JERRY E. SMITH, Circuit Judge:
The Governor of Mississippi and the Executive Director of the Mississippi Department of Human Services appeal a preliminary injunction. Because the plaintiffs do not have standing, we reverse the injunction and render a judgment of dismissal.
The plaintiffs challenge the constitutionality of a Mississippi statute, HB 1523, under the Establishment Clause and the Equal Protection Clause of the Fourteenth Amendment. HB 1523 provides that "[t]he state government shall not take any discriminatory action"
2016 Miss. Law HB 1523 § 2. Those who act in accordance with those beliefs are protected from discriminatory action by the state in the form of adverse tax, benefit, and employment decisions, the imposition of fines, and the denial of occupational licenses. HB 1523 § 4. The statute creates a private right of action for individuals to address any violations of HB 1523 by state officials and permits its use as a defense in private suits over conduct covered by the statute. HB 1523 § 5.
Section 3 defines the set of circumstances in which adverse state action is restricted. Religious organizations are protected when they make decisions regarding employment, housing, the placement of children in foster or adoptive homes, or the solemnization of a marriage based on a belief listed in Section 2. HB 1523 § 3(1)-(2). Parents are protected if they decide to raise their foster or adoptive children in accordance with a belief listed in Section 2. HB 1523 § 3(3). Doctors and mental health counselors cannot be compelled to provide services in contravention of a sincerely held Section 2 belief, provided it does not interfere with "visitation, recognition of a designated representative for health care decision-making, or emergency medical treatment necessary to cure an illness or injury as required by law." HB 1523 § 3(4). Businesses that offer wedding-related services are protected if they decline to provide them on the basis of a Section 2 belief. HB 1523 § 3(5).
Section 3 also protects any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms. HB 1523 § 3(6). The state cannot take adverse employment action against a state employee for Section 2-related speech as long as his "speech or expressive conduct is consistent with the time, place, manner and frequency of any other expression of a religious, political, or moral belief or conviction allowed...." HB 1523 § 3(7). Finally, county clerks and state judges cannot be compelled to license or celebrate marriages that are inconsistent with a sincerely held Section 2 belief, provided that the official gives prior notice and "any legally valid marriage is not impeded or delayed as a result of any recusal." HB 1523 § 3(8).
The plaintiffs are residents of Mississippi and two organizations who do not share the Section 2 beliefs. The district court discussed the individual plaintiffs in three categories: (1) religious leaders who do not agree with the Section 2 beliefs, (2) gay and transgender persons who may be negatively affected by HB 1523, and (3) other persons associated with the Section 3 circumstances who do not share the Section 2 beliefs. The organizational plaintiffs are Joshua Generation Metropolitan Community Church, a religious organization that objects to the Section 2 beliefs, and the Campaign for Southern Equality ("CSE"), whose brief describes it as "a non-profit organization that works across the South to promote the full humanity and equality of lesbian, gay, bisexual, and transgender people in American life" (internal quotation marks omitted).
The plaintiffs filed two suits, later consolidated, against state officials who would have a role in the implementation of HB
The district court issued a preliminary injunction against the implementation of HB 1523. The state defendants appeal.
Article III limits federal courts to deciding only actual "Cases" or "Controversies." U.S. CONST. art. III, § 2. "As an incident to the elaboration of" the case-or-controversy requirement, "[we have] always required that a litigant have `standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The Judicial Branch may not "accept for adjudication claims of constitutional violation... where the claimant has not suffered cognizable injury." Id. at 474, 102 S.Ct. 752.
"[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "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) actual or imminent, not conjectural or hypothetical[.]" Id. (internal quotation marks and citations omitted). "Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Id. (internal quotation marks and citations omitted). "Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 561, 112 S.Ct. 2130 (internal quotation marks and citation omitted).
Plaintiffs always have the burden to establish standing. Id. "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported ... with the manner and degree of evidence required at the successive stages of litigation." Id. Because a preliminary injunction "may only be awarded upon a clear showing that the plaintiff is entitled to such relief," the plaintiffs must make a "clear showing" that they have standing to maintain the preliminary injunction.
The Establishment Clause is no exception to the requirement of standing.
"[T]he concept of injury for standing purposes is particularly elusive in Establishment Clause cases," but we are not without guidance. Id. (quoting Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987)). In cases involving religious displays and exercises, we have required an encounter with the offending item or action to confer standing. See id.; Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 494, 497 (5th Cir. 2007) (en banc) (addressing religious invocations). But these religious display and exercise cases represent the outer limits of where we can find these otherwise elusive Establishment Clause injuries.
The plaintiffs analogize their purported stigmatic injury to the injuries in the religious-display and religious-exercise cases. Here, however, there is not a similar item or event to "encounter." That does not excuse the plaintiffs from showing an injury in fact that is both "concrete and particularized."
A plaintiff has standing to challenge a religious display where his stigmatic injury results from a "personal[] confront[ation]" with the display. See Murray, 947 F.2d at 150-51. For comparison, the caselaw offers some examples of such a confrontation. There is standing where a plaintiff personally encounters a religious symbol on his public utility bill. Id. at 150. Personally encountering a religious message on the currency a plaintiff regularly handles is also sufficient.
The plaintiffs maintain that the stigmatic injury caused by Section 2 is analogous to the injury-in-fact in the religious-display cases. But they make no clear showing of a personal confrontation with Section 2: The beliefs listed in that section exist only in the statute itself.
Just as an individual cannot "personally confront" a warehoused monument, he cannot confront statutory text. See Staley, 485 F.3d at 309. Allowing standing on that basis would be indistinguishable from allowing standing based on a "generalized interest of all citizens in" the government's complying with the Establishment Clause without an injury-in-fact. See Valley Forge, 454 U.S. at 483, 102 S.Ct. 752. That, we know, "cannot alone satisfy the requirements of Art. III without draining those requirements of meaning." Id. The religious-display cases do not provide a basis for standing to challenge the endorsement of beliefs that exist only in the text of a statute.
For standing, the religious-exercise cases require the same type of personal confrontation. "Standing to challenge invocations as violating the Establishment Clause" cannot be based "solely on injury arising from mere abstract knowledge that invocations were said." Tangipahoa Par., 494 F.3d at 497. There must be "proof in the record that [the plaintiffs] were exposed to, and may thus claim to have been injured by, invocations given at" the relevant event. Id.
At oral argument, the plaintiffs asserted that Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), a religious-exercise case, was the strongest authority supporting their claim that a stigmatic injury is sufficient for Establishment Clause standing.
Alternatively, the plaintiffs could establish injury-in-fact by clearly showing
In Littlefield, the plaintiffs challenged a public school district's uniform policy on, inter alia, Establishment Clause grounds. They contended that the policy's opt-out for those with religious objections to the dress code impermissibly "favor[ed] certain organized religions...." Littlefield, 268 F.3d at 294 n.31. Their "direct exposure to the policy satisfie[d] the `intangible injury' requirement to bring an Establishment Clause challenge." Id. Unlike the instant plaintiffs, the Littlefield plaintiffs were required to conform to the dress code unless they fit the criteria of the opt-out. But HB 1523 does nothing to compel the behavior of these plaintiffs; it only restricts the actions of state government officials.
The decisions in Awad v. Ziriax, 670 F.3d 1111, 1120-24 (10th Cir. 2012), and International Refugee Assistance Project v. Trump, 857 F.3d 554, 583 (4th Cir. 2017), are similarly unavailing. The plaintiff in Awad had standing to challenge an amendment to the Oklahoma Constitution that forbade state courts from considering Sharia law. Awad, 670 F.3d at 1123-24. But he had alleged that the amendment would prevent the Oklahoma courts from probating his will. Id. at 1119. The plaintiff in International Refugee alleged that his wife, who had an approved visa application, was barred by an Executive Order from entering the United States, thus "prolong[ing] their separation." Int'l Refugee, 857 F.3d at 583. Those are the sort of concrete injuries-in-fact that the plaintiffs have not alleged in this case.
It is true that HB 1523 protects Section 2 beliefs by restricting the ability of state officials to take action against those who act in a Section 3 circumstance in accordance with those beliefs. But there is no evidence in the record of an injury-in-fact under this theory. The plaintiffs' affidavits only allege offense at the message Section 2 sends, and they confirmed at oral argument that they are relying on that purported stigmatic injury for standing. Because they have claimed no Establishment Clause injury from Section 3, we do not decide whether there could be standing on that basis. The plaintiffs have not clearly shown injury-in-fact.
The CSE plaintiffs also claim to have taxpayer standing under Flast. "[T]o establish taxpayer standing to challenge the constitutionality of a state statute on the basis of the Establishment Clause, a party must show that `tax revenues are expended on the disputed practice.'"
HB 1523 does not fall within Flast's "`narrow exception' to `the general rule against taxpayer standing.'"
The Barber plaintiffs claim standing under the Equal Protection Clause. The three elements of Article III standing are the same under any clause of the Constitution, but the analysis "often turns on the nature and source of the claim asserted." Moore v. Bryant, 853 F.3d 245, 250 (5th Cir. 2017). The "Equal Protection and Establishment Clause cases call for different injury-in-fact analyses" because "the injuries protected against under the Clauses are different." Id. "[E]xposure to a discriminatory message, without a corresponding denial of equal treatment, is insufficient to plead injury in an equal protection case." Id.
In Moore, we rejected a claim that the inclusion of the Confederate battle flag on the Mississippi state flag conferred standing under the Equal Protection Clause, reasoning that the plaintiff had not alleged any unequal treatment. Id. at 248. "[W]hen plaintiffs ground their equal protection injuries in stigmatic harm, they only have standing if they also allege discriminatory treatment." Id. at 251 (citing Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). This allegation is required regardless of how "personally and deeply [the plaintiffs]
Future injuries can provide the basis for standing, but they "must be certainly impending to constitute injury in fact," and "`[a]llegations of possible future injury' are not sufficient." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (quoting another source). An injury that is based on a "speculative chain of possibilities" does not confer Article III standing. Id. at 1150; see also Allen, 468 U.S. at 756-59, 104 S.Ct. 3315. Such allegations also must be contained in the record. See, e.g., Tangipahoa Par., 494 F.3d at 499.
The Barber plaintiffs claim that their stigmatic injury arises from the statute's "bestowing legal privileges and immunities on those who would discriminate against members of the targeted groups...." But their affidavits only claim offense at the "clear message" of disapproval that is being sent by the state. In Moore, 853 F.3d at 251, this court has already foreclosed that argument for Equal Protection Clause standing. The affidavits contain no statement that any of the plaintiffs plans to engage in a course of conduct in Mississippi that is identified in Section 3.
Plaintiff Rennick Taylor comes the closest by stating his intention to marry, but that alone is insufficient. He does not allege that he was seeking wedding-related services from a business that would deny him or that he was seeking a marriage license or solemnization from a clerk or judge who would refuse to be involved in such a ceremony, or even that he intended to get married in Mississippi. Without more, we are left to speculate as to the injuries he and the other plaintiffs might suffer. That we cannot do. See Clapper, 133 S.Ct. at 1147. On this record, the plaintiffs are in no better position to claim Equal Protection standing than was the plaintiff in Moore.
The Barber plaintiffs assert that some of the individual plaintiffs have Equal Protection standing because they live in a jurisdiction, or work for a state university, that has an anti-discrimination policy that is preempted by HB 1523 to the extent the relevant action is covered by Sections 2 and 3. The cities of Jackson, Hattiesburg, and Oxford and the University of Southern Mississippi have such policies.
The Barber challengers analogize the partial preemption of the local anti-discrimination policies to the Colorado constitutional amendment struck down on equalprotection grounds in Romer v. Evans, 517 U.S. 620, 623-24, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). That amendment "prohibit[ed] all legislative, executive, or judicial action at any level of state or local government designed to protect" individuals on the basis of sexual orientation. Id. at 624, 116 S.Ct. 1620. The Court held this violated the Equal Protection Clause because "[i]t identifies persons by a single trait and then denies them protection across the board." Id. at 633, 116 S.Ct. 1620. HB 1523 is similar to the Colorado amendment in that it restricts the availability of anti-discrimination remedies, but
The Court did not address standing in Evans, and we are not bound to find standing in a similar circumstance in the absence of such a holding. See Tangipahoa Par., 494 F.3d at 498. Even assuming there was standing in Evans, its reasoning does not extend to HB 1523, because its limited scope does not provide the same certainty that any member of an affected group will suffer an injury. HB 1523 preempts the local anti-discrimination policies only in the circumstances enumerated in Section 3. At a minimum, the challengers would have to allege plans to engage in Section 3-related conduct in Mississippi for which they would be subject to a denial of service and would be stripped of a preexisting remedy for that denial.
"The exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, is ... restricted to litigants who can show `injury in fact' resulting from the action which they seek to have the court adjudicate." Valley Forge, 454 U.S. at 473, 102 S.Ct. 752. Under this current record, the plaintiffs have not shown an injury-in-fact caused by HB 1523 that would empower the district court or this court to rule on its constitutionality. We do not foreclose the possibility that a future plaintiff may be able to show clear injury-in-fact that satisfies the "irreducible constitutional minimum of standing," Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130, but the federal courts must withhold judgment unless and until that plaintiff comes forward.
The preliminary injunction is REVERSED, and a judgment of dismissal for want of jurisdiction is RENDERED.