Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-1994

Presbytery of NJ v. Florio, et al.
Precedential or Non-Precedential:

Docket 93-5559




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                     ___________

                     No. 93-5559
                     ___________


      THE PRESBYTERY OF NEW JERSEY OF THE ORTHODOX
    PRESBYTERIAN CHURCH, a New Jersey corporation;
   CALVARY ORTHODOX PRESBYTERIAN CHURCH OF WILDWOOD,
   a New Jersey corporation; REV. DAVID B. CUMMINGS
                                Appellants

                          v.

       JAMES FLORIO, GOVERNOR OF NEW JERSEY, in his
     official capacity; ROBERT J. DEL TUFO, ATTORNEY
    GENERAL OF NEW JERSEY, in his official capacity;
 MARILYN FLANZBAUM; ROMAN ANGEL; BETTY CARSON; OLGA L.
     VAZQUEZ-CLOUGH; FELTON LINGO, SR.; REINHOLD W.
        SMYCZEK; CASEY TAM, all in their official
 capacities as members of THE DIVISION ON CIVIL RIGHTS;
     C. GREGORY STEWART, in his official capacity as
executive of THE DIVISION ON CIVIL RIGHTS; JOHN DOE(S);
   JANE DOE(S), addresses unknown, the last two being
  fictitious names, the real names of said defendants
    being presently unknown or known only in part to
    plaintiffs, said fictitious names being intended
     to designate organizations, persons and others
    acting in concert with any of the defendants who
   engage in, are engaged in, or who intend to engage
  in, the conduct of defendants complained of herein,
or who would have the right to file or seek enforcement
  of administrative, equitable or legal complaints or
 suits or to assert any other legal claims or remedies
  or enforcement thereof against the plaintiffs under
 the New Jersey Law Against Discrimination, as amended
     by the 1992 affectional and sexual orientation
     amendments, and all others similarly situated,
                                 Appellees

                     ___________

     Appeal from the United States District Court
            for the District of New Jersey
         (D.C. Civil Action No. 92-cv-01641)

                     ___________
                          ___________

                    Argued:   March 25, 1994

     PRESENT:   HUTCHINSON, ROTH and ROSENN, Circuit Judges

                    (Filed November 16, 1994)

                          ____________



Thomas Stephen Neuberger, Esquire   (Argued)
Suite 702
Ninth Street Plaza
200 West Ninth Street
Wilmington, DE     19801-1646

          and

James J. Knicely, Esquire
Knicely & Cotorceanu
Suite 2
487 McLaws Circle
Williamsburg, VA     23185
               Attorneys for Appellants

Fred Devesa, Esquire
  Acting Attorney General of New Jersey
Andrea M. Silkowitz, Esquire
  Assistant Attorney General
William H. Lorentz, Esquire          (Argued)
  Deputy Attorney General
Charles S. Cohen, Esquire
  Deputy Attorney General
Office of Attorney General of New Jersey
124 Halsey Street
P.O. Box 45029
Newark, NJ     07101
               Attorneys for Appellees

David L. Grove, Esquire
Montgomery, McCracken, Walker & Rhoads
20th Floor
Three Parkway
Philadelphia, PA     19102

          and
Richard S. Hyland, Esquire
Louis A. Petroni, Esquire
Montgomery, McCracken, Walker & Rhoads
Suite 2C
1010 Kings Highway South
Cherry Hill, NJ     08034

          and

Eric J. Graninger, Esquire
Presbyterian Church (U.S.A.)
Associate General Counsel
100 Witherspoon Street
Louisville, KY   40202
               Attorneys for Amici Curiae James E. Andrews, as
               Stated Clerk of the Presbyterian Church (U.S.A.)
               General Assembly, The Diocesan Council of the
               Episcopal Diocese of Newark, John S. Spong, Bishop
               of the Episcopal Diocese of Newark, The Lutheran
               Office of Governmental Ministry in New Jersey, The
               New Jersey-West Hudson Valley Council of the Union
               of American Hebrew Congregations, New Jersey Synod
               Council of the New Jersey Synod, Evangelical
               Lutheran Church in America, New Jersey Council of
               Churches, United Church of Christ Office for
               Church in Society

Lewis H. Robertson, Esquire
Evans, Osborne & Kreizman
P.O. Box BB
Red Bank, NJ     07701
               Attorney for Amicus Curiae ACLU NJ


                             ____________

                      OPINION OF THE COURT
                          ____________


HUTCHINSON, Circuit Judge.



          Appellants, the Presbytery of New Jersey of the

Orthodox Presbyterian Church ("Presbytery"), the Calvary Orthodox

Presbyterian Church of Wildwood ("Calvary") and Reverend David B.
Cummings ("Cummings"), a clergyman of the Orthodox Presbyterian

denomination (collectively "plaintiffs"), appeal an order of the

district court dismissing their complaint.1   Plaintiffs assert

recent amendments to the New Jersey Law Against Discrimination

(the "LAD" or "Act"), N.J. Stat. Ann. §§ 10:5-1 to 10:5-42 (West

1993 & Supp. 1994), violate the First Amendment right to freedom

of speech.    The amendments they question added to the category of

impermissible distinctions "affectional or sexual orientation" to

the statute's ban on certain forms of discrimination.   Relying on

a responsible state official's affidavit that the state would not

enforce the LAD against Calvary or Presbytery as churches or

Cummings as a church pastor, the district court held that the

case was not ripe.

          We conclude, however, that the controversy is ripe

because Cummings arguably alleges the statute threatens his right

as an individual citizen to speak out against male and female

homosexual acts and the state has expressly refused to offer any

assurance it will not prosecute Cummings if he does so outside

his church.   The same, however, is not true of the institutional

church plaintiffs, Presbytery and Calvary.    Accordingly, we will

reverse the district court's order and remand for further

proceedings consistent with this opinion in so far as its order


1
 . The caption in this case lists James Florio as the Governor
of New Jersey. After it was filed, Christine Todd Whitman was
elected to that office, but there has not yet been a substitution
of parties. The failure to amend the caption in this respect
does not affect this appeal. See Fed. R. Civ. P. 25(d)(1). We
note the change for purposes of clarification only.
applies to Reverend Cummings.   We will, however affirm the

district court's dismissal without prejudice of this action as it

pertains to the institutional plaintiffs.



                                  I.

          In April 1992, the plaintiffs brought this suit to

enjoin enforcement of recent amendments to the LAD which had

added "affectional or sexual orientation" to the personal traits

or characteristics generally protected against discrimination in

public accommodations,2 employment and housing.   See N.J. Stat.

Ann. §§ 10:5-4, 10:5-12 (West Supp. 1994).   The statute also

prohibits "aid[ing], abet[ting], incit[ing], compel[ing] or

coerc[ing]" others into violations of its prohibitions against

discrimination.   N.J. Stat. Ann. § 10:5-12(e); see N.J. Stat.

Ann. § 10:5-12(n).   The plaintiffs originally challenged these

and other provisions as an infringement on the First Amendment

right to the free exercise of religion and association as well as

the right to freedom of speech.    On May 15, 1992, they filed a

motion for a preliminary injunction and on May 22, filed an

amended complaint.   On June 11, 1992, the state filed a motion

for summary judgment along with a motion for dismissal.   The

district court heard oral argument but denied the motion for a

preliminary injunction holding that the plaintiffs failed to

2
 . Public accommodations are defined quite broadly in N.J. Stat.
Ann. § 10:5-5(l). They include, but are not limited to, taverns,
hotels, trailer camps, day camps, health facilities, stores and
other retail establishments, restaurants, public conveyances,
movie theaters, pool halls, schools, etc. See 

a likelihood of success on the merits and

irreparable harm.      The plaintiffs appealed to this Court and on

December 14, 1992, we affirmed the district court in an

unpublished memorandum opinion.       Presbytery of New Jersey v.

Florio, No. 92-5339, slip. op. at 13 (3d Cir. Dec. 14, 1992)

("Presbytery I"), see 

(3d Cir. 1992) (Table).

Because of the state's affidavit stating its intention not to

enforce the Act against religious institutions, we held that the

plaintiffs failed to demonstrate the possibility of immediate and

irreparable harm.      

  We also held that the

possibility of private enforcement of the Act by activist

homosexual groups was too remote to constitute an immediate

threat of potential harm and, in any event, the private parties

would not be bound by the injunction sought.      

    We

specifically refused to comment on the district court's

discussion of the plaintiffs' likelihood of success on the

merits.   

          Following our decision, the district court heard

argument on the state's Rule 12(b)(1) motion to dismiss.        The

state argued that the plaintiffs lacked standing, the case was

not ripe and that the federal court should abstain under Railroad
Commission of Texas v. Pullman, 

(1941).      The

district court granted the state's motion and dismissed the

complaint.   Presbytery of New Jersey v. Florio, 

(D.N.J. 1993) ("Presbytery II").      It held that the case was not

ripe, based on the state's affidavit that it would not enforce

the Act against the institutional plaintiffs as churches or
Cummings in his capacity as a clergyman of the Orthodox

Presbyterian Church.    

  The plaintiffs filed a

timely notice of appeal.



                                 II.

          The LAD, originally enacted in 1945, prohibits

discrimination in employment, labor organization membership,

public accommodations and real estate, financial, and business

transactions.   In 1991, the New Jersey legislature added

"affectional or sexual orientation" to the personal

characteristics of race, creed, color, national origin, ancestry,

age, sex, and marital status previously protected.4    Under the
3
 . The court did not reach the issue of standing or Pullman
abstention.
4
.   The legislature's finding and declaration states:

               The Legislature finds and declares that
          practices of discrimination against any of
          its inhabitants, because of . . . affectional
          or sexual orientation . . . [is a] matter[]
          of concern to the government of the State,
          and that such discrimination threatens not
          only the rights and proper privileges of the
          inhabitants of the State but menaces the
          institutions and foundation of a free
          democratic State . . . .

                . . .

               The Legislature further finds that
          because of discrimination, people suffer
          personal hardships, and the State suffers a
          grievous harm. . . . The Legislature intends
          that such damages be available to all persons
          protected by this act and that this act shall
          be liberally construed in combination with
          other protections available under the laws of
          this State.
Act, it is unlawful for an employer "to refuse to hire or employ

or to bar or to discharge or require to retire" any individual on

the basis of a protected characteristic.       

  The

Act also prohibits the printing or circulating of any statement

which expresses, directly or indirectly, that employment

opportunities for persons with the protected characteristics will

be limited.     

   Public accommodations are

similarly restrained.     See 

   In addition, the

LAD makes it illegal for any individual to refuse to transact

business with individual groups who have any of the protected

characteristics.     

(m).    The Act also makes it

illegal "to aid, abet, incite, compel or coerce the doing of any

of the acts forbidden under this act, or to attempt to do so."

   Still another section applying the Act's

prohibition against aiding, abetting, inciting or coercing

violations of subsection (l) and (m) specifically prohibits

incitements to boycott persons who belong to the protected

groups.   

     Finally, the Act requires owners

of public accommodations and employers to post public notices

informing employees and patrons of their rights under the Act.

          The Act exempts religious organizations from compliance

in the selection of their own employees and it permits religious

organizations to restrict rental or use of their own property to

(..continued)

N.J. Stat. Ann. § 10:5-3 (West Supp. 1994).
members of their own faith.      

10:5-5(n).    The

Act does not apply to private clubs or facilities for religious

education.    

             The state itself may enforce the Act's civil penalties

against violators.    An aggrieved individual may begin the process

of civil enforcement by filing a complaint with the state

Division on Civil Rights ("DCR") or proceeding directly to state

court.   

(West 1993).    The Act specifically grants

standing to sue to "[a]ny individual who has been discriminated

against" and "any organization which represents or acts to

further the interests of individuals who have been discriminated

against."    

(West 1993).   The successful plaintiff

may recover compensatory and punitive damages, fines, and

attorney fees.    

(West 1993); 

(West 1993).    The Act is to be liberally construed to

accomplish its purpose of eradicating the kinds of discrimination

it prohibits.    See 

             The Orthodox Presbyterian Church ("OPC") is a national

denomination with 170 member churches, including Calvary.        The

OPC split from the Presbyterian Church (U.S.A.) in 1936 over a

doctrinal difference.5    Presbytery is a New Jersey religious

corporation and the formal governing body of OPC churches in New


5
 . The Presbyterian Church (U.S.A.) as well as a number of other
mainstream organized religions have filed a joint amicus brief
setting out their opposition to OPC's doctrinal views and
teachings. These amici support the state's position on the
merits of this case. Because we are only concerned with
jurisdiction on this appeal we do not decide the merits.
Jersey.   At the time plaintiffs initially filed their complaint,

the OPC had 2,113 members in New Jersey.

            In their complaint, the plaintiffs allege the

following.    Based upon The Holy Bible and church doctrine, the

OPC teaches that homosexuality, bisexuality, and heterosexual sex

outside of marriage are grievous sins.       Plaintiffs also allege

that they
            have always in the past, presently do and
            since the 1992 amendments, have directly or
            indirectly discriminated against and made
            reasonable distinctions based upon
            homosexuality, bisexuality and heterosexual
            sex outside of marriage. For example, in New
            Jersey the plaintiffs express, speak and
            preach against homosexuality, adultery and
            fornication, calling it variously an
            abomination and sinful. . . . They also
            disseminate and circulate such speech and
            distinctions throughout New Jersey and the
            world. . . . [T]hey even print and
            disseminate materials condemning sexual
            sins. . . . Plaintiffs, and their members,
            also inquire about the sexual practices of
            prospective employees and are continuing to
            do so despite the existence of the 1992
            amendments.



Complaint ¶ 49, Appellants' Appendix ("App.") at 217.        Cummings

and members of his congregation "speak out about homosexuality,

bisexuality and heterosexual sex outside of marriage, make

reasonable distinctions based on such practices, lobby against

them, and circulate literature condemning them.       They encourage,

aid and abet discrimination and reasonable distinctions against

homosexuals, bisexuals and heterosexuals engaging in sex outside

of marriage."    

App. at 217-18.    Furthermore,
"[p]laintiffs have always in the past, presently do and since the

amendments have refused to knowingly buy from, contract with or

otherwise do business with persons on the basis of that person's

homosexual, bisexual or heterosexual practices."   

App.

at 220.   Plaintiffs also "have always in the past, presently do

and since the amendments have refused to employ any individual

who is practicing any public sexual sin, including fornication,

adultery and homosexuality, and they make reasonable distinctions

based on such acts."   

App. at 223.

          Initially, plaintiffs contended that various elements

of the Act violated their First, Fifth, Ninth and Fourteenth

Amendment rights.   The allegedly offending sections included:

sections 10:5-12(a) and (c) (applicable to employers); section

10:5-12(f) (applicable to public accommodations); sections 10:5-

12(e) and (n) (prohibition against aiding, abetting, or inciting

violations); section 10:5-12(j) (notice posting provision); and

sections 10:5-12(l) and (m) (prohibition of boycotts and refusal

to do business).

          In response to plaintiffs' initial request for a

preliminary injunction, the Director of the DCR, C. Gregory

Stewart, filed an affidavit setting forth the DCR's and attorney

general's position on enforcement of the Act against religious

institutions.   The Stewart affidavit averred that the state did

not consider churches places of "public accommodations."   Thus,

the sections relating to public accommodations were inapplicable

to the institutional plaintiffs.   Stewart further stated that
churches were considered exempt in their hiring of internal

employees.  Due to "First Amendment concerns,"
          the Division has not in the past prosecuted
          and has no intention to prosecute [under
          sections 10:5-12(c), (e), (f), (j), (l) &
          (m)] essentially exempt churches for
          sincerely-held religious belief or practice,
          or speech consistent with such belief, or for
          a refusal to engage in certain speech or for
          following their religious tenets . . . .
          Hence, the Division would not even attempt to
          enforce those provisions in the circumstances
          of sincerely-held religious reasons such as
          plaintiffs express here. . . .



App. at 296.  Stewart also made the following general statement:
               [I]t has been the consistent
          construction and interpretation of the LAD
          that, consonant with constitutional legal
          barriers respecting legitimate belief and
          free exercise protected by the First
          Amendment, the State was not authorized to
          regulate or control religious worship,
          beliefs, governance, practice or liturgical
          norms, even where ostensibly or colorably at
          odds with any of the LAD prohibited
          categories of discrimination.

                  . . .

          Moreover, the Division has not and has no
          intention to engage in any determination or
          judgment as to what is or is not a "religious
          activity" of a church, or to determine what
          is or is not a "tenet" of religious faith.
          Within First Amendment limits, all of
          plaintiffs' claimed religiously-based free
          exercises of faith are unthreatened by a
          reasoned construction of the LAD consistent
          with its meaning and long enforcement
          history.



App. at 294-96.    The affidavit did not, however, disavow

enforcement against the members of the church for their public
activities nor does it preclude enforcement against Cummings for

his activities outside the Church.

           In light of the Stewart affidavit and our prior

decision in Presbytery I, the parties agree that the scope of

their challenge on the merits to the Act has been significantly

limited.   The plaintiffs now challenge only section 10:5-12(e),

which makes it illegal "to aid, abet, incite, compel or coerce"

forbidden acts, section 10:5-12(n), which makes it illegal "to

aid, abet, incite, compel, coerce or induce" boycotts or refusals

to do business and section 10:5-12(j), the notice posting

provision.    Presbytery 

; Brief of

Appellants at 6.     Plaintiffs argue that the first two sections

are impermissible restrictions on freedom of speech and the last

provision is a violation of the freedom of conscience and forced

speech.    Before the district court, however, the plaintiffs

conceded that in light of the representations of the DCR, the

sections have no applicability to the institutional plaintiffs

Presbytery and Calvary.     

this case is ripe, and if any of the plaintiffs have

standing to assert their free speech claim, the district court

would have subject matter jurisdiction under 28 U.S.C.A. §§ 1331,

1343 (West 1993) and 28 U.S.C.A. §§ 2201, 2202 (West 1994).     The

state contends, however, that the district court lacked

jurisdiction because the plaintiffs did not present an

Article III justiciable controversy.     The district court agreed
and dismissed the case on this ground.    Because the district

court did not reach the merits of the plaintiffs' claim, the

dismissal was without prejudice.6    The district court's order is,

however, a final resolution of the plaintiffs' claims and

therefore we have appellate jurisdiction pursuant to 28 U.S.C.A.

§ 1291 (West 1993).

           Our review of ripeness and standing determinations is

plenary.   Taylor Inv. Ltd. v. Upper Darby Township, 

, 1289 (3d Cir.), cert. denied, 

(1993); Roe v.

Operation Rescue, 

, 863 (3d Cir. 1990).



                               IV.

           The issue on this appeal is whether the plaintiffs have

presented a ripe controversy so that an Article III court may

assert jurisdiction.   We examine the merits of the claim only to

the extent necessary to determine whether there is any potential

for immediacy of harm.

           Federal courts may only resolve actual "cases" and

"controversies."   See U.S. Const. art. III, § 2.   The existence

of a case and controversy is a prerequisite to all federal
6
 . Generally, when a district court dismisses a case without
prejudice, it is not a final order unless the party seeking
appeal has specifically elected to stand on the complaint as set
forth. See generally Borelli v. City of Reading, 

,
951-52 (3d Cir. 1976) (per curiam). In a case such as this where
the district court has dismissed based on justiciability and it
appears that the plaintiffs could do nothing to cure their
complaint, the principle of Borelli does not apply. Cf. Green v.
Humphrey Elevator and Truck Co., 

, 878 n.4 (3d Cir.
1987) (dismissal without prejudice does not destroy finality
where party cannot cure defect).
actions, including those for declaratory or injunctive relief.

See Cardinal Chem. Co. v. Morton Int'l, Inc., 

,

1974 (1993); Skelly Oil Co. v. Phillips Petroleum Co., 

, 671 (1950).   "Concerns of justiciability go to the power of

the federal courts to entertain disputes, and to the wisdom of

their doing so.    We presume that federal courts lack jurisdiction

'unless "the contrary appears affirmatively from the record."'"

Renne v. Geary, 

, 316 (1991) (quoting Bender v.

Williamsport Area Sch. Dist., 

, 546 (1986) (quoting

King Bridge Co. v. Otoe County, 

, 226 (1887))).

          The concepts of standing and ripeness are related.

Each is a component of the Constitution's limitation of the

judicial power to real cases and controversies.     Correct analysis

in terms of ripeness tells us when a proper party may bring an

action and analysis in terms of standing tells us who may bring

the action.   See Armstrong World Indus., Inc. v. Adams, 

, 411 & nn. 12-13 (3d Cir. 1992); see also Erwin Chemerinsky,

Federal Jurisdiction 99 (1989) ("standing focuses on whether the

type of injury alleged is qualitatively sufficient to fulfill the

requirements of Article III and whether the plaintiff has

personally suffered that harm, whereas ripeness centers on

whether that injury has occurred yet").   Because these concepts

are so closely related, they can be confused or conflated.      "It

is sometimes argued that standing is about who can sue while
ripeness is about when they can sue, though it is of course true

that if no injury has occurred, the plaintiff can be told either

that she cannot sue, or that she cannot sue yet."    Smith v.
Wisconsin Dep't of Agriculture, Trade & Consumer Protection, 

, 1141 (7th Cir. 1994) (emphasis in original).       It is

the plaintiff's responsibility to allege facts that invoke the

court's jurisdiction.     

.

            The district court did not reach the issue of standing

but focused on whether any of the plaintiffs presented a ripe

controversy.7    Ripeness prevents courts from "entangling

themselves in abstract disagreements."        Abbott Labs. v. Gardner,

, 148 (1967).     "[R]uling on federal constitutional

matters in advance of the necessity of deciding them [is to be

avoided], to postpone judicial review where it would be

premature."     

.    The ripeness

determination "evaluate[s] both the fitness of the issues for

judicial decision and the hardship to the parties of withholding

court consideration."     Abbott 

.

Ultimately, the case must involve "'a real and substantial

controversy admitting of specific relief through a decree of a

conclusive character, as distinguished from an opinion advising

what the law would be upon a hypothetical state of facts.'"

North Carolina v. Rice, 

, 246 (1971) (quotation
omitted).     "A federal court's jurisdiction therefore can be


7
 . The district court did opine, however, that "even if the
Church's members were parties, nothing in the record indicates
any realistic threat that the state will enforce the amendments
against them." Presbytery 

. That
conclusion is open to doubt considering the state's refusal to
negate in its affidavit an intention to enforce the statute
against members of the Orthodox Presbyterian denomination in
their secular activities.
invoked only when the plaintiff himself has suffered 'some

threatened or actual injury resulting from the putatively illegal

action . . . .'"   Warth v. Seldin, 

, 499 (1975)

(citation omitted).

          As Professor Chemerinsky recognizes, "[r]ipeness

properly should be understood as involving the question of when

may a party seek preenforcement review of a statute or

regulation."   

(emphasis in original).

Thus, it is not surprising that the ripeness inquiry often

involves declaratory actions which present special problems.    See

Maryland Casualty Co. v. Pacific Coal & Oil Co., 

273

(1941) ("Basically, the question in each case is whether the

facts alleged, under all the circumstances, show that there is a

substantial controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.").

          We have adopted a three part test in determining

whether we will engage in preenforcement review in the context of

a declaratory action; specifically, we examine "the adversity of

the interest of the parties, the conclusiveness of the judicial

judgment and the practical help, or utility, of that judgment."

Step-Saver Data Sys., Inc. v. Wyse Tech., 

, 647 (3d
Cir. 1990); see also 

(applying

test while noting that factors are not exclusive).

          On the first part, adversity of interest, we have

observed, "'[f]or there to be an actual controversy[,] the

defendant must be so situated that the parties have adverse legal
interests.'"   

(quoting 10A Charles

Wright, Arthur Miller & Mary Kane, Federal Practice and Procedure

§ 2757, at 582-83 (2d ed. 1983)).   Although the party seeking

review need not have suffered a "completed harm" to establish

adversity of interest, 

, it is

necessary that there be a substantial threat of real harm and

that the threat "must remain 'real and immediate' throughout the

course of the litigation."   Salvation Army v. Department of

Community Affairs, 

, 192 (3d Cir. 1990).    Thus, where

intervening events remove the possibility of harm, "the court

must not address the now-speculative controversy."     Id.; see also

Pacific Gas & Elec. Co. v. State Energy Resources Conservation &

Dev. Comm'n, 

, 201 (1983) (threatened injury must be

"certainly impending").

           Second, the parties must not only retain adverse

interests throughout the litigation, but "[a]ny contest must be

based on a 'real and substantial controversy admitting of

specific relief through a decree of a conclusive character, as

distinguished from an opinion advising what the law would be upon

a hypothetical state of facts.'"    

(quoting Aetna Life Ins. Co. v. Haworth, 

, 241

(1937)).   "A declaratory judgment granted in the absence of a

concrete set of facts would itself be a 'contingency,' and

applying it to actual controversies which subsequently arise

would be an 'exercise in futility.'"     

(quoting 

).    The requirement of

concreteness has some play in the joints.    We have noted, "the
need for a concrete set of facts is greater in some instances

than others."     

an "actual factual setting" is

"particularly important in cases raising allegations of an

unconstitutional taking," 

v. Virginia Surface

Mining & Reclamation Ass'n, 

, 294-95 (1981)), whereas

facts are not so important where the question is "predominantly

legal."   

Gas & Elec. 

).

          The third part of the test, utility of the judgment, is

important because "[o]ne of the primary purposes behind the

Declaratory Judgment Act was to enable plaintiffs to preserve the

status quo . . ., and a case should not be considered justiciable

unless 'the court is convinced that [by its action] a useful

purpose will be served.'"      

(quoting

E. Borchard, Declaratory Judgments 29, 58 (1941)).      Thus, with

these three inquiries in mind, we turn to an analysis of whether

the district court erred by determining this case did not present

a ripe controversy.



                        1.   Adversity of interest

          In Armstrong we said, "[w]here the plaintiff's action
is based on a contingency, it is unlikely that the parties'

interest will be sufficiently adverse to give rise to a case or

controversy within the meaning of Article III."      

.    In concluding that the instant case was not ripe

for adjudication, the district court relied in large part on the

representations of the DCR through the Stewart affidavit and a

history of the LAD's non-enforcement against religiously
motivated speakers.    Thus, in terms of the Step-Saver test, the

district court determined that the parties had no adverse

interest.    Despite Cummings' assertion that he has engaged, does

engage and will engage in prohibited discrimination, the court

stated:
            [N]o enforcement action or private suit has
            been commenced against [Cummings or the other
            plaintiffs] as a result. Moreover, although
            Plaintiffs allege that they intend to engage
            in similar conduct in the future, without an
            actual or imminent threat of enforcement of
            the statute the constitutional issues are not
            presented in a sufficiently "'clean-cut and
            concrete form'" to render this action ripe.'"
            See 

.

                 Plaintiffs argue that this case is ripe
            because, although Defendants have conceded
            that they will not enforce the LAD against
            the institutional plaintiffs, they have not
            waived enforcement of the statute against
            Cummings or against the Church's individual
            members. The Court, however, disagrees with
            Plaintiffs' interpretation of Defendants'
            waiver as not including a waiver of
            enforcement against Cummings. The
            Defendants, recognizing the First Amendment
            concerns raised in this action, have
            represented that the LAD does not apply to
            and will not be enforced against Plaintiffs'
            religious worship, beliefs, practice, speech
            or refusal to speak. See Stewart Aff.,
            ¶¶ 10-13. This Court reads these statements
            as clearly including Plaintiff Cummings.
            Accordingly, the Court sees no possibility of
            state enforcement against him.



Presbytery 

.

            The state argues that the district court correctly held

that none of the named plaintiffs face an imminent threat that

the LAD's prohibitions against incitement or otherwise inducing
or helping others to induce boycotts, any of its other

prohibitions against discrimination or its notice posting

requirement will be enforced against them.   In support, the state

contends that the complaint and its allegations refer to Cummings

only in his capacity as pastor of an Orthodox Presbyterian

Church.   Because it has waived enforcement against the plaintiffs

when they act in their capacity as religious organizations or as

clergymen performing religious functions, the state concludes

that Cummings does not face any imminent threat of enforcement,

but yet refuses to guarantee that he will not be prosecuted if he

acts as an individual outside the church.

          Applying the usual standards for construing the

allegations of a complaint which give the plaintiff the benefit

of all favorable inferences that can be drawn from them,8 we

conclude that the complaint fairly asserts Reverend Cummings'

rights as both a pastor and a citizen and therefore that the

Stewart affidavit is insufficient to remove the threat of

enforcement against Cummings in his individual capacity.

          In order to determine what rights Cummings asserts, we

turn to the amended complaint.   Complaints need not be models of

precise information.   Rather, a complaint suffices when it serves

fairly to notify the defendants of the facts and the alleged

deprivation.   See, e.g., Holder v. City of Allentown, 

, 194 (3d Cir. 1993).   Moreover, when judged on their face,


8
 . See Markowitz v. Northeast Land Company, 

, 103
(3d Cir. 1990).
complaints should be construed in favor of the party defending

against a motion to dismiss.     Cf. 

in reviewing a

motion to dismiss for failure to state a claim is whether, under

any reasonable reading of the pleadings, plaintiff may be

entitled to relief.") (citing Colburn v. Upper Darby Township,

, 665-66 (3d Cir. 1988), cert. denied, 

(1989)); Williams v. New Castle County, 

, 1266 (3d

Cir. 1992).

             The state contends that the complaint asserts Cummings'

rights only in terms of his institutional capacity.     A careful

review of the record, however, reveals a different conclusion.

Although it is helpful for a complaint to specify if a party is

bringing suit in his individual or official capacity, we are not

aware of any rigid rule that requires an express statement of

such capacity.     We recognize that Cummings is listed as the "Rev.

David B. Cummings" in the caption of the complaint, App. at 195,

but his participation is nowhere limited to his institutional

capacity.9    Again, in paragraph 4 of the complaint, Cummings is

identified as being an ordained minister of the Presbytery, the

pastor of one of its New Jersey churches and a plaintiff, but no

9
 . Use of the term "Reverend" in written documents is generally
a respectful acknowledgment of the clergyman's calling or
profession. In the same way persons in other professions are
respectfully addressed as "doctor," "attorney," "professor," etc.
At oral argument, appellants' counsel stated he listed Cummings
as the "Rev. David B. Cummings" in the caption "because that is
his title." Transcript of Oral Argument, March 25, 1994 ("Tr.")
at 5. He also indicated that if a pastor is suing in an official
capacity he normally would add "as pastor of such and such" in
the caption. 

made of his suing only as a leader of an institution.

In paragraph 14, Cummings is described without limitation to his

capacity as a clergyman or religious leader.   In paragraph 51,

the complaint states:
               Plaintiff Cummings, other pastors and
          members of their congregations . . . do speak
          out about homosexuality, bisexuality and
          heterosexual sex outside of marriage, make
          reasonable distinctions based on such
          practices, lobby against them, and circulate
          literature condemning them. They encourage,
          aid and abet discrimination and reasonable
          distinctions against homosexuals, bisexuals
          and heterosexuals engaging in sex outside of
          marriage.



App. at 218. Paragraph 53 of the complaint alleges:
          [P]laintiffs publish, circulate, issue,
          display, post and mail printed material
          condemning homosexuality, bisexuality and
          heterosexual sex outside of marriage, making
          reasonable distinctions based on such acts
          . . . .

of the complaint alleges:
                Plaintiffs have always in the past,
           presently do and since the amendments have
           refused to knowingly buy from, contract with
           or otherwise do business with persons on the
           basis of that person's homosexual, bisexual
           or heterosexual practices.

  None of these allegations limit the acts Cummings

avers he wishes to perform without fear of prosecution or

reprisal under the LAD to acts he would perform only as a pastor

of the OPC.   Rather, the clear implication of these allegations,

when we construe them in favor of the plaintiff, as we must, is
that Cummings has in the past, currently does and in the future

will engage in conduct both in his professional and personal life

that could run afoul of the statute.   We see nothing in the

complaint that would support the state's conclusion that Cummings

asserts only his right to preach and teach within the confines of

the church as a clergyman or religious leader.   To the contrary,

the portions of the complaint just quoted indicate that Cummings,

as an individual, plans to engage in conduct that has a potential

for violating the LAD's ban on incitement of prohibited

discrimination against male or female homosexuals in employment,

commerce and places of public accommodation by boycott or

otherwise.10   Thus, provided that a threat of enforcement
10
 . In an affidavit submitted in support of his opposition to
summary judgment, Cummings specifically reaffirmed certain
paragraphs of the complaint. He omitted, however, paragraphs
alleging the intention to engage in prohibited conduct outside
the church. The state argues that this omission indicates that
Cummings does not intend to engage in such conduct outside the
institutional setting therefore removing the possibility of
prosecution.

    We do not think that Cummings' failure to specifically
reference the relevant paragraphs of the complaint is tantamount
to a disavowal of their content. If, during the pendency of the
litigation, Cummings were to disavow his intention to engage in
proscribed conduct, that disavowal could deprive this case of
ripeness. See Salvation 

. At this
preliminary juncture, however, we are advised Cummings intends to
prove at trial the allegations contained in the complaint. At
oral argument this intention was reiterated by his counsel,
speaking as an officer of the court. Absent strong indications
that the allegations of the complaint have been disavowed, we are
reluctant to hold a first amendment freedom of expression claim
is not ripe when the complaint adequately alleges that claim,
without considering Cummings' standing to assert the chilling
affect of the statute's prohibitions on freedom of expression,
and we are equally reluctant to consider the standing issue on
this record.
restricting Cummings' First Amendment right of free speech

exists, the controversy would be ripe.    Focusing solely on the

question of ripeness, however, it would not be sufficient for the

complaint merely to assert Cummings' rights as a citizen.    There

must remain a credible threat of enforcement against him even

though representations were made by the state in its affidavit

disclaiming any intention to enforce the statute against

religious institutions.

           We have held that "[i]n order to present a justiciable

controversy in an action seeking a declaratory judgment to

protect against a feared future event, the plaintiff must

demonstrate that the probability of that future event occurring

is real and substantial, 'of sufficient immediacy and reality to

warrant the issuance of a declaratory judgement.'"    Salvation

(quoting Steffel v. Thompson, 

,

460 (1974)).    "Where the plaintiff seeks a declaratory judgment

with respect to the constitutionality of a state statute, even

where the attack is on First Amendment grounds, there must be a

'real and immediate' threat of enforcement against the

plaintiff."     

v. Bowers, 

,
1206-07 (11th Cir. 1985), rev'd on other grounds, 

(1986)).   This threat must remain extant throughout the course of

the litigation and "[w]here an intervening event removes these

conditions, the court must not address the now-speculative

controversy."    

415 U.S. at 459 n.10

(remanding for determination of whether plaintiff still faced

threat of prosecution)).
          In paragraph 12 of the Stewart affidavit, the state has

forsworn enforcement of the LAD with respect to church employment

decisions.  Stewart then states,
          Under this provision [regarding church
          employment practices], the plaintiffs here
          are free, without fear of prosecution, to
          make employment decisions which discriminate
          respecting a current or prospective
          employee's actual or perceived sexual
          orientation. Hence, such a "religious
          association or organization" may make
          decisions and engage in the practice of its
          sincerely-held religious beliefs within the
          limits only of the First Amendment. The
          Division has not and has no intention of
          construing nor enforcing the LAD in any
          manner which, liberally construed, would even
          tend or threaten to violate the sincere
          "tenets" of any religion. Moreover, the
          Division has not and has no intention to
          engage in any determination or judgment as to
          what is or is not a "religious activity" of a
          church, or to determine what is or is not a
          "tenet" of religious faith.



App. at 295-96.   Although this paragraph could fairly be

construed to remove the threat of enforcement against the church

and its religious activities, we think it fails to eschew

enforcement against speech or expressive conduct outside the

setting of a religious institution or office.   Similarly, in

paragraph 13 of his affidavit, Stewart avers that "the Division

has not in the past prosecuted and has no intention to prosecute

essentially exempt churches for sincerely-held religious belief

or practice, or speech consistent with such belief, or for a

refusal to engage in certain speech or for following their

religious tenets, all within only the limits of the First
Amendment."     

(emphasis added).   Moreover, at oral

argument before this court, the state pointedly limited the scope

of the immunity it offered:
          THE COURT: Do you agree with [plaintiffs'
          counsel's] interpretation of your affidavit?

          MR. LORENTZ: That the state has not waived
          enforcement against unnamed individuals, and
          against Reverend Cummings in his role outside
          of pastor because there's nothing in the
          complaint or anywhere in the case that
          indicates that he has any other role.
          Certainly, he is an individual.



Tr. at 25-26.11

             The literal terms of the DCR waiver go no farther than

the religious activities of the institutional plaintiffs and at

oral argument, counsel reiterated the limits of the waiver in


11
 .   The colloquy continues:

               THE COURT: But [appellants] argued this
          morning . . . that the title of "Reverend" in
          that [sic] complaints is only descriptive in
          that he still remains as an individual
          plaintiff. Now is that sophistry or is there
          some merit to that?

               MR. LORENTZ: It is not our--we don't
          understand that the thrust of the attack that
          was launched on the statute originally before
          it was severely constricted was anything but
          by an institution.

               Obviously, because institutional
          protection of religion is greater under the
          first amendment than it is for individuals.
          Individuals are required to obey laws of
          general application.

Tr. at 26.
this respect.    It is nevertheless also the state's position that

the case is not ripe absent an actual prosecution.        That is not

the law.

           In Steffel v. Thompson, 

(1974), the United

States Supreme Court held that where a plaintiff seeks to

exercise the First Amendment's guarantee of freedom of

expression, the state need not prosecute in order to present a

ripe controversy.    

  In Steffel, the plaintiff

attempted to distribute handbills in a shopping center protesting

the United States's involvement in Vietnam.     

    After a

prior encounter with police, plaintiff returned with a companion.

arrived and informed the protestors that if they

remained, they would be arrested.     

although

his companion stayed and was arrested.      

   Plaintiff

then commenced an injunctive and declaratory action claiming the

law interfered with his First Amendment right.      

The state argued the case was not ripe because there was no

prosecution.    The Supreme Court disagreed.   "In these

circumstances, it is not necessary that petitioner first expose

himself to actual arrest or prosecution to be entitled to

challenge a statute that he claims deters the exercise of his

constitutional rights."    

see also McKay v. Heyison,

, 904 (3d Cir. 1980) ("'When the plaintiff has

alleged an intention to engage in a course of conduct, arguably

affected with a constitutional interest, but proscribed by a

statute, and there exists a credible threat of prosecution

thereunder, he "should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief."'"

(quoting Babbitt v. United Farm Workers Nat'l Union, 

, 298 (1979) (quoting Doe v. Bolton, 

, 180

(1973))); Chemerinsky, supra at 103 ("[I]t is well established

that a case is ripe because of the substantial hardship to

denying preenforcement review when a person is forced to choose

between forgoing possibly lawful activity and risking substantial

sanctions.").

            We recognize that Steffel differs from the instant

case.   There the state demonstrated its willingness to prosecute

others.   This added immediacy to Steffel's claim that he faced

prosecution if he engaged in proscribed expressive activity.

Here the state has forsworn prosecution of Cummings in his

clerical role, but it has refused to forswear his prosecution if

he were to step off the pulpit and engage in the activities he

alleges his first amendment right to freedom of expression

protects.   The pointed nature of that refusal, both in the

state's affidavit and at oral argument indicates to us that

Reverend Cummings and others who engage in the expressive

activity he describes face a real threat of prosecution.     In

short, to the extent this record eliminates any free exercise

claims as unripe it does not do so with respect to the individual

free expression claims Cummings appears to advance.    Here, the

state has had ample opportunity to indicate that it will not
prosecute religiously motivated speakers under the aid and abet

or boycott provisions.   It has elected not to do so.12

          Accordingly, in light of the state's refusal to waive

prosecution against Cummings when he acts outside of his

institutional capacity as a pastor of the OPC, we conclude the

threat of prosecution is "real and substantial," see Salvation

, and at least the presence of Reverend

Cummings as a plaintiff in this law suit presents interests

sufficiently adverse to those of the state so as to satisfy the

first prong of the Step-Saver inquiry.



                         2.   Conclusiveness

          The second Step-Saver factor requires us to determine

whether judicial action at the present time would amount to more

than an advisory opinion based upon a hypothetical set of facts.

See 

.    As 

,

predominantly legal questions are generally amenable to a

conclusive determination in a preenforcement context; however,

"plaintiffs raising predominantly legal claims must still meet

the minimum requirements for Article III jurisdiction."
12
 . The state contends that its waiver was crafted in terms of
the institutional plaintiffs alone because the state considered
the plaintiffs to be litigating in their institutional capacity
alone and that its waiver should not be read too narrowly. The
responses of counsel at oral argument before us, however, show
the state still refuses to waive prosecution outside the
religious setting once the plaintiffs made it clear that they
sought to assert Cummings' rights as an individual. 

typescript note 10. We have already rejected the 

typescript at 21-24 that the complaint fails to invoke the
private rights of Reverend Cummings.


(citing Office of Communication of

United Church of Christ v. FCC, 

, 105 (D.C. Cir.

1987) ("[T]he presence of 'a purely legal question' is not

enough, of itself, to render a case ripe for judicial review, not

even as to that issue.")).

           In Armstrong, we approved a rationale used by the

United States Court of Appeals for the Eleventh Circuit in

Atlanta Gas Light Co. v. United States Department of Energy, 

(11th Cir.), cert. denied, 

(1982).      In

Atlanta Gas Light, the court held that its conclusion of ripeness

was supported by factors which included the fact that the

parties' claims would not substantially change in future

litigation, that the current parties were appropriate to raise

the issues at bar and that the parties would be subject to

enforcement of the challenged act were it implemented.     See 

n.7.

          Here, we see no reason why disposition of this case

could not conclusively determine the largely legal issues at

stake.   Factual development would not add much to the plaintiffs'

facial challenges to the constitutionality of the statute.     To

the extent that it is not distinguishable, we are unpersuaded by

Voluntary Association of Religious Leaders v. Waihee, 

(D. Haw. 1992), where the court determined that a

challenge similar to one now before us was not factually

developed adequately enough to make the case ripe for

disposition.   

  There, the plaintiffs challenged an

amendment to an anti-discrimination statute that added sexual
orientation to the protected categories and made it illegal "to

aid, abet, incite, compel, or coerce" any of the discriminatory

practices listed by the statute.      

  The plaintiffs,

who included a minister and a parishioner, "fail[ed] to allege

that they are engaging in, or plan to engage in, any activities

that would subject them to enforcement."     

   The court

concluded that a vague allegation that a minister would preach to

his employees about the evils of homosexuality was insufficient

to pose any clear threat that he would be prosecuted under the

statute.   

  To the extent, however, that the court

concluded that a facial challenge to a statute that seeks to

proscribe otherwise protected First Amendment conduct such as

oral advocacy and boycott is not ripe until a concrete factual

situation is before the court, see 

we disagree.

Presumably, in order to give the court in Waihee a concrete

factual situation, a prosecution would first be necessary.       We

believe that Steffel teaches that a plaintiff need not choose

between prosecution and stifling otherwise protected activities.

           Furthermore, the Waihee court relied on the Supreme

Court decision in Renne.    

a challenge to a

California law that prohibited political parties from endorsing

candidates for non-partisan offices.      

.

The Court there held that the plaintiffs' allegations that they

sought to endorse officials in the future was insufficient to

render the case ripe.   

           Here, unlike Renne, Cummings alleges that he currently
engages in speech and acts allegedly circumscribed by the LAD and
that he will continue to do so in the future.    Even if this case

were finally dismissed as not ripe, Reverend Cummings or others

who share his beliefs could in the future easily assert

substantially similar facial attacks on the LAD in their

individual capacities.   Such claims would most likely parallel

those claims already presented in the present action, and as such

it is unlikely that there would be any change in the substance or

clarity of the challenges to the LAD.    Furthermore, if the LAD is

enforced against private citizens and Reverend Cummings engages

in the acts alleged in paragraphs 49, 51, 57, and 69 of the

complaint, in his individual capacity, he would appear to be

exposed to a threat of enforcement.     Reverend Cummings appears to

be an appropriate party to raise the first amendment freedom of

expression objections to the provisions of the LAD set out in the

claim.   Thus, the principles discussed in Atlanta Gas Light

support a conclusion that this case is ripe if Reverend Cummings

has at this point expressed enough of an adverse interest to the

provisions of the LAD he refers to in the complaint to permit

this case to go forward.

           Indeed, it is hard to see how a more concrete factual

situation would aid resolution of the plaintiffs' First Amendment

free speech challenge to the statute.    See 

.   Such factual development is of minimal assistance in facial

challenges such as this.   Present resolution of the facial

challenge would completely and decisively determine whether the

amendments to the LAD that the plaintiffs object to affect the

fundamental right of free speech the First Amendment protects.
Accordingly, we believe the second Step-Saver element also favors

holding the controversy to be ripe.



                             3.   Utility

          The final Step-Saver factor focuses on the utility

served by current entry of a judgment resolving the facial

challenge to the Act.     In this inquiry we consider "whether the

parties' plans of actions are likely to be affected by a

declaratory judgment."     

n.9.

          It appears to us that entry of a declaratory judgment

deciding the free speech issues the LAD amendments pose in the

instant case would be useful to the parties and others who could

be affected.     Although Cummings alleges that he will engage in

allegedly prohibited conduct in the future, we assume his

willingness to do so is likely to be affected by resolution of

this action.13    Similarly, the state's effort to enforce certain

portions of the amended LAD will be affected by the resolution of

this litigation.    Unlike the plaintiffs in Armstrong who "d[id]

not face the threat of sanction for noncompliance with [the

challenged act]," Cummings does.     

.     A

declaration of his rights and those of all others who would seek

to engage in similar activity would permit a person to speak


13
 . Current First Amendment jurisprudence does not require a
Thoreau or a Gandhi who is willing to go to jail for his beliefs
but permits the more cautious Emersons among us to assert our
fears of interference with our this country's fundamental rights
in the civilized atmosphere of a court before subjecting
ourselves to the risk of arrest and jail.
without fear of governmental sanction or regulation of their

activities protected by the statute.

           Accordingly, we conclude that a grant or denial of

relief in this case would materially affect the parties and thus

this Step-Saver factor also weighs in favor of our conclusion

that this controversy is ripe.    We express no opinion on the

merits of this case, a task that involves the meaning and

interpretation of the statutory provisions under attack and their

effect on our fundamental constitutional right to freedom of

speech.   We think that task should be performed by the district

court in the first instance.

           We therefore conclude that Reverend Cummings has

demonstrated a ripe controversy under the three factor test set

forth in Step-Saver.   Because the state's representation

regarding enforcement does not eliminate the threat of

enforcement against plaintiff Cummings and Cummings has averred

that he does and will engage in potentially violative conduct,

the parties present adverse interests in this dispute.    Moreover,

a final resolution of this dispute would be both conclusive on

the issue and of practical help to those who seek to engage in

potentially protected activity.    We hold, therefore, that the

district court erred in dismissing the action as unripe.14

14
 . Our reasons for so concluding also establish Cummings'
standing to assert a violation of his First Amendment rights. In
order for a party to present a justiciable controversy, the
litigant must be "entitled to have the court decide the merits of
the dispute or of particular issues." Warth v. Selden, 

, 498 (1975). At a constitutional minimum, the litigant
seeking the intervention of the federal court:
(..continued)
          must demonstrate three things: (1) "injury
          in fact," by which we mean an invasion of a
          legally protected interest that is "(a)
          concrete and particularized, and (b) actual
          or imminent, not conjectural or
          hypothetical"[;] (2) a causal relationship
          between the injury and the challenged
          conduct, by which we mean that the injury
          "fairly can be traced to the challenged
          action of the defendant," and has not
          resulted "from the independent action of some
          third party not before the court"[;] and (3)
          a likelihood that the injury will be
          redressed by a favorable decision, by which
          we mean that the "prospect of obtaining
          relief from the injury as a result of a
          favorable ruling" is not "too speculative[.]"

Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am. v.
City of Jacksonville, 

, 2301-02 (1993). It is
clear that Cummings can assert his own rights as an individual
and, in light of our conclusion that the state has not foregone
the threat of prosecuting Cummings for what he claims are the
expressive activities he wishes to engage in as a citizen, we
conclude Cummings has standing without reference to the
plaintiff's standing to assert the First Amendment rights of
others whose expressive activities may be chilled by the threat
of prosecution under the LAD.
                                  V.

          For the foregoing reasons, we will reverse the order of

the district court dismissing Reverend Cummings first amendment

freedom of expression claims for lack of jurisdiction and remand

for further proceedings consistent with this opinion.    The

state's representations clearly show that the claims of the

institutional plaintiffs, Presbytery and Calvary are not ripe.

Stewart, the Director of the Division on Civil Rights in the

Department of Law and Public Safety of the State of New Jersey

and an officer of the court swears:    "[the State] . . . has no

intention to prosecute essentially exempt churches for sincerely-

held religious belief or practice, or speech consistent with such

belief . . . .    [T]his would include N.J.S.A. 10:5-12c, N.J.S.A.

10:5-12e, N.J.S.A. 10:5-12j, N.J.S.A. 10:5-12 l and N.J.S.A.

10:5-12m."    App. at 296-97.   Therefore, we will affirm the

district court's decision as it applies to the institutional

plaintiffs.
RE:   THE PRESBYTERY OF NEW JERSEY OF THE ORTHODOX PRESBYTERIAN

      CHURCH, et al., Appellants v. JAMES FLORIO, GOVERNOR OF

      NEW JERSEY, et al., No. 93-5559

_________________________________________________________________



ROSENN, Circuit Judge, dissenting.

           The majority correctly concludes that this suit is not

ripe with respect to the institutional parties.   However, I

disagree with the majority's conclusion that "the controversy is

ripe" because Rev. David Cummings arguably alleges as an

individual that the statute threatens his right of speech.     This

conclusion ignores completely the allegations in the complaint

that he is suing as the pastor of the Orthodox Presbyterian

Church of New Jersey.   I therefore respectfully dissent because I

believe this case is not ripe for judicial disposition.

           Article III, section 2 of the United States

Constitution limits federal jurisdiction to actual "cases" and

"controversies." U.S. Const. art III § 2.   Thus, it forbids the

issuance of advisory opinions.   "The case or controversy

requirement must be met regardless of the type of relief sought,

including declaratory relief." Armstrong World Indus., Inc. v.

Adams, 

, 410 (3d Cir. 1992) (citation omitted).

Additionally, "even if a declaratory judgment would clarify the

parties' legal rights, it should ordinarily not be granted unless

`the parties' plans of actions are likely to be affected by a

declaratory judgment.'" 

(citation omitted).    Also, in

cases concerning the Constitutionality of state statutes, this
court should consider "the advantage of permitting state courts

further opportunity to construe the challenged provision and

perhaps in the process materially alter the question to be

decided." 

(quotation

omitted).    Finally, this court must presume that it lacks

jurisdiction unless the record affirmatively demonstrates that

jurisdiction exists; i.e. the plaintiff must persuade this court

that jurisdiction exists. Renne v. Geary, 

, 316

(1991).

            Federal courts consider three primary factors when

reviewing a declaratory judgment action for ripeness:    (1)

adversity of interest between plaintiffs and defendants, (2)

conclusivity, and (3) utility.   Step-Saver Data Systems, Inc. v.

Wyse Technology, 

, 647 (3d Cir. 1990).15    The court

weighs these and other relevant factors to determine if the issue

is ripe.    Here, the case is not ripe because no adversity of

interest exists between the parties involved in this suit in

light of the extensive protection afforded by New Jersey's Law

Against Discrimination (LAD) from interference with plaintiffs'

religious practices.    Moreover, the Director of New Jersey's

Division on Civil Rights has represented that the State has not

in the past prosecuted and has no intention to prosecute exempt

religious organizations for religious beliefs, practices, or


15
 . See, majority opinion at 14-19 for a thorough and
informative discussion of ripeness jurisprudence.
speech.   Therefore, the conclusiveness and utility of a judgment

rendered at this time are doubtful.

           The majority correctly notes that the State of New

Jersey has expressed its intention not to prosecute Rev. Cummings

for actions taken as a member of the clergy engaging in the

performance of religious functions and that the State has refused

to waive enforcement of LAD against Cummings as an individual.

The majority properly concludes that Cummings cannot pursue this

suit as a representative of the church.   The majority, however,

strains in an effort to conclude that Cummings has sued in his

individual capacity and in that capacity can pursue this case.

           Cummings is clearly identified in the complaint as

"Rev. David B. Cummings." see e.g., plaintiffs' caption in First

Amended Complaint and ¶¶ 1 and 4.   The complaint does not allege

that he sues in a secular capacity as an individual church

member.   Moreover, when this court heard an earlier appeal in

this same case on an appeal from an order denying the plaintiffs'

application for a preliminary injunction, its memorandum opinion

addressed Cummings only in his role as "an ordained minister of

the Presbytery and the pastor of one of its member churches." In

that appeal, appellants did not maintain that Cummings was acting

as an individual and appellants have never amended their

complaint to include Cummings or others as individual plaintiffs.

Paragraph 4 of the complaint in this case specifically avers:

"plaintiff, Rev. David B. Cummings, is an ordained minister of
the Presbytery, and the pastor of one of its New Jersey

churches."   No reference is made to him as an individual.        If any

residual question still remains at this point as to Cummings'

status in this litigation, it is dissipated by paragraph 45 of

the complaint.     It states:   "[t]he individual plaintiff

[Cummings] is an agent of these entities [the churches]."

          The majority does not point to any      language that

describes Cummings as an individual.16     In fact, the first of the

three paragraphs from the complaint quoted by the majority in

support of their conclusion begins "[p]laintiff Cummings, other

pastors and members of their congregations . . . ."      ¶ 51 of

complaint (emphasis added).     The plaintiffs' use of the words

"other pastors" immediately after "plaintiff Cummings" confirms

that Cummings is acting as a pastor in this litigation and not as

an individual.    The additional paragraphs from the complaint

quoted by the majority contain references to actions by

"plaintiffs" without providing any evidence that the referenced

"plaintiffs" include any individuals.

          The district court observed that the individual members

of the appellant churches were not plaintiffs in this action.

Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 830
F.Supp 241, 249 (D.N.J. 1993).      The record supports this

observation.     First, the complaint's caption lists only one

16
 . Interestingly, of the three paragraphs quoted by the
majority, Cummings only adopts paragraph 53 in his Affidavit in
support of the complaint.
individual, Reverend Cummings.17   Second, the record contains no

information demonstrating that any of the church members are

represented by the named plaintiffs or have consented to

inclusion in this law suit.18   The district court properly noted

that a ripe declaratory judgment action requires "a `real and

immediate' threat of enforcement against the plaintiff." 830

F.Supp at 249 (quoting Salvation Army v. Department of Community

Affairs, 

, 192 (3d Cir. 1990) (emphasis added by

district court).    Cummings brought this suit as an institutional

representative.    After the State's affidavit averred that it

would not prosecute him under LAD for actions taken as a pastor,

no legitimate case or controversy remained.

          Even if Cummings had pursued this case as an individual

from the beginning, it is not ripe.    "Where the plaintiff seeks a

declaratory judgment with respect to the constitutionality of a

state statute, even where the attack is on First Amendment

grounds, there must be a `real and immediate' threat of

17
 . I do not agree with the majority's supposition that
"Reverend" is used as a purely honorary term. In the context of
this litigation, where the plaintiffs have carefully shielded
Cummings from the possibility of counter-claims and the
assessment of costs, "Reverend" is used precisely; it signifies
Cummings' role as an institutional representative and separates
Cummings the church representative, the plaintiff in this case,
from Cummings the individual.
18
 . On appeal, appellant contends that they are acting on behalf
of their church members. However, they have provided no
persuasive evidence to support this contention; mere references
to church members within the body of the complaint are
insufficient.
enforcement."   Salvation 

(quoting Hardwick

v. Bowers, 

, 1206-7 (11th Cir. 1985)).    Nothing in

the record demonstrates any realistic threat that the state will

enforce the amendments against Cummings as an individual.    The

State has merely refused to waive its right to prosecute

Cummings; it has not taken any steps to prosecute him or anyone

else under LAD.   In a careful analysis, the able and experienced

district judge noted that "[t]he plaintiffs' professed fears of

state enforcement of the LAD against their members appear to be

based only on imagination or speculation, which is insufficient

to create a ripe controversy." 830 F.Supp at 249 (citation

omitted).

            Despite the State's refusal to waive enforcement of the

LAD against Cummings and other members of the congregation as

individuals, the record supports the district court's finding

that there is no realistic threat that the State will enforce the

law against them.   In the almost two years since the LAD became

effective, neither the State nor any private individual has filed

a complaint against a church member.   Moreover, the district

court found that the threat of an administrative or private suit

has not had any discernible effect on their conduct.    830 F.Supp

at 249.   To the contrary, the plaintiffs concede that since the

enactment of the LAD in 1992, they have discriminated and spoken

out against people based on their sexual orientation.    The court

thus found that the prospect that the plaintiffs will alter their
actions out of fear of a suit under the LAD is highly unlikely.

830 F.Supp at 249. See Salvation 

.

            The plaintiffs have not demonstrated a real and

substantial probability that the litigation they fear will occur;

almost two years have passed since the LAD became effective and

no private suit or administrative complaint has been filed.    See

.     Additionally, the district court

found that there is "no credible evidence that any person or

organization is contemplating such an action." 830 F.Supp at 249.

The theoretical possibility that someone may file such a suit at

some time in the future is not sufficient to render this action

ripe.    See Salvation 

.   Moreover, this court

has noted that the relief the plaintiffs seek would not bind

unidentified private parties and protect plaintiffs from private

suits.

            In addition to showing that the issues in this case are

not fit for judicial decision, the record also shows that the

withholding of an opinion at this time will not work a hardship

on the parties.    Despite the plaintiffs' arguments to the

contrary, they will suffer no "immediate and significant"

hardship from the district court's decision not to adjudicate

this action at this time.   See Felmeister v. Office of Attorney
Ethics, Div. of New Jersey Administrative Office of Courts, 

, 537 (3d Cir. 1988).    The court found that the

plaintiffs have not changed their behavior due to the LAD
amendments, that defendants will not subject the plaintiffs to an

enforcement action, and that private enforcement of the statute

against the plaintiffs is uncertain.   Thus, the court did not err

in concluding that its withholding of an opinion will not work a

hardship on the plaintiffs.

          Regardless how one views the merits of the amendments

to the LAD, there is no reason whatsoever why this court should

struggle to construct a theoretical controversy where none

exists.   Under the three Step-Saver factors, this case is not

ripe for resolution.   Therefore, I would affirm the order of the

district court dismissing plaintiffs' action.