F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 29, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
J. BRO N SO N , G . LEE C OO K , and D.
C OO K ,
Plaintiffs-Appellants,
v.
No. 05-4161
SH ERRIE SWE N SEN ,
Salt Lake County Clerk,
Defendant-Appellee.
Appeal from the U nited States District Court
for the District of Utah
(No. 04-CV-00021-TS)
Submitted on the briefs:
Brian M . Barnard, Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-
Appellants
M ark Shurtleff, Utah Attorney General (Nancy L. Kemp, Assistant Utah Attorney
General), Salt Lake City, UT, for Defendant-Appellee.
Before TA CH A, Chief Judge, HA RTZ and HO LM ES, Circuit Judges. *
*
After examining the briefs and appellate record, this panel has
determined unanimously to honor the appellants’ request for a decision on the
briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore
submitted without oral argument.
HO LM ES, Circuit Judge.
Plaintiffs-Appellants J. Bronson, G. Cook, and D. Cook (“plaintiffs”)
subscribe to the religious doctrine of polygamy. G. Cook is married to D. Cook.
G. Cook and J. Bronson filed an application for a marriage license, and
Defendant-Appellee Sherrie Swensen (“Swensen”), the Clerk for Salt Lake
County, Utah, refused to issue the marriage license. Plaintiffs subsequently
brought a civil rights action under 42 U.S.C. § 1983, alleging that Swensen's
refusal to issue the marriage license violated their associational, substantive due
process, and free exercise rights under the First and Fourteenth Amendments to
the United States Constitution.
The district court held that plaintiffs possessed standing to challenge the
constitutionality of Utah's civil and criminal prohibitions against the practice of
polygamy, as reflected in Utah Code Ann. § 76-7-101, § 3 of the Utah Enabling
Act, and § 1 of Article III of the Utah Constitution. Reaching the merits of
plaintiffs’ claims, the district court applied controlling Supreme Court and Tenth
Circuit precedent and found the absence of a constitutional violation.
Consequently, the district court granted summary judgment to Sw ensen on all of
plaintiffs’ claims.
W e exercise jurisdiction pursuant to 28 U.S.C. § 1291. After concluding
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that plaintiffs have forfeited any challenge to the constitutionality of Utah’s civil
prohibition of polygamous marriages, we hold that plaintiffs lack standing to
bring claims against Sw ensen based upon the purported unconstitutionality of
Utah’s criminal prohibition of polygamy. W e therefore VAC ATE the district
court’s judgment in favor of Swensen on the merits of these criminal-prohibition
claims and R EM A N D the case for entry of an order dismissing these claims for
lack of subject matter jurisdiction.
I. B ACKGR OU N D
A. Legislative Background
In 1894, Congress passed the U tah Enabling Act, which demanded as a
condition of statehood that Utah enact an “irrevocable” ordinance preserving the
security of religious beliefs, but forever prohibiting “polygamous or plural
marriages.” See Act of July 16, 1894, ch. 138, § 3, 28 Stat. 107, 108 (“That
perfect toleration of religious sentiment shall be secured, and that no inhabitant of
said State shall ever be molested in person or property on account of his or her
mode of religious w orship: Provided, That polygamous or plural marriages are
forever prohibited.” (emphasis in original)). Utah complied with this
requirement, and, in 1895, a nearly identical version of this proscription was
included in Article III of Utah’s Constitution:
The following ordinance shall be irrevocable without the consent of
the United States and the people of this State:
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First:–Perfect toleration of religious sentiment is guaranteed. No
inhabitant of this State shall ever be molested in person or property
on account of his or her mode of religious worship; but polygamous
or plural marriages are forever prohibited.
Utah Const. art. III, § 1.
The constitutional prohibition of “polygamous or plural marriages” has
spawned civil and criminal legislation. See State v. Holm, 137 P.3d 726, 738-40
(U tah 2006), cert. denied, 127 S.Ct. 1371 (2007). On the criminal side, Utah
enacted an anti-bigamy statute, 1 which reads as follow s:
(1) A person is guilty of bigamy when, knowing he has a husband or
wife or knowing the other person has a husband or wife, the person
purports to marry another person or cohabits with another person.
(2) Bigamy is a felony of the third degree.
(3) It shall be a defense to bigamy that the accused reasonably
believed he and the other person were legally eligible to remarry.
Utah Code Ann. § 76-7-101. 2
The Supreme Court of Utah has interpreted the term “marry” in § 76-7-101
as relating to both “legally recognized marriages and those that are non state-
1
Although this opinion uses the terms interchangeably, a conceptual
difference exists between “bigamy” and “polygamy.” “Bigamy” is defined as “the
act of marrying one person while legally married to another.” See Black’s Law
Dictionary 172 (8th ed. 2004). “Polygamy,” on the other hand, includes and
exceeds the scope of bigamous behavior; it is defined as “the state or practice of
having more than one spouse simultaneously.” Id. at 1197.
2
Utah enacted a child bigamy statute in 2003. See Utah Code Ann. §
76-7-101.5. Under this statute, it is a second degree felony for a person, knowing
he or she has a wife or husband, to marry or to cohabit with a person under the
age of eighteen. Id.
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sanctioned.” Holm, 137 P.3d at 734. It also has interpreted the word “cohabit” in
§ 76-7-101 in its colloquial sense, as meaning “to dwell together as, or as if,
husband or wife” or to “live together in a sexual relationship, especially when not
legally married.” State v. Green, 99 P.3d 820, 832 (Utah 2004) (internal
quotation marks omitted) (quoting The American Heritage Dictionary of the
English Language (4th ed. 2000), and Webster’s New Dictionary, Concise Edition
(1990)).
W ith respect to civil legislation, § 30-1-2 of the Utah Code declares “void”
and “prohibited” any marriage involving a person with a “husband or wife living,
from whom the person marrying has not been divorced.” Utah Code Ann. § 30-1-
2. A county clerk is barred from issuing a marriage license for a “prohibited”
marriage. Id. § 30-1-16. In fact, Utah makes it a crime for a clerk or deputy
clerk to “knowingly issue a license for any prohibited marriage.” Id. § 30-1-16.
An offender is subject to “confinement in the state prison for a term not
exceeding two years” and/or to a “fine in any sum not exceeding $1,000.” Id. N o
marriage may be solemnized without a license issued by the county clerk. Id. §
30-1-7.
B. Factual Background
Plaintiffs subscribe to the religious doctrine of plural marriages, which they
define as a “man having more than one wife,” similar to that practiced by the
Church of Jesus Christ of Latter-Day Saints in Utah prior to 1890. App. at 19, 33,
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46-47. 3
Plaintiffs, G. Cook and J. Bronson, applied for a marriage license and paid
the $50.00 filing fee to a deputy clerk at the M arriage Division of the Salt Lake
C ounty C lerk’s O ffice in Salt Lake City, Utah. The application indicated that G .
C ook w as already married to D . Cook. In addition, G. Cook orally informed tw o
deputy clerks that he desired to legally marry a second wife and that D. Cook
consented to this marriage. Swensen, the elected Clerk of Salt Lake County,
instructed the two deputy clerks to deny the application and to inform plaintiffs
that plural marriage in Utah is illegal. The Clerk’s Office refunded the $50.00
filing fee.
C. Procedural Background
Plaintiffs filed suit under 42 U.S.C. § 1983 against Swensen and the tw o
deputy clerks, alleging that they violated plaintiffs’ federal constitutional rights,
including their rights to the free exercise of religion, to intimate expression and
association, and to privacy. Plaintiffs sought nominal damages, a declaratory
judgment, and injunctive relief.
Subsequently, the parties agreed to seek the dismissal of the two deputy
3
On October 6, 1890, the Church of Jesus Christ of Latter D ay Saints
officially abolished polygamy as an institutional church practice. See Oliverson
v. West Valley City, 875 F. Supp. 1465, 1476 n.20 (D . Utah 1995).
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clerks. They also stipulated that Swensen acted under color of state law in
denying the application. Plaintiffs moved for summary judgment. And, in
response, Swensen filed a cross-motion for summary judgment.
After officially dismissing the deputy clerks from the action, the district
court entered summary judgment in favor of Swensen. The district court
determined that plaintiffs had standing to challenge the constitutionality of § 1 of
Article III of the Utah Constitution, § 3 of the Utah Enabling Act, and § 76-7-101.
The district court then applied controlling Supreme Court precedent, Reynolds v.
United States, 98 U.S. 145 (1878), and controlling Tenth Circuit precedent, Potter
v. M urray City, 760 F.2d 1065 (10th Cir. 1985), to uphold the constitutionality of
the contested provisions. The district court reasoned that Supreme Court
jurisprudence post-dating Reynolds and Potter, including Lawrence v. Texas, 539
U.S. 558 (2003), did not suggest a different outcome.
Plaintiffs filed a motion asking the district court to reconsider its decision.
The district court denied that motion. And plaintiffs filed a timely notice of
appeal.
II. D ISC USSIO N
Plaintiffs appeal the district court’s grant of summary judgment to Sw ensen
on their § 1983 claims, arguing that the district court erred in failing to find the
existence of a constitutional violation. W e hold that plaintiffs have forfeited their
claims contesting the constitutionality of Utah’s civil prohibition of polygamy.
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W e further hold that plaintiffs lack standing to pursue their claims against
Sw ensen based upon the alleged unconstitutionality of Utah’s criminal prohibition
of polygamy.
A. Scope of the Appeal
An appellant’s opening brief must identify “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies.” Fed. R. App. P. 28(a)(9)(a). Consistent with this
requirement, we routinely have declined to consider arguments that are not raised,
or are inadequately presented, in an appellant’s opening brief. See Exum v.
U nited States O lym pic C om m ., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004)
(“Scattered statements in the appellant’s brief are not enough to preserve an issue
for appeal.”); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir. 1995)
(refusing to consider challenge to grant of summary judgment covering Title VII
retaliation claim because, although appellant maintained at oral argument that she
was asserting a retaliation claim, this issue was not adequately briefed). Stated
differently, the omission of an issue in an opening brief generally forfeits
appellate consideration of that issue. See Wyoming v. Livingston, 443 F.3d 1211,
1216 (10th Cir. 2006), cert. denied, 127 S.Ct. 553 (2006); Anderson v. U.S. Dep’t
of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005).
W e conclude that plaintiffs’ opening brief does not adequately raise and
pursue an argument as to the unconstitutionality of Utah’s civil prohibition of
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polygamous marriages. For instance, plaintiffs’ statement of issues on appeal,
while referencing § 3 of the Utah Enabling Act and § 1 of Article III of the Utah
Constitution, does not expressly seek to invalidate Utah’s civil statutes
prohibiting polygamous marriages. See Anderson, 422 F.3d at 1174 (issue not
raised in statement of issues in initial brief is waived on appeal). Instead, it refers
to the Enabling Act and Article III in connection with plaintiffs’ attack on the
constitutionality of Utah’s criminal bigamy statute, § 76-7-101. 4
Furthermore, plaintiffs’ opening brief does not attempt to explain why
Utah’s refusal to give civil recognition to polygamous marriages should be held to
contravene their constitutional rights. Instead, plaintiffs’ opening brief is
dedicated entirely to establishing the invalidity of Utah’s criminal prohibition of
polygamy – that is, to “seek[ing] an end to the criminalization of the practice of
religious polygamy,” regardless of whether “no legal marital rights are afforded
to a second or third spouse.” 5 Aplt. Br. at 10 (emphasis added). Plaintiffs do
4
In mounting their attack on Utah’s criminal prohibition of polygamy,
plaintiffs purport to seek the invalidation of § 3 of the Utah Enabling Act and § 1
of Article III of the Utah Constitution. Standing alone, however, these provisions
do not establish a criminal regulatory regime. By their terms, they do not
establish crimes nor do they impose criminal penalties. Rather, they have
provided the foundation for both civil and criminal legislative enactments that
prohibit polygamy. Plaintiffs’ singular attack on Utah’s criminal prohibition of
polygamy is therefore properly viewed as an effort to invalidate on constitutional
grounds Utah’s criminal statute that bars polygamy among consenting adults –
that is, § 76-7-101.
5
Plaintiffs’ “Summary of Argument” refers only to the absence of a
(continued...)
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state in two places that they also challenge the validity of Swensen’s refusal to
grant a m arriage license, based upon the unconstitutionality of Utah’s civil
prohibition of polygamy. See id. at 16, 40 n.21. But these cursory statements,
without supporting analysis and case law, fail to constitute the kind of briefing
that is necessary to avoid application of the forfeiture doctrine. See Adler v. Wal-
M art Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately
briefed in the opening brief are waived . . . .”); Gross, 53 F.3d at 1547 (holding
that plaintiff who “ha[d] not adequately briefed th[e] issue” of retaliation in
employment discrimination action forfeited it; plaintiff’s “brief contain[ed] one
paragraph in which she refers to retaliation” but “did not submit any argument,
cite relevant case law, or alert us to any part of the record that demonstrates
retaliatory conduct”).
In essence, plaintiffs’ opening brief simply attempts to use Swensen’s
denial of a marriage license as a vehicle to challenge the constitutionality of
Utah’s criminal prohibition of polygamy. W e therefore conclude that plaintiffs
have forfeited any argument that Utah’s refusal to give civil recognition to
5
(...continued)
legally-adequate justification for “criminalizing polygamy.” Aplt. Br. at 11.
Each topic heading argues solely for the invalidation of Utah’s criminal
prohibition of polygamy, specifically referring in most instances to § 76-7-101,
which plaintiffs describe as Utah’s “anti-bigamy law” or “anti-polygamy law.”
And most significantly, the content of plaintiffs’ argument section exclusively
analyzes the unconstitutionality of § 76-7-101.
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polygamous marriages is unconstitutional. 6
B. C onstitutionality of Utah’s Crim inal Prohibition of Polygamy
Plaintiffs’ substantive challenge to Utah’s criminal prohibition of polygamy
faces a litany of seemingly insurmountable precedential obstacles. Case law
upholding the criminalization of polygamy from constitutional attack dates back
at least to 1878, when in Reynolds v. United States, 98 U.S. 145, 162-66 (1878),
the Supreme Court rejected a free exercise challenge to the M orrill Anti-Bigamy
Act of 1862. M ore contemporary decisions from the Supreme Court and from this
Court have acknowledged the continued validity of Reynolds. See Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993) (citing Reynolds as support
for the proposition that adverse impact on religion from operation of legislative
enactment does not translate into impermissible religious targeting where “a
social harm may have been a legitimate concern of government for reasons quite
apart from discrimination”); Grace United M ethodist Church v. City of Cheyenne,
451 F.3d 643, 649 (10th Cir. 2006) (citing Reynolds with approval).
Similarly, constitutional challenges to Utah’s criminal statute outlawing
6
In their reply brief, plaintiffs protest the idea that they have forfeited
any argument concerning the alleged unconstitutionality of Utah’s civil
proscriptions regarding polygamy. However, plaintiffs do not identify where in
their opening brief they mounted a challenge to these provisions. Indeed,
plaintiffs’ reply brief underscores the exclusive criminal-law focus of their
appellate challenge, stating: “This action seeks a judicial determination as to the
unconstitutionality of provisions of Utah law and federal law that make criminal
the religious practice of polygamy.” Aplt. Reply Br. at 1 (emphasis added).
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polygamy, Utah Code § 76-7-101, have failed. In Potter, this Court relied upon
Reynolds in rejecting attacks that were premised upon the Due Process and Free
Exercise Clauses of the United States Constitution. See Potter, 760 F.2d at 1068-
69. And the Utah Supreme Court recently invoked Reynolds and Potter in
holding that a defendant’s conviction under § 76-7-101 did not violate his rights
to association, to the free exercise of religion, and to substantive due process, as
guaranteed by the First and Fourteenth Amendments to the federal Constitution.
Holm, 137 P.3d at 741-49; see also Green, 99 P3d at 825-30 (applying Reynolds
and Potter to reject federal free exercise challenge to § 76-7-101).
Despite this wealth of controlling and persuasive precedent, we conclude
that the district court lacked subject matter jurisdiction to resolve plaintiffs’
claims against Swensen based upon Utah’s criminal prohibition of polygamy. W e
hold that these claims – the only claims at issue in this appeal – fail to present a
justiciable “case” or “controversy” within the meaning of Article III of the United
States Constitution.
1. Standard For Constitutional Standing
This Court reviews de novo a district court’s decision as to standing. See
Aid for Women v. Foulston, 441 F.3d 1101, 1109 (10th Cir. 2006). Article III of
the United States Constitution restricts the jurisdiction of federal courts to the
adjudication of “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. To
establish a case or controversy, a plaintiff bears the burden of demonstrating:
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(1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81
(2000); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Tandy v.
City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004). Put simply, a plaintiff
must establish three elements: an injury-in-fact, causation, and redressability.
See Finstuen v. Crutcher, Nos. 06-6213 & 06-6216, ___F.3d___, 2007 W L
2218887, at *2 (10th Cir. Aug. 3, 2007) (noting that “Article III standing . . .
requires that a plaintiff establish injury-in-fact, causation, and redressability”).
Each plaintiff must have standing to seek each form of relief in each claim.
See DaimlerChrysler Corp v. Cuno, 126 S.Ct. 1854, 1867 (2006); Friends of the
Earth, Inc., 528 U.S. at 185. Standing at the summary judgment stage “must be
supported by specific evidentiary facts and not by mere allegations.” Phelps v.
Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997) (citing Lujan, 504 U.S. at 562);
see Tandy, 380 F.3d at 1284.
2. District Court’s Analysis
W ithout distinguishing between Utah’s criminal prohibition of polygamy
and its civil prohibition of polygamy, the district court concluded that plaintiffs
had standing. Its analysis was predicated upon three points: (1) that plaintiffs’
injury was not the threat of imminent prosecution, but, instead, the “denial of the
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legal right to practice polygamy,” App. at 282-83; (2) that a causal nexus existed
between this injury-in-fact and Swensen’s denial of a marriage license in reliance
upon Utah’s prohibition of polygamy; and (3) that a favorable opinion would
redress plaintiffs’ injury, as the contested provisions w ould be held
unconstitutional and the marriage license would issue. For the reasons detailed
below, we conclude that the district court erred with respect to the criminal-
prohibition claims.
3. Plaintiffs’ Standing to Challenge Utah’s Criminal
Prohibition of Polygamy
W e hold that plaintiffs have failed to meet their burden of demonstrating
constitutional standing to seek prospective or retrospective relief based upon the
alleged unconstitutionality of Utah’s criminal prohibition of polygamy.
a. Prospective Relief
On appeal, plaintiffs press for prospective relief in the form of a
declaratory judgment that, inter alia, the challenged criminal enactments –
particularly, the provisions of § 76-7-101 – are unconstitutional. Plaintiffs’
complaint also requests an injunction prohibiting the future enforcement of the
criminal enactments. Under the facts of this case, both forms of prospective relief
trigger the same standing analysis. See Tandy, 380 F.3d at 1284-89.
Furthermore, we may perform this analysis collectively under the circumstances
present here: each plaintiff asserts the same injury-in-fact, the “threat” of
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prosecution under § 76-7-101, based upon a shared intent to enter into a three-
way polygamous relationship. 7
i. Injury-in-Fact
Plaintiffs argue on appeal that they possess standing to challenge U tah’s
criminal prohibition of polygamy due to their “fear of criminal prosecution,”
including the stigma of being branded as a law -breaker. Aplt. Br. at 14 (emphasis
in original); see Aplt. Reply Br. at 2-3. A plaintiff challenging the “validity of a
criminal statute under which he has not been prosecuted . . . must show a ‘real
and immediate threat’ of his future prosecution under that statute to satisfy the
injury in fact requirement.” D.L.S. v. Utah, 374 F.3d 971, 974 (10th Cir. 2004)
(quoting Faustin v. City & County of Denver, 268 F.3d 942, 948 (10th Cir.
2001)).
This requirement also has been characterized as a “credible” threat of
prosecution, one that arises from an “objectively justified fear of real
consequences.” D.L.S., 374 F.3d at 975; see Initiative & Referendum Inst. v.
Walker, 450 F.3d 1082, 1088-89 (10th Cir. 2006) (en banc), cert denied, 127 S.Ct.
7
By purporting to enter into a polygamous marriage, J. Bronson and
G. Cook would violate § 76-7-101. See Holm, 137 P.3d at 734 (“marry” in § 76-
7-101 includes marriages that are not state-sanctioned). Furthermore, D. Cook,
by continuing to live with G. Cook after his second, extra-legal marriage, would
fall within the literal language of the statute, which also proscribes
“cohabit[ation].” Utah Code Ann. § 76-7-101.
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1254 (2007); see also Finstuen, 2007 W L 2218887, at *3 (“In a plea for
injunctive relief, a plaintiff cannot maintain standing by asserting an injury based
merely on ‘subjective apprehensions’ that the defendant might act unlawfully.”
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983)); Winsness v.
Yocom, 433 F.3d 727, 732 (10th Cir. 2006) (“The mere presence on the statute
books of an unconstitutional statute, in the absence of enforcement or the credible
threat of enforcement, does not entitle anyone to sue, even if they allege an
inhibiting effect on constitutionally protected conduct prohibited by the statute.”).
As suggested by this standard, a plaintiff need not risk actual prosecution
before challenging an allegedly unconstitutional criminal statute. See, e.g., Ward
v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003) (noting that a plaintiff “may have
standing even if they have never been prosecuted”). Standing may still exist even
when a plaintiff ends the proscribed behavior, so long as a credible threat remains
that such behavior, if taken in the future, would be prosecuted. See, e.g.,
M edimmune, Inc. v. Genentech, Inc., 127 S.Ct. 764, 772-76 (2007).
The “credible threat” test begs further inquiry into what constitutes the
requisite degree of likelihood of enforcement to confer standing to bring a
particular claim. See Seegars v. Gonzales, 396 F.3d 1248, 1252 (D .C. Cir. 2005).
To the extent “clarity prevails only at the poles,” id., case law illuminates those
pre-enforcement claims for prospective relief that occupy the ends of the injury-
in-fact continuum.
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At the “credible threat” pole lies pre-enforcement claims brought after the
entity responsible for enforcing the challenged statute actually threatens a
particular plaintiff with arrest or even prosecution. See Steffel v. Thom pson, 415
U.S. 452, 459 (1974) (Vietnam W ar protester has standing to bring claim for
declaratory relief attacking constitutionality of Georgia criminal trespass law after
being warned to stop handbilling and being threatened with arrest and
prosecution, and after companion was arrested and arraigned); Doctor John’s, Inc.
v. City of Roy, 465 F.3d 1150, 1156 (10th Cir. 2006) (adult bookstore faces
credible threat of prosecution under city ordinance requiring licensing of
“sexually oriented businesses” when city sends letter stating that bookstore must
complete application for license or “appropriate legal action will be
commenced”).
These claims can be juxtaposed with those situated at the “no credible
threat” end of the spectrum. There, the affirmative assurances of non-prosecution
from a governmental actor responsible for enforcing the challenged statute
prevents a “threat” of prosecution from maturing into a “credible” one, even when
the plaintiff previously has been arrested under the statute. See M ink v. Suthers,
482 F.3d 1244, 1253-55 (10th Cir. 2007) (no credible threat of prosecution when
district attorney authored “no file” letter disavowing intent to prosecute under
challenged criminal-libel statute, even though “no file” letter “conceivably might
not bind other district attorneys”); Winsness, 433 F.3d at 732, 735-36 (no standing
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to bring § 1983 claim for injunctive and declaratory relief when plaintiffs
received sw orn assurances from county prosecutors that flag abuse statute w ould
not be enforced against them or anyone else, despite fact that one plaintiff
experienced a “brief prosecution” under the statute); PeTA v. Rasmussen, 298
F.3d 1198, 1203 (10th Cir. 2002) (no standing to assert claims for prospective
relief when defendants admitted that they threatened plaintiff’s members w ith
arrest due to misinterpretation of challenged statute and plaintiff failed to indicate
intention to stage protests at statutorily-covered institutions); Faustin v. City &
County of Denver, 268 F.3d 942, 948 (10th Cir. 2001) (no standing to assert claim
for injunctive relief against future prosecution under anti-posting ordinance in
light of city prosecutor’s determination that plaintiff’s conduct which led to arrest
did not violate challenged ordinance).
In addition, the credibility of a “threat” is diluted when a factual
dissimilarity exists between the plaintiff’s intended future conduct and the
conduct that triggered any prior prosecutions under the challenged statute. See
D.L.S., 374 F.3d at 975 (plaintiff lacks standing to bring civil rights suit
challenging Utah’s anti-sodomy statute because “plaintiff cannot show a real
threat of prosecution in the face of assurances of non-prosecution from the
government merely by pointing to a single past prosecution of a different person
for different conduct” (emphasis added)).
Plaintiffs’ § 1983 claims for prospective relief based upon Utah’s criminal
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prohibition of polygamy lie closer to the “no credible threat” end of the injury-in-
fact continuum. Plaintiffs were never charged, prosecuted, or directly threatened
with prosecution under § 76-7-101. M oreover, the alleged credibility of
plaintiffs’ fear is contradicted by their repeated admission that “Utah’s criminal
law against polygamy is not being enforced.” A plt. Br. at 48 n.30; see id. at 49
n.34. It is further belied by the policy statement of the U tah A ttorney General’s
Office that it has “decided to focus law enforcement efforts on crimes within the
polygamous communities that involve child abuse, domestic violence and fraud,
rather than enforcing § 76-7-101 against consensual polygamous relationships
involving adults.” 8 Utah and Arizona Attorney Generals’ O ffices, The Primer:
Helping Victims of Domestic Violence and Child Abuse in Polygamous
Communities at 3 (June 2006), available at http://www.attygen.state.ut.us/
polygamy/The_Primer.pdf. Plaintiffs also failed to allege or demonstrate that
Sw ensen (even if she had the power to do so) is likely to enforce Utah’s criminal
laws against plaintiffs in the future. See Rasmussen, 298 F.3d at 1203 (finding
absence of injury-in-fact in part because plaintiff did not allege that “these
8
The U tah A ttorney General recently made to the U tah Supreme Court
a representation of prosecutorial selectivity similar to the one found in The
Primer. See Holm, 137 P.3d at 775 (Durham, C. J., concurring in part and
dissenting in part) (“Further, the State itself has indicated that it does not
prosecute those engaged in religiously motivated polygamy under the criminal
bigamy statute unless the person has entered a religious union with a girl under
eighteen years old.”)
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defendants” would be likely to enforce challenged statute against them in the
future).
Plaintiffs rely upon two recent state prosecutions under § 76-7-101 – Green
and H olm – to justify the objective reasonableness of their fear. However, the
defendants in these prosecutions had committed independent crimes in connection
with forming their respective polygamous relationships. See Holm, 137 P.3d at
731, 744 (noting that defendant was charged and convicted of bigamy and
unlaw ful sexual conduct with minor); Green, 99 P.3d at 830 n.14 (noting that
defendant was charged and convicted not only of bigamy but also of criminal
nonsupport and rape of a child). These cases therefore involved remarkably
different facts than those present in this litigation, where no independent crime
would attend the formation of plaintiffs’ polygamous relationship: plaintiffs are
all adults and profess a desire to enter into a consensual polygamous relationship.
See D.L.S., 374 F.3d at 975. Accordingly, we conclude that plaintiffs cannot
establish the first requirement of Article III standing – injury-in-fact.
ii. Causation
Even if plaintiffs’ fear w as based upon a credible threat of prosecution,
such that they are suffering a jurisdictionally-cognizable injury, they could not
satisfy the second requirement of standing – causation. The principle of causation
for constitutional standing requires a plaintiff’s injury to be “fairly traceable to
the challenged action of the defendant, and not the result of the independent
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action of some third party not before the court.” Nova Health Sys. v. Gandy, 416
F.3d 1149, 1156 (10th Cir. 2005) (internal quotation marks omitted and emphasis
added) (quoting Lujan, 504 U.S. at 560). Although a defendant’s alleged
misconduct need not be the proximate cause of a plaintiff’s harm, “A rticle III
does at least require proof of a substantial likelihood that the defendant’s conduct
caused plaintiff’s injury in fact.” Id. (emphasis added).
It is well-established that when a plaintiff brings a pre-enforcement
challenge to the constitutionality of a particular statutory provision, the causation
element of standing requires the named defendants to possess authority to enforce
the complained-of provision. See, e.g., Socialist Workers Party v. Leahy, 145
F.3d 1240, 1248 (11th Cir. 1998) (“In a suit such as this one, where the plaintiff
seeks a declaration of the unconstitutionality of a state statute and an injunction
against its enforcement, a state officer, in order to be an appropriate defendant,
must, at a minimum, have some connection with enforcement of the provision at
issue.”); see also Okpalobi v. Foster, 244 F.3d 405, 426-28 (5th Cir. 2001) (en
banc) (abortion providers lack standing to sue Louisiana Governor and Attorney
General for declaratory and injunctive relief based upon unconstitutionality of
Louisiana state tort statute authorizing private cause of action because defendants
lack authority to enforce statute); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st
Cir. 1979) (noting that “an officer of a state is an appropriate defendant if he has
some connection with the enforcement of the act”); 13 Charles A. W right, Arthur
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R. M iller & Edward H. Cooper, Federal Practice & Procedure § 3531.5, at 1072-
73 (Supp. 2007) [hereinafter, 13 Federal Practice] (commenting on cases that
view the identification of the proper governmental defendant as a standing issue
and “at times focus[] explicitly on the causal nexus between the official’s role and
the claimed injury”).
For instance, in Gandy, we held that the plaintiff, an abortion provider,
lacked standing to pursue a pre-enforcement challenge for prospective relief
based upon the alleged unconstitutionality of an Oklahoma statute imposing civil
liability on abortion providers for performing abortions on minors without
parental consent. 416 F.3d at 1156. W e observed that the plaintiff failed to show
the required causal connection between its injury – the loss of minor patients who
refused to obtain parental consent – and “these” defendants, Oklahoma public
officials overseeing certain state medical institutions. Id. at 1157. W e reasoned
that the defendants were not charged with enforcing the statute in their official
capacities, and that it was the statute’s coercive effect, rather than the effect of
the defendants’ actual or threatened conduct, that caused the abortion provider’s
injury-in-fact. Id. at 1157-58. Cf. Winsness, 433 F.3d at 737 (holding that
plaintiff lacks standing to sue for injuries suffered from citation and ensuing
criminal record because defendants “had nothing to do with it”).
Under this precedent, we hold that plaintiffs’ fear of prosecution under §
76-7-101 – the injury that allegedly anchors plaintiffs’ challenge to U tah’s
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criminal prohibition of polygamy – is not “fairly traceable” to Swensen’s acts.
Plaintiffs concede that Swensen has no power to initiate a criminal prosecution.
And they have not shown that Sw ensen has any responsibility for enforcing § 76-
7-101. Cf. Utah Const. art. VIII, § 16 (public prosecutors have “primary”
authority for prosecution of criminal actions); Utah Code Ann. § 10-3-928
(authorizing city attorney to prosecute certain crimes). As such, there is no nexus
between this defendant’s past or possible future conduct and plaintiffs’ fear of
criminal prosecution under U tah law.
In the face of this logic, plaintiffs argue that Swensen’s power to grant a
marriage license generates the necessary causation for standing. In essence,
plaintiffs contend that if Swensen were “to issue a marriage license and a
marriage ceremony was performed,” Aplt. Reply Br. at 5, they would be insulated
from criminal prosecution under § 76-7-101 and, consequently, would be free
from fear of such prosecution.
W e reject this argument. Plaintiffs’ theory of causation is based upon the
alleged benefits that would flow to them as a consequence of Swensen’s issuance
of a marriage license – not an alleged injury that Sw ensen’s actions have
inflicted or, in imminent fashion, will inflict upon them. 9 M oreover, these
9
W e note that in their complaint plaintiffs did not even request the
form of relief upon which they build their theory of causation – in other words,
they did not seek injunctive relief that would require Swensen to issue them a
marriage license.
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benefits (insofar as they could be said to be anything more than speculative)
would be the collateral products of Swensen’s exercise of her civil authority.
They would not flow from Sw ensen’s enforcement of Utah’s criminal prohibition
of polygamy. Swensen has no authority to enforce that prohibition.
Plaintiffs’ theory, therefore, fails to establish a meaningful nexus between
Swensen’s actions and the challenged criminal provisions, such that plaintiffs’
alleged harm (i.e., fear of criminal prosecution) could be deemed to be fairly
traceable to her actions. Furthermore, even if Swensen issued a marriage license,
this license would not eliminate the possibility (albeit remote) of prosecution: the
marriage license would be deemed invalid pursuant to § 30-1-2; and plaintiffs
would remain within the technical ambit of § 76-7-101. 10
In sum, plaintiffs cannot establish causation for purposes of A rticle III
10
Plaintiffs allude to the possibility that Sw ensen’s refusal to issue a
marriage license has enhanced the likelihood of their criminal prosecution under §
76-1-101. See Aplt. Reply Br. at 4 (“W hile M s. Swensen has no power to initiate
a criminal prosecution, her actions directly lead to or would prevent criminal
prosecutions.” (emphasis added)). W e summarily reject this theory. Plaintiffs
have failed to cite any evidence in the record to suggest that the denial of a
marriage license carries any influence on the decision to prosecute a defendant
under § 76-7-101. See Lujan, 504 U.S. at 561 (“[i]n response to a summary
judgment motion, . . . the plaintiff . . . must ‘set forth’ by affidavit or other
evidence ‘specific facts’” that establish each element of standing); Gandy, 416
F.3d at 1154 (same). M oreover, even if it did have some influence on the
prosecutors authorized to enforce the criminal prohibition, we would not be able
to conclude that this influence is “determinative or coercive.” See Bennett v.
Spear, 520 U.S. 154, 169 (1997) (recognizing that the injury-in-fact concept
“does not exclude injury produced by determinative or coercive effect upon the
action of someone else”).
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standing.
iii. Redressability
Lastly, even if plaintiffs were able to survive the standing analysis as to the
first two requirements, they would fail on the last and third requirement of
standing – redressability. Standing requires a likelihood that the injury-in-fact
will be redressed by a favorable decision. See Bennett v. Spear, 520 U.S. 154,
162 (1997). The redressability prong is not met when a plaintiff seeks relief
against a defendant with no power to enforce a challenged statute. See Gandy,
416 F.3d at 1158-59; Okpalobi, 244 F.3d at 426-27; see also Hope Clinic v. Ryan,
249 F.3d 603, 605 (7th Cir. 2001) (per curiam) (holding that “plaintiffs lack
standing to contest the statutes authorizing private rights of action” in part
“because any potential dispute plaintiffs may have with future private plaintiffs
could not be redressed by an injunction running only against public prosecutors”);
13 Federal Practice, supra, § 3531.5, at 1076 (noting that the “connection”
between causation and redressability is “very practical–if the injury is not caused
by the challenged acts, an order directed to them will not redress it”).
The absence of a nexus between Swensen’s enforcement powers and the
challenged criminal provisions renders ineffectual plaintiffs’ requested
prospective relief. Enjoining this defendant from enforcing § 76-7-101 would be
a meaningless gesture. It would not protect plaintiffs from any threat of future
criminal prosecution for polygamous behavior; such prosecutions are the province
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of governmental actors other than Swensen. See Okpalobi, 244 F.3d at 427-28
(redressability prong of standing not met because “state official cannot be
enjoined to act in any way that is beyond his authority to act in the first place”).
Nor would a declaratory judgment entered against Sw ensen avoid the future
possibility (albeit remote) of a criminal prosecution under § 76-7-101; state
prosecutors would not be obliged to take their cues from such a judgment. See
Gandy, 416 F.3d at 1159 (effect of federal court judgment on defendant, rather
than precedential value of opinion on others, must redress plaintiff’s injury).
Tellingly, plaintiffs offer neither case law nor analysis to support their insistence
on the existence of redressability.
b. Retrospective Relief
Plaintiffs’ complaint also seeks retrospective relief – nominal monetary
damages and a declaratory judgment – for Sw ensen’s allegedly unconstitutional
conduct. 11 Again, we find that plaintiffs lack standing to pursue such relief under
a theory premised upon the unconstitutionality of U tah’s criminal prohibition of
polygamy.
Although plaintiffs repeatedly cast their injury-in-fact in prospective-relief
11
In Rasmussen, we noted: “W hile a declaratory judgment is generally
prospective relief, in some situations, it has been recognized as retrospective. . . .
Thus, we consider declaratory relief retrospective to the extent that it is
intertwined with a claim for monetary damages that requires us to declare whether
a past constitutional violation occurred.” 298 F.3d at 1202 n.2; see Winsness, 433
F.3d at 735.
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terms, as the credible “threat” of prosecution, they also argue, without much
elaboration, that “Swensen’s acts in compliance with the challenged provisions
caused harm to plaintiffs.” Aplt. Br. at 17. This conclusory statement hardly
amounts to a clear expression of why plaintiffs have standing to pursue
retrospective relief. As best we can discern it, plaintiffs appear to be asserting
the following theory: Sw ensen’s denial of G. Cook’s and J. Bronson’s application
for a marriage license, coupled with the psychological and financial consequences
attendant to this denial, grants them standing to sue Swensen for monetary
damages and declaratory relief based upon her unconstitutional application of the
challenged crim inal provisions.
This theory of standing cannot withstand scrutiny. W e assume arguendo
that the first requirement of Article III standing is satisfied – viz., the denial of a
marriage license to enter into a polygamous relationship constitutes a
constitutionally cognizable injury. However, plaintiffs still cannot establish the
second and third elements: their injury was not caused by Sw ensen’s application
of the challenged criminal provisions and the injury is not “fairly traceable” to
this defendant’s application of the challenged criminal provisions.
W e start with the causation requirement. Swensen’s statutory obligation to
deny plaintiffs’ marriage application was governed by Title 30 of the Utah Code,
and, in particular, by § 30-1-2(1) and § 30-1-16, not by the challenged criminal
provisions. See Utah Stat Ann. §§ 17-20-4, 30-1-2, 30-1-16. Nothing in Title 30
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authorized Swensen to deny marriage licenses based upon conduct that she
believed may violate a particular criminal provision – viz., nothing in Title 30
authorized Swensen to apply, even indirectly, the challenged criminal provisions
in denying marriage licenses. Nor have plaintiffs identified a source granting a
county clerk such discretion.
And, for related reasons, plaintiffs also cannot satisfy the third standing
requirement – redressability. Because the challenged criminal provisions were
not the predicate for Swensen’s denial of a marriage license to plaintiffs,
affording plaintiffs a retrospective remedy centered on a legal determination that
those provisions are unconstitutional would not provide plaintiffs effective relief.
It would not redress their claimed harm. Cf. New York Civil Serv. Comm’n v.
Snead, 425 U.S. 457, 458 (1976) (per curiam) (dismissing action for declaratory
and injunctive relief against New York Civil Service Commission for lack of
standing because statutory process that plaintiff challenged was never applied by
Commission to her, despite Commission’s authority to administer statute);
Faustin, 268 F.3d at 948 (holding that plaintiff lacked standing to bring an as-
applied challenge to the constitutionality of city ordinance limiting poster
displays on public property because ordinance was not applied to plaintiff).
III. C ON CLU SIO N
W e hold that plaintiffs lack standing to challenge the constitutionality of
Utah’s criminal prohibition of polygamy. And, on appeal, plaintiffs have
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forfeited any challenge to the constitutionality of Utah’s civil prohibition of
polygamy. Accordingly, we VAC ATE the district court’s judgment in favor of
Sw ensen on the merits of plaintiffs’ criminal-prohibition claims and REM AND
the case for entry of an order dismissing these claims for lack of subject matter
jurisdiction.
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