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Barber v. Bryant

United States Court of Appeals, Fifth Circuit

June 22, 2017

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.

         Appeals from the United States District Court for the Southern District of Mississippi

          Before SMITH, ELROD, and HAYNES, Circuit Judges.

          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 enumerated set of circumstances. Section 2 of HB 1523 identifies three "religious beliefs or moral convictions":

(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.

2016 Miss. Law HB 1523 § 2. Those who act in accordance with those beliefs are protected from discriminatory action by the state in the form of adverse tax, benefit, and employment decisions, the imposition of fines, and the denial of occupational licenses. HB 1523 § 4. The statute creates a private right of action for individuals to address any violations of HB 1523 by state officials and permits its use as a defense in private suits over conduct covered by the statute. HB 1523 § 5.

         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. HB 1523 § 3(1)-(2). Parents are protected if they decide to raise their foster or adoptive children in accordance with a belief listed in Section 2. HB 1523 § 3(3). Doctors and mental health counselors cannot be compelled to provide services in contravention of a sincerely held Section 2 belief, provided it does not interfere with "visitation, recognition of a designated representative for health care decision-making, or emergency medical treatment necessary to cure an illness or injury as required by law." HB 1523 § 3(4). Businesses that offer wedding-related services are protected if they decline to provide them on the basis of a Section 2 belief. HB 1523 § 3(5).

         Section 3 also protects any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms. HB 1523 § 3(6). The state cannot take adverse employment action against a state employee for Section 2-related speech as long as his "speech or expressive conduct is consistent with the time, place, manner and frequency of any other expression of a religious, political, or moral belief or conviction allowed . . . ." HB 1523 § 3(7). Finally, county clerks and state judges cannot be compelled to license or celebrate marriages that are inconsistent with a sincerely held Section 2 belief, provided that the official gives prior notice and "any legally valid marriage is not impeded or delayed as a result of any recusal." HB 1523 § 3(8).

         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 1523. Plaintiffs assert they are injured by the "clear message" sent by HB 1523 that the "state government disapproves of and is hostile to same-sex couples, to unmarried people who engage in sexual relations, and to transgender people." They maintain that that message violates the Establishment Clause because it endorses specific religious beliefs and that it violates the Equal Protection Clause of the Fourteenth Amendment[2] because it provides different protections for Missis-sippians based on those beliefs.

         The district court issued a preliminary injunction against the implementation of HB 1523. The state defendants appeal.

         II.

         Article III limits federal courts to deciding only actual "Cases" or "Controversies." U.S. Const. art. III, § 2. "As an incident to the elaboration of" the case-or-controversy requirement, "[we have] always required that a litigant have 'standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). The Judicial Branch may not "accept for adjudication claims of constitutional violation . . . where the claimant has not suffered cognizable injury." Id. at 474.

         "[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.

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