Rims Barber v. Phil Bryant

Case: 16-60477 Document: 00514044057 Page: 1 Date Filed: 06/22/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 16-60477 June 22, 2017

Lyle W. Cayce

RIMS BARBER; CAROL BURNETT; JOAN BAILEY; Clerk

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,

versus

GOVERNOR PHIL BRYANT, State of Mississippi;

JOHN DAVIS,

Executive Director of the Mississippi Department of Human Services,

Defendants–Appellants.

* * * * * * * * *

No. 16-60478

CAMPAIGN FOR SOUTHERN EQUALITY;

THE REVEREND DOCTOR SUSAN HROSTOWSKI,

Plaintiffs–Appellees,

versus

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

Case: 16-60477 Document: 00514044057 Page: 2 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

Before SMITH, ELROD, and HAYNES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Governor of Mississippi and the Executive Director of the Missis-

sippi Department of Human Services appeal a preliminary injunction. Be-

cause 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 accord-

ance 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 im-

mutable biological sex as objectively determined by anatomy and gen-

etics 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.

1 E.g., HB 1523 § 3(1).

2

Case: 16-60477 Document: 00514044057 Page: 3 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

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 consis-

tent 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 cele-

brate 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

3

Case: 16-60477 Document: 00514044057 Page: 4 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

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 cir-

cumstances who do not share the Section 2 beliefs. The organizational plain-

tiffs are Joshua Generation Metropolitan Community Church, a religious

organization that objects to the Section 2 beliefs, and the Campaign for South-

ern 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 govern-

ment 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 spe-

cific 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 imple-

mentation of HB 1523. The state defendants appeal.

II.

Article III limits federal courts to deciding only actual “Cases” or “Con-

troversies.” U.S. CONST. art. III, § 2. “As an incident to the elaboration of” the

2 The plaintiffs in No. 16-60478―CSE and Susan Hrostowski―do not bring an equal-

protection challenge.

4

Case: 16-60477 Document: 00514044057 Page: 5 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

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 adjud-

ication claims of constitutional violation . . . where the claimant has not suf-

fered 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 pro-

tected interest which is (a) concrete and particularized, and (b) actual or im-

minent, 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 in-

dependent action of some third party not before the court.” Id. (internal quo-

tation 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

3 See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Townley v. Miller,

5

Case: 16-60477 Document: 00514044057 Page: 6 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

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’ [consti-

tutional] arguments.” Hotze v. Burwell, 784 F.3d 984, 991 (5th Cir. 2015).

III.

A.

The Establishment Clause is no exception to the requirement of stand-

ing. 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 invo-

cations). 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

722 F.3d 1128, 1133 (9th Cir. 2013) (“At the preliminary injunction stage, plaintiffs must

make a clear showing of each element of standing.”).

4 See Chaplaincy of Full Gospel Churches v. U.S. Navy (In re Navy Chaplaincy),

6

Case: 16-60477 Document: 00514044057 Page: 7 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

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 purpose of challenging a direct spending program that

implicates the restrictions of the Establishment Clause. Flast v. Cohen,

392 U.S. 83, 102–03 (1968).

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 stig-

matic injury results from a “personal[ ] confront[ation]” with the display. See

Murray, 947 F.2d at 150–51. For comparison, the caselaw offers some exam-

ples of such a confrontation. There is standing where a plaintiff personally

encounters a religious symbol on his public utility bill. Id. at 150. Personally

534 F.3d 756, 764–65 (D.C. Cir. 2008) (“When plaintiffs are not themselves affected by a

government action except through their abstract offense at the message allegedly conveyed

by that action, they have not shown injury-in-fact to bring an Establishment Clause claim,

at least outside the distinct context of the religious display and prayer cases.” (emphasis

omitted)).

5 See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). The religious-display and

religious-exercise cases are also an imperfect analogy because HB 1523 covers those who hold

a Section 2 belief on either a religious or a secular basis, and beliefs are not defined in ref-

erence to any particular religious denomination. HB 1523 § 2 (“The sincerely held religious

beliefs or moral conviction protected by this act are . . . .”).

7

Case: 16-60477 Document: 00514044057 Page: 8 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

encountering a religious message on the currency a plaintiff regularly handles

is also sufficient. 6 But once that display is removed from view, standing dissi-

pates because there is no longer an injury. See Staley v. Harris Cty., 485 F.3d

305, 309 (5th Cir. 2007) (en banc). The personal confrontation must also occur

in the course of a plaintiff’s regular activities; it cannot be manufactured for

the purpose of litigation. ACLU-NJ v. Twp. of Wall, 246 F.3d 258, 266 (3d Cir.

2001).

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 monu-

ment, 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

6 Newdow v. Lefevre, 598 F.3d 638, 642–43 (9th Cir. 2010) (finding standing for the

plaintiff to challenge the placement of the national motto “In God We Trust” on the currency).

7 “To be sure, we recognize that plaintiffs’ creative analogy to the religious display and

prayer cases has some surface logic. But the implications of plaintiffs’ theory for standing

doctrine are quite radical: Plaintiffs seek to use the religious display and prayer cases to

wedge open the courthouse doors to a wide range of plaintiffs alleging Establishment Clause

violations who were previously barred by bedrock standing requirements—requirements that

8

Case: 16-60477 Document: 00514044057 Page: 9 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

C.

For standing, the religious-exercise cases require the same type of per-

sonal confrontation. “Standing to challenge invocations as violating the Estab-

lishment Clause” cannot be based “solely on injury arising from mere abstract

knowledge that invocations were said.” Tangipahoa Par., 494 F.3d at 497.

There must be “proof in the record that [the plaintiffs] were exposed to, and

may thus claim to have been injured by, invocations given at” the relevant

event. Id.

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 wit-

nessing 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 specifi-

cally, provides support for these plaintiffs’ standing.

D.

Alternatively, the plaintiffs could establish injury-in-fact by clearly

are essential to preserving the separation of powers and limited judicial role mandated by

the Constitution.” In re Navy Chaplaincy, 534 F.3d at 765.

8 At oral argument, the challengers also pointed to Bowen v. Kendrick, 487 U.S. 589,

600–01 (1988). But the only discussion of standing there is in regard to Flast taxpayer stand-

ing; here, the brief cites only the section of Kendrick on facial challenges. Id. at 600–01, 618.

9

Case: 16-60477 Document: 00514044057 Page: 10 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

showing they are injured by a legal effect of HB 1523. See Littlefield, 268 F.3d

at 294 n.31. Instead, they rely solely on Section 2’s alleged endorsement of

specific beliefs. Standing is not available to just any resident of a jurisdiction

to challenge a government message without a corresponding action about a

particular belief outside the context of a religious display or exercise. See In re

Navy Chaplaincy, 534 F.3d at 765.

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 impermis-

sibly “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. Zirax, 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 probat-

ing 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

10

Case: 16-60477 Document: 00514044057 Page: 11 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

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 circum-

stance 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 plaintiff must make “the

showing of a direct expenditure of income tax revenues on the allegedly un-

constitutional program.” 11 Flast only permitted taxpayer standing to challenge

programs enacted under the Taxing and Spending Clause that involved more

9 The Ninth Circuit found standing for a group of Catholic San Francisco residents to

challenge a non-binding resolution by the Board of Supervisors condemning their beliefs

regarding adoption. See Catholic League for Religious & Civil Rights v. City & Cty. of S.F.,

624 F.3d 1043, 1052–53 (9th Cir. 2010) (en banc). But that case is distinguishable on its own

terms as a “direct attack and disparagement of their religion” “[u]nlike” other standing cases

in which the religious effects were ancillary. Id. at 1050 n.26. Because HB 1523 is not a

specific condemnation of an identified religion challenged by its adherents, the standing anal-

ysis in Catholic League is inapposite.

10 Henderson v. Stalder, 287 F.3d 374, 380–81 (5th Cir. 2002) (quoting Doe v. Duncan-

ville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir. 1995)).

11 Id. at 381 n.7 (citing Flast, 392 U.S. at 88).

11

Case: 16-60477 Document: 00514044057 Page: 12 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

than “an incidental expenditure of tax funds in the administration of an

essentially regulatory statute.” See Flast, 392 U.S. at 102. The Court consid-

ered that test consistent with its test for state taxpayer standing on federal

questions. 12 The applicability of Flast to state taxpayers’ federal constitutional

claims was affirmed in Arizona Christian School Tuition Organization v. Winn,

563 U.S. 125, 138 (2011). 13

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 resem-

ble 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

12Flast, 392 U.S. at 102 (citing Doremus v. Bd. of Educ., 342 U.S. 429, 434–35 (1952)).

In Doremus, 342 U.S. at 434–35, the Court held that there was no taxpayer standing under

the Establishment Clause to challenge a state statute requiring daily readings from the Old

Testament in public schools because it was “not a direct dollars-and-cents injury.”

13The Court in Arizona Christian, 563 U.S. at 142–43, applied Flast in holding that a

tax credit that benefited religious schools was not a state expenditure, so the taxpayers did

not have standing to challenge it under the Establishment Clause.

14 Id. at 138 (quoting Kendrick, 487 U.S. at 618).

12

Case: 16-60477 Document: 00514044057 Page: 13 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

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 correspond-

ing denial of equal treatment, is insufficient to plead injury in an equal pro-

tection 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 Protec-

tion Clause, reasoning that the plaintiff had not alleged any unequal treat-

ment. 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]

feel[ ] the impact of” the state’s message. Id. 15

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, 133 S. Ct.

1138, 1147 (2013) (quoting another source). An injury that is based on a “spec-

ulative 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

15 The recent decision in Sessions v. Morales-Santana, No. 15-1191, 2017 U.S. LEXIS

3724 (U.S. June 12, 2017), does not alter this requirement. Morales-Santana raised an alle-

gation of disparate treatment regarding the legal ability of his father “to pass citizenship to

his son . . . .” Id. at *3. Third-party standing enabled him to bring that claim on his father’s

behalf as a means of avoiding removal. Id. at *15–16.

13

Case: 16-60477 Document: 00514044057 Page: 14 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

statute’s “bestowing legal privileges and immunities on those who would dis-

criminate 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 mar-

ried 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,

133 S. Ct. at 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, 623–24

14

Case: 16-60477 Document: 00514044057 Page: 15 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

(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 it does so only in a defined set of circumstances.

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,

16 We do not speculate on whether, even with those allegations, the injury would be

too attenuated to satisfy the standing requirements. See Amnesty Int’l, 133 S. Ct. at 1150.

15

Case: 16-60477 Document: 00514044057 Page: 16 Date Filed: 06/22/2017

No. 16-60477

No. 16-60478

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 stand-

ing,” Defenders of Wildlife, 504 U.S. at 560, but the federal courts must with-

hold judgment unless and until that plaintiff comes forward.

The preliminary injunction is REVERSED, and a judgment of dismissal

for want of jurisdiction is RENDERED.

16