Madalyn Murray O'Hair and Society of Separationists, Inc. v. Mark White

TJOFLAT, Circuit Judge, with whom FAY and GARZA, Circuit Judges,

join, concurring in part and dissenting in part:

In its zeal to provide a forum for the vindication of first amendment values, the majority rides roughshod over established standing requirements, endows O’Hair with claims she does not allege, disregards a tenable construction of Article I, section 4, of the Texas Constitution which would avoid the federal constitutional question, and ignores O’Hair’s failure to demonstrate that she has no adequate remedy at law for the claims she advances as a litigant in Texas courts. The following three parts discuss O’Hair’s claims as they are identified in Part III of the majority opinion. While I would adhere to the classification of claims set out in the panel opinion, O’Hair v. Hill, 641 F.2d 307 (5th Cir. 1981), I adopt the majority’s framework here for convenience.

I.

A.

The majority characterizes the first claim as a voting rights claim, saying that O’Hair alleges that she is precluded both from voting for atheistic candidates and from holding elective office in Texas.1 In fact, the word “vote” does not appear in the complaint, and O’Hair makes no allegation even remotely resembling a claim that she is deprived of the right to vote for atheistic candidates. Although O’Hair’s cryptic complaint does demand generous interpretation, in this instance the majority has manufactured a claim she never pleaded. I therefore limit my discussion of the “voting rights claim” to the allegation O’Hair did *697make, that section 4 excludes her from elective office.

O’Hair lacks standing to assert this claim. Article III of the federal Constitution “requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision,’ Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976).” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,-U.S. -,-, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). The plaintiff must

allege specific, concrete facts demonstrating that the challenged practices harm [her], and that [she] personally would benefit in a tangible way from the court’s intervention. Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of a “real need to exercise the power of judicial review” or that relief can be framed “no [broader] than required by the precise facts to which the court’s ruling would be applied.”

Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975) (footnote and citation omitted).

O’Hair does not allege that she has attempted to or intends to seek elective office. Nor does she otherwise allege the actual or threatened injury necessary to confer standing. The majority, however, characterizes the insufficiency of O’Hair’s pleading as mere inartfulness, and holds that the failure to allege specific facts demonstrating particularized harm does not bar O’Hair’s claim. For this holding, the majority relies on three cases of extraordinarily flimsy precedential value.

The entire discussion of standing in Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), the majority’s principal authority, occupies a single footnote:

Georgia’s contention that no appellant has standing to raise [the claim that the limitation of school-board membership to freeholders violates the Equal Protection Clause of the fourteenth amendment] is without merit. The appellant Calvin Turner is a freeholder, but the appellant Joseph Heath is not. Heath’s motion to intervene was granted by the District Court for the express purpose of adding a party plaintiff to the case to ensure that the court could reach the merits of this issue. Georgia also argues that the question is not properly before us because the record is devoid of evidence that the freeholder requirement actually has operated to exclude anyone from the Taliaferro County board of education. But the appellant Heath’s allegation that he is not a freeholder is uncontested, and Georgia can hardly urge that her county officials may be depended on to ignore a provision of state law.

396 U.S. at 361, n.23, 90 S.Ct. at 541, n.23. This brief discussion includes no analysis of the standing requirement and has been cited by no relevant standing case in the twelve years since Turner was decided.2 Moreover, if Turner had held that a person has standing to challenge the constitutionality of a law disqualifying him from public office without alleging facts demonstrating individual harm or prospective benefit from judicial interference, it would have been overruled by Warth v. Seldin, supra. But Turner did not so hold.

In Turner, the school board members were not elected, but were appointed by a county grand jury. The only qualifications *698for board membership were residency and freeholder status. There is no indication that prospective board members applied for the position or otherwise advanced their own candidacies. Thus, Heath, the nonfreeholder who had standing to challenge the freeholder requirement, had apparently alleged3 everything any nonfreeholder could possibly have alleged: that he met all the qualifications for board membership except freeholder status, that the grand jury could not lawfully appoint him to the school board, and that he had not been appointed. The exclusion of nonfreeholders acted on Heath directly. Since he was separated from board membership neither by any other personal qualification, nor by a declaration of candidacy, nor by election, but only by the grand jury’s failure to appoint him, he was, as Warth v. Seldin requires, directly and individually harmed by the challenged practice. By contrast, O’Hair’s allegations do not suggest that she is directly harmed by the asserted exclusionary effect of section 4. Unlike Heath, she is separated from office, and from the asserted impact of section 4, by the absence of an attempt, or even an intention, to run for elective office.

The other two cases cited by the majority may be disposed of more quickly. Matthews v. Handley, 361 U.S. 127, 80 S.Ct. 256, 4 L.Ed.2d 180 (1959) (mem.), aff’g 179 F.Supp. 470 (N.D.Ind.1959) (three-judge court), has nothing whatever to do with standing. In Matthews, the district court dismissed for failure to state a claim a complaint by Indiana taxpayers alleging that the state income tax was unconstitutional because the state legislature had not been reapportioned as required by the Indiana Constitution. See Baker v. Carr, 369 U.S. 186, 203 n. 22, 82 S.Ct. 691, 702 n. 22, 7 L.Ed.2d 663 (1962). The opinion of the district court makes no mention of standing, and the affirmance by the Supreme Court is a memorandum decision.

Baker v. Carr, supra, held that residents of certain counties in Tennessee who were qualified to vote for members of the General Assembly had standing to maintain a suit for a declaration that state law effected an apportionment that deprived them of equal protection. Whatever limited application Baker v. Carr might have to O’Hair’s standing to sue to vindicate her rights as a voter, the case has no application whatever to the claim O’Hair did allege, namely, that section 4 excludes her from public office. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 223 n. 13, 94 S.Ct. 2925, 2933 n. 13, 41 L.Ed.2d 706 (1974).4

Thus, the majority’s holding that O’Hair has standing to challenge section 4 as a prospective candidate for elective office is without precedential support. Such a deviation from settled standing requirements can only be ascribed to the notion that the vindication of cherished first amendment values counsels a relaxation of those requirements. The Supreme Court expressly repudiated this notion in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., - U.S. -, 102 S.Ct. 752, 7Q L.Ed.2d 700 (1982), which held that a plaintiff alleging an Establishment Clause violation must identify a personal injury suffered “as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which [he] disagrees.” Id. at-, 102 S.Ct. at 765.

Nor can [earlier standing cases] be distinguished on the ground that [other constitutional provisions] are in some way less “fundamental” than the Establishment Clause. Each establishes a norm of conduct which .. . government is bound to honor — to no greater or lesser extent *699than any other inscribed in the Constitution. To the extent the Court of Appeals relied on a view of standing under which the Art. Ill burdens diminish as the “importance” of the claim on the merits increases, we reject that notion .... [W]e know of no principled basis on which to create a hierarchy of constitutional values or a complementary “sliding scale” of standing which might permit respondents to invoke the judicial power of the United States.

Id. at-, 102 S.Ct. at 764-65. Although the majority pays lip service to Valley Forge in a footnote5, its holding flies in the face of that decision.

Article III requires that the plaintiff allege not only injury, but also that the injury results from the putatively illegal conduct of the defendant, can fairly be traced to the challenged action, and is likely to be redressed by a favorable decision. See Slip op. p. 15133, p. 683, supra. Having indulged the fiction that O’Hair alleges injury traceable to section 4, the majority compounds its error by simply ignoring the fact that her complaint does not even imply that any defendant has engaged in or threatens to engage in illegal conduct. The district court cannot conceivably fashion relief that will benefit O’Hair. Crudely stated, it is impossible to ascertain what she would have the district court do to whom. Since O’Hair does not allege that any of the defendants has engaged in or threatens to engage in unlawful conduct that would injure her, injunctive relief would be inappropriate. Indeed, if O’Hair should ever run for public office and be excluded by the operation of section 4, there is no reason to suspect it will be through the conduct of any of the defendants in this case. Similarly, the benefit she would derive from a declaratory judgment, other than psychological gratification, is altogether indeterminate. Thus, the conclusion that O’Hair lacks standing because she alleges no injury is reinforced by the fact that she alleges no illegal conduct from which a favorable decision might provide relief.

B.

Even if O’Hair had standing to challenge section 4, the district court nonetheless properly abstained from reaching the merits of her claim, because a decision on the merits could only be based upon a tentative interpretation of state law that should be made by the state courts. I have no quarrel with the majority’s discussion of the principles of abstention, but only with its conclusion that section 4 unambiguously excludes atheists from public office in Texas. On the contrary, section 4 is fairly susceptible of an interpretation that would avoid the federal constitutional question.

Article I, section 4, of the Texas Constitution provides:

No religious test shall ever be required as a qualification to any office, or public trust, in this State, nor shall anyone be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

(emphasis added).

The majority asserts that the italicized language of section 4 unambiguously excludes atheists from public office in Texas, and that “there is no room in which the state courts could maneuver to obviate the necessity of constitutional adjudication.” Majority Opinion at p. 694. I disagree. Section 4 is ambiguous, and one of its two interpretations conforms to the first amendment.

The italicized language may readily be interpreted to specify only that one who acknowledges the existence of a Supreme Being shall not be excluded from office on account of his religious sentiments, with no provision one way or the other for one who does not so acknowledge. This, indeed, is the literal meaning of the words; the exclusion of those who do not acknowledge a Supreme Being is a mere inference from the language of section 4. Just as the statement, “No person shall be ejected from the library, provided he is quiet,” does not *700necessarily imply that one who is not quiet will be ejected, so section 4 does not necessarily imply that one who does not acknowledge the existence of a Supreme Being shall not hold office on that account.

I recognize that the literal interpretation of section 4 is not its natural meaning, and may not be its intended meaning. But the question is not whether the suggested interpretation is “correct,” but rather whether it is sufficiently tenable to require construction by the state court. It is, because if Texas courts had the opportunity to interpret section 4, they would seek to interpret it so as to be constitutional.

Texas courts undertake to construe statutes so that the legislative intent to enact constitutional laws will be carried out. Faulk v. Texas, 608 S.W.2d 625, 630 (Tex.Cr.App.1980) (en banc). Consequently, even if a state law is unconstitutional on its face, Texas courts will seek to construe it so as to be constitutional. Ex parte Groves, 571 S.W.2d 888, 893 (Tex.Cr.App.1978) (en banc). Because the underlying policy is to effect the legislative purpose to enact constitutional statutes, the principle must apply equally to the construction of the state constitution, for the leading purpose in construing a constitutional provision is likewise to effect the intent of the drafters. Gragg v. Cayuga Independent School Dist., 539 S.W.2d 861, 866 (Tex.), appeal dismissed, 429 U.S. 973, 97 S.Ct. 478, 50 L.Ed.2d 580 (1976); Cox v. Robinson, 105 Tex. 426, 150 5. W. 1149, 1151 (1912). Thus, there is no question but that section 4 is sufficiently ambiguous that a Texas court might construe it so as to be constitutional. Therefore, the district court correctly declined to exercise its jurisdiction. Kusper v. Pontikes, 414 U.S. 51, 54-55, 94 S.Ct. 303, 306, 38 L.Ed.2d 260 (1973).

II.

O’Hair alleges next that she is deprived of her constitutional right to a fair trial in Texas because section 4 prevents those who do not acknowledge a Supreme Being from being judges.6 The majority takes at face value O’Hair’s allegation that because of its unconstitutional discrimination against atheists, section 4 operates to deprive her of a fair trial. In fact, O’Hair’s due process claim does not challenge the constitutionality of section 4.

As to each case she is litigating in Texas, O’Hair’s due process claim is that she cannot get a fair trial because the presiding judge is biased against her. In attempting to establish her claim, O’Hair may undertake to prove that the judge is biased against atheists generally. O’Hair may offer as evidence of this bias against atheists Article I, section 4, of the Texas Constitution. Conceivably, a court deciding O’Hair’s due process claim might even conclude that section 4 creates such a likelihood or such an appearance of unfairness as to raise an irrebuttable presumption that the affected judge is biased and therefore disqualified. But in no event is the propriety of a particular judge hearing O’Hair’s case determined by the constitutionality of section 4. If section 4 does not violate the first amendment but nonetheless yields a biased judge, due process will not permit that judge to preside over O’Hair’s case; conversely, even if section 4 does violate the first amendment, O’Hair’s due process claim fails as to any unbiased judge. Seen for what it is, O’Hair’s challenge to the fairness of her Texas trials thus poses no significant standing or abstention question, because it does not challenge the constitutionality of section 4.7

*701The remedies O’Hair seeks for the alleged due process violations are injunctions against the proceedings pending against her. These equitable remedies should be denied because sound jurisprudence requires “that courts of equity should not act . . . when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). See also O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974). O’Hair has readily available to her an adequate remedy at law: a motion in each Texas court where she is a litigant to disqualify the judge on the ground that he is biased against her. O’Hair argues that she should not be required to seek this remedy from the very judge whom she alleges is biased. This contention is without merit. Motions to recuse are routinely made to the judges who are allegedly disqualified, and our judicial system demands the assumption that judges will hear such motions fairly.

I have indicated my rejection of the notion that O’Hair’s challenge to the fairness of her Texas trials is a direct attack on the constitutionality of section 4. But even accepting that notion, as the majority does, the equitable relief sought should be withheld in light of the adequate remedy at law available to O’Hair. The majority’s treatment of this settled principle is altogether inadequate. The majority states, “The panel majority argued that the possibility of an adequate remedy at state law for this claim provided sufficient reason to abstain. We disagree. Although the availability of an alternative state forum is a necessary condition for abstention, the mere availability of an alternative state remedy is not a sufficient basis to abstain.” Majority Opinion at p. 694 (citations omitted). The majority badly misconceives the argument. The panel majority did not contend, nor do I now, that the availability of an alternative remedy at law calls for federal abstention. The point, rather, is that a party with an adequate remedy at law should be denied equitable relief. This is a doctrine of equity, not of comity. The majority’s cases do illustrate that an adequate state remedy is an insufficient basis for abstention, but they have nothing whatever to do with withholding equitable remedies.

The majority’s second response to the settled rule that equity should not act when there is an adequate remedy at law is that it is not clear that O’Hair has such a remedy because Article I, section 29, of the Texas Constitution purports to make the state bill of rights, which includes section 4, invulnerable to change. This argument fails for two reasons. First, since Texas judges must be presumed to uphold the federal constitution8, we must presume that a Tex*702as judge will not decline to strike down one section of the Texas Constitution as unconstitutional because another section of the Texas Constitution tells him it is inviolate. Just as a Texas judge will not enforce section 4 if it is unconstitutional, so he will not shrink from his constitutional duty merely because section 29 purports to make section 4 impervious to change. Second, the majority, which concludes that “it is far from clear that [O’Hair has] an adequate remedy at state law,” erroneously places on the defendants the burden to show that there is such a remedy. The party seeking equitable relief must establish the basic requisites of equitable relief, including the inadequacy of legal remedies. O’Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974). Thus, to the extent that the effect of section 29 is “far from clear,” O’Hair has not carried her burden to show that she has no adequate remedy at law. That being so, equitable relief must be denied.

III.

O’Hair’s final claim is that she is excluded from jury duty because she does not acknowledge a Supreme Being. The majority holds that the district court must abstain from deciding this claim because it is uncertain whether jury service is a position of public trust within section 4. I would hold that O’Hair lacks standing to assert this claim because she alleges not that she has been excluded from jury service but only that she would be. However, I agree that even if O’Hair has standing, abstention is proper, both because of the uncertain application of section 4 noted by the majority and because of the ambiguous meaning of section 4 discussed in Part I of this dissent.

IV.

In summary, O’Hair alleges no claim that she is deprived of the right to vote for atheistic candidates for public office. She lacks standing to complain that Article I, section 4, of the Texas Constitution excludes her from elective office, because she alleges no attempt or intent to run for such office, and because no relief the district court could fashion will benefit her. Even if she had standing to challenge section 4 on this basis, the ambiguity of section 4 mandates federal abstention.

O’Hair is not entitled to the equitable relief she seeks from Texas trials presided over by allegedly biased judges, because she has an adequate remedy at law for that claim.

I would hold that O’Hair lacks standing to complain that she is unconstitutionally excluded from jury service. However, I agree that the district court properly abstained from deciding that claim.

Since I would affirm the district court’s dismissal of O’Hair’s complaint, I dissent from those portions of the majority judgment to the contrary.

. Because I have no quarrel with the treatment of the Society of Separationists in Part IV of the majority opinion, I write as if O’Hair were the only plaintiff.

. Turner has been cited in only one standing case of any sort. In Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Comm’rs, 622 F.2d 807, 815 (5th Cir. 1980), cert. denied, 450 U.S. 964, 101 S.Ct. 1479, 1480, 67 L.Ed.2d 613 (1981), a panel of this court cited Turner not for any proposition having to do with the specificity of a plaintiffs allegations, but for the proposition that a civil suit may be maintained by the victims of a state’s exclusionary practices.

. Turner’s infirmity as authority for any proposition concerning the specificity of allegations necessary to confer standing is compounded by the fact that the case nowhere discloses Heath’s allegations.

. The majority, which states that, “these three cases require that we not demand the articulation of subsidiary facts to support a general allegation of a voting rights violation,” Majority Opinion at p. 690, appears to recognize that Matthews v. Handley and Baker v. Carr have no bearing on O’Hair’s standing to challenge her exclusion from public office.

. See Majority Opinion at p. 688, n. 18.

. O’Hair also alleges that she cannot receive a fair trial because Texas systematically discriminates against atheistic jurors. The majority holds that this claim must be dismissed on abstention grounds. Although I disagree with the majority’s analysis of O’Hair’s claims as a litigant, I agree that the jury claim must be dismissed. I therefore restrict my discussion of O’Hair’s claims as a litigant to the allegation concerning judges.

. The cases cited by the majority for the proposition that criminal defendants and civil litigants have standing to challenge the composition of juries and the qualifications of judges on due process and equal protection grounds, see Majority Opinion at p. 690, are not to the contrary. None of the cited cases involves an *701attack on the qualification of a judge to hear a case based on the method of his selection, nor does any of the cases remotely suggest that a due process challenge to a judge’s impartiality may put in issue the constitutionality of any state law. Finally, none of the cited cases implies that constitutional values other than due process may be indirectly vindicated by a due process attack on the judge’s qualification.

. State judges as well as federal judges swear allegiance to the Constitution of the United States, and there is no reason to think that because of their frequent differences of opinions as to how that document should be interpreted that all are not doing their mortal best to discharge their oath of office.

Sumner v. Mata, 449 U.S. 539, 548, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981). This statement is merely a recent reiteration of the principle that since state judges are required to uphold the United States Constitution, federal courts should not presume that they will do otherwise. As this court announced nearly twenty years ago in Nesmith v. Alford, 318 F.2d 110, 120 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964), “We must, and do, assume that under the Supremacy Clause, Article 6 of the Constitution, [state] courts will construe state statutes and ordinances in keeping with federally paramount constitutional principles.”

All Texas judges swear or affirm that, “I .. . will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State. ... ” Tex. Const, art. XVI, § 1. That oath or affirmation is in substance the oath or affirmation to support the Constitution of the United States required by U.S.Const. art. VI, cl. 3. Van Hodge v. Texas, 149 Tex.Cr.App. 64, 191 S.W.2d 24, 27 (1945).

In light of the Supremacy Clause and the oaths of office taken by state judges, the Su*702preme Court has long maintained that “federal courts are ‘not at liberty ... to presume that the decision of the state court would be otherwise than is required by the fundamental law of the land Schlesinger v. Councilman, 420 U.S. 738, 756, 95 S.Ct. 1300, 1312, 43 L.Ed.2d 591 (1975), quoting Ex parte Royali, 117 U.S. 241, 252, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886), and has affirmed that relations between state and federal judiciaries should not be disturbed by “unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.” Rose v. Lundy, - U.S. -, -, 102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982), quoting Ex parte Royali, 117 U.S. at 251, 6 S.Ct. at 740.