Bronson v. Swensen

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 29, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

J. BRO N SO N , G . LEE C OO K , and D.
C OO K ,

Plaintiffs-Appellants,

v.
No. 05-4161
SH ERRIE SWE N SEN ,
Salt Lake County Clerk,

Defendant-Appellee.

Appeal from the U nited States District Court
for the District of Utah
(No. 04-CV-00021-TS)

Submitted on the briefs:

Brian M . Barnard, Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-
Appellants

M ark Shurtleff, Utah Attorney General (Nancy L. Kemp, Assistant Utah Attorney
General), Salt Lake City, UT, for Defendant-Appellee.

Before TA CH A, Chief Judge, HA RTZ and HO LM ES, Circuit Judges. *

*
After examining the briefs and appellate record, this panel has
determined unanimously to honor the appellants’ request for a decision on the
briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore
submitted without oral argument.
HO LM ES, Circuit Judge.

Plaintiffs-Appellants J. Bronson, G. Cook, and D. Cook (“plaintiffs”)

subscribe to the religious doctrine of polygamy. G. Cook is married to D. Cook.

G. Cook and J. Bronson filed an application for a marriage license, and

Defendant-Appellee Sherrie Swensen (“Swensen”), the Clerk for Salt Lake

County, Utah, refused to issue the marriage license. Plaintiffs subsequently

brought a civil rights action under 42 U.S.C. § 1983, alleging that Swensen's

refusal to issue the marriage license violated their associational, substantive due

process, and free exercise rights under the First and Fourteenth Amendments to

the United States Constitution.

The district court held that plaintiffs possessed standing to challenge the

constitutionality of Utah's civil and criminal prohibitions against the practice of

polygamy, as reflected in Utah Code Ann. § 76-7-101, § 3 of the Utah Enabling

Act, and § 1 of Article III of the Utah Constitution. Reaching the merits of

plaintiffs’ claims, the district court applied controlling Supreme Court and Tenth

Circuit precedent and found the absence of a constitutional violation.

Consequently, the district court granted summary judgment to Sw ensen on all of

plaintiffs’ claims.

W e exercise jurisdiction pursuant to 28 U.S.C. § 1291. After concluding

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that plaintiffs have forfeited any challenge to the constitutionality of Utah’s civil

prohibition of polygamous marriages, we hold that plaintiffs lack standing to

bring claims against Sw ensen based upon the purported unconstitutionality of

Utah’s criminal prohibition of polygamy. W e therefore VAC ATE the district

court’s judgment in favor of Swensen on the merits of these criminal-prohibition

claims and R EM A N D the case for entry of an order dismissing these claims for

lack of subject matter jurisdiction.

I. B ACKGR OU N D

A. Legislative Background

In 1894, Congress passed the U tah Enabling Act, which demanded as a

condition of statehood that Utah enact an “irrevocable” ordinance preserving the

security of religious beliefs, but forever prohibiting “polygamous or plural

marriages.” See Act of July 16, 1894, ch. 138, § 3, 28 Stat. 107, 108 (“That

perfect toleration of religious sentiment shall be secured, and that no inhabitant of

said State shall ever be molested in person or property on account of his or her

mode of religious w orship: Provided, That polygamous or plural marriages are

forever prohibited.” (emphasis in original)). Utah complied with this

requirement, and, in 1895, a nearly identical version of this proscription was

included in Article III of Utah’s Constitution:

The following ordinance shall be irrevocable without the consent of
the United States and the people of this State:

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 First:–Perfect toleration of religious sentiment is guaranteed. No
inhabitant of this State shall ever be molested in person or property
on account of his or her mode of religious worship; but polygamous
or plural marriages are forever prohibited.

Utah Const. art. III, § 1.

The constitutional prohibition of “polygamous or plural marriages” has

spawned civil and criminal legislation. See State v. Holm, 137 P.3d 726, 738-40

(U tah 2006), cert. denied, 127 S.Ct. 1371 (2007). On the criminal side, Utah

enacted an anti-bigamy statute, 1 which reads as follow s:

(1) A person is guilty of bigamy when, knowing he has a husband or
wife or knowing the other person has a husband or wife, the person
purports to marry another person or cohabits with another person.

(2) Bigamy is a felony of the third degree.

(3) It shall be a defense to bigamy that the accused reasonably
believed he and the other person were legally eligible to remarry.

Utah Code Ann. § 76-7-101. 2

The Supreme Court of Utah has interpreted the term “marry” in § 76-7-101

as relating to both “legally recognized marriages and those that are non state-

1
Although this opinion uses the terms interchangeably, a conceptual
difference exists between “bigamy” and “polygamy.” “Bigamy” is defined as “the
act of marrying one person while legally married to another.” See Black’s Law
Dictionary 172 (8th ed. 2004). “Polygamy,” on the other hand, includes and
exceeds the scope of bigamous behavior; it is defined as “the state or practice of
having more than one spouse simultaneously.” Id. at 1197.
2
Utah enacted a child bigamy statute in 2003. See Utah Code Ann. §
76-7-101.5. Under this statute, it is a second degree felony for a person, knowing
he or she has a wife or husband, to marry or to cohabit with a person under the
age of eighteen. Id.

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sanctioned.” Holm, 137 P.3d at 734. It also has interpreted the word “cohabit” in

§ 76-7-101 in its colloquial sense, as meaning “to dwell together as, or as if,

husband or wife” or to “live together in a sexual relationship, especially when not

legally married.” State v. Green, 99 P.3d 820, 832 (Utah 2004) (internal

quotation marks omitted) (quoting The American Heritage Dictionary of the

English Language (4th ed. 2000), and Webster’s New Dictionary, Concise Edition

(1990)).

W ith respect to civil legislation, § 30-1-2 of the Utah Code declares “void”

and “prohibited” any marriage involving a person with a “husband or wife living,

from whom the person marrying has not been divorced.” Utah Code Ann. § 30-1-

2. A county clerk is barred from issuing a marriage license for a “prohibited”

marriage. Id. § 30-1-16. In fact, Utah makes it a crime for a clerk or deputy

clerk to “knowingly issue a license for any prohibited marriage.” Id. § 30-1-16.

An offender is subject to “confinement in the state prison for a term not

exceeding two years” and/or to a “fine in any sum not exceeding $1,000.” Id. N o

marriage may be solemnized without a license issued by the county clerk. Id. §

30-1-7.

B. Factual Background

Plaintiffs subscribe to the religious doctrine of plural marriages, which they

define as a “man having more than one wife,” similar to that practiced by the

Church of Jesus Christ of Latter-Day Saints in Utah prior to 1890. App. at 19, 33,

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46-47. 3

Plaintiffs, G. Cook and J. Bronson, applied for a marriage license and paid

the $50.00 filing fee to a deputy clerk at the M arriage Division of the Salt Lake

C ounty C lerk’s O ffice in Salt Lake City, Utah. The application indicated that G .

C ook w as already married to D . Cook. In addition, G. Cook orally informed tw o

deputy clerks that he desired to legally marry a second wife and that D. Cook

consented to this marriage. Swensen, the elected Clerk of Salt Lake County,

instructed the two deputy clerks to deny the application and to inform plaintiffs

that plural marriage in Utah is illegal. The Clerk’s Office refunded the $50.00

filing fee.

C. Procedural Background

Plaintiffs filed suit under 42 U.S.C. § 1983 against Swensen and the tw o

deputy clerks, alleging that they violated plaintiffs’ federal constitutional rights,

including their rights to the free exercise of religion, to intimate expression and

association, and to privacy. Plaintiffs sought nominal damages, a declaratory

judgment, and injunctive relief.

Subsequently, the parties agreed to seek the dismissal of the two deputy

3
On October 6, 1890, the Church of Jesus Christ of Latter D ay Saints
officially abolished polygamy as an institutional church practice. See Oliverson
v. West Valley City, 875 F. Supp. 1465, 1476 n.20 (D . Utah 1995).

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clerks. They also stipulated that Swensen acted under color of state law in

denying the application. Plaintiffs moved for summary judgment. And, in

response, Swensen filed a cross-motion for summary judgment.

After officially dismissing the deputy clerks from the action, the district

court entered summary judgment in favor of Swensen. The district court

determined that plaintiffs had standing to challenge the constitutionality of § 1 of

Article III of the Utah Constitution, § 3 of the Utah Enabling Act, and § 76-7-101.

The district court then applied controlling Supreme Court precedent, Reynolds v.

United States, 98 U.S. 145 (1878), and controlling Tenth Circuit precedent, Potter

v. M urray City, 760 F.2d 1065 (10th Cir. 1985), to uphold the constitutionality of

the contested provisions. The district court reasoned that Supreme Court

jurisprudence post-dating Reynolds and Potter, including Lawrence v. Texas, 539

U.S. 558 (2003), did not suggest a different outcome.

Plaintiffs filed a motion asking the district court to reconsider its decision.

The district court denied that motion. And plaintiffs filed a timely notice of

appeal.

II. D ISC USSIO N

Plaintiffs appeal the district court’s grant of summary judgment to Sw ensen

on their § 1983 claims, arguing that the district court erred in failing to find the

existence of a constitutional violation. W e hold that plaintiffs have forfeited their

claims contesting the constitutionality of Utah’s civil prohibition of polygamy.

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W e further hold that plaintiffs lack standing to pursue their claims against

Sw ensen based upon the alleged unconstitutionality of Utah’s criminal prohibition

of polygamy.

A. Scope of the Appeal

An appellant’s opening brief must identify “appellant’s contentions and the

reasons for them, with citations to the authorities and parts of the record on which

the appellant relies.” Fed. R. App. P. 28(a)(9)(a). Consistent with this

requirement, we routinely have declined to consider arguments that are not raised,

or are inadequately presented, in an appellant’s opening brief. See Exum v.

U nited States O lym pic C om m ., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004)

(“Scattered statements in the appellant’s brief are not enough to preserve an issue

for appeal.”); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir. 1995)

(refusing to consider challenge to grant of summary judgment covering Title VII

retaliation claim because, although appellant maintained at oral argument that she

was asserting a retaliation claim, this issue was not adequately briefed). Stated

differently, the omission of an issue in an opening brief generally forfeits

appellate consideration of that issue. See Wyoming v. Livingston, 443 F.3d 1211,

1216 (10th Cir. 2006), cert. denied, 127 S.Ct. 553 (2006); Anderson v. U.S. Dep’t

of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005).

W e conclude that plaintiffs’ opening brief does not adequately raise and

pursue an argument as to the unconstitutionality of Utah’s civil prohibition of

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polygamous marriages. For instance, plaintiffs’ statement of issues on appeal,

while referencing § 3 of the Utah Enabling Act and § 1 of Article III of the Utah

Constitution, does not expressly seek to invalidate Utah’s civil statutes

prohibiting polygamous marriages. See Anderson, 422 F.3d at 1174 (issue not

raised in statement of issues in initial brief is waived on appeal). Instead, it refers

to the Enabling Act and Article III in connection with plaintiffs’ attack on the

constitutionality of Utah’s criminal bigamy statute, § 76-7-101. 4

Furthermore, plaintiffs’ opening brief does not attempt to explain why

Utah’s refusal to give civil recognition to polygamous marriages should be held to

contravene their constitutional rights. Instead, plaintiffs’ opening brief is

dedicated entirely to establishing the invalidity of Utah’s criminal prohibition of

polygamy – that is, to “seek[ing] an end to the criminalization of the practice of

religious polygamy,” regardless of whether “no legal marital rights are afforded

to a second or third spouse.” 5 Aplt. Br. at 10 (emphasis added). Plaintiffs do

4
In mounting their attack on Utah’s criminal prohibition of polygamy,
plaintiffs purport to seek the invalidation of § 3 of the Utah Enabling Act and § 1
of Article III of the Utah Constitution. Standing alone, however, these provisions
do not establish a criminal regulatory regime. By their terms, they do not
establish crimes nor do they impose criminal penalties. Rather, they have
provided the foundation for both civil and criminal legislative enactments that
prohibit polygamy. Plaintiffs’ singular attack on Utah’s criminal prohibition of
polygamy is therefore properly viewed as an effort to invalidate on constitutional
grounds Utah’s criminal statute that bars polygamy among consenting adults –
that is, § 76-7-101.
5
Plaintiffs’ “Summary of Argument” refers only to the absence of a
(continued...)

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state in two places that they also challenge the validity of Swensen’s refusal to

grant a m arriage license, based upon the unconstitutionality of Utah’s civil

prohibition of polygamy. See id. at 16, 40 n.21. But these cursory statements,

without supporting analysis and case law, fail to constitute the kind of briefing

that is necessary to avoid application of the forfeiture doctrine. See Adler v. Wal-

M art Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately

briefed in the opening brief are waived . . . .”); Gross, 53 F.3d at 1547 (holding

that plaintiff who “ha[d] not adequately briefed th[e] issue” of retaliation in

employment discrimination action forfeited it; plaintiff’s “brief contain[ed] one

paragraph in which she refers to retaliation” but “did not submit any argument,

cite relevant case law, or alert us to any part of the record that demonstrates

retaliatory conduct”).

In essence, plaintiffs’ opening brief simply attempts to use Swensen’s

denial of a marriage license as a vehicle to challenge the constitutionality of

Utah’s criminal prohibition of polygamy. W e therefore conclude that plaintiffs

have forfeited any argument that Utah’s refusal to give civil recognition to

5
(...continued)
legally-adequate justification for “criminalizing polygamy.” Aplt. Br. at 11.
Each topic heading argues solely for the invalidation of Utah’s criminal
prohibition of polygamy, specifically referring in most instances to § 76-7-101,
which plaintiffs describe as Utah’s “anti-bigamy law” or “anti-polygamy law.”
And most significantly, the content of plaintiffs’ argument section exclusively
analyzes the unconstitutionality of § 76-7-101.

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polygamous marriages is unconstitutional. 6

B. C onstitutionality of Utah’s Crim inal Prohibition of Polygamy

Plaintiffs’ substantive challenge to Utah’s criminal prohibition of polygamy

faces a litany of seemingly insurmountable precedential obstacles. Case law

upholding the criminalization of polygamy from constitutional attack dates back

at least to 1878, when in Reynolds v. United States, 98 U.S. 145, 162-66 (1878),

the Supreme Court rejected a free exercise challenge to the M orrill Anti-Bigamy

Act of 1862. M ore contemporary decisions from the Supreme Court and from this

Court have acknowledged the continued validity of Reynolds. See Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993) (citing Reynolds as support

for the proposition that adverse impact on religion from operation of legislative

enactment does not translate into impermissible religious targeting where “a

social harm may have been a legitimate concern of government for reasons quite

apart from discrimination”); Grace United M ethodist Church v. City of Cheyenne,

451 F.3d 643, 649 (10th Cir. 2006) (citing Reynolds with approval).

Similarly, constitutional challenges to Utah’s criminal statute outlawing

6
In their reply brief, plaintiffs protest the idea that they have forfeited
any argument concerning the alleged unconstitutionality of Utah’s civil
proscriptions regarding polygamy. However, plaintiffs do not identify where in
their opening brief they mounted a challenge to these provisions. Indeed,
plaintiffs’ reply brief underscores the exclusive criminal-law focus of their
appellate challenge, stating: “This action seeks a judicial determination as to the
unconstitutionality of provisions of Utah law and federal law that make criminal
the religious practice of polygamy.” Aplt. Reply Br. at 1 (emphasis added).

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polygamy, Utah Code § 76-7-101, have failed. In Potter, this Court relied upon

Reynolds in rejecting attacks that were premised upon the Due Process and Free

Exercise Clauses of the United States Constitution. See Potter, 760 F.2d at 1068-

69. And the Utah Supreme Court recently invoked Reynolds and Potter in

holding that a defendant’s conviction under § 76-7-101 did not violate his rights

to association, to the free exercise of religion, and to substantive due process, as

guaranteed by the First and Fourteenth Amendments to the federal Constitution.

Holm, 137 P.3d at 741-49; see also Green, 99 P3d at 825-30 (applying Reynolds

and Potter to reject federal free exercise challenge to § 76-7-101).

Despite this wealth of controlling and persuasive precedent, we conclude

that the district court lacked subject matter jurisdiction to resolve plaintiffs’

claims against Swensen based upon Utah’s criminal prohibition of polygamy. W e

hold that these claims – the only claims at issue in this appeal – fail to present a

justiciable “case” or “controversy” within the meaning of Article III of the United

States Constitution.

1. Standard For Constitutional Standing

This Court reviews de novo a district court’s decision as to standing. See

Aid for Women v. Foulston, 441 F.3d 1101, 1109 (10th Cir. 2006). Article III of

the United States Constitution restricts the jurisdiction of federal courts to the

adjudication of “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. To

establish a case or controversy, a plaintiff bears the burden of demonstrating:

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 (1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81

(2000); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Tandy v.

City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004). Put simply, a plaintiff

must establish three elements: an injury-in-fact, causation, and redressability.

See Finstuen v. Crutcher, Nos. 06-6213 & 06-6216, ___F.3d___, 2007 W L

2218887, at *2 (10th Cir. Aug. 3, 2007) (noting that “Article III standing . . .

requires that a plaintiff establish injury-in-fact, causation, and redressability”).

Each plaintiff must have standing to seek each form of relief in each claim.

See DaimlerChrysler Corp v. Cuno, 126 S.Ct. 1854, 1867 (2006); Friends of the

Earth, Inc., 528 U.S. at 185. Standing at the summary judgment stage “must be

supported by specific evidentiary facts and not by mere allegations.” Phelps v.

Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997) (citing Lujan, 504 U.S. at 562);

see Tandy, 380 F.3d at 1284.

2. District Court’s Analysis

W ithout distinguishing between Utah’s criminal prohibition of polygamy

and its civil prohibition of polygamy, the district court concluded that plaintiffs

had standing. Its analysis was predicated upon three points: (1) that plaintiffs’

injury was not the threat of imminent prosecution, but, instead, the “denial of the

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legal right to practice polygamy,” App. at 282-83; (2) that a causal nexus existed

between this injury-in-fact and Swensen’s denial of a marriage license in reliance

upon Utah’s prohibition of polygamy; and (3) that a favorable opinion would

redress plaintiffs’ injury, as the contested provisions w ould be held

unconstitutional and the marriage license would issue. For the reasons detailed

below, we conclude that the district court erred with respect to the criminal-

prohibition claims.

3. Plaintiffs’ Standing to Challenge Utah’s Criminal
Prohibition of Polygamy

W e hold that plaintiffs have failed to meet their burden of demonstrating

constitutional standing to seek prospective or retrospective relief based upon the

alleged unconstitutionality of Utah’s criminal prohibition of polygamy.

a. Prospective Relief

On appeal, plaintiffs press for prospective relief in the form of a

declaratory judgment that, inter alia, the challenged criminal enactments –

particularly, the provisions of § 76-7-101 – are unconstitutional. Plaintiffs’

complaint also requests an injunction prohibiting the future enforcement of the

criminal enactments. Under the facts of this case, both forms of prospective relief

trigger the same standing analysis. See Tandy, 380 F.3d at 1284-89.

Furthermore, we may perform this analysis collectively under the circumstances

present here: each plaintiff asserts the same injury-in-fact, the “threat” of

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prosecution under § 76-7-101, based upon a shared intent to enter into a three-

way polygamous relationship. 7

i. Injury-in-Fact

Plaintiffs argue on appeal that they possess standing to challenge U tah’s

criminal prohibition of polygamy due to their “fear of criminal prosecution,”

including the stigma of being branded as a law -breaker. Aplt. Br. at 14 (emphasis

in original); see Aplt. Reply Br. at 2-3. A plaintiff challenging the “validity of a

criminal statute under which he has not been prosecuted . . . must show a ‘real

and immediate threat’ of his future prosecution under that statute to satisfy the

injury in fact requirement.” D.L.S. v. Utah, 374 F.3d 971, 974 (10th Cir. 2004)

(quoting Faustin v. City & County of Denver, 268 F.3d 942, 948 (10th Cir.

2001)).

This requirement also has been characterized as a “credible” threat of

prosecution, one that arises from an “objectively justified fear of real

consequences.” D.L.S., 374 F.3d at 975; see Initiative & Referendum Inst. v.

Walker, 450 F.3d 1082, 1088-89 (10th Cir. 2006) (en banc), cert denied, 127 S.Ct.

7
By purporting to enter into a polygamous marriage, J. Bronson and
G. Cook would violate § 76-7-101. See Holm, 137 P.3d at 734 (“marry” in § 76-
7-101 includes marriages that are not state-sanctioned). Furthermore, D. Cook,
by continuing to live with G. Cook after his second, extra-legal marriage, would
fall within the literal language of the statute, which also proscribes
“cohabit[ation].” Utah Code Ann. § 76-7-101.

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1254 (2007); see also Finstuen, 2007 W L 2218887, at *3 (“In a plea for

injunctive relief, a plaintiff cannot maintain standing by asserting an injury based

merely on ‘subjective apprehensions’ that the defendant might act unlawfully.”

(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983)); Winsness v.

Yocom, 433 F.3d 727, 732 (10th Cir. 2006) (“The mere presence on the statute

books of an unconstitutional statute, in the absence of enforcement or the credible

threat of enforcement, does not entitle anyone to sue, even if they allege an

inhibiting effect on constitutionally protected conduct prohibited by the statute.”).

As suggested by this standard, a plaintiff need not risk actual prosecution

before challenging an allegedly unconstitutional criminal statute. See, e.g., Ward

v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003) (noting that a plaintiff “may have

standing even if they have never been prosecuted”). Standing may still exist even

when a plaintiff ends the proscribed behavior, so long as a credible threat remains

that such behavior, if taken in the future, would be prosecuted. See, e.g.,

M edimmune, Inc. v. Genentech, Inc., 127 S.Ct. 764, 772-76 (2007).

The “credible threat” test begs further inquiry into what constitutes the

requisite degree of likelihood of enforcement to confer standing to bring a

particular claim. See Seegars v. Gonzales, 396 F.3d 1248, 1252 (D .C. Cir. 2005).

To the extent “clarity prevails only at the poles,” id., case law illuminates those

pre-enforcement claims for prospective relief that occupy the ends of the injury-

in-fact continuum.

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 At the “credible threat” pole lies pre-enforcement claims brought after the

entity responsible for enforcing the challenged statute actually threatens a

particular plaintiff with arrest or even prosecution. See Steffel v. Thom pson, 415

U.S. 452, 459 (1974) (Vietnam W ar protester has standing to bring claim for

declaratory relief attacking constitutionality of Georgia criminal trespass law after

being warned to stop handbilling and being threatened with arrest and

prosecution, and after companion was arrested and arraigned); Doctor John’s, Inc.

v. City of Roy, 465 F.3d 1150, 1156 (10th Cir. 2006) (adult bookstore faces

credible threat of prosecution under city ordinance requiring licensing of

“sexually oriented businesses” when city sends letter stating that bookstore must

complete application for license or “appropriate legal action will be

commenced”).

These claims can be juxtaposed with those situated at the “no credible

threat” end of the spectrum. There, the affirmative assurances of non-prosecution

from a governmental actor responsible for enforcing the challenged statute

prevents a “threat” of prosecution from maturing into a “credible” one, even when

the plaintiff previously has been arrested under the statute. See M ink v. Suthers,

482 F.3d 1244, 1253-55 (10th Cir. 2007) (no credible threat of prosecution when

district attorney authored “no file” letter disavowing intent to prosecute under

challenged criminal-libel statute, even though “no file” letter “conceivably might

not bind other district attorneys”); Winsness, 433 F.3d at 732, 735-36 (no standing

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to bring § 1983 claim for injunctive and declaratory relief when plaintiffs

received sw orn assurances from county prosecutors that flag abuse statute w ould

not be enforced against them or anyone else, despite fact that one plaintiff

experienced a “brief prosecution” under the statute); PeTA v. Rasmussen, 298

F.3d 1198, 1203 (10th Cir. 2002) (no standing to assert claims for prospective

relief when defendants admitted that they threatened plaintiff’s members w ith

arrest due to misinterpretation of challenged statute and plaintiff failed to indicate

intention to stage protests at statutorily-covered institutions); Faustin v. City &

County of Denver, 268 F.3d 942, 948 (10th Cir. 2001) (no standing to assert claim

for injunctive relief against future prosecution under anti-posting ordinance in

light of city prosecutor’s determination that plaintiff’s conduct which led to arrest

did not violate challenged ordinance).

In addition, the credibility of a “threat” is diluted when a factual

dissimilarity exists between the plaintiff’s intended future conduct and the

conduct that triggered any prior prosecutions under the challenged statute. See

D.L.S., 374 F.3d at 975 (plaintiff lacks standing to bring civil rights suit

challenging Utah’s anti-sodomy statute because “plaintiff cannot show a real

threat of prosecution in the face of assurances of non-prosecution from the

government merely by pointing to a single past prosecution of a different person

for different conduct” (emphasis added)).

Plaintiffs’ § 1983 claims for prospective relief based upon Utah’s criminal

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prohibition of polygamy lie closer to the “no credible threat” end of the injury-in-

fact continuum. Plaintiffs were never charged, prosecuted, or directly threatened

with prosecution under § 76-7-101. M oreover, the alleged credibility of

plaintiffs’ fear is contradicted by their repeated admission that “Utah’s criminal

law against polygamy is not being enforced.” A plt. Br. at 48 n.30; see id. at 49

n.34. It is further belied by the policy statement of the U tah A ttorney General’s

Office that it has “decided to focus law enforcement efforts on crimes within the

polygamous communities that involve child abuse, domestic violence and fraud,

rather than enforcing § 76-7-101 against consensual polygamous relationships

involving adults.” 8 Utah and Arizona Attorney Generals’ O ffices, The Primer:

Helping Victims of Domestic Violence and Child Abuse in Polygamous

Communities at 3 (June 2006), available at http://www.attygen.state.ut.us/

polygamy/The_Primer.pdf. Plaintiffs also failed to allege or demonstrate that

Sw ensen (even if she had the power to do so) is likely to enforce Utah’s criminal

laws against plaintiffs in the future. See Rasmussen, 298 F.3d at 1203 (finding

absence of injury-in-fact in part because plaintiff did not allege that “these

8
The U tah A ttorney General recently made to the U tah Supreme Court
a representation of prosecutorial selectivity similar to the one found in The
Primer. See Holm, 137 P.3d at 775 (Durham, C. J., concurring in part and
dissenting in part) (“Further, the State itself has indicated that it does not
prosecute those engaged in religiously motivated polygamy under the criminal
bigamy statute unless the person has entered a religious union with a girl under
eighteen years old.”)

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defendants” would be likely to enforce challenged statute against them in the

future).

Plaintiffs rely upon two recent state prosecutions under § 76-7-101 – Green

and H olm – to justify the objective reasonableness of their fear. However, the

defendants in these prosecutions had committed independent crimes in connection

with forming their respective polygamous relationships. See Holm, 137 P.3d at

731, 744 (noting that defendant was charged and convicted of bigamy and

unlaw ful sexual conduct with minor); Green, 99 P.3d at 830 n.14 (noting that

defendant was charged and convicted not only of bigamy but also of criminal

nonsupport and rape of a child). These cases therefore involved remarkably

different facts than those present in this litigation, where no independent crime

would attend the formation of plaintiffs’ polygamous relationship: plaintiffs are

all adults and profess a desire to enter into a consensual polygamous relationship.

See D.L.S., 374 F.3d at 975. Accordingly, we conclude that plaintiffs cannot

establish the first requirement of Article III standing – injury-in-fact.

ii. Causation

Even if plaintiffs’ fear w as based upon a credible threat of prosecution,

such that they are suffering a jurisdictionally-cognizable injury, they could not

satisfy the second requirement of standing – causation. The principle of causation

for constitutional standing requires a plaintiff’s injury to be “fairly traceable to

the challenged action of the defendant, and not the result of the independent

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action of some third party not before the court.” Nova Health Sys. v. Gandy, 416

F.3d 1149, 1156 (10th Cir. 2005) (internal quotation marks omitted and emphasis

added) (quoting Lujan, 504 U.S. at 560). Although a defendant’s alleged

misconduct need not be the proximate cause of a plaintiff’s harm, “A rticle III

does at least require proof of a substantial likelihood that the defendant’s conduct

caused plaintiff’s injury in fact.” Id. (emphasis added).

It is well-established that when a plaintiff brings a pre-enforcement

challenge to the constitutionality of a particular statutory provision, the causation

element of standing requires the named defendants to possess authority to enforce

the complained-of provision. See, e.g., Socialist Workers Party v. Leahy, 145

F.3d 1240, 1248 (11th Cir. 1998) (“In a suit such as this one, where the plaintiff

seeks a declaration of the unconstitutionality of a state statute and an injunction

against its enforcement, a state officer, in order to be an appropriate defendant,

must, at a minimum, have some connection with enforcement of the provision at

issue.”); see also Okpalobi v. Foster, 244 F.3d 405, 426-28 (5th Cir. 2001) (en

banc) (abortion providers lack standing to sue Louisiana Governor and Attorney

General for declaratory and injunctive relief based upon unconstitutionality of

Louisiana state tort statute authorizing private cause of action because defendants

lack authority to enforce statute); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st

Cir. 1979) (noting that “an officer of a state is an appropriate defendant if he has

some connection with the enforcement of the act”); 13 Charles A. W right, Arthur

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R. M iller & Edward H. Cooper, Federal Practice & Procedure § 3531.5, at 1072-

73 (Supp. 2007) [hereinafter, 13 Federal Practice] (commenting on cases that

view the identification of the proper governmental defendant as a standing issue

and “at times focus[] explicitly on the causal nexus between the official’s role and

the claimed injury”).

For instance, in Gandy, we held that the plaintiff, an abortion provider,

lacked standing to pursue a pre-enforcement challenge for prospective relief

based upon the alleged unconstitutionality of an Oklahoma statute imposing civil

liability on abortion providers for performing abortions on minors without

parental consent. 416 F.3d at 1156. W e observed that the plaintiff failed to show

the required causal connection between its injury – the loss of minor patients who

refused to obtain parental consent – and “these” defendants, Oklahoma public

officials overseeing certain state medical institutions. Id. at 1157. W e reasoned

that the defendants were not charged with enforcing the statute in their official

capacities, and that it was the statute’s coercive effect, rather than the effect of

the defendants’ actual or threatened conduct, that caused the abortion provider’s

injury-in-fact. Id. at 1157-58. Cf. Winsness, 433 F.3d at 737 (holding that

plaintiff lacks standing to sue for injuries suffered from citation and ensuing

criminal record because defendants “had nothing to do with it”).

Under this precedent, we hold that plaintiffs’ fear of prosecution under §

76-7-101 – the injury that allegedly anchors plaintiffs’ challenge to U tah’s

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criminal prohibition of polygamy – is not “fairly traceable” to Swensen’s acts.

Plaintiffs concede that Swensen has no power to initiate a criminal prosecution.

And they have not shown that Sw ensen has any responsibility for enforcing § 76-

7-101. Cf. Utah Const. art. VIII, § 16 (public prosecutors have “primary”

authority for prosecution of criminal actions); Utah Code Ann. § 10-3-928

(authorizing city attorney to prosecute certain crimes). As such, there is no nexus

between this defendant’s past or possible future conduct and plaintiffs’ fear of

criminal prosecution under U tah law.

In the face of this logic, plaintiffs argue that Swensen’s power to grant a

marriage license generates the necessary causation for standing. In essence,

plaintiffs contend that if Swensen were “to issue a marriage license and a

marriage ceremony was performed,” Aplt. Reply Br. at 5, they would be insulated

from criminal prosecution under § 76-7-101 and, consequently, would be free

from fear of such prosecution.

W e reject this argument. Plaintiffs’ theory of causation is based upon the

alleged benefits that would flow to them as a consequence of Swensen’s issuance

of a marriage license – not an alleged injury that Sw ensen’s actions have

inflicted or, in imminent fashion, will inflict upon them. 9 M oreover, these

9
W e note that in their complaint plaintiffs did not even request the
form of relief upon which they build their theory of causation – in other words,
they did not seek injunctive relief that would require Swensen to issue them a
marriage license.

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benefits (insofar as they could be said to be anything more than speculative)

would be the collateral products of Swensen’s exercise of her civil authority.

They would not flow from Sw ensen’s enforcement of Utah’s criminal prohibition

of polygamy. Swensen has no authority to enforce that prohibition.

Plaintiffs’ theory, therefore, fails to establish a meaningful nexus between

Swensen’s actions and the challenged criminal provisions, such that plaintiffs’

alleged harm (i.e., fear of criminal prosecution) could be deemed to be fairly

traceable to her actions. Furthermore, even if Swensen issued a marriage license,

this license would not eliminate the possibility (albeit remote) of prosecution: the

marriage license would be deemed invalid pursuant to § 30-1-2; and plaintiffs

would remain within the technical ambit of § 76-7-101. 10

In sum, plaintiffs cannot establish causation for purposes of A rticle III

10
Plaintiffs allude to the possibility that Sw ensen’s refusal to issue a
marriage license has enhanced the likelihood of their criminal prosecution under §
76-1-101. See Aplt. Reply Br. at 4 (“W hile M s. Swensen has no power to initiate
a criminal prosecution, her actions directly lead to or would prevent criminal
prosecutions.” (emphasis added)). W e summarily reject this theory. Plaintiffs
have failed to cite any evidence in the record to suggest that the denial of a
marriage license carries any influence on the decision to prosecute a defendant
under § 76-7-101. See Lujan, 504 U.S. at 561 (“[i]n response to a summary
judgment motion, . . . the plaintiff . . . must ‘set forth’ by affidavit or other
evidence ‘specific facts’” that establish each element of standing); Gandy, 416
F.3d at 1154 (same). M oreover, even if it did have some influence on the
prosecutors authorized to enforce the criminal prohibition, we would not be able
to conclude that this influence is “determinative or coercive.” See Bennett v.
Spear, 520 U.S. 154, 169 (1997) (recognizing that the injury-in-fact concept
“does not exclude injury produced by determinative or coercive effect upon the
action of someone else”).

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standing.

iii. Redressability

Lastly, even if plaintiffs were able to survive the standing analysis as to the

first two requirements, they would fail on the last and third requirement of

standing – redressability. Standing requires a likelihood that the injury-in-fact

will be redressed by a favorable decision. See Bennett v. Spear, 520 U.S. 154,

162 (1997). The redressability prong is not met when a plaintiff seeks relief

against a defendant with no power to enforce a challenged statute. See Gandy,

416 F.3d at 1158-59; Okpalobi, 244 F.3d at 426-27; see also Hope Clinic v. Ryan,

249 F.3d 603, 605 (7th Cir. 2001) (per curiam) (holding that “plaintiffs lack

standing to contest the statutes authorizing private rights of action” in part

“because any potential dispute plaintiffs may have with future private plaintiffs

could not be redressed by an injunction running only against public prosecutors”);

13 Federal Practice, supra, § 3531.5, at 1076 (noting that the “connection”

between causation and redressability is “very practical–if the injury is not caused

by the challenged acts, an order directed to them will not redress it”).

The absence of a nexus between Swensen’s enforcement powers and the

challenged criminal provisions renders ineffectual plaintiffs’ requested

prospective relief. Enjoining this defendant from enforcing § 76-7-101 would be

a meaningless gesture. It would not protect plaintiffs from any threat of future

criminal prosecution for polygamous behavior; such prosecutions are the province

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of governmental actors other than Swensen. See Okpalobi, 244 F.3d at 427-28

(redressability prong of standing not met because “state official cannot be

enjoined to act in any way that is beyond his authority to act in the first place”).

Nor would a declaratory judgment entered against Sw ensen avoid the future

possibility (albeit remote) of a criminal prosecution under § 76-7-101; state

prosecutors would not be obliged to take their cues from such a judgment. See

Gandy, 416 F.3d at 1159 (effect of federal court judgment on defendant, rather

than precedential value of opinion on others, must redress plaintiff’s injury).

Tellingly, plaintiffs offer neither case law nor analysis to support their insistence

on the existence of redressability.

b. Retrospective Relief

Plaintiffs’ complaint also seeks retrospective relief – nominal monetary

damages and a declaratory judgment – for Sw ensen’s allegedly unconstitutional

conduct. 11 Again, we find that plaintiffs lack standing to pursue such relief under

a theory premised upon the unconstitutionality of U tah’s criminal prohibition of

polygamy.

Although plaintiffs repeatedly cast their injury-in-fact in prospective-relief

11
In Rasmussen, we noted: “W hile a declaratory judgment is generally
prospective relief, in some situations, it has been recognized as retrospective. . . .
Thus, we consider declaratory relief retrospective to the extent that it is
intertwined with a claim for monetary damages that requires us to declare whether
a past constitutional violation occurred.” 298 F.3d at 1202 n.2; see Winsness, 433
F.3d at 735.

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terms, as the credible “threat” of prosecution, they also argue, without much

elaboration, that “Swensen’s acts in compliance with the challenged provisions

caused harm to plaintiffs.” Aplt. Br. at 17. This conclusory statement hardly

amounts to a clear expression of why plaintiffs have standing to pursue

retrospective relief. As best we can discern it, plaintiffs appear to be asserting

the following theory: Sw ensen’s denial of G. Cook’s and J. Bronson’s application

for a marriage license, coupled with the psychological and financial consequences

attendant to this denial, grants them standing to sue Swensen for monetary

damages and declaratory relief based upon her unconstitutional application of the

challenged crim inal provisions.

This theory of standing cannot withstand scrutiny. W e assume arguendo

that the first requirement of Article III standing is satisfied – viz., the denial of a

marriage license to enter into a polygamous relationship constitutes a

constitutionally cognizable injury. However, plaintiffs still cannot establish the

second and third elements: their injury was not caused by Sw ensen’s application

of the challenged criminal provisions and the injury is not “fairly traceable” to

this defendant’s application of the challenged criminal provisions.

W e start with the causation requirement. Swensen’s statutory obligation to

deny plaintiffs’ marriage application was governed by Title 30 of the Utah Code,

and, in particular, by § 30-1-2(1) and § 30-1-16, not by the challenged criminal

provisions. See Utah Stat Ann. §§ 17-20-4, 30-1-2, 30-1-16. Nothing in Title 30

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authorized Swensen to deny marriage licenses based upon conduct that she

believed may violate a particular criminal provision – viz., nothing in Title 30

authorized Swensen to apply, even indirectly, the challenged criminal provisions

in denying marriage licenses. Nor have plaintiffs identified a source granting a

county clerk such discretion.

And, for related reasons, plaintiffs also cannot satisfy the third standing

requirement – redressability. Because the challenged criminal provisions were

not the predicate for Swensen’s denial of a marriage license to plaintiffs,

affording plaintiffs a retrospective remedy centered on a legal determination that

those provisions are unconstitutional would not provide plaintiffs effective relief.

It would not redress their claimed harm. Cf. New York Civil Serv. Comm’n v.

Snead, 425 U.S. 457, 458 (1976) (per curiam) (dismissing action for declaratory

and injunctive relief against New York Civil Service Commission for lack of

standing because statutory process that plaintiff challenged was never applied by

Commission to her, despite Commission’s authority to administer statute);

Faustin, 268 F.3d at 948 (holding that plaintiff lacked standing to bring an as-

applied challenge to the constitutionality of city ordinance limiting poster

displays on public property because ordinance was not applied to plaintiff).

III. C ON CLU SIO N

W e hold that plaintiffs lack standing to challenge the constitutionality of

Utah’s criminal prohibition of polygamy. And, on appeal, plaintiffs have

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forfeited any challenge to the constitutionality of Utah’s civil prohibition of

polygamy. Accordingly, we VAC ATE the district court’s judgment in favor of

Sw ensen on the merits of plaintiffs’ criminal-prohibition claims and REM AND

the case for entry of an order dismissing these claims for lack of subject matter

jurisdiction.

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