IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 16-60477 September 29, 2017
Lyle W. Cayce
Clerk
RIMS BARBER; CAROL BURNETT; JOAN BAILEY;
KATHERINE ELIZABETH DAY; ANTHONY LAINE BOYETTE;
DON FORTENBERRY; SUSAN GLISSON; DERRICK JOHNSON;
DOROTHY C. TRIPLETT; RENICK TAYLOR;
BRANDILYNE MANGUM-DEAR; SUSAN MANGUM;
JOSHUA GENERATION METROPOLITAN COMMUNITY CHURCH,
Plaintiffs–Appellees,
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
No. 16-60477
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ON PETITION FOR REHEARING EN BANC
(Opinion 860 F.3d 345, Jun. 22, 2017)
Before SMITH, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
Treating the petitions for rehearing en banc as petitions for panel
rehearing, the petitions for panel rehearing are DENIED. The court having
been polled at the request of a member of the court, and a majority of the judges
who are in regular active service not having voted in favor (FED. R. APP. P. 35
and 5TH CIR. R. 35), the petitions for rehearing en banc are DENIED.
In the poll, 2 judges vote in favor of rehearing en banc, and 12 vote
against. Voting in favor are Judges Dennis and Graves. Voting against are
Chief Judge Stewart and Judges Jolly, Jones, Smith, Clement, Prado, Owen,
Elrod, Southwick, Haynes, Higginson, and Costa.
ENTERED FOR THE COURT:
/s/ Jerry E. Smith
United States Circuit Judge
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JAMES L. DENNIS, Circuit Judge, joined by GRAVES, Circuit Judge,
dissenting from the denial of rehearing en banc:
I respectfully dissent from the court’s refusal to consider en banc the
important standing issue in this case. In my view, the panel opinion
committed serious error in concluding that the plaintiffs lack standing to bring
suit under the Establishment Clause. The plaintiffs argue that HB 1523, a
Mississippi statute, violates the Establishment Clause—they allege that it
endorses and favors certain religious beliefs because it grants special
privileges and immunities to persons who sincerely hold at least one of the
following “religious beliefs or moral convictions”:
(a) [m]arriage is or should be recognized as the union of one man
and one woman; (b) [s]exual relations are properly reserved to such
a marriage; and (c) [m]ale (man) or female (woman) refer[s] to an
individual’s immutable biological sex as objectively determined by
anatomy and genetics at time of birth.
MISS. LAWS 2016, HB 1523 § 2. 1
The plaintiffs are Mississippi residents and organizations who do not
hold these beliefs or who hold religious beliefs contrary to these beliefs. 2 The
plaintiffs allege that HB 1523 is an unconstitutional state endorsement of
religious beliefs because it sends a message to non-adherents to those beliefs
“that they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members
1 HB 1523 grants adherents to these beliefs immunity from sanctions for a range of
anti-LGBT discrimination including withholding foster care services, § 3(2); psychological or
counseling services, §3(4); marriage-related public accommodations, §3(5); and public
accommodations and health and mental health services for transgender individuals, §3(4),
(6). It also permits state employees to recuse themselves from serving same-sex couples
seeking marriage licenses and ceremonies. § 3(8).
2 Among these plaintiffs are gay and transgender individuals, same-sex married
couples, and an unmarried individual in a relationship that includes sexual relations.
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of the political community.” See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290, 309 (2000) (cleaned up).
The panel opinion, Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017),
concludes that all of the plaintiffs lack standing to bring any challenge to HB
1523. Id. at 350–51. Respectfully, the panel opinion is wrong; the plaintiffs
have standing to challenge HB 1523 under Supreme Court and Courts of
Appeals precedents. The panel opinion misconstrues and misapplies the
Establishment Clause precedent, and, as explained below, its analysis creates
a conflict between our circuit and our sister circuits on the issue of
Establishment Clause standing.
Critically, this case does not involve a challenge to a religious display or
religious exercise—that is, a particular religious practice—endorsed by a
government actor. In cases involving challenges to religious exercises or
displays, courts have generally required some sort of physical exposure to the
challenged object or conduct. Instead, the plaintiffs in this case challenge a
law of their state. In cases involving challenges to laws or official policies in
the plaintiffs’ own communities, the stigmatic harm suffered by non-adherents
is sufficient to establish an injury-in-fact. Because the plaintiffs in this case
have alleged such a stigmatic harm, the panel opinion’s dismissal of this case
is in error and should have been reversed by the court en banc.
I
For purposes of an Establishment Clause claim, “plaintiffs may
demonstrate standing based on the direct harm of what is claimed to be an
establishment of religion.” Establishment Arizona Christian Sch. Tuition Org.
v. Winn, 563 U.S. 125, 129 (2011). Such “direct harm” can, of course, include
tangible and economic injuries. But because injury can be “particularly
elusive” in this context, Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir.
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1991), “the standing inquiry in Establishment Clause cases has been tailored
to reflect the kind of injuries Establishment Clause plaintiffs are likely to
suffer,” Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 294 n.31 (5th Cir.
2001) (cleaned up). Thus, “our rules of standing recognize that noneconomic
or intangible injury may suffice to make an Establishment Clause claim
justiciable.” Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 494, 505 (5th Cir. 2007)
(cleaned up).
In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the
Supreme Court held that “school sponsorship of a religious message is
impermissible because it sends the ancillary message to members of the
audience who are non-adherents that they are outsiders, not full members of
the political community, and an accompanying message to adherents that they
are insiders, favored members of the political community.” Id. at 309–10
(cleaned up). In that case, current and former students of a high school
challenged the school’s policy that permitted prayer initiated and led by a
student at football games. Id. at 294. The school district contended that the
plaintiffs’ facial challenge to the policy was premature because, at the time the
case was pending before the Supreme Court, no religious invocation had been
made under the latest version of the school’s policy. See id. at 313. Rejecting
this argument, the Court observed:
This argument, however, assumes that we are concerned only with
the serious constitutional injury that occurs when a student is
forced to participate in an act of religious worship because she
chooses to attend a school event. But the Constitution also
requires that we keep in mind the myriad, subtle ways in which
Establishment Clause values can be eroded, and that we guard
against other different, yet equally important, constitutional
injuries. One is the mere passage by the District of a policy that has
the purpose and perception of government establishment of religion.
Id. at 313–14 (cleaned up) (emphasis added).
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The panel opinion in this case states, “the Court [in Santa Fe] used broad
language to describe the injury non-adherents may suffer from witnessing a
prayer at a school football game.” Barber, 860 F.3d at 354. This assertion is
plainly incorrect; the Court in Santa Fe described the injury the non-adherent
plaintiffs in that case actually suffered from the “mere passage by the [school
d]istrict of a policy that has the purpose and perception of government
establishment of religion.” 530 U.S. at 314. The panel opinion further states,
“Santa Fe does not address the standing of the instant plaintiffs.” Barber, 860
F.3d at 354. While it is true that the Court in Santa Fe was not responding to
a challenge to the plaintiffs’ standing per se, its explication of the relevant
constitutional injuries against which the Establishment Clause guards is
highly relevant to the question of what constitutes injury-in-fact for standing
purposes in an Establishment Clause case. See Littlefield, 268 F.3d at 294 n.31
(“The standing inquiry in Establishment Clause cases has been tailored to
reflect the kind of injuries Establishment Clause plaintiffs are likely to suffer.”
(Cleaned up)). It is also highly instructive that the Court did not perceive any
standing problem under the circumstances of Santa Fe, which are similar to
the facts of the instant case. See Murray, 947 F.2d at 151 (ruling that plaintiff
has alleged sufficient injury to confer standing and stating, “In so ruling, we
attach considerable weight to the fact that standing has not been an issue in
the Supreme Court in similar cases”).
The plaintiffs allege that Mississippi’s enactment of HB 1523 endorses
religious beliefs that they do not hold and thereby conveys a message that they
“are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members
of the political community.” Santa Fe, 530 U.S. at 309–10. Relying on the
Supreme Court’s opinion in Valley Forge Christian College v. Americans
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United for Separation of Church & State, Inc. 454 U.S. 464, 483 (1982), the
panel opinion states that “[a]llowing standing on [this] 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.” Barber 860 F.3d at 354. That is simply not so. In
Valley Forge, a group of plaintiffs dedicated to the separation of church and
state sought to challenge the transfer of federal property to a religious
educational institution. 454 U.S. at 468–69. None of the plaintiffs lived in or
even near Pennsylvania, where the property at issue was located. Id. at 486–
87. The Court held that the plaintiffs did not have standing, stating, “Their
claim that the Government has violated the Establishment Clause does not
provide a special license to roam the country in search of governmental
wrongdoing and to reveal their discoveries in federal court.” Id. at 487.
The plaintiffs in the present case are citizens of Mississippi and are
subject to its laws; to allow standing here would not give an improper venue to
“generalized disagreement with activities in a place in which [they] have no
connection.” Freedom from Religion Found. Inc v. New Kensington Arnold Sch.
Dist., 832 F.3d 469, 478 (3d Cir. 2016) (citing Valley Forge, 454 U.S. at 482–
83); see also, e.g., Catholic League for Religious & Civil Rights v. City & Cty. of
S.F., 624 F.3d 1043, 1052 (9th Cir. 2010) (en banc) (a “psychological
consequence” constitutes concrete harm where it is “produced by government
condemnation of one’s own religion or endorsement of another’s in one’s own
community” (emphasis added)); Washegesic v. Bloomingdale Pub. Sch., 33 F.3d
679, 683 (6th Cir. 1994) (practices in one’s “own community may create a larger
psychological wound than some place we are just passing through”); Saladin
v. City of Milledgeville, 812 F.2d 687, 693 (11th Cir. 1987) (plaintiffs “have
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more than an abstract interest” where they are “part of [the relevant
community]”).
The plaintiffs’ allegations are thus sufficient to establish their standing
to bring a challenge under the Establishment Clause. This conclusion is
consistent with the holdings of at least two of our sister circuits, which have
recognized that stigmatic harm caused by government policies or regulations
to individuals within their own political community is sufficient to establish
standing for purposes of the Establishment Clause. See Int’l Refugee
Assistance Project v. Trump, 857 F.3d 554, 583 (4th Cir. 2017) (en banc)
(“IRAP”); Catholic League, 624 F.3d at 1052.
In Catholic League, the Ninth Circuit, sitting en banc, determined that
a group of Catholic San Francisco residents had standing to challenge a non-
binding resolution by the Board of Supervisors that condemned their beliefs
regarding adoptions by same-sex couples. 624 F.3d at 1046–48. The court
explained:
At bottom, the gist of the question of standing is whether
petitioners have such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends
for illumination. Had a Protestant in Pasadena brought this suit,
he would not have had standing. Catholics in San Francisco, on
the other hand, have sufficient interest, so that well-established
standing doctrine entitles them to litigate whether an anti-
Catholic resolution violates the Establishment Clause. . . .
Standing is not about who wins the lawsuit; it is about who is
allowed to have their case heard in court. It would be outrageous
if the government of San Francisco could condemn the religion of
its Catholic citizens, yet those citizens could not defend themselves
in court against their government’s preferment of other religious
views.
Id. at 1048 (cleaned up).
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The panel opinion states, “Because HB 1523 is not a specific
condemnation of an identified religion challenged by its adherents, the
standing analysis in Catholic League is inapposite.” Barber, 860 F.3d at 355
n.9. However, this reading of Catholic League elides that case’s central
observation:
A psychological consequence does not suffice as concrete harm
where it is produced merely by observation of conduct with which
one disagrees. But it does constitute concrete harm where the
psychological consequence is produced by government
condemnation of one’s own religion or endorsement of another’s in
one’s own community.
624 F.3d at 1052 (cleaned up) (emphasis added). The Ninth Circuit’s
recognition of the concrete injury a plaintiff suffers as a result of his
government’s endorsement of another religion is further illustrated in that
court’s statement that “[w]ere the result otherwise . . . a resolution declaring
Catholicism to be the official religion of the municipality would be effectively
unchallengeable.” Id. at 1048.
In IRAP, the Fourth Circuit, sitting en banc, found that a Muslim lawful
permanent resident of the United States had standing to challenge an
Executive Order banning immigration from certain Muslim-majority
countries. 857 F.3d at 572–75, 583. The panel opinion here states that IRAP
is distinguishable because the Executive Order at issue in that case would have
barred the plaintiff’s wife from entering the country and thereby prolonged
their separation. Barber, 860 F.3d at 355. But while the Fourth Circuit did
recognize this effect as an injury sufficient to support standing, it also
recognized as a “distinct” injury the fact that the Executive Order “sends a
state-sanctioned message condemning his religion and causing him to feel
excluded and marginalized in his community.” IRAP, 857 F.3d at 583. This
stigmatic harm, the court found, also showed sufficient “personal contact” with
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the alleged establishment of religion to bring suit. Id. The court noted, “This
harm is consistent with the ‘[f]eelings of marginalization and exclusion’ injury
we recognized in Moss [v. Spartanburg County School District Seven, 683 F.3d
599 (4th Cir. 2012)].” IRAP, 857 F.3d at 585.
In Moss, the Fourth Circuit held that a non-Christian family had
standing to challenge a public school’s policy of conferring academic credit for
off-campus religious instruction from a Christian school. 683 F.3d at 607. The
court stated that “because the [family members] are not Christians, the School
District’s alleged Christian favoritism made them feel like ‘outsiders’ in their
own community.” Id. Notably, the court concluded:
Feelings of marginalization and exclusion are cognizable forms of
injury, particularly in the Establishment Clause context, because
one of the core objectives of modern Establishment Clause
jurisprudence has been to prevent the State from sending a
message to non-adherents of a particular religion “that they are
outsiders, not full members of the political community.”
Id. (quoting McCreary Cty. v. ACLU, 545 U.S. 844, 860 (2005)).
II
Until the panel opinion in this case, our court’s precedent was not in
conflict with these holdings. The panel opinion discusses a number of cases
involving religious exercises and displays and argues that those cases either
involved or required a “personal confrontation”—a physical exposure in all
those cases—that the panel opinion does not find in the instant case. See
Barber, 860 F.3d at 353–54 (discussing Murray, 947 F.2d 147 (religious symbol
in city insignia); Staley v. Harris Cty., 485 F.3d 305 (5th Cir. 2007) (en banc)
(addressing mootness in context of removal of religious monument, which was
relief sought by plaintiff); Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 494 (5th
Cir. 2007) (en banc) (practice of religious invocations)). But these cases are not
on point because this case deals neither with a religious exercise nor with a
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religious display. Instead, the plaintiffs challenge a state statute, similar to
the school districts’ policies in Santa Fe and Moss, the Board of Supervisors’
resolution in Catholic League, and the executive order in IRAP. A physical
confrontation is not required in such a case—the stigmatic harm that flows
from the enactment of the law or the adoption of the policy tending to make
the plaintiffs feel marginalized or excluded in their own community is
sufficient.
In attempting to establish that stigmatic harm is not sufficient to create
standing even in cases involving challenges to official policy or law, the panel
opinion cites Littlefield v. Forney Independent School District, 268 F.3d 275,
294 n.31 (5th Cir. 2001), for the proposition that “[w]here a statute or
government policy is at issue, the policy must have some concrete applicability
to the plaintiff.” Barber, 860 F.3d at 353. But Littlefield does not stand for
this proposition. In Littlefield, public school students and their families argued
that the opt-out procedures for the school district’s mandatory uniform policy
favored certain established religions at the expense of others and thus violated
the Establishment Clause. 268 F.3d at 282. Finding that the Littlefield
plaintiffs had standing, this court observed that the plaintiffs’ “direct exposure
to the [opt-out] policy satisfies the ‘intangible injury’ requirement to bring an
Establishment Clause challenge.” Id. at 294 n.31. However, the Littlefield
court in no way suggested that such “direct exposure” to the policy was
required to establish standing—the panel opinion conflates necessity with
sufficiency. Moreover, as the plaintiffs note in their petition for rehearing, HB
1523 is an exemption from generally applicable laws, just like the opt-out in
Littlefield was an exemption from a generally applicable dress code. The panel
opinion does not explain how the plaintiffs’ exposure to HB 1523 is any less
“direct” than the Littlefield plaintiffs’ exposure to the opt-out policy.
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**
The First Amendment “preclude[s] government from conveying or
attempting to convey a message that religion or a particular religious belief is
favored or preferred.” Cty. of Allegheny v. ACLU, 492 U.S. 573, 593 (1989)
(cleaned up). The courts in Catholic League, IRAP, and Moss recognized,
consistent with the Supreme Court’s explication of core Establishment Clause
principles in Santa Fe, that the stigmatic harm that flows from the enactment
of a law or adoption of official policy that deems a non-adherent plaintiff an
“outsider” in his own community is sufficient to confer standing. By denying
standing in the present case, the panel opinion falls into grievous error,
unjustifiably creates a split from our sister circuits, and rejects pertinent
Supreme Court teachings. To reference what the Ninth Circuit in Catholic
League recognized, under the panel opinion’s holding, a law “declaring
[Episcopalianism] to be the official religion of [Mississippi] would be effectively
unchallengeable.” 624 F.3d at 1048. The panel opinion’s holding will thus
deny citizens a forum in which to challenge “the evils against which the
Establishment Clause was designed to protect.” Mueller v. Allen, 463 U.S. 388,
399 (1983).
Because I believe that this court has abdicated its mandate to decide the
substantive claims raised by the plaintiffs, I respectfully dissent from the
denial of rehearing en banc.
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