannot authorize an unconstitutional act. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 272 (1997). An officer’s enforcement of an unconstitutional law, therefore, leaves him “stripped of his official . . . character” and stripped of corresponding immunity from suit. Ex parte Young, 209 U.S. at 160. This is the basic mechanism by which plaintiffs seek to circumvent defendants’ assertion of sovereign immunity.
And, indeed, plaintiffs may validly employ the Young framework here because the district attorneys general have the requisite enforcement connection to the challenged laws. See Doe, 910 F.3d at 848 (citing Russell, 784 F.3d at 1048). They have the direct authority (and even duty) to enforce Tennessee’s criminal prohibition against false statements made on marriage licenses. Tenn. Const. art. VI, § 5;
2. County Clerk Nabors
Nabors also contends that he is entitled to sovereign immunity from suit given that Tennessee is supposedly the real party in interest to the claims against him as well. See First Br.
[21-5059] at 27–35. He says that’s so because he lacks an enforcement connection to the challenged laws, and thus that Ex parte Young does not apply.
We disagree. Nabors has no sovereign immunity from suit, but our reasons for that conclusion differ from our reasons as to the district attorneys general. Young permits federal courts to treat real or threatened actions taken pursuant to state law as ultra vires on the “fiction” that states cannot authorize unconstitutional acts. Ex parte Young, 209 U.S. at 159–60. That is why Young was relevant to the claim against the district attorneys general—they execute a state statute on behalf of the state, and so would be treated as “the state” for immunity purposes but for the Young exception. Nabors, by contrast, has never even established that his alleged previous denial (and potential future denial) of marriage licenses is authorized by state law.5 To the contrary, he concedes the very opposite—that he has no discretion to inspect the qualifications of officiants before issuing marriage licenses. First Br. [21-5059] at 11, 31. He instead argues that as a matter of historical fact, he has never actually denied the licenses. See Third Br. [21-5059] at 13–15. But as we have already explained, we cannot settle a factual dispute on a motion to dismiss, where we instead must take the complaint’s well-pleaded allegations as true. See Courtright, 839 F.3d at 518. We thus assume that he has denied licenses in the past and draw the concomitant inference that he may do so yet again in the future. Id.
Because the sovereign concededly does not authorize that behavior, Nabors may not invoke sovereign immunity as a defense to this suit. In other words, the claim against Nabors is not akin to an antisuit injunction under Young, in which a state officer is blocked from acting pursuant to state authority. It is instead more analogous to a mandamus action compelling a recalcitrant officer to comply with his non-discretionary duties. And recalcitrant officers enjoy no sovereign immunity from orders commanding them to perform their non-discretionary duties or commanding them to cease performance of purely ultra vires acts. See Larson v. Domestic &
Foreign Com. Corp., 337 U.S. 682, 689 (1949) (“[W]here the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. His actions are ultra vires his authority and therefore may be made the object of specific relief.”); see also Dugan v. Rank, 372 U.S. 609, 622 (1963).
V.
Recognizing the procedural complexity of this dispute, we will take a moment in closing to summarize today’s decision. No plaintiff has standing to seek relief against Governor Lee, Attorney General Slatery, District Attorney General Helper, or County Clerks Crowell, Anderson, and Knowles. We thus AFFIRM the district court as to its dismissal of Governor Lee but REVERSE as to Attorney General Slatery, District Attorney General Helper, and County Clerks Crowell, Anderson, and Knowles. As a result, those portions of the district court’s preliminary injunction that purport to bind Slatery, Helper, Crowell, Anderson, and Knowles are VACATED. By contrast, however, we AFFIRM the district court’s determination that plaintiffs have standing to sue District Attorneys General Dunaway, Pinkston, and Jones, along with County Clerk Nabors. We also AFFIRM the district court’s denial of these officials’ sovereign immunity at the motion-to-dismiss stage, and so we do not disturb those portions of
the preliminary injunction binding Dunaway, Pinkston, Jones, and Nabors. Last, we REMAND what remains of this suit to the district court for further proceedings consistent with this opinion.