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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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(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
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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