Doe v. Pryor

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR TH E ELEV ENTH C IRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 11, 2003
No. 02-14899 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00546-CV -D-N

JOHN DO E, proceeding
anonym ously,
THOMA S ROE, proceeding
anonym ously,
JANE POE, proceeding
anonym ously,
J.B., proceeding
anonym ously,

Plaintiffs -App ellants,

versus

WIL LIAM H. PR YOR , JR.,
in his official capacity as
Attorney General of the
State of A labama,

Defen dant-A ppellee.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(September 11, 2003)
Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and CARNES *,
District Judge.

CARNE S, Circuit Judge:

This is a gay rights standing case which began before Lawrence v. Texas,

539 U .S. __, 1 23 S. C t. 2472 ( 2003) , but wh ich we d ecide in lig ht of that d ecision.

At the center of the case is an Alabama statute which criminalizes “deviate sexual

intercourse,” defined as “[a]ny act of sexual gratification between persons not

married to each other involving the sex organs of one person and the mouth or anus

of another,” Ala. Code § 13A-6-65(a)(3); § 13A-6-60(2). In the wake of the

Lawrence decision the statute has been declared dead by the Alabama Attorney

General, who as the chief law enforcement officer of the state ought to know. But

the corp se is not d ead eno ugh to s uit the plain tiffs, wh o wan t the feder al courts to

drive a stake through its heart by adding our pronouncement to the Attorney

General’s. For the reasons that follow, they don’t have standing to get us to speak

on the subject beyond what we must say in order to dispose of their appeal from

the district c ourt’s dis missal of their com plaint for lack of sta nding.

*
Honorable Julie E. Carnes, United States District Judge for the Northern District of
Georgia, sitting by designation.

2
 I

The anonymous plaintiffs in this case are two gay men proceeding as John

Doe and Thomas Roe and two lesbians proceeding as Jane Poe and J.B. All four

plaintiffs contend that the Alabama statute in question violates their First

Amen dment r ights. J.B . makes th e addition al claim tha t it violates h er right to

equal protection.1

J.B.’s equ al protectio n claim h as its genesis in an Alabama state court

custody proceeding. The facts of that proceeding are set out in full in J.B.F. v.

J.M.F., 730 So. 2d 1186 (Ala. Civ. App. 1997), and Ex parte J.M.F., 730 So. 2d

1190 ( Ala. 19 98). W e will giv e only a C liffs No tes versio n of them here, w hich is

all that is nec essary to f rame the standing issue.

In January of 1993, J.B. and her husband divorced and she received custody

of their then three-year-old daughter. After the divorce, J.B. began a lesbian

relationsh ip, and J.B . and the c hild mo ved in w ith her pa rtner in A pril of 19 93.

J.B.’s former husband knew of her lesbian relationship but initially thought that

J.B. and her partner were pretending to be “roommates” and keeping the true

nature of their relationship from the child. He later found out that they were

1
In the district court, Doe, Roe, and Poe each presented an equal protection claim, too,
but they have abandoned their equal protection claims on appeal, limiting their appeal “to their
standing to pursue their First Amendment claims.” Brief of Appellant at 3 n.1.

3
actually livin g in an o pen lesb ian relation ship and not hidin g it from the child.

After discovering the true circumstances surrounding J.B.’s relationship, the

former husban d, who had sinc e remarr ied, felt that h e could p rovide a more sta ble

and beneficial environment for their child than J.B. could. On December 9, 1994,

he filed a petition to modify the custody order, claiming that circumstances had

changed since the divorce and asking to have the child, who was then four years

old, place d in his cu stody.

Findin g that ther e were c hanged circums tances su pportin g an altera tion in

custody for the benefit of the child, the trial court ordered that the child be placed

with J.B.’s former husband and also ordered J.B. not to visit the child in the

presence of her lesbian partner. J.B. appealed both the custody and visitation

restriction aspects o f the trial co urt orde r. The A labama C ourt of C ivil App eals

reversed on the custody issue which made it unnecessary to reach the visitation

issue. J.B.F. v. J.M.F., 730 So. 2d at 1190.

The Alabama S upreme Court then rev ersed the Court of Civil Ap peals,

concluding in the process that J.B.’s former husband had shown two changed

circumstances warranting the trial court’s determination that the child should be

placed in his custo dy. First, h e had rem arried and thus co uld pro vide a stab le

environment in which there were parents of both sexes. Second, J.B. had chosen a

4
lifestyle that “is neither leg al in this state , nor mo ral in the ey es of mo st of its

citizens,” and thus she was “unable, while choosing to conduct an open

cohabitation with her lesbian life partner, to provide [the] benefit” of a “loving

home environment that is anchored by a successful marriage.” Ex parte J.M.F.,

730 S o. 2d at 1 196 (cita tion and internal q uotation marks o mitted).

The Alabama Supreme Court decided that in view of those changed

circumstances, the trial court had not abused its discretion in finding that “the

positive good brought about by the modification would more than offset the

inherently disruptive effect caused by uprooting the child.” Id. at 1194. In support

of its decision to uphold the trial court’s change-in-custody ruling, the Court cited

in a footn ote section 13A- 6-65(a )(3), w hich it characterized as crimin alizing “all

homosexual conduct.” Id. at 1196 n.5.

Because the Court of Civil Appeals had not reached the visitation issue, the

Alabama Supreme Court remanded the case to that court for a determination of

wheth er the restr iction on visitation w as prop er. Id. at 1196. On remand, the Court

of Civil Appeals held that the restriction on visitation was proper, because “[a]s we

consider the opinion of the supreme court, it effectively prevents the child from

being in the presence of the mother’s companion under any circumstances.” J.B.F.

v. J.M.F., 730 So. 2d 1197, 1197 (Ala. Civ. App. 1998).

5
 II

J.B. filed this action against the Alabama Attorney General in his official

capacity, challenging section 13A-6-65(a)(3). She claimed that the statute violates

both the Equal Protection C lause of the Fourteenth Am endment and the First

Amendment. Doe, Roe, and Poe joined with J.B. in challenging the

constitutionality of section 13A-6-65(a)(3) bec ause they feared “its continued use

and enforcement by Alabama officials against lesbians and gay men.” Brief of

Appe llant at 5.

The Attorney General filed a motion to dismiss the complaint under Federal

Rule of Civil Procedure 12(b)(1) for lack of standing and under Rule 12(b)(6) for

failure to state a claim. The district court granted the Rule 12(b)(1) part of the

motion, concluding that none of the plaintiffs had alleged facts in the complaint

sufficient to give them standing to challenge section 13A-6-65(a)(3).

The plaintiffs then filed a motion for reconsideration, which included an

alternative request for leave to amend their complaint, although the grounds for the

amend ment w ere not sp ecified. T he district c ourt den ied that m otion as w ell. J.B.,

Doe, R oe, and P oe all app eal the distr ict court’s r uling tha t they lacke d standin g to

challenge section 13A-6-65(a)(3) on First Amendment grounds and its denial of

their motion for reconsideration. J.B. also appeals the district court’s conclusion

6
that she lacked standing to challenge section 13A-6-65(a)(3) on equal protection

grounds.

III

We review de novo the district court’s grant of a motion to dismiss the

compla int, taking as true the facts as the y are allege d in the co mplaint. Covad

Communication Co. v. BellSouth Corp., 299 F.3d 1272, 1276 n.2 (11th Cir. 2002).

The thr ee-part tes t we app ly to determ ine if a plain tiff has stan ding to b ring suit in

federal court is this familiar one:

First, the plaintiff must have suffered an “injury in fact” – an invasion
of a legally protected interest which is (a) concrete and particularized
and (b) “actua l or imm inent, no t ‘conjectu ral’ or ‘hyp othetical.’”
Second, there must be a causal connection between the injury and the
conduct complained of – the injury has to be “fairly traceable to the
challenged action of the defendant, and not the result of the
independent action of some third par ty not bef ore the co urt.” Th ird, it
must be “likely,” as opposed to merely “speculative,” that the injury
will be “re dressed by a favo rable dec ision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136

(1992 ) (citations , footno te, and so me intern al marks omitted) . The district court

dismissed this case at the pleading stage, so “general factual allegations of injury

resulting from the defendant’s conduct may suffice, for on a motion to dismiss we

presum e that gen eral allegatio ns emb race thos e specific f acts that are necessar y to

7
support the claim.” Id. at 561, 112 S. Ct. at 2137 (citation and internal marks

omitted).

A.

We start with the issue of J.B.’s standing to challenge the constitutionality of

section 13A-6-65(a)(3) on equal protection grounds. J.B. alleges four distinct

injuries. According to her: she had her child removed from her custody; she is not

able to visit her child in the presence of her lesbian partner; she was subjected to a

custody proceeding where the illegality of her conduct under an unconstitutional

statute was used against her in the proceeding; and she suffered the stigma of being

“declared a criminal” by the Alabama Supreme Court. In any event, all of her

alleged injuries arise out of the Alabama custody proceeding. Even if we assume

that all of those alleged injuries meet the Lujan injury-in -fact requ irement, s he still

does not have standing to bring this claim because her injuries ar e not fairly

traceable to the Alabama Attorney General and they cannot be redressed through

this action against h im.

None of J.B.’s alleged equal protection injuries are “fairly traceable to the

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

some th ird party n ot befor e the cou rt.” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136

(internal marks omitted) (emphasis added). The only defendant in this case is the

8
Alabam a Attorn ey Gen eral, and th e only inju ries J.B. h as alleged stem fro m a state

court custody proceeding in which the Attorney General played no role. The

Attorney General has taken no action to enforce section 13A -6-65(a)(3) against

J.B. He has not threatened to enforce the statute against her, either. To the

contrary, in the wake of the Sup reme Court’s Lawrence decision, he now concedes

that section 13A- 6-65(a )(3) is un constitutio nal, in his w ords, “to th e extent th at it

applies to private, legitimately consensual anal and oral sex between unmarried

persons,” Supp. Brief of Appellee at 1, which is the only kind J.B.’s allegations

cover. Becau se there is no “cha llenged action” b y the Attorne y General, J.B .’s

injuries ar e not “fairly traceable” to the on ly defend ant befo re the Co urt.

J.B.’s injuries also are not redressable through this lawsuit against the

Alabama Attorney General. An injunction preventing the Attorney General from

enforcin g a statute th at he con cedes can not be en forced w ould do nothing to

change the result J.B. suffered in the state court custody proceeding. Nothing the

Attorney General could be ordered to do or refrain from doing would redress the

injuries J.B . alleges. See Hope Clinic v. Ryan, 249 F.3d 603, 605-06 (7th Cir.

2001) (holding that the plaintiffs did not have standing to challenge state laws

authoriz ing priv ate suits fo r damag es whe re only th e state attorn ey gener al is

named in the suit because “[the state attorney general] cannot cause the plaintiffs

9
injury by enforcing the private-action statutes [and] any potential dispute plaintiffs

may have with future private plaintiffs could not be redressed by an injunction

running only against public prosecutors”).

It’s not just a matter of the wrong defendant. The federal courts cannot make

it likely that th e Alaba ma cou rts will red ress J.B.’s injuries, n o matter w ho is

named as defendant in this suit. J.B. says that her injuries were caused by the

Alabam a Supr eme Co urt’s use o f an unc onstitutio nal crimin al statute in its analysis

of her right to custody of her child. She concedes, as she must, that the Rooker-

Feldman doctrine precludes our review of that custody determination itself. She

contend s, how ever, that th is lawsu it is a gener al challeng e to the co nstitution ality

of the provision used against her, as permitted by District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 483-86, 103 S. Ct. 1303, 1315-17 (1983), and

not a direct challenge to the results of the proceeding. She argues that we can

redress her injuries through such a suit because a decision from this Court

declaring section 1 3A-6 -65(a)( 3) unco nstitution al wou ld likely en able her to

reopen the custody proceeding and have the custody determination made without

regard to section 1 3A-6 -65(a)( 3).

The flaw in her reasoning is its premise that our decisions bind the Alabama

courts to decide cases in accordance with them. They do not. The only federal

court w hose de cisions b ind state co urts is the U nited Sta tes Sup reme C ourt. See

10
Glassroth v. Moore, 335 F .3d 128 2, 1302 n.6 (11 th Cir. 20 03) (“[S ]tate courts

when acting judicially, which they do when deciding cases brought before them by

litigants, are not bound to agree with or apply the decisions of federal district

courts and courts of appeal.”) (citing Arizonans for Official English v. Arizona,

520 U .S. 43, 5 8 n.11, 1 17 S. C t. 1055, 1 064 n.1 1 (199 7); Pow ell v. Pow ell, 80 F.3d

464, 46 7 (11th Cir. 199 6)); see also State v. Dwyer, 332 So. 2d 333, 334-35 (Fla.

1976) (Florid a courts w ere bou nd by th e Florid a Supr eme Co urt’s decis ion that a

statute of that state is constitutional even though the Fifth Circuit had since

declared the same statute unconstitutional). And the Supreme Court has already

spoken on the subject in the Lawrence case. If J.B. has a reason for believing that

the Alabama courts would pay more attention to a decision from a district court or

this Cou rt – both of wh ich are “inf erior Co urts” of th e federal s ystem, see U.S.

Const. Art. III, § 1 – than to one from the United States Supreme Court, she has

not shar ed it with us.

If J.B. moves to reopen her custody proceeding, she can present to the

Alabama courts the Su preme Court’s Lawrence decision and the Alabama Attorney

General’s concession in this case that under that decisio n section 13A- 6-65(a )(3) is

unconstitutional as it might be applied to her. If that does not convince the

Alabama courts of the proposition, nothing we say or do could convince them

either. Sp eculation is not eno ugh to b ase stand ing upo n, Lujan, 504 U.S. at 561,
11
112 S. Ct. at 2136, and J.B.’s insistence that a decision of this Court or a federal

district court can do for her what the Su preme Court’s Lawrence decision cannot

do is no t only spe culative, b ut is also h ard for u s to believ e. She does not have

standing to bring an equal protection challenge to section 13A-6-65(a)(3) based

upon the consideration that the Alabama Supreme Court gave to that statute during

her custody proceeding.

B.

Nor does J.B. or the other plaintiffs have standing to challenge section 13A-

6-65(a )(3) on First A mendm ent grou nds. Th ey argue that they d o becau se there is

a credible threat of enforcement of the statute and because their expression has

been ch illed by the statute. W e have h eld, how ever, that to establish a n injury in

fact under Lujan based upon chilled expression, the plaintiffs must show “‘that

either (1) [they were] threatened with prosecution; (2) prosecution is likely; or (3)

there is a credible threat of prosecution.’” Pittman v. Cole, 267 F.3d 1269, 1283-

84 (11th Cir. 2001) (quoting ACLU v . Florida Bar, 999 F.2d 1486, 1492 (11th Cir.

1993) ). They h ave not s hown and can not sho w any o f that.

They co ncede th ey have n ot been th reatened with pr osecutio n. A

prosecution is not likely, and there is no credible threat of enforcement. The

plaintiffs allege in their complaint that each plaintiff “has a genuine fear of arrest

and prosecution under § 13A-6-65(a)(3),” but later in the complaint they allege that
12
the statute is “rarely enforced, but threatening.” There is nothing in the record on

appeal to indicate when the statute was last enforced, and it seems that neither

party knows. Apparently, it has been years and years. The plaintiffs have alleged

nothing more th an a “sub jective fear that [they] m ay be pro secuted f or enga ging in

express ive activity,” which we hav e held is n ot enou gh. Wilson v. State Bar of Ga.,

132 F.3d 1422, 1428-29 (11th Cir. 1998). The complaint contains no allegations

which will support a conclusion that their fear is objectively reasonable, and a fear

of prosecution “will not be held to constitute an injury for standing purposes unless

that fear is objectively reasonable.” Id. at 1428 .

Besides, we are not going to turn a blind eye to recent events which establish

that there is no credible threat of enforcement of section 13A-6-65(a)(3). The

United States Supreme Court has held that statutory prohibitions on consensual

sodomy like the Alabama statute are unconstitutional because they infringe upon

the rights of “adults to engag e in the pr ivate conduct in th e exercise of their lib erty

under the Due Process Clause of the Fourteenth Amendment.” Lawrence, 539 U.S.

at __, 123 S. Ct. at 2476.2 The Alabama Attorney General has expressly conceded

2
The Supreme Court made plain in Lawrence that its holding applies to statutory
provisions prohibiting both heterosexual and homosexual consensual sodomy, as Alabama’s
statute does, by invalidating the Texas statute on due process instead of equal protection
grounds: “Were we to hold the statute invalid under the Equal Protection Clause some might
question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct
both between same-sex and different-sex participants.” Lawrence,539 U.S. at __, 123 S. Ct. at
2482.
13
in supp lemental b riefing to this Cou rt that the S uprem e Cour t’s decision in

Lawrence renders section 1 3A-6 -65(a)( 3) unco nstitution al “to the ex tent that it

applies to private, legitimately consensual anal and oral sex between unmarried

persons,” Supp. Brief of Appellee at 1, which is all that these plaintiffs allege they

are concerned about. The Alabama Attorney General is the chief law enforcement

officer o f the state an d has su perviso ry autho rity over e very distr ict attorney in

Alabama. See Ala. Co de § 36 -15-14 ; Graddick v. Galanos, 379 So. 2d 592, 594

(Ala. 1980). Because there is no credible threat of enforcement of section 13A-6-

65(a)(3), the plaintiffs have no standing to challenge that statute on F irst

Amendm ent grounds.

IV

J.B., Doe, Roe, and Poe also argue that the district court abused its discretion

when it denied their motion for leave to amend their complaint, included as an

alternative in their motion for reconsideration. We conclude that the district court

did not a buse its d iscretion in denying their mo tion for le ave to am end. In o rder to

properly request leave to amend a motion must “set forth the substance of the

proposed amendment or attach a copy of the proposed amendment.” Long v. Satz,

181 F.3d 1275, 1279 (11th Cir. 1999). The plaintiffs’ motion for reconsideration

14
or, in the alternative, leave to amend contained neither the proposed amendment

nor the s ubstanc e of it.

AFFIRMED.

15