# Madalyn Murray O'Hair and Society of Separationists, Inc. v. Mark White > Court of Appeals for the Fifth Circuit · May 12, 1982 · 675 F.2d 680 URL: https://www.frixlaw.com/law-library/cases/9469090 ## Case - **Full name:** Madalyn Murray O’HAIR and Society of Separationists, Inc., Plaintiffs-Appellants, v. Mark WHITE, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** May 12, 1982 - **Citations:** 675 F.2d 680; 1982 U.S. App. LEXIS 19321 - **Precedential status:** Published - **Opinion:** Dissent by Reavley - **Judges:** Godbold, Brown, Clark, Roney, Gee, Tjoflat, Hill, Fay, Rubin, Vance, Kravitch, Johnson, Garza, Henderson, Reavley, Politz, Hatchett, Anderson, Randall, Tate, Williams, Garwood - **Cited by:** 86 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by City of Los Angeles v. Lyons, 461 U.S. 95 (1983). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469090 ## How later opinions describe it (automated extraction) - holding that, for standing purposes, a potential juror who would not swear to her belief in God "is ... aggrieved by being excluded from jury duty because of her lack of religious belief" - finding requisite injury in fact in diminution of atheist’s right to vote as a result of similar provision in Texas constitution requiring acknowledgment of belief in supreme being in order to hold public office or serve on jury - holding that the Society satisfied the requirements of Hunt and thus had standing to litigate alleged violations of its members voting rights - finding organization lacked standing to pursue one member's due process and equal protection claims or member's request for an injunction specific to her - explaining that an injury to the “fundamental right to vote” can qualify as an injury in fact ## Opinion text REAVLEY, Circuit Judge, with whom RONEY, GEE, GARZA and RANDALL, Circuit Judges, join, dissenting: I would summarily affirm the district court’s dismissal. The plaintiffs lack both standing and a controversy ripe for remedial intervention by the federal courts. Standing • and ripeness may remain “opaque,” as the majority puts it; but without an allegation that the plaintiff has been, or in all likelihood will be, injured because of the supposed unconstitutional conduct, the law I read says we are to dismiss the complaint. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., - *703 U.S. -, 102 S.Ct. 752 , 70 L.Ed.2d 700 (1982); Warth v. Seidin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975). When the Supreme Court writes an opinion that holds a provision in a state constitution to conflict with the United States Constitution, federal courts should presume that state officials will follow the Constitution so declared, unless and until some state official refuses or fails to do so. The Supreme Court held in Torcaso v. Watkins, 367 U.S. 488 , 81 S.Ct. 1680 , 6 L.Ed.2d 982 (1961) that a state office may not be denied to one because of refusal to express a belief in a supreme being. We need not employ the vast prolixity and apparatus of the federal judiciary to repeat that holding simply because we find an unedited constitution with a nullified clause, the presence of which is objectionable to one who sues. It is the salutary purpose of the standing requirement that we not entertain lawsuits where there is no grievance or concrete dispute warranting judicial resolution and remedy. It is a peculiarly appropriate requirement for the suit now before us. Plaintiffs say they are threatened and discriminated against by the Texas Constitution, but they never particularize. Their complaint rambles on about the pleaders’ dissatisfaction with the laws and officials of Texas and about what plaintiffs want— from an order halting suits against them to an award of $5,250,000 for violation of their civil rights. They aver: By reason of the systematic descrimination (sic) as to judges and juries in said courts against persons who do not acknowledge the existence of a supreme being, Plaintiffs are deprived of their constitutional rights to a fair trial in each of said courts and as to each of the above stated cases now pending in said courts Enforcement of Article I, Section 4 of the Texas Constitution is intentionally descriminatory (sic) against a cognizable class of person on the basis of religion whereby real and immediate injury is sustained or direct injury is threatened to the property rights of the Plaintiffs. Article I, Section 4 of. the Texas Constitution proscribes the constitutional rights of Plaintiffs and others similarly situated to a fair trial as an incident of the systematic descrimination (sic) against those who do not acknowledge the existence of a supreme being in exclusion from judge-ships, juries and other offices or public trusts of the State of Texas. Nothing is said about an atheist actually being barred from holding office. Nothing about a vote denied or cast for a candidate barred from taking office. Just a clause in the Texas Constitution that plaintiffs feel “descriminates” against them because they do not acknowledge a supreme being. This will not keep plaintiffs in court under existing precedent, as Judge Tjoflat demonstrates. It may be that the majority only permits the district court to render a declaratory judgment about the constitutionality of the clause in the Texas Constitution. Except for the waste of judicial effort to do the obvious, that judgment would itself do no harm. However, the language in the majority opinion about allowing this “challenge” to a system that excludes atheists from judicial duties and to a system that denies due process and equal protection to an atheist because of the unconstitutional composition of juries and selection of judges — this is disturbing talk, indeed. It is disturbing because it invokes a new policy in this circuit inviting broadside court challenges against disliked “systems” thought to conflict with the Constitution. And it is disturbing because it may suggest that the district court is supposed to correct “a system that excludes atheists” by striking down the system — officers, judges and all. I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469090. Public record. Not legal advice.