Henderson v. Stalder

Revised April 4, 2002

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-31171

RUSSELL J. HENDERSON, ET AL

Plaintiffs

RUSSELL J. HENDERSON, DORREEN KEELER, ROBERT H. LOEWY and
GREATER NEW ORLEANS SECTION OF THE NATIONAL COUNCIL OF JEWISH WOMEN

Plaintiffs-Appellees

VERSUS

RICHARD J. STALDER, Secretary, Department of Public Safety and
Corrections and
JOHN KENNEDY, State Treasurer

Defendants-Appellants

Appeal from the United States District Court
for the Eastern District of Louisiana

March 29, 2002

Before DAVIS and JONES, Circuit Judges, and BARBOUR,* District

Judge.

*
District Judge of the Southern District of Mississippi,
sitting by designation.
WILLIAM H. BARBOUR, JR., District Judge:

The Secretary of the Department of Public Safety and

Corrections and the Treasurer of the State of Louisiana bring this

appeal to challenge the Order of the district court which granted a

preliminary injunction in favor of Appellees and thereby halted the

implementation of Louisiana Revised Statute 47:463.61, which

authorizes a prestige license plate bearing a “Choose Life”

message. We find that the Appellees lacked standing to challenge

the constitutionality of La. Rev. Stat. 47:463.61. We therefore

reverse the district court, vacate its preliminary injunction and

remand with instruction to dismiss the complaint.

I.

The Plaintiff-Appellees, Russell J. Henderson, Doreen Keeler,

Robert H. Loewy, and Greater New Orleans Section of the National

Counsel of Jewish Women (“NCJW”)2 instituted this suit against the

Secretary of the Department of Public Safety and Corrections and

the Treasurer of the State of Louisiana, seeking a declaration that

La. Rev. Stat. 47:463.61 is unconstitutional and an injunction

prohibiting its enforcement. The challenged law established a

2
Eugene LaMothe and Planned Parenthood of Louisiana were
added as plaintiffs to the case subsequent to the interlocutory
appeal. Although not named parties to the appeal, we have
considered whether these later added plaintiffs have standing to
challenge the constitutionality of the Choose Life statute.

2
“Choose Life” automobile license plate for private automobiles,

provided there are a minimum of one hundred applicants for the

plate. The annual fee for the Choose Life plate is $25.00 which is

paid in addition to the usual yearly motor vehicle licensing fee.

An additional $3.50 handling fee is charged to offset

administrative costs.

Under the statute, the $25.00 fee will be deposited into the

state treasury and thereafter distributed based on recommendations

of the “Choose Life” Advisory Council (“Council”). The Council,

comprised of the president or designee of the American Family

Association, the Louisiana Family Forum, and the Concerned Women of

America organizations, is responsible for reviewing grant

applications and making recommendations with regard to the manner

in which funds should be distributed. Distribution of the funds

generated by the Choose Life license plate must be made to tax-

exempt organizations which provide “counseling and other services

intended to meet the needs of expectant mothers considering

adoption for their unborn child” or “to meet the needs of infants

awaiting placement with adoptive parents.” Organizations “involved

in, or associated with counseling for, or referrals to, abortion

clinics, providing abortion-related procedures, or pro-abortion

advertising” are disqualified from receiving funds generated by the

Choose Life plate.

3
 Plaintiffs filed a lawsuit challenging the constitutionality

of La. Rev. Stat. 47:463.61 in the United States District Court of

the Eastern District of Louisiana. Specifically, they allege that

the subject statute abrogates their right to free speech,

constitutes an impermissible establishment of religion, and denies

them their right to due process in violation of the First and

Fourteenth Amendments to the United States Constitution.

Plaintiffs sought a declaratory judgment that La. Rev. Stat.

47:463.61 is unconstitutional and an injunction against its

enforcement. On August 23, 2000, a hearing on the Motion for

Preliminary Injunction was held before United States District Judge

Stanwood R. Duval, Jr. In the Order and Reasons, entered on August

29, 2000, the district court found that the plaintiffs had failed

to show that a preliminary injunction should issue with regard to

their Establishment Clause claim. The district court, however,

found that the plaintiffs established a likelihood of success on

the merits of their free speech claim.

Before the district court, plaintiffs argued that La. Rev.

Stat. § 47:463.61 violates the First Amendment to the United States

Constitution because it discriminates based on viewpoint by

allowing only the “pro-life” viewpoint to be expressed via special

license plates and pro-choice car owners are not given the option

of expressing their view on their license plates. Defendants

argued that the Choose Life license plate constitutes an expression

4
of “state speech” and, therefore, did not create a forum for

private speech. The district court rejected the argument of the

defendants. The district court concluded that prestige license

plates are “speech” for the purpose of First Amendment analysis and

that they constitute a non-public forum thereby requiring the State

to maintain view-point neutrality with regard to the messages

displayed. The district court then concluded that as “the State

has taken the position that [the “Choose Life”] message is its own

... it appears at this juncture that the State fails in its

responsibility to provide a viewpoint-neutral forum, and [La. Rev.

Stat. 47:463.61] will probably be found to be an unconstitutional

violation of the First Amendment right to free speech.”3

The district court also rejected the defenses raised by the

defendants. In deciding the merits of defendants’ ripeness

argument, the court found that the case was ripe for adjudication

as the State, by statutorily authorizing the display of prestige

license plates, had created a non-public forum which allowed for

viewpoint discrimination. On the defense of standing, the district

court did not focus its analysis on whether plaintiffs had

established standing to challenge the constitutionality of the

Choose Life statute. Instead, the court held that: “Once free

speech has been abridged in such a manner, there is no case law

3
Henderson, et al. v. Stalder, et al., 112 F. Supp. 2d 589,
599 (E.D. La. 2000).

5
supporting the proposition that those individuals whose speech has

been restrained in this particular forum must wait ... to have an

opportunity to express an opposing viewpoint in that forum.”4 As

such, the court concluded it unlikely that the defenses raised by

the defendants would be recognized.

The district court, having concluded that the plaintiffs had

established a likelihood of success on the merits of their free

speech claim and that it was unlikely that the defenses raised were

cognizable, granted a preliminary injunction thereby (1) enjoining

the enforcement and implementation of La. Rev. Stat. § 47:463.61

and (2) halting production of the Choose Life license plate.

Defendants appeal from the order granting the preliminary

injunction.

II.

Standing

Under the dictates of Article III of the United States

Constitution, federal courts are confined to adjudicating actual

“cases” and “controversies.” U.S. CONST. art. III, § 2, cl. 1. Of

the doctrines that have evolved under Article III, including

standing, mootness, ripeness, and political question, the

requirement that the litigant have standing is perhaps the most

4
Id. at 601.

6
important. See Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct.

3315, 3324 (1984). This doctrine:

[E]mbraces several judicially self-imposed
limits on the exercise of federal jurisdiction,
such as the general prohibition on a litigant’s
raising another person’s legal rights, the rule
barring adjudication of generalized grievances
more appropriately addressed in the
representative branches, and the requirement
that a plaintiff’s complaint fall within the
zone of interests protected by the law invoked.

Id. 468 U.S. at 741, 104 S. Ct. 3315 (citing Valley Forge Christian

College v. Americans United for Separation of Church and State,

Inc., 454 U.S. 464, 474-75, 102 S. Ct. 752, 760 (1982)). Standing,

at its “irreducible constitutional minimum,” requires a plaintiff

“to demonstrate: they have suffered an ‘injury in fact’; the

injury is ‘fairly traceable’ to the defendant’s actions; and the

injury will ‘likely ... be redressed by a favorable decision.”

Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112

S. Ct. 2130, 2136 (1992)). “[A]n injury in fact [is] an invasion

of a legally protected interest which is (a) concrete and

particularized, and (b) actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136.

In the case sub judice, the plaintiffs allege different

injuries all of which they contend arise because of the enactment

of the Choose Life statute. It is on these injuries that standing

must be predicated. We now consider whether any of the plaintiffs

7
have alleged an injury in fact, which is fairly traceable to the

Choose Life statute that will be redressed in the event that

statute is enjoined and/or declared unconstitutional.5 We will

discuss each basis for standing separately.

1. Taxpayer Standing

Plaintiffs Henderson, Keeler, Loewy, and LaMothe, all of whom

allege that they pay income tax to the State of Louisiana, allege

injury based on the use of their tax money (1) to make and

distribute the Choose Life license plate and (2) for the

administration of the Choose Life statute including the

establishment and maintenance of the Choose Life Council and Fund.

The United States Supreme Court has held that state taxpayers, like

federal taxpayers, ordinarily lack a sufficient personal stake to

challenge laws of general applicability, since their own injury is

not distinct from that suffered by taxpayers in general. Asarco,

Inc. v. Kadish, 490 U.S. 605, 614, 109 S. Ct 2037, 2043 (1989)

(plurality opinion) (citing Frothingham v. Mellon, 262 U.S. 447,

487, 43 S. Ct. 597, 601 (1923)). Therefore, in cases in which a

5
This court is obliged to raise the jurisdictional issue of
standing sua sponte despite the parties’ failure to raise it.
Moreover, the plaintiffs’ skeletal allegations–e.g., that they are
state income taxpayers; that Keeler wants to purchase a license
plate expressing pro-choice views; and that Loewy’s and LaMothe’s
“religious beliefs are harmed by the statute”–do not require
further development in order to assess their standing to challenge
the statute.

8
state taxpayer challenges the constitutionality of a state law, he

“must be able to show not only that the statute is invalid but that

he has sustained or is immediately in danger of sustaining some

direct injury as a result of its enforcement, not merely that he

suffered in some indefinite way in common with people generally.”

Doremus v. Board of Educ. of Hawthorne, 342 U.S. 429, 434, 72 S.

Ct. 394,397 (1952).

In the case sub judice, the state taxpayer plaintiffs first

allege injury in the form of the use of their state income tax

dollars to manufacture and distribute the Choose Life license

plate. We find that this allegation is insufficient for standing

purposes as it does not show that the state taxpayer plaintiffs

have sustained or will sustain a direct pecuniary injury, i.e. an

injury in fact, because of the manufacture or distribution of the

Choose Life license plate. This conclusion is predicated, in part,

on the fact that there is no suggestion that the prestige license

plates cost more for the State to manufacture or distribute to

motor vehicle drivers than do non-prestige license plates. Second,

motorists who elect to use the Choose Life license plate are

required to pay the regular motor vehicle license fee when

registering their vehicles and an additional charge of $3.50 to

offset the administrative costs associated with the issuance of the

prestige license plates. See La. Rev. Stat. § 47:463(A)(3)

(requiring payment of $3.50 handling charge to “offset the

9
administrative costs of the department for the issuance of

[prestige license] plates.”). Third, the state taxpayer plaintiffs

have not alleged that the amount they pay to the State in the form

of income taxes will increase because of the enactment of La. Rev.

Stat. § 47:463.61. We conclude that the injury complained of by

the state taxpayer plaintiffs, i.e., the use of tax dollars to

manufacture and/or distribute the Choose Life license plate, is

insufficient to confer standing as the injury complained of is, at

best, speculative and, at most, constitutes a generalized grievance

common to all tax payers in the state.

The state taxpayer plaintiffs also allege injury based on the

use of their tax dollars to administer the provisions of La. Rev.

Stat. § 47:463.61, which require the establishment and maintenance

of the attendant Choose Life Council and Fund. This “injury” must

be read in conjunction with the allegations of plaintiffs Loewy,

LaMothe, and Greater New Orleans Section of the National Council of

Jewish Women (“NCJW”) which allege that the Choose Life statute

impermissibly advances Christian fundamentalism. In this context,

it appears that the injury complained of by the state taxpayer

plaintiffs arises because of alleged use of their state income tax

dollars to administer a statute which violates the Establishment

Clause.

Plaintiffs Loewy, LaMothe, and the NCJW allege that they will

be injured by the implementation of La. Rev. Stat. 47:463.61 as

10
that statute harms their religious beliefs and/or principles and

endorses Christian fundamentalism. In support of this assertion,

these plaintiffs argue that the mandatory members of the Choose

Life Council belong to organizations, namely the American Family

Association, the Louisiana Family Forum, and the Concerned Women

for America, all of which allegedly espouse a belief in

Christianity as evidenced by statements contained on their

respective internet web sites.

We have consistently recognized that the injury alleged by a

plaintiff for standing purposes must be “‘concrete and

particularized and ... actual or imminent, not conjectural or

hypothetical’ to pass constitutional muster.” Association of Cmty.

Orgs. for Reform v. Fowler, 178 F.3d 350, 358 (5th Cir. 1999)

(quoting Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2316). We find

the Establishment Clause challenge by Loewy, LaMothe, and the NCJW

is predicated on an injury based in conjecture and, therefore,

insufficient for federal standing purposes. The argument advanced

by these plaintiffs is that because the Choose Life Council is to

be comprised of individuals who belong to organizations that

allegedly espouse Christian ideologies, the actions taken by the

Council, presumably with regard to the manner in which the Choose

Life Fund is distributed, will either advance Christianity or will

otherwise interfere with their own religious beliefs or principles.

There is, however, no allegation that the mandatory members of the

11
Council have yet distributed any money from the Choose Life Fund or

that in so doing, or contemplating distributions, they have

actually advanced the religious ideologies of their respective

organizations or religion in general. At best, the focus of the

alleged injury complained of by these plaintiffs arises because of

an appearance of future impropriety, which we have found

insufficient to confer standing. Bomer, 274 F.3d at 218.

Accordingly, we find that plaintiffs Loewy, LaMothe and NCJW, in

alleging injury based on the manner in which the Choose Life

statute would be administered, have failed to allege “an injury in

fact” and, therefore, lack standing to challenge the facial

constitutionality of that statute.6 We turn now to the complained

of injury to the state taxpayer plaintiffs.

The state taxpayer plaintiffs allege that they will be injured

by the use of their income tax dollars to administer the provisions

of the Choose Life statute. We have held that to 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.” Doe v.

Duncanville Ind. Sch. Dist., 70 F.3d 402, 408 (5th Cir. 1995).7

6
The unavailability of a facial challenge does not imply, of
course, that an as-applied challenge at some future date after
implementation of this statute would be foreclosed.
7
Unlike the general test for taxpayer standing, which
requires “direct injury” to the taxpayer, See Asarco, supra, the

12
The terms of the Choose Life statute contradict the plaintiffs’

allegation that state income tax dollars would be used for the

administration of either the Choose Life Council or the Choose Life

Fund. Under the statute, members of the Council serve on a

voluntary basis and are not provided “compensation or reimbursement

of any type.” La. Rev. Stat. § 47:463.61(E)(1). Additionally, the

statute requires the payment of an additional $3.50 fee, in

addition to the regular motor vehicle license fees, to offset a

portion of the associated administrative costs. Id. at §

47:463.61(C). Under these facts, we find that the complained of

injury of the state taxpayer plaintiffs, i.e., use of their income

tax dollars to administer the Choose Life statute, is insupportable

and, therefore, insufficient to confer standing to challenge the

constitutionality of that statute.

2. Individual Standing

Plaintiff Keeler alleges injury based on the enactment of La.

Rev. Stat. 47:463.61 in that “there is no similar ‘Pro-Choice’

prestige license plate to allow her to express her pro-choice view

on her passenger car license plate.”8 We find that this alleged

Supreme Court’s test in Establishment Clause cases requires only
income taxpayer status and the showing of a direct expenditure of
income tax revenues on the allegedly unconstitutional program.
Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942 (1962).
8
Amended Complaint, ¶ 20.

13
injury fails under the third requirement for federal standing

purposes.

To establish standing to challenge the constitutionality of a

statute, a plaintiff must show that the injury about which he

complains will “likely ... be redressed by a favorable decision” of

the court.” Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2136. The

injury complained of by Keeler is that she has been denied the

opportunity to express her pro-choice point of view. The relief

requested by Keeler is a declaratory judgment that La. Rev. Stat. §

47:463.61 is unconstitutional. We find that even if the Choose

Life statute is declared unconstitutional, Keeler’s complained of

injury would not be redressed as that remedy will not provide

Keeler a forum in which to express her pro-choice viewpoint.

Instead, the requested relief would merely function to prevent

other motor vehicle drivers from expressing their choose-life point

of view. As we conclude that Keeler’s complained of injury cannot

be redressed by a declaration of the court that the Choose Life

statute is unconstitutional, we find that she does not have

standing to challenge the constitutionality of that statute.

3. Organizational Standing

Plaintiff Planned Parenthood of Louisiana (“PPL”) alleges that

La. Rev. Stat. 47:463.61 violates its right to speak and to due

process of the law in violation of the First and Fourteenth

14
Amendments to the United States Constitution. The injury

complained of by this organization is that, by the language of the

Choose Life Statute, it is ineligible for grants through the Choose

Life Fund because it makes referrals to abortion clinics and

engages in pro-choice advertising.

“An organization has standing to sue on its own behalf if it

meets the same standing test that applies to individuals.” Fowler,

178 F.3d at 356 (citing Havens Realty Corp. v. Coleman, 455 U.S.

363, 378-79, 102 S. Ct. 1114, 1124 (1982)). We find that PPL fails

to satisfy the redressibility requirement of Article III standing.

The injury complained of by PPL arises from its alleged exclusion

from eligibility to receive grants from the Choose Life Fund

because it engages in abortion-related activities. The relief

requested by PPL in federal court is a declaratory judgment that

La. Rev. Stat. § 47:463.61 is unconstitutional. We find that even

if the Choose Life statute is declared unconstitutional, the injury

complained of by PPL would not be redressed because there would

then be no fund from which PPL could seek grants. As we conclude

that the injury complained of by PPL would not be redressed by a

judicial declaration that La. Rev. Stat. § 47:463.61 is

unconstitutional, we find that PPL has not established that it has

standing to challenge that statute.

III.

15
 We hold that the plaintiffs in this case have not shown that

they have standing to challenge the constitutionality of Louisiana

Rev. Stat. § 47:463.61. We therefore find that the preliminary

injunction granted by the district court judge must be dismissed

for lack of federal court jurisdiction under Article III of the

United States Constitution.

The judgment of the district court is REVERSED, VACATED, and

REMANDED for an entry of dismissal.

16
Appendix A

Louisiana Revised Statute 47:463.61 provides:

A. The secretary of the Department of Public Safety and
Corrections shall establish a special prestige license plate to be
known as the “CHOOSE LIFE” plate, provided there be a minimum of
one hundred applicants for such plate. The license plate shall be
restricted to passenger cars, pickup trucks, vans, and recreational
vehicles. The license plate shall be of a color and design
selected by the Choose Life Advisory Council provided it is in
compliance with R.S. 47:463(A)(3), and shall bear the legend
“Choose Life”.
B. The prestige license plate shall be issued, upon application,
to any citizen of Louisiana in the same manner as any other motor
vehicle license plate.
C. The annual fee for this special prestige license plate shall be
twenty-five dollars, in addition to the regular motor vehicle
license fee provided in R.S. 47:463, to be distributed in the
manner set forth in Subsection F of this Section and a three dollar
and fifty cent handling fee to be retained by the department to
offset a portion of administrative costs.
D. The department shall collect the fee for the prestige license
plate and forward the fee to the state treasurer for immediate
deposit on the state treasury.
E. (1) A Choose Life Advisory Council, hereinafter referred to as
the “Council”, shall be established to design and review grant
applications for qualifying organizations, and shall make
recommendations regarding the awarding of grants to the state
treasurer. Members of the Council shall serve one-year terms, on a
voluntary basis, commencing on October 1, 1999, and shall receive
no compensation or reimbursement of any type. Council members are
hereby authorized to serve successive terms. The Council shall
meet at least annually, and shall be comprised of the following
members:
(a) The president, or his designee, from the American Family
Association.
(b) The president, or his designee from the Louisiana Family
Forum.
(c) The president, or his designee, from the Concerned Women
for America organization.
(2) At the discretion of the Council, membership may be extended to
add members representing the following:
(a) Physicians specializing in obstetrics.
(b) Physicians specializing in pediatrics.
(c) Women who have surrender children for adoption.
(d) Couples who have adopted children.

17
 (e) Adoption advocacy groups.
(f) Board-certified social workers.
(g) Certified counselors.
F. (1) After compliance with the requirements of Article VII,
Section 9(B) of the Constitution of Louisiana relative to the Bond
Security and Redemption Fund, an amount equal to the monies
received by the state treasury pursuant to provisions of Subsection
D of this Section shall be deposited into the Choose Life Fund,
which is hereby created as a special fund in the state treasury and
hereafter referred to as the “Fund”. All unexpected and
unencumbered monies in the fund at the end of the fiscal year shall
remain in the fund. Monies in the fund shall be invested by the
state treasurer in the same manner as monies in the state general
fund and interest earned on the investment of such monies shall be
deposited into the fund. Monies in the fund shall only be
withdrawn pursuant to an appropriation by the legislature solely
for the purposes provided by this Section.
(2) An organization wishing to qualify for receipt of funds shall
submit an affidavit affirming its qualifications, which shall
include a pledge to spend the money in accordance with the
provisions of this Section, to the Council and shall qualify as tax
exempt under Section 501(c)(3) of the Internal revenue Code of
1954, as amended. Furthermore, an organization wishing to qualify
for receipt of funds shall demonstrate it provides counseling and
other services intended to meet the needs of expectant mothers
considering adoption for their unborn child. No monies deposited
into the fund shall be distributed to any organization involved in,
or associated with counseling for, or referrals to, abortion
clinics, providing medical abortion-related procedures, or pro-
abortion advertising.
(3) Organizations receiving monies under this Section shall use at
least fifty percent of such funds to provide for the material needs
of expectant mothers considering adoption for their unborn child,
including clothing, housing, medical care, food, utilities, and
transportation. Such monies may also be used to meet the needs of
infants awaiting placement with adoptive parents. The remaining
funds may be used for counseling, training, and providing pregnancy
testing, but shall not be used for administrative, legal, or
capital expenditures.
G. The state treasurer, based on the recommendations of the
Council, shall annually disburse from the funds an equal amount to
each of the qualifying organizations, and shall make available,
upon request, the name and the amount of monies disbursed to each
organization. An organization receiving monies from the fund may
be required to submit an annual audit prepared by a certified
public accountant, at the discretion of the state treasurer and the
Council. The state treasurer and the Council shall review the

18
distribution and expenditure of funds under this Section at least
once every three years to ensure funds are disbursed and expended
in accordance with the provision of this Section.
H. The secretary may establish rules and regulations to implement
the provisions of this Section, including but not limited to rules
and regulations governing the collection and disbursement of fees,
the transfer and disposition of such license plates, the colors
available, and the design criteria.

19
EDITH H. JONES, Circuit Judge, concurring:

I concur fully in Judge Barbour’s opinion.9 I write

separately to respond to a few points made by Judge Davis in his

dissent, even though the dissent touches only plaintiff Keeler’s

standing.

I respectfully disagree with Judge Davis. His

conceptualization of Keeler’s alleged injury would take us far

afield from the requirements of Article III of the Constitution.

As a general proposition, a plaintiff who complains merely that a

benefit has been unconstitutionally granted to others is asserting

only a “generalized grievance” that does not allow the plaintiff

standing to obtain judicial relief for the alleged wrong in federal

court. A plaintiff cannot have standing unless he or she alleges

“personal injury fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the requested

relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324

9
We have treated this case as if it involved no more than
the First Amendment consequences of the legislature’s decisions to
allow groups to obtain specialty license plates. The entire
program, however, is more complex, involving the transfer of excess
revenues from the program to various private groups, such as
adoption agencies in the case of the pro-life plates. It might
well be contended that the state has adopted a program to foster
adoption by means of “selling” specialty plates to like-minded
citizens. The appellees’ standing would nevertheless founder, in
my view, under such an analysis just as it does in Judge Barbour’s
opinion.
(1984). An allegation of discriminatory benefit favoring others,

without more, cannot meet these requirements.

Part II of the dissent suggests that in a First Amendment

facial challenge to a legislative enactment, Article III’s

requirements of injury-in-fact, causation and redressability need

not be met. But these requirements are not optional. “Those who

do not possess Art. III standing may not litigate as suitors in the

courts of the United States,” Valley Forge Christian College v.

Americans United for Separation of Church and State, 454 U.S. 464,

475-76, 102 S.Ct. 752, 760 (1982); and injury-in-fact, causation

and redressability are the three essential elements of the

“irreducible constitutional minimum of standing” required by

Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,

112 S.Ct. 2130, 2136 (1992).10 The requirements apply in First

Amendment cases no less than in other cases,11 including cases in

10
See Valley Forge Christian College, 454 U.S. at 472, 102
S.Ct. at 758. See also Raines v. Byrd, 521 U.S. 811, 818-20, 117
S.Ct. 2312, 2317-18 (1997).
11
See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,
230-36, 110 S.Ct. 596, 607-10 (1990); Meese v. Keene, 481 U.S. 465,
472-77, 107 S.Ct. 1862, 1866-69 (1987); Valley Forge Christian
College, 454 U.S. at 488-90, 102 S.Ct. at 767-68; Society of
Separationists v. Herman, 959 F.2d 1283, 1285 (5th Cir. 1992) (en
banc); Doe v. Sch. Bd. of Ouachita Parish, 274 F.3d 289, 291-92
(5th Cir. 2001).

21
which a plaintiff challenges an enactment on its face. See, e.g.,

Larson v. Valente, 456 U.S. 228, 233-36, 238-44, 102 S.Ct. 1673,

1677-79, 1680-83 (1982) (holding that plaintiffs had Article III

standing to bring Establishment Clause challenge to statute as

applied and on its face).12

Further, the cases cited in part II of Judge Davis’s

dissent fail to support his argument. The plaintiffs in those

cases actually met the requirements of Article III, including its

redressability requirement.13 This is not true of plaintiff

12
Although various prudential standing principles have been
relaxed in some First Amendment cases, this relaxation does not
eliminate the distinct and independent requirement of Article III
that the dispute between the parties must amount to a case or
controversy. See Sec’y of State of Md. v. Joseph H. Munson Co.,
Inc., 467 U.S. 947, 956-58, 104 S.Ct. 2839, 2846-47 (1984). See
also Valley Forge Christian College, 454 U.S. at 475, 102 S.Ct. at
760 (satisfaction of requirements of prudential standing cannot
substitute for Article III requirements); Lac Vieux Desert Band of
Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172
F.3d 397, 407 (6th Cir. 1999). Compare City of Chicago v. Morales,
527 U.S. 41, 55 n.22, 119 S.Ct. 1849, 1858 n.22 (1999) (opinion of
Stevens, J., joined by Souter, J., and Ginsburg, J.) (“When
asserting a facial challenge, a party seeks to vindicate not only
his own rights, but those of others who may also be adversely
impacted by the statute in question. In this sense, the threshold
for facial challenges is a species of third party (jus tertii)
standing, which we have recognized as a prudential doctrine and not
one mandated by Article III of the Constitution.”) (citing Joseph
H. Munson Co., 467 U.S. at 955, 104 S.Ct. at 2846).
13
In all but one of the cases cited in part II of Judge
Davis’s dissent, the appellant or appellants who complained of a

22
Keeler, who seeks a remedy that would not redress her alleged

injury.

Part III of the dissent argues that plaintiff Keeler’s

challenge in this case to La. R.S. 47:463.61 meets the requirements

of Article III. The two cases cited for this argument are

distinguishable. In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102

(1979), the appellant sought a ruling that he “not be required to

pay alimony if similarly situated wives could not be ordered to

pay.” Id. at 271, 99 S.Ct. at 1107. It was not clear whether he

also sought alimony for himself. Id. & n.2. The Supreme Court

reversed an unfavorable state court ruling after concluding that

Orr had standing to raise his challenge.

First Amendment violation had been convicted of violating an
ordinance or statute; a favorable decision in the Supreme Court
would invalidate the conviction or convictions of each appellant or
group of appellants in these cases. The only exception is City of
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108 S.Ct. 2138
(1988), in which a newspaper publisher brought a facial challenge
to a statute requiring the publisher to obtain a permit before
placing its newsracks on public property. The statute obstructed
the exercise of the publisher’s First Amendment rights;
invalidating the statute for unconstitutionality would remove this
obstacle. City of Lakewood would prove Judge Davis’s point if the
publisher had sought to obtain an injunction preventing another
newspaper from placing newsracks on private property, and if the
Court had held that the newspaper had standing to seek the
injunction against its rival; but these were not the facts.

23
 The Supreme Court noted that it was “possible” that a

favorable ruling for Orr in the Court “will not ultimately bring

him relief from the alimony judgment outstanding against him, as

the State could respond to a reversal by neutrally extending

alimony rights to needy husbands as well as wives.” Id. at 271,

272, 99 S.Ct. at 1108. Because the Court “ha[d] no way of knowing

how the State w[ould] in fact respond” to a ruling striking down

the state’s alimony laws, Orr had standing. Id. To hold otherwise

would be “to hold that underinclusive statutes can never be

challenged because any plaintiff’s success can theoretically be

thwarted.” Id. (emphasis in original). The Court went on to say

that “[t]he holdings of the Alabama courts stand as a total bar to

appellant’s relief; his constitutional attack holds the only

promise of escape from the burden that derives from the challenged

statutes.” Id. at 273, 99 S.Ct. at 1108.

In Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.

221, 107 S.Ct. 1722 (1987), the Arkansas Writers’ Project, Inc.

sought a refund of sales taxes it had paid, arguing that a

statutory tax exemption must be extended to include a magazine that

it published. Id. at 225, 107 S.Ct. at 1725. On appeal to the

Supreme court, the state revenue commissioner argued that the

24
Project lacked standing to challenge the tax scheme because its

claimed injury could not be redressed by a decision of the Court.

The Court rejected this view of standing, which “would effectively

insulate underinclusive statutes from constitutional challenge, a

proposition we soundly rejected in Orr v. Orr.” Ragland, 481 U.S.

at 227, 107 S.Ct. at 1726 (citation omitted). In previous

decisions, the Court said, it had “considered claims that others

similarly situated were exempt from the operation of a state law

adversely affecting the claimant.” Id. Quoting Orr’s “only

promise of escape” language, the Court concluded that the Project

had alleged an adequate personal stake in the outcome of the

litigation. 481 U.S. at 227, 107 S.Ct. at 1726-27. The Court held

on the merits that the Arkansas “tax” -- not the exemption --

violated the First Amendment. 481 U.S. at 234, 107 S.Ct. at 1730.

This case is different from Orr and Ragland for at least

two reasons. First, holding in favor of Keeler in this case would

not merely present the “possibility” of a result that would not

redress the wrong of which the plaintiff complains. If the relief

requested by Keeler is granted, there is no possibility whatsoever

that the relief will redress any constitutionally cognizable

injury-of-fact of which she could be said to complain.

25
Invalidating a statute that, on Keeler’s theory, allows third-party

anti-abortion speakers to exercise their First Amendment rights in

a constitutionally protected forum will do nothing to help Keeler

speak within that alleged forum.14 The relief sought by Keeler

cannot redress the constitutionally cognizable injury of which

Keeler complains. Cf. Friends of the Earth, Inc. v. Laidlaw

Environmental Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693,

706 (2000) (“a plaintiff must demonstrate standing separately for

each form of relief sought”).

Second, Keeler’s constitutional attack does not “hold[]

the only promise of escape from the burden that derives from the

challenged statutes.” Keeler and the other plaintiffs in this

action have challenged only La. R.S. 47:463.61, not the other

Louisiana statutes that (either alone or viewed in conjunction with

this statute) could be said to constitute the scheme that causes

the alleged constitutional violation of which the plaintiffs

complain. Only if Keeler challenged the broad scheme for specialty

plates would she be in the same position as the appellant in Orr.

14
Judge Davis hypothesizes that “a declaratory judgment in
Keeler’s favor might also have the effect of removing the benefit
granted to those who wish to display the Choose Life plate.” This
is euphemistic: such a declaratory judgment would have such an
effect -- immediately and without question.

26
Favorable redress could then result either in the state’s allowing

her to place pro-choice sentiments on specialty license plates or

in the state’s shutting down the alleged First Amendment forum by

banning, or ceasing to sponsor, all specialty plates. But this is

not Keeler’s aim.

As a final note, Judge Davis’s view of standing would

transform the First Amendment into a device for censorship rather

than the enhancement of free speech. Under traditional free speech

jurisprudence, the remedy for a speaker’s unjust exclusion from a

forum is to admit the speaker, in other words, to afford Keeler

access to specialty plates. Rosenberger v. Rectors of the Univ. of

Virginia, 515 U.S. 819, 828-30, 845-46, 115 S.Ct. 2510, 2516-17,

2524-25 (1995). Judge Davis’s acceptance of Keeler’s concept of

injury would lead instead to the removal of a single speaker --

reflecting the anti-abortion viewpoint -- from the forum, with no

corresponding enlargement of speaking opportunity for Keeler. The

“redress” sought by Keeler not only fails to repair her alleged

constitutional deprivation, but it would be, as far as I am aware,

unique and fundamentally contrary to the law of free speech.

27
DAVIS, Circuit Judge, dissenting:

I disagree with the majority’s conclusion that the plaintiffs

have no standing to bring their First Amendment challenge to

Louisiana’s Choose Life statute. I therefore dissent.

I.

The majority holds that plaintiff Keeler lacks standing to

challenge La. R.S. 47:463.61 because, even if the Choose Life

statute is declared unconstitutional, Keeler’s complained of injury

would not be redressed because that remedy will not provide Keeler

with a forum in which to express her opposing pro-choice viewpoint.

In the majority’s view, the requested relief would merely function

to prevent other motor vehicle drivers from expressing their

choose-life point of view.

I would define Keeler’s injury in a different manner. The

plaintiffs alleged that their rights under the First and Fourteenth

Amendments have been violated because the Louisiana Legislature, as

part of its specialty license plate program, has enacted the Choose

Life statute. This statute allows for expression of the choose

life message on state prestige license plates, without allowing for

the expression of the opposing pro-choice viewpoint in that same

28
forum. The plaintiffs allege and the State concedes that Louisiana

is an anti-abortion state which allows the fact-finder to infer

that the Louisiana Legislature will not pass a statute authorizing

the expression of a choose choice message.15 The plaintiffs have

alleged and the district court found that the State has engaged in

viewpoint discrimination by authorizing the Choose Life license

plate. As a result, plaintiffs are not and will not be given the

opportunity to speak their opposing viewpoint in that same forum.

In other words, the plaintiffs are injured by the government’s

promotion of one side of the debate on the abortion rights issue in

a speech forum, coupled with the lack of opportunity to present

their opposing view. “[U]nder the Equal Protection Clause, not to

mention the First Amendment itself, government may not grant the

use of a forum to people whose views it finds acceptable, but deny

use to those wishing to express less favored or more controversial

views. And it may not select which issues are worth discussing or

debating in public facilities. There is an ‘equality of status in

15
This has been made abundantly clear since this appeal was
filed. After the initial briefs were filed in this case, an
amendment to the Choose Life legislation was introduced in the last
session of the Louisiana Legislature, that, if passed, would have
authorized a “Choose Choice” license plate. The amendment was
rejected.

29
the field of ideas,’ and government must afford all points of view

an equal opportunity to be heard.”16

II.

As the plaintiffs have alleged an injury raising First

Amendment concerns, this court may properly apply an expanded

notion of standing to determine who may institute a suit for

relief.17 The majority opinion addresses standing utilizing the

traditional requirements of injury-in-fact, causation and

redressability. Although as discussed below, I would find that

plaintiff Keeler satisfies all requirements, that analysis may not

be applicable to this case. In Lakewood v. Plain Dealer Pub. Co.,

the Supreme Court stated specifically,

Recognizing the explicit protection afforded speech and
the press in the text of the First Amendment, our cases
have long held that when a licensing statute allegedly
vests unbridled discretion in a government official over
whether to permit or deny expressive activity, one who is
subject to the law may challenge it facially without the
necessity of first applying for and being denied, a
license.18

16
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96, 92
S.Ct. 2286, 2290 (1972)(Emphasis added)(internal citations
omitted).
17
Moore’s Federal Practice 3d, § 101.61[5][a].
18
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755-56,
108 S. Ct. 2138, 2143 (1988).

30
In that case, a city ordinance gave the mayor unfettered discretion

to grant or deny a permit for placing newspaper dispensing devices

on public property. The plaintiff newspaper did not apply for a

permit but brought suit to challenge the news rack ordinance. On

the issue of standing, the Supreme Court, with no mention of the

three requirements listed above, held that the newspaper could

bring a facial challenge to the statute without applying for a

permit because the requirement of an annual permit is potentially

threatening to speech, the license is aimed at expressive conduct

and the licensing system threatens freedom of expression because it

creates a system by which speech is reviewed without standards.19

Without standards, speakers denied a license will have no way to

prove that a decision against their application was

unconstitutionally motivated. Such uncertainty can compel self-

censorship when speakers conform their speech to the licensor’s

preferences.20 Generally, a facial challenge to a licensing law

lies where the law gives a government official or agency

substantial power to discriminate based on content or viewpoint of

19
Id. at 2145-46.
20
Id. at 2145.

31
speech by suppressing disfavored speech or speakers and the law has

a close nexus to expression.21

Although cases under this precedent generally deal with

situations in which a single government official is given the

discretion under the statute to grant or deny a license affecting

expressive activity, I see no reason why the principle should not

be applied to this case.22 Both parties agree that the messages on

prestige license plates are speech. Louisiana’s ad hoc legislative

21
Id.
22
Freedman v. Maryland, 380 U.S. 51, 56, 85 S. Ct. 734
(1965) ("In the area of freedom of expression it is well
established that one has standing to challenge a statute on the
ground that it delegates overly broad licensing discretion to an
administrative office, whether or not his conduct could be
proscribed by a properly drawn statute, and whether or not he
applied for a license") (emphasis added); Thornhill v. Alabama, 310
U.S. 88, 97, 84 L. Ed. 1093, 60 S. Ct. 736 (1940) (in the First
Amendment context, "[o]ne who might have had a license for the
asking may . . . call into question the whole scheme of licensing
when he is prosecuted for failure to procure it"). See also
Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 22 L. Ed. 2d 162,
89 S. Ct. 935 (1969) ("'The Constitution can hardly be thought to
deny to one subjected to the restraints of [a licensing law] the
right to attack its constitutionality, because he has not yielded
to its demands'" (quoting Jones v. Opelika, 316 U.S. 584, 602, 86
L. Ed. 1691, 62 S. Ct. 1231 (1942) (Stone, C. J., dissenting),
adopted per curiam on rehearing, 319 U.S. 103, 104 (1943))); Lovell
v. Griffin, 303 U.S. 444, 452, 82 L. Ed. 949, 58 S. Ct. 666, 669
(1938) ("As the ordinance [providing for unbridled licensing
discretion] is void on its face, it was not necessary for appellant
to seek a permit under it").

32
process for granting or denying authorization for prestige license

plates is analogous to a licensing process to obtain access to

expressive activity. The process gives the Louisiana Legislature

similar unbridled discretion over messages on prestige license

plates, which discretion is limited only by the size of the plate

itself. Clearly if the decision to authorize specialty plates were

being made by a government official or commission under authority

delegated by the legislature, the actions of the official or

commission would be subject to judicial review. Leaving that

authority directly in the hands of the Louisiana legislature should

not change the analysis.23

The fact that there is no single statute establishing

Louisiana’s specialty license plate program does not affect our

23
In Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969),
parade permits were issued by the Commission, the city’s
legislative branch. In that case the ordinance conferred upon the
City Commission the power to prohibit any "parade," "procession,"
or "demonstration" on the city's streets or public ways. In
deciding whether or not to withhold a permit, the members of the
Commission were to be guided only by their own ideas of "public
welfare, peace, safety, health, decency, good order, morals or
convenience." The Supreme Court decided that this ordinance as it
was written, fell squarely within the ambit of many decisions of
the Court holding that a law subjecting the exercise of First
Amendment freedoms to the prior restraint of a license, without
narrow, objective, and definite standards to guide the licensing
authority, is unconstitutional.

33
analysis.24 In Niemotko v. Maryland, no ordinance or statute was

in place regulating or prohibiting the use of the park.25 Rather,

a practice had developed vesting authority to grant permits for the

use of the park in the Park Commissioner and the City Council. The

court stated, “[n]o standards appear anywhere; no narrowly drawn

limitations; no circumscribing of this absolute power; no

substantial interest of the community to be served. It is clear

that all that has been said about the invalidity of such limitless

discretion must be equally applicable here.”26 Accordingly, the

lack of a statute establishing the specialty license plate program

should not prevent the plaintiffs from bringing a facial challenge

to the State’s system for authorizing specialty license plates.

The Choose Life statute is just one application of a policy

adopted by the Louisiana legislature to authorize specialty plates

24
La.R.S. 47:463.A.(3) is not such a statute. It merely
states that specialty license plates authorized by the legislature
“shall contain the uniform alpha-numeric series accompanied by a
symbol or emblem representing the organization requesting such a
plate.” The statute also contains the requirement that plates
issued after August 15, 1999 shall include a handling charge of
$3.50 and that no plate shall be established after January 1, 2002
until the department has received a minimum of one thousand
applications for the plate.
25
340 U.S. 268, 272 (1951).
26
Id.

34
on an ad hoc basis. It is clear that attacks against an unwritten

policy or practice regarding the issuance of licenses for speech

are subject to the same constitutional analysis as an attack on a

statute or ordinance and should fall within the same standing

analysis set forth in Lakewood. In summary, at its core I view

this case as indistinguishable from the decision in Lakewood on the

issue of standing. Further, I see no principled reason why

plaintiffs raising free speech claims in this case do not have

standing to attack the Choose Life statute as a discrete

application of Louisiana’s policy regarding authorization of

specialty license plates. This is the single statute under this

program that offends them and I see no reason to require them to

challenge the entire specialty license plate program.

III.

Plaintiff Keeler also has standing using the traditional

analysis outlined by the majority opinion. Plaintiff Keeler’s

injury is personal, not a generalized grievance, based on the

allegation that she would purchase a prestige license plate

expressing her pro-choice views but is unable to do so. Based on

these allegations, the harm is fairly traceable to, and the direct

result of, the State’s conduct. Also, the alleged harm is likely

35
to be redressed by the requested relief. The relief requested is

that the court enjoin the implementation of the Choose Life statute

and declare it unconstitutional. While this relief will not allow

plaintiffs to speak in the specialty license plate forum, it will

have the effect of preventing the State from manipulating the

content of public debate by presenting only the view favored by the

state.

A plaintiff has standing to seek relief in a case such as this

when she is aggrieved by a statute, like the Choose Life

legislation, that is underinclusive. A person or group excluded

from benefits conveyed via an underinclusive statute has standing

to challenge the statute on constitutional grounds. This is so

even if the effect of striking down the statute is to deny the

benefit to the intended group and not extend it to the plaintiffs.

For example, in Orr v. Orr, a man who had been ordered to pay

alimony to his wife under state laws providing that husbands, but

not wives, may be required to pay alimony upon divorce, had

standing to challenge the constitutionality, on equal protection

grounds, of such alimony laws, notwithstanding that the man made no

claim of being entitled to an award of alimony from his divorced

36
wife but challenged only the unequal status of husbands and wives

as to the burden of alimony.27

The Supreme Court applied this concept to a free speech claim

in Arkansas Writers’ Project, Inc. v. Ragland.28 In Ragland, the

state of Arkansas imposed its personal property tax on receipts

from sales of general interest magazines, but exempted receipts

derived from the sale of newspapers and religious, professional,

trade and sports journals. The publisher of the Arkansas Times, a

general interest magazine, contested the assessment of taxes

against it on the basis that subjecting the Arkansas Times to the

sales tax, while sales of newspapers and other magazines were

exempt, violated the First and Fourteenth Amendments. The Arkansas

Times is a magazine that includes articles on a variety of

subjects, including religion and sports, but which does not qualify

for one of the topic based exemptions.

Taking a position similar to that expressed by the majority

opinion, the Commissioner of Revenue of Arkansas argued to the

Supreme Court that the Arkansas Times did not have standing to

challenge the Arkansas sales tax. The Commissioner contended that

27
99 S.Ct. 1102 (1979).
28
481 U.S. 221, 107 S.Ct. 1722 (1987).

37
since the appellant conceded that the Arkansas Times is not a

newspaper or religious or sports journal, it had not asserted an

injury that could be redressed by a favorable decision of the

court. The Commissioner’s argument built on the conclusion of the

Arkansas Supreme Court that “[I]t would avail [appellant] nothing

if it wins its argument . . . It is immaterial that an exemption in

favor of some other taxpayer may be invalid, as discriminatory. If

so, it is the exemption that would fail, not the tax against the

[Arkansas] Times. . . . 698 S.W.2d, at 803.”29 The Supreme Court

rejected this argument, stating that such a position “would

effectively insulate underinclusive statutes from constitutional

challenge, a proposition we soundly rejected in Orr v. Orr, 440

U.S. 268, 272, 99 S.Ct. 1102, 2208 (1979).” The fact that a

decision in favor of the plaintiff would not result in the sales

tax exemption being extended to all publications and would do

nothing more than remove the benefit of the exemption from other

speakers did not prevent a finding that the appellants had

standing. The Court viewed the discriminatory exemption granted to

others as a burden on the plaintiffs. The plaintiff’s

29
Id. at 1726.

38
“constitutional attack holds the only promise of escape from the

burden that derives from the challenged statut[e].”30

The plaintiffs in today’s case presents a similar, and even

stronger, case for standing. The Choose Life statute, like the

sales tax exemption in Ragland, grants a privilege related to

speech to a select group. In our case, the privilege was granted

based on the state’s support of the viewpoint expressed in the

Choose Life license plate. (There does not appear to be viewpoint

discrimination in Ragland.) Keeler’s standing to bring her claims

does not depend on whether the lawsuit seeks to obtain the benefit

for herself. It is sufficient, based on Ragland, that Keeler seeks

to remove the discriminatory benefit favoring others in a speech

context. In other words, the State’s manipulation of the playing

field for speech by the authorization of the Choose Life license

plate, like the tax exemption in Ragland, is a burden on the free

speech rights of Keeler. Removal of that discriminatory program

will redress Keeler’s alleged injury. Just as it was immaterial in

Ragland that the effect of declaring the challenged tax exemption

invalid might increase the taxes applicable to some publications

(possibly creating a burden on speech rights), it is immaterial

30
Ragland at 227, quoting Orr v. Orr at 273.

39
that a declaratory judgment in Keeler’s favor might also have the

effect of removing the benefit granted to those who wish to display

the Choose Life plate.

Further, the outcome of this litigation need not result in the

authorization of a Choose Choice license plate. As was the case in

Ragland and Orr, plaintiff Keeler may prevail in her quest to

declare the Choose Life license plate statute unconstitutional and

not achieve authorization from the Louisiana legislature for a

Choose Choice license plate.31 It is sufficient that the plaintiff

seek, as does Plaintiff Keeler, to simply remove the discriminatory

benefit granted to others and thereby create a level playing field

for all affected by the statute. Keeler has alleged a sufficiently

personal stake in the outcome of this litigation and this

constitutional attack holds the only promise of escape from the

burden on her free speech rights that derives from the challenged

statute.32

IV.

In summary, I would find that plaintiff Keeler has standing to

assert her First Amendment claims. Under relaxed standing

31
Orr at 273, Ragland at 1726-27.
32
Id.

40
principles recognized in First Amendment cases, she has standing to

bring a facial challenge to the Choose Life statute. This statute

is an application of Louisiana’s system of permitting the state

legislature to authorize specialty license plates without standards

or constraints, which in this instance promotes state sponsored

viewpoint discrimination. In addition, applying traditional

standing analysis, I would hold that Plaintiff Keeler has

established a personal injury fairly traceable to the defendant’s

allegedly unlawful conduct that is likely to be redressed by the

requested relief.

In this case, the state sponsored the viewpoint of a select

group. This burdened those holding a contrary view who were unable

to express their views in the state sponsored forum. As in

Ragland, plaintiff’s “constitutional attacks holds the only promise

of escape from the burden that derives from the challenged

statute.” Stated differently, the majority’s unduly narrow

application of standing principles to this First Amendment case

precludes any plaintiff from attacking the constitutionality of the

Choose Life statute.

Because the majority dismissed this case for lack of standing,

the court does not reach the merits of the preliminary injunction.

41
For reasons stated above, I would find that plaintiff Keeler has

standing and, on the merits, I would affirm the district court’s

preliminary injunction, essentially for the reasons stated by the

district court and remand for entry of a permanent injunction

against the implementation of LA.R.S. 47:463.61.

42