Society of Separationists, Inc. v. Herman ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 90-8660
SOCIETY OF SEPARATIONISTS, INC.,
Plaintiffs-Appellants,
versus
GUY HERMAN, Judge of the Travis
County Court at Law, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(April 17, 1992)
Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE,
E. GARZA, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Robin Murray-O'Hair and the Society of Separationists
alleged that a state judge excluded O'Hair from a venire and held
her in contempt because she refused on religious grounds either
to swear or to affirm to answer voir dire questions truthfully.
They sought damages as well as declaratory and injunctive relief
for violating their rights under the Free Exercise Clause of the
First Amendment. The district court granted defendants' motion
for summary judgment, and a divided panel of this court agreed
that immunity barred an award of damages. The panel granted a
declaratory judgment, however, which dictated how state judges
should handle a prospective juror's refusal to swear or affirm in
the future. We granted rehearing en banc and, without reaching
the underlying merits, conclude that plaintiffs lack standing to
seek a prospective remedy.
I.
O'Hair is an atheist and a member of the Society of
Separationists, a national atheist organization dedicated to the
separation of church and state. In December of 1987, she was
summoned and appeared for jury duty in Travis County, Texas. A
deputy court clerk told the prospective jurors to rise and take
the oath which Texas requires before voir dire questioning.
O'Hair objected to taking an oath, explaining that she was an
atheist and could not participate in such religious exercises.
Judge Guy Herman called her to the bench and told her that in
lieu of an oath, she could affirm that she would answer the voir
dire questions truthfully. She stated that she also considered
an affirmation religious and therefore could not affirm. Judge
Herman told her to be seated while the other jurors were sworn
in. He then directed her to his regular courtroom for a full
hearing.
At this hearing, O'Hair was accompanied by her attorney.
The judge said that he respected O'Hair's constitutional right to
freedom of religion and therefore would "offer an affirmation
without any recognition or any statement, any reference to God or
anything of that nature." O'Hair again refused, repeating her
belief that an affirmation was just as religious as an oath. The
2
judge then explained that O'Hair could be held in civil contempt
if she refused and that he was not asking her to take an oath and
swear to God as to her qualifications for jury service. He was
only asking her to affirm that she would give true answers to
whatever questions were propounded to her. O'Hair replied that
an affirmation was in her understanding a religious statement.
No specific form of affirmation was tendered by Judge Herman.
The judge did not ask O'Hair what form of assurance of
truthfulness would meet her objections, and O'Hair offered none.
When she continued to refuse to affirm, Judge Herman found her in
civil contempt. She was jailed and released on bond
approximately six hours later. O'Hair filed a petition in Travis
County district court for a writ of habeas corpus, which was
rendered moot when Judge Herman commuted her contempt sentence to
the six hours served.
O'Hair and the Society of Separationists then sued Judge
Herman, Travis County Judge Bill Aleshire, Travis County, the
"Travis County court system," and the clerk, sheriff, and court
bailiffs of Travis County in federal district court. They asked
the court, inter alia, to "declare the juror oath practice as
engaged in by defendants (a judicial coercion of a religious
exercise) to be unconstitutional under the First Amendment" and
to "grant injunctive relief, both temporary and permanent,
against the continuation of such unconstitutional jury oath
practices by judges and other public officials." They also
3
sought $2 million in actual damages and $3 million in punitive
damages.1
The district court granted defendants' motion for summary
judgment. A divided panel of this court affirmed in part,
reasoning that all of the defendants other than Judge Herman were
either immune, were nonexistent entities, or were otherwise
improperly named. They found Judge Herman immune from suit for
damages, but recognized that judicial immunity did not bar
prospective equitable relief. They concluded that the judge
erred in debating the correctness of O'Hair's religious beliefs
rather than asking her what sort of pledge she could make to
commit herself to tell the truth. Although they found injunctive
relief unnecessary, they issued a declaratory judgment requiring
judges to ask prospective jurors who object to the oath or
affirmation requirement what form of serious public commitment
would accord with their constitutionally protected beliefs.
II.
Article III of the Constitution confines the federal courts
to deciding actual cases and controversies. Allen v. Wright, 104
S. Ct. 3315, 3324 (1984). The rule that litigants must have
standing to invoke the power of the federal courts is perhaps the
most important doctrine stemming from the case or controversy
requirement. Id. Standing defies precise definition, but at
1
Appended to the complaint was the affidavit of one
other atheist who had been excused from jury service by Judge
Herman because he refused to affirm. This individual was not
held in contempt or jailed, however.
4
the least insists that the complained of injury be real and
immediate rather than conjectural, that the injury be traceable
to the defendant's allegedly unlawful conduct, and that relief
from the injury must be likely to follow from a favorable ruling.
Id.
In City of Los Angeles v. Lyons, 103 S. Ct. 1660 (1983), the
Supreme Court made clear that plaintiffs may lack standing to
seek prospective relief even though they have standing to sue for
damages. Lyons was a Los Angeles area resident who was subjected
to a chokehold by city police officers when he was stopped for a
traffic violation. He obtained a preliminary injunction which
prohibited the police department from using the chokehold unless
death or serious bodily injury were threatened. The Court
reversed. It observed that "'past exposure to illegal conduct
does not in itself show a present case or controversy regarding
injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.'" Lyons, 103 S. Ct. at 1665 (quoting
O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). To obtain
equitable relief for past wrongs, a plaintiff must demonstrate
either continuing harm or a real and immediate threat of repeated
injury in the future. Lyons lacked standing to obtain an
injunction because it was entirely speculative that police
officers would stop him again and choke him without provocation.
Similar reasoning has been applied to suits for declaratory
judgments. Ashcroft v. Mattis, 431 U.S. 171 (1977); Golden v.
Zwickler, 394 U.S. 103 (1969).
5
O'Hair lacks standing to obtain prospective relief for the
same reason that Lyons did. She suffers no continuing harm as a
result of Judge Herman's actions. Nor can she show a real and
immediate threat that she will again appear before Judge Herman
as a prospective juror and that Judge Herman will again exclude
her from jury service and jail her for contempt. There are over
half a million residents in Travis county and twenty trial
judges. The chance that O'Hair will be selected again for jury
service and that Judge Herman will be assigned again to oversee
her selection as a juror is slim. Judge Herman's regular duties
do not include such matters. Even if O'Hair were likely to
appear before Judge Herman in the future, there is little
indication that they would interact in the same fashion. It is
clear that the judge was not acting pursuant to any state or
local rule or statute, or even some personal policy, when he
failed to ask O'Hair if there were alternative ways in which she
would be willing to commit herself to tell the truth.2 Nor is
there any reason to believe that O'Hair was acting on religious
scruples in failing to propose such an alternative. Whatever the
abstract merit of O'Hair's complaint, it springs from a lack of
2
The Texas laws requiring oaths or affirmations have
been narrowed by the Texas courts to mean that such oaths are to
be administered in the manner most binding on the individual
conscience. Madeley v. Kern, 488 F.2d 865 (5th Cir. 1984); Craig
v. State, 480 S.W.2d 680 (Tex.Cr. App. 1972). See also Tex.
Const. Art. 1 § 5; Vaughn v. State, 177 S.W.2d 59 (Tex. Crim.
App. 1944). These authorities establish what is really
undisputed between the parties, namely that, apart from
recognition that it is being made subject to the pains and
penalties of perjury, Texas law does not require any particular
form of words for an oath or affirmation.
6
communication between judge and prospective juror that is
inherently contextual and episodic.
This court and others have often held that plaintiffs lack
standing to seek prospective relief against judges because the
likelihood of future encounters is speculative. In Adams v.
McIlhany, 764 F.2d 294, 299 (5th Cir. 1985), a Texas judge held a
woman in contempt and jailed her because she had impugned his
integrity in a letter. We found the judge immune from suit for
damages and held that no case or controversy existed with respect
to declaratory or injunctive relief. We explained that it was
most unlikely that the plaintiff would again come into conflict
with the judge in similar circumstances, and with the same
results. In Schepp v. Fremont County, 900 F.2d 1448, 1452-53
(10th Cir. 1990), the Tenth Circuit confronted a § 1983 suit
against a state judge who revoked plaintiff's probation. The
court held that the judge was immune from suit for damages and
that there was no actual controversy warranting the issuance of
declaratory relief. The probability that plaintiff would ever
again be subject to probation revocation proceedings before this
judge was extremely remote. Similar cases are legion. See e.g.,
Penthouse Int'l, Ltd. v. Meese, 939 F.2d 1011, 1019-20 (D.C. Cir.
1991); Johnson v. Moore, 948 F.2d 517, 521-22 (9th Cir. 1991);
Foster v. Basham, 932 F.2d 732 (8th Cir. 1991); Northern Virginia
Women's Medical Center v. Balch, 617 F.2d 1045, 1048-49 (9th Cir.
1980); see also Brown v. Edwards, 721 F.2d 1442, 1446-47 (5th
Cir. 1984).
7
We must not shrink from our duty to decide a controversy,
but that duty includes faithful obedience to the limits of our
mandate. It is beyond our mandate to issue prospective relief
every time a state actor arguably infringes a constitutional
right. As the Supreme Court said in Lyons, "[i]n exercising
their equitable powers federal courts must recognize 'the special
delicacy of the adjustment to be preserved between federal power
and State administration of its own law." 103 S. Ct. at 1670.
Principles of comity and federalism, in addition to Article III's
jurisdictional bar, mandate that we intervene in the management
of state courts only in the extraordinary case. Id.; Pulliam v.
Allen, 104 S. Ct. 1970, 1979 (1984).
The Court has been reluctant to superintend state judges in
the past. In O'Shea v. Littleton, 414 U.S. 488 (1974), nineteen
black residents of Cairo, Illinois requested an injunction
against a state judge and magistrate who they alleged had
intentionally discriminated against them in setting bond and
sentencing. The Court held that the complaint failed to allege a
case or controversy. It refused to assume that plaintiffs would
violate the law, be charged, tried, and subjected to
discrimination by defendants. It emphasized that the requested
injunction "would constitute a form of monitoring of the
operation of state court functions that is antipathetic to
established principles of comity." 414 U.S. at 501.
Even if we were inclined to fan cold embers for the heat of
a present case or controversy, we would be loath to award
8
declaratory relief on the facts of this case. The Court has
observed on more than one occasion that "[t]he Declaratory
Judgment Act was an authorization, not a command." Public
Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112 (1962);
Eccles v. Peoples Bank, 333 U.S. 426, 431 (1948). "Especially
where governmental action is involved, courts should not
intervene unless the need for equitable relief is clear, not
remote or speculative." Eccles, 333 U.S. at 431. There is
nothing to indicate, and we decline to presume, that Judge Herman
will fail to take cognizance of applicable constitutional
principles in future proceedings. Cf. Hamill v. Wright, 870 F.2d
1032, 1035-36 (5th Cir. 1989).
There is, of course, a practical effect of the panel's
decision. Issuing a declaratory judgment would support an award
of attorney's fees against Judge Herman under § 1988. This is an
"end run" around a defendant's immunity. It is appropriate that
we recognize that reality in determining whether declaratory
relief is warranted. See Green v. Mansour, 106 S. Ct. 423, 428
(1985); Hewitt v. Helms, 107 S. Ct. 2672, 2677 (1987). We should
be hesitant to inhibit state judges from exercising the
discretion that comes with their job by imposing costs solely to
protect against a hypothetical risk of future harm. The
practical concerns, combined with concerns of equity, comity, and
federalism, tip the balance decisively in favor of restraint.
9
In finding that O'Hair lacks standing to obtain prospective
relief, we need not embrace or disturb our decision in O'Hair v.
White, 675 F.2d 680 (5th Cir. 1982) (en banc). There we found
that Madalyn Murray O'Hair had standing to assert that § 4 of the
Texas Constitution excluded her from jury service because of her
lack of religious belief. A state law that on its face arguably
excluded atheists from serving on juries clearly presented an
ongoing threat to Madalyn O'Hair's right not to be excluded from
jury service on religious grounds. Likewise courts have held
that members of racial minorities have standing to obtain
prospective relief from jury selection systems that are
consistently administered so as to exclude them from jury
service. See, e.g., Carter v. Jury Commission of Greene County,
396 U.S. 320 (1970) (blacks had standing to obtain injunction
when statistics clearly indicated that blacks were being
systematically excluded in jury selection process); Ciudadanos
Unidos de San Juan v. Hidalgo County Grand Jury Commissioners,
622 F.2d 807 (5th Cir. 1980) (Mexican-Americans had standing to
obtain prospective relief when jury commissioners systematically
excluded them from grand jury service over a ten year period).
This case is of an entirely different stripe. O'Hair
challenges no Texas law or policy. The state of Texas was not
even named as a defendant. O'Hair makes no showing that Judge
Herman or other judges in Travis County or elsewhere in Texas
deliberately apply the oath or affirmation requirement so as to
exclude atheists. Instead, she objects to the specific events
10
which led to her incarceration by a single judge whom she is
unlikely to encounter again and whose administration of the oath
or affirmation requirement is likely to vary in different
circumstances.
The Supreme Court recently alluded to a similar situation in
Powers v. Ohio, 111 S. Ct. 1364, 1373 (1991). In holding that a
defendant has standing to object to race-based exclusions of
jurors through peremptory challenges, the Court noted the
barriers to such suits by an excluded juror. It explained that
"[u]nlike a challenge to systematic practices of the jury clerk
and commissioners such as we considered in Carter, it would be
difficult for an individual juror to show a likelihood that
discrimination at the voir dire stage will recur." Id. at 1373
(citing Lyons). Absent evidence of some systematic practice, an
excluded juror generally lacks standing to seek prospective
relief, since the juror's repeated contacts are with the system
itself and not any individual players within it.
The presence of the Society of Separationists in this suit
does not alter our conclusion. "An association has standing to
bring suit on behalf of its members when: (a) its members would
otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the
lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432
11
U.S. 333, 343 (1977). The Society fails the first and the third
requirements of the Hunt test.
First, it has failed to show that its members would
otherwise have standing to sue in their own right. Other Society
members are not aggrieved by Judge Herman's exclusion of O'Hair
from a venire. The fact that they may share O'Hair's views of
the oath or affirmation requirement is an insufficient predicate
for the conclusion that they themselves are facing injury. Warth
v. Seldin, 422 U.S. 490, 502 (1975). We cannot exercise
jurisdiction merely because O'Hair and the Society purport to
represent "all individuals eligible for jury service who have
deep-seated convictions against mouthing any religious dogma as a
condition to jury service." See Plaintiff's Complaint at 1. In
Golden v. Zwickler, supra, the Court rejected the argument that
Zwickler had a right to "a general adjudication of
unconstitutionality in his own interest as well as that of others
who would with like anonymity practice free speech in a political
environment." 394 U.S. at 110. Constitutional questions must be
presented in the context of specific live grievances. Id. There
is no live grievance here.
Second, it appears likely that the Society's claim would
require the participation of individual members. It is often
difficult for religious organizations to assert free exercise
claims on behalf of their members because the religious beliefs
and practices of the membership differ. See Harris v. McRae, 100
12
S. Ct. 2671, 2690 (1980).3 Nothing in this record supports the
notion that Society members share O'Hair's views regarding the
religious nature of an affirmance. Speculation that this is so
would be perverse indeed in a free exercise case. This is a fact
intensive case--an episodic exchange between a single venire
person and a state trial judge.
This case differs from those in which the Court has found
that the presence of a class generates a continuing controversy
even though the claim of the named plaintiff has become moot.
See e.g., County of Riverside v. McLaughlin, 111 S. Ct. 1661
(1991); United States Parole Comm'n v. Geraghty, 445 U.S. 388
(1980); Sosna v. Iowa, 419 U.S. 393 (1975). Here, there is
neither a certifiable class of similarly situated individuals nor
a real and immediate threat to such a class. Even if there were,
they would have to demonstrate that a case or controversy existed
at the time the complaint was filed. Riverside, 111 S. Ct. at
1667. O'Hair and the Society filed their complaint two years
after O'Hair's encounter with Judge Herman. Any controversy had
long since subsided.
Neither O'Hair nor the Society has standing to obtain
declaratory relief against Judge Herman. We do not sit to review
the actions of state judges in microscopic detail when there is
3
The Society does not raise a free exercise claim in its
own behalf. When a religious organization itself suffers an
actual or threatened injury as a result of defendant's actions,
it may have standing in its own right. See Serbian Eastern
Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).
13
no continuing harm and no real threat of repeated injury.
Article III "forecloses the conversion of courts of the United
States into judicial versions of college debating forums."
Valley Forge Christian College v. Americans United for Separation
of Church and State, 102 S. Ct. 752, 759 (1982). The panel held
that the claim for money damages was barred by judicial immunity.
We agree.
Affirmed.
1
WIENER, concurring in part and dissenting in part:
Judge Goldberg's dissent eloquently and forcefully raises a number of serious problems
with the doctrine of standing as currently articulated, and, perhaps more significantly, offers
the Supreme Court a principled way to limit the Lyons doctrine so that justice can be done
in cases like O'Hair's. Nonetheless, given that the majority, with one minor exception,
accurately states and applies the standing doctrine now sanctioned by that Court, I find myself
unable to join Judge Goldberg's well-crafted dissent. I therefore concur in the majority's
holding that O'Hair does not have standing to procure declaratory relief against Judge Herman
under Lyons and its extensive progeny because she cannot show a real and immediate threat
that Judge Herman will again exclude her from jury service and jail her for refusing to
"affirm." I also concur in the majority's holding that the Society lacks standing to seek
prospective relief for its members as it cannot meet the first prong of the test for associational
standing set forth in Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343
(1977).
My disagreement with the majority, and thus my reason for writing separately, stems
from the sweeping language, unsupported speculation, and possibly incorrect analysis, that
the majority employs in concluding that the Society fails the third prong of the Hunt test. The
majority seems to offer two reasons why the Society fails this prong. One is that the Society's
members may differ as to the religio us nature of an affirmance. If by this statement the
majority means to say that the Society lacks standing because its members may have
conflicting interests on the outcome of the litigation, then it needlessly decides an issue not
previously addressed by this court, and, in so doing, adopts a rule that has been rejected by
most circuits that have decided that issue. See National Maritime Union v. Commander,
Military Sealift Command, 824 F.2d 1228, 1231-34 (D.C. Cir. 1987) (conflicting interests
among members will not defeat union's standing to urge the interests of some members in
litigation); Contractors Ass'n of Eastern Pennsylvania, Inc. v. Philadelphia, 945 F.2d 1260,
1264-66 (3rd Cir. 1991); and Gillis v. U.S. Dept of Health and Human Services, 759 F.2d
565, 572-73 (6th Cir. 1985). But see Associated General Contractors v. Otter Tail Power
Co., 611 F.2d 684, 691 (8th Cir. 1979). Indeed, in National Maritime Union, the Circuit
Court for the District of Columbia went so far as to assert that the Supreme Court itself, in
UAW v. Brock, 477 U.S. 274 (1986), determined that conflicting member interests will not
preclude associational standing. 824 F.2d at 1232-33.
The majority's second reason for finding that participation of the individual members
of the Society is necessary appears to be that a free exercise claim, by its very nature, requires
particularized information from all members. For this proposition the majority cites Harris
v. McRae, 448 U.S. 297, 320-21 (1980), in which Justice Stewart, writing for the Court,
determined that the Women's Division of the Board of Global Ministries of the United
Methodist Church had no standing under the third Hunt prong to challenge the Hyde
Amendment on behalf of its members because a free exercise claim "ordinarily requires
individual participation." But this court has never interpreted McRae as precluding all free
exercise claims brought by associations on behalf of their members. See, e.g., Church of
Scientology v. Cazares, 638 F.2d 1272, 1276-80 (5th Cir. 1981) (distinguishing McRae and
finding church to have standing under the third Hunt prong to bring a free exercise claim on
behalf of its members). The critical aspect of McRae, moreover, was that the Women's
Division conceded a diversity of views within its membership as to the permissibility,
necessity, and advisability of abortion. In this case, by contrast, the majority presumes a
diversity of views, stating that nothing in the record supports the notion that Society members
share O'Hair's views regarding the religious nature of an affirmance. Does not the fact that
the Society is a co-petitioner in this suit indicate that at least a substantial number of its
members hold the same view of an affirmation as does O'Hair?
Furthermore, numerous cases raising issues other than free exercise make clear that
the third Hunt prong does not mean that an association lacks standing if the participation of
2
any member is necessary. See, e.g., Hospital Council of Western Pennsylvania v. Pittsburgh,
949 F.2d 83, 89 (3rd Cir. 1991) ("[A]ssociation may assert a claim that requires participation
of some members."). The third Hunt prong merely paraphrases the more elaborate discussion
of individual participation in Warth v. Seldin, 422 U.S. 490 (1975). In Warth, the Court
explained that "so long as the nature of the claim and of the relief sought does not make the
individual participation of each injured party indispensable to proper resolution of the cause,
the association may be an appropriate representative of its members, entitled to invoke this
court's jurisdiction." 422 U.S. at 511 (emphasis added). In this case, however, it is neither
immediately apparent why the individual participation of all Society members would be
required for this free exercise claim.
What really disturbs me, no less than it disturbs Judge Goldberg, is that neither O'Hair
nor the Society has any way to pursue redress of the First Amendment violations perpetrated
by the state trial judge in this case. My disturbance is not, I fear, shared by many of my
colleagues, in most of whom I sense a degree of relief that the issue of standing pretermits the
need to address Appellees' free exercise claims.
O'Hair, and likely her famous grandmother as well, must have thought that Santa
Claus, the Easter bunny, and t he tooth fairy had combined their efforts to deliver the jury
summons that launched this case on its odyssey. I have the impression that many of my
colleagues are thankful to the Supreme Court (if not to that same mythical trio) for providing
the insurmountable obstacle of standing that interdicts this court's obligation to deal with the
discomfiting First Amendment claims of these perennial Atheist gadflies. In that regard,
however, we would all do well to heed the sagacious words of Justice Holmes:
If there is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free thought--not free thought
for those who agree with us but freedom for the thought that we hate.
United States v. Schwimmer, 279 U.S. 644, 653 (1929). The practical effect of lack of
standing, pursuant to Lyons, is the denial of redress of the type of unconstitutional abuse
3
visited by Judge Herman directly on O'Hair, and indirectly on the Society, as long as
occurrences of that nature are anecdotal and do not rise to the frequency or consistency
required to confer standing.
True, Judge Herman started down the path of propriety in his handling of O'Hair's free
exercise objection to participating in an act of affirmation. In fact, the judge reached the
penultimate stepping stone on that path before he deviated from the proper to the
impermissible. If, instead of engaging in constitutionally repugnant debate with O'Hair about
the validity of her religious beliefs vis-a-vis an affirmation, Judge Herman had calmly but
firmly insisted that O'Hair propose a truth-ensuring statement that she felt she could make
without violating the tenets of Atheism as she in good faith professes them, the judge would
have maintained an unassailable position, doing all that the courts and the Constitution
require. That is clear from the panel majority opinion and the dissenting opinion, both penned
by Judge Goldberg.
Fortunately, the substance of Judge Goldberg's opinions subsists, shining as a lamp
to brighten the constitutional path for the eyes of all trial judges, both state and federal, within
the boundaries of this circuit whenever one of those j urists happens to encounter a
prospective juror or witness who has either religious or anti-religious concerns about oaths
or affirmations. Albeit today's majority opinion keeps Judge Goldberg's opinions from
constituting precedent, their lesson is "out there" for all judges of good will to heed.
For the foregoing reasons I specially concur in part and dissent in part.
GOLDBERG, Circuit Judge, dissenting:
4
5
This has become a case of the tail wagging the dog.
I cannot join the majority opinion because it wags the tail while emaciating the body
of the panel opinion. For the reasons expressed in the panel opinion, 939 F.2d 1207 (5th Cir.
1991), I adhere to the view that Judge Herman trespassed upon O'Hair's constitutional right
to freedom of religion when he excluded her from jury service and jailed her for refusing to
"affirm" without first proposing that she make a non-religious, conscious-binding declaration
of a commitment to tell the truth. And because there is not only a likelihood of recurrence,
but a statistical certainty that O'Hair and members of the Society of Separationists will again
be summoned for jury duty before Judge Herman, I find no jurisdictional impediment to their
bringing this lawsuit to challenge Judge Herman's practice.
I.
The undercurrent of the standing requirement is the notion that courts should only
adjudicate those cases in which the plaintiffs have a "`personal stake in the outcome in order
to assure that concrete adverseness which sharpens the presentation of issues' necessary for
the proper resolution of constitutional questions." City of Los Angeles v. Lyons, 103 S. Ct.
1660, 1665 (1983) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The plaintiffs in this
"case" have a personal stake in the outcome and the constitutional issues presented are razor
sharp: the plaintiffs are atheists who object to the mingling of religion in governmental
activities. They brought this lawsuit based upon the practice employed by Judge Herman of
the Travis County Court -- on more than one occasion1 -- requiring that prospective jurors
make an "affirmation." Whatever one might think of the constitutionality of Judge Herman's
practice, compare Society of Separationists, 939 F.2d at 1215-17 (majority opinion) with id.
1
See infra note 2.
6
at 1220-24 (Garwood, J., dissenting), no one should doubt that this litigation presents a case
and controversy within the meaning of Article III of the Constitution.
A.
The majority's conclusion that the plaintiffs lack standing rests entirely on its
application of the Supreme Court's decision in Lyons to the facts of this case. Simply put,
Lyons restates the proposition, articulated by the Court in O'Shea v. Littleton, 414 U.S. 488,
495-96 (1974), and Rizzo v. Goode, 423 U.S. 362, 372 (1976), that past exposure to harm
will not, in and of itself, confer standing upon a litigant to obtain equitable relief "[a]bsent a
sufficient likelihood that he will again by wronged in a similar way...." Lyons, 103 S. Ct. at
1670. The majority reasons that, like the plaintiff in Lyons, O'Hair cannot show a real and
immediate threat that she will again be harmed in a similar way. See maj. op. at 6.
Lyons involved a challenge to a chokehold maneuver employed by Los Angeles police
officers. The Supreme Court found no standing to obtain prospective relief because the
plaintiff, although injured by the chokehold in the past, could not establish a threat of a similar
injury in the future. Pivotal to this conclusion was the fact that the plaintiff could not
distinguish himself from any other citizen as being a future victim of the unconstitutional act.
The past harm suffered by the plaintiff in that case had no bearing on the likelihood that he
would again be harmed by the defendant. In other words, the plaintiff in Lyons was no more
likely than the next guy to be injured again.
O'Hair and members of the Society of Separationists do not stand in the shoes of the
next guy. Indeed, they are susceptible to injury precisely because they are not like the average
Joe: they are not willing to conform to the popular view that an affirmation is not a religious
exercise. Thus, they are the plaintiffs to bring this action for prospective relief. True, all
citizens can expect to be summoned to serve their duty as jurors. But only these plaintiffs,
7
by virtue of their distinctive views about religious activities, are threatened by Judge Herman's
practice. They are uniquely vulnerable to future injury. This is not a case in which "the
asserted injury is a generalized grievance shared in substantially equal measure by all or most
citizens." O'Hair v. White, 675 F.2d 680, 687 (5th Cir. 1982) (en banc). Such an injury will
not suffice to confer standing upon a plaintiff. Id. (citing Schlesinger v. Reservists Comm.
to Stop the War, 418 U.S. 208, 220 (1974)). Rather, this is a case in which the threatened
injury will be suffered by a limited, identifiable group of citizens -- atheists and others whose
religious beliefs (or lack of beliefs) cause them to be offended by the demand for an
affirmation. See, e.g., Ferguson v. C.I.R., 921 F.2d 588 (5th Cir. 1991) (prospective oath-
taker refused to "affirm" because she understood two passages from the Bible to prohibit
affirmations).
Although no single plaintiff can predict with certainty when exactly he will be
summoned to serve, we can rest assured that these plaintiffs will be summoned in due time,
particularly under the random jury selection system. This fact assumes special significance
because in Lyons the Court found no standing for the following reason:
[I]t is surely no more than speculation to assert either that Lyons himself will
again be involved in one of those unfortunate instances, or that he will be
arrested in the future and provoke the use of a chokehold by resisting arrest,
attempting to escape, or threatening deadly or serious bodily injury.
Lyons, 103 S. Ct. at 1668. In essence, the plaintiff in Lyons was seeking redress based upon
a "chain of speculative contingencies: that he would be arrested and provoke the officer to
use the chokehold in an unconstitutional manner." Nelsen v. King County, 895 F.2d 1248,
1252 (9th Cir. 1990) (explaining Lyons).
Unlike Lyons, the threat of future of injury in this case does not depend on a "chain
of speculative contingencies," but rather on certain probabilities beyond the plaintiffs' control.
We are dealing here with jury duty, an obligation of citizenship. The plaintiffs can reasonably
8
anticipate similar encounters with Judge Herman in the future when they are summoned to
serve as jurors in Travis County. The record reflects that Judge Herman continues to serve
on the County Court, and accordingly, there is a quantifiable, mathematical certainty that he
will again preside over jury impanelment and encounter O'Hair or some other m ember the
Society of Separationists among the prospective jurors.2 For some, the fact that the
probability is quantifiable, and not "contingency riddled," would independently establish that
the likelihood of recurrence is sufficient for standing purposes. "Our analysis cannot be
reduced to considering probability merely in terms of quantitative percentages." Nelsen, 895
F.2d at 1250. Perhaps we should also "describe 'probability' [of future injury] qualitatively,
as requiring a very significant possibility," id. (quoting Sample v. Johnson, 771 F.2d 1335,
1343 (9th Cir. 1985), cert. denied, 475 U.S. 1019 (1986)), or, as the Supreme Court phrased
it in a post-Lyons decision, as requiring a "credible threat" of future injury. Kolender v.
Lawson, 103 S. Ct. 1855, 1857 n.3 (1983). Under this qualitative analysis, the plaintiffs have
standing because there is a "significant possibility" and "credible threat" that they will be
summoned for jury service.
The fact that Judge Herman alone is accountable for the threat of future injury does
not take t he legs out from under the plaintiffs' position. Although Judge Herman was not
2
The majority's assertion that "Judge Herman's regular
duties do not include such matters" as impaneling juries, maj.
op. at 6, finds no support in the record. Indeed, there is
evidence in the record that not long after he excluded Ms. O'Hair
from jury service, Judge Herman was again called upon to impanel
a jury. Among the prospective jurors, he encountered an individ-
ual who interposed a similar objection to the affirmation pro-
cess. As with O'Hair, Judge Herman excluded that individual from
jury service on that basis. See maj. op. at 4 n.1.
Of course, if there is any question about whether Judge Herman
continues to impanel juries, a remand would be appropriate to
allow the district court to make factual findings, rather than
speculating on appeal as to the likelihood that these plaintiffs
will appear before Judge Herman in the future.
9
"acting pursuant to any state or local rule or statute" when he demanded an affirmation from
O'Hair, see maj. op. at 6, there is evidence in the record that he continues to engage in a
similar practice: While impaneling a jury following the incident with O'Hair, Judge Herman
demanded an "affirmation" from another atheist who was summoned for jury duty and
excluded him from service without first proposing that he make a non-religious, conscience-
binding declaration as an alternative to an affirmation. See supra note 2. Thus, the record
reflects the genesis of a pattern3 or "personal policy"4 of exclusion by Judge Herman based
on the juror's religious beliefs, which cannot be dismissed as merely "contextual" or
"episodic." See maj. op. at 6. We need not wait until Judge Herman excludes or incarcerates
others before we can evaluate the constitutionality of Judge Herman's practice and award the
appropriate declaratory relief.
B.
The majority's reliance on Lyons and its progeny is misguided for yet another reason.
Unlike this case, the plaintiffs' assertion of standing in those cases cited by the majority was
predicated upon the contingency that the plaintiff would commit a crime that would set in
motion a chain of events culminating in the defendant's unconstitutional act. There was
absolutely no measure of certainty that the plaintiffs in those cases would suffer the future
injury and the likelihood that they would turned in large part on events within their own
control.
3
Cf. Ikuno v. Yip, 912 F.2d 306, 309 (9th Cir. 1990) ("two
acts is an accepted minimum" for establishing a "pattern" under
the RICO statute) (citing H.J., Inc. v. Northwestern Bell tel.
Co., 109 S. Ct. 2893, 2899 (1990)).
4
Contra maj. op. at 6 ("It is clear that the judge was not
acting pursuant to any ... personal policy, when he failed to ask
O'Hair if there were alternative ways in which she would be
willing to commit herself to tell the truth.").
10
Our court found no standing in Adams v. McIlhany, 764 F.2d 294, 299 (5th Cir.
1985), cert. denied, 474 U.S. 1101 (1986), because the recurrence depended upon the
plaintiff's son committing a crime, being rearrested, charged, and sentenced before the
defendant judge in order for the judge to hold the plaintiff in contempt for writing a
derogatory letter about the judge. We also found no standing in Brown v. Edwards, 721 F.2d
1442, 1446-47 (5th Cir. 1984), because the plaintiff did not allege or prove that he was "in
any way likely, or more likely than any other Mississippian, to be again subjected to arrest or
charging by any Mississippi constable." Most recently, this circuit found no standing in
Johnson v. Moore, Slip op. 3726, 3729 (5th Cir. Apr. 10, 1992), because "[i]t would require
conjecture or hypothesis to find that Johnson [would] again act in such a way as to be
arrested on a misdemeanor charge" and thus subject himself to the unconstitutional act of the
defendant-judge.
The Tenth Circuit found no standing in Schepp v. Fremont County, 900 F.2d 1448,
1452-53 (10th Cir. 1990), for essentially the same reason: The probability of recurrence was
too remote where it depended on the plaintiff violating probation so as to be subjected to
probation-revocation proceedings. The Eighth and Ninth Circuits found no standing in cases
brought by inmates challenging conditions of confinement in correctional institutions from
which they had been transferred because there was no showing that the plaintiffs were likely
to return to the institutions. Foster v. Basham, 932 F.2d 732, 734 (8th Cir. 1991); Johnson
v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).
In Nelsen, another Ninth Circuit case, the court found no standing, recognizing that
cases like Lyons and O'Shea turned on the fact that the plaintiff had to commit an unlawful
act in order to expose himself to repeated injury. Nelsen, 895 F.2d at 1252. In Nelsen the
plaintiffs challenged the constitutionality of the conditions in a drug rehabilitation center
where they had been confined. Over a dissent, the panel majority concluded that standing was
11
lacking because the plaintiffs "failed to demonstrate any ... systematic pattern or policy that
would suggest that their return to the [drug rehabilitation] [c]enter [was] inevitable." Id. at
1254.5
Even the Supreme Court case underpinning the Lyons decision, O'Shea v. Littleton,
414 U.S. 488 (1974), turned on a "chain of speculative contingencies, particularly a chain that
include[d] the violation of an unchallenged law." Nelsen, 895 F.2d at 1252. The Supreme
Court found no standing because the plaintiffs would have had to violate the law, be charged
and tried before the defendants, in order to be subjected to the unconstitutional conduct.
O'Shea, 414 U.S. at 496; see also Ashcroft v. Mattis, 431 U.S. 171, 172 & n.2 (1977)
(holding that the plaintiff, whose first son was killed by police while attempting to escape
arrest, had no standing to obtain a declaratory judgment on the constitutionality of the state
statute authorizing the use of deadly force in apprehending a fleeing felon where complaint
merely alleged that plaintiff's other son might be arrested and attempt to flee).
While these cases, relied upon by the majority, distill a principle of black letter law for
standing -- that prospective relief is only available if there is a sufficient likelihood of
recurrence -- they do not govern this case. Unlike Lyons, O'Shea, Ashcroft, Adams, Brown,
Johnson (5th Cir.), Schepp, Foster, Johnson (9th Cir.), and Nelsen,6 the plaintiffs in this case
5
The dissenting judge believed that standing did exist
because plaintiffs had tendered unrebutted evidence proving that
was a 35% to 75% probability that the plaintiffs themselves would
return to the facility. The dissent concluded that "appellants
have established there is credible threat they will again suffer
the harm they have alleged." Id. at 1255 (Pregerson, J., dis-
senting).
6
Foster and Johnson (9th Cir.) are different because they
involved inmates transferred to different penal institutions,
thus mooting out any claim for prospective relief. It appears
that there was no threat that they would be transferred back to
the original facility. Perhaps if the plaintiffs committed an
offense some time later, they might serve time in that institu-
12
"do not have to induce a police encounter before the possibility of injury can occur. The
[plaintiffs] are subject to constitutional injury based on completely innocent behavior...."
LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985) (emphasis added) (holding that the
plaintiffs had standing to obtain injunction against the INS for its policy of conducting random
searches and seizures of residents of migrant farm dwellings), amended, 796 F.2d 309 (9th
Cir. 1986).7 Rather, the more apposite precedents, are the ones downplayed by the majority:
O'Hair v. White, 675 F.2d 680 (5th Cir. 1982) (en banc) and Ciudadanos Unidos de San Juan
v. Hidalgo County Grand Jury Comm'r, 622 F.2d 807 (5th Cir. 1980), cert. denied, 450 U.S.
964 (1981).
In O'Hair v. White this court concluded that the plaintiffs, Madalyn Murray-O'Hair
and the Society of Separationists, had standing to challenge a Texas law that infringed upon
their right not to be excluded from jury service on religious grounds. The constitutional
challenge was virtually identical to the one pressed here. The plaintiffs alleged that law
required that they acknowledge the existence of a supreme being. Over two dissenting
opinions, a majority of the en banc court found that the plaintiffs had standing to bring the
lawsuit even though the plaintiffs arguably could not demonstrate a high probability that they
would be summoned for, and excluded from, jury duty. The majority wrote:
O'Hair's final asserted basis for standing is that section 4 [of the Texas
Constitution] caused her to be excluded from jury duty because she refused
to swear to her belief in a supreme being. ... O'Hair is ... aggrieved by being
excluded from jury duty because of her lack of religious belief.... She clearly
has standing to challenge that system.
tion. Such speculation, of course, cannot establish a "credible
threat" of future injury.
7
Moreover, this case is different because, as one legal
scholar has observed, "Lyons must be understood in large part as
a decision of substantive law. In particular, the case seems to
represent a further extension and reification of the Court's
general, sweeping respect and deference for men in uniform that
has overridden a wide range of substantive law claims." Laurence
H. Tribe, American Constitutional Law 122 (2d ed. 1988).
13
675 F.2d at 691. Contra id. at 702 (Tjoflat, J., concurring in part and dissenting in part) ("I
would hold that O'Hair lacks standing to assert [her] claim [that she is excluded from jury
service based on her religious beliefs] because she alleges not that she has been excluded from
jury service but only that she would be"); id. at 703 (Reavley, J., dissenting) (embracing Judge
Tjoflat's dissent).
In Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Commissioners this
court held that Mexican-Americans had standing to obtain prospective relief from systematic
exclusion from grand jury service. Concluding that "O'Shea [did] not control the disposition
of these cases," we explained that:
Under these allegations, the threat of future injury is palpable. Unlike the
contingency riddled complaint in O'Shea, the complainants here claim an
injury that turns on a single contingency that the jury commissioners will act
exactly as they have for the past ten years ... Unlike O'Shea ... [plaintiffs']
injury here depends solely upon the action of the [defendants].
622 F.2d at 820-21; see also Carter v. Jury Commission of Greene County, 90 S. Ct. 518, 523
(1970) ("Surely there is no jurisdictional or procedural bar to an attack upon systematic jury
discrimination by way of a civil suit such as the one brought here.").
Both O'Hair v. White and Ciudadanos compel a conclusion that the plaintiffs in this
case have standing.8 O'Hair and members of the Society of Separationists are just as
threatened by exclusion from jury service as the plaintiffs in those cases. The majority's effort
to distinguish those cases as involving either a "state law that on its face arguably excluded
atheists from serving on juries" or "jury selection systems that [were] consistently
8
Lyons represented an application, not an extension, of
O'Shea. Lyons, 103 S. Ct. at 1667 ("No extension of O'Shea ... is
necessary to hold that respondent Lyons has failed to demonstrate
a case or controversy with the City that would justify the
equitable relief sought."). Thus, Ciudadanos and O'Hair v.
White, both of which found that the plaintiffs had standing, were
not undercut by the Supreme Court's subsequent decision in Lyons.
14
administered so as to exclude [minorities] from jury service" is unpersuasive. See maj. op.
at 10. Standing to obtain equitable relief in any case depends on the threat of future injury --
in this case, as in O'Hair v. White, the threat that the plaintiffs will be excluded from jury
service because of their views on religion. In O'Hair v. White and Ciudadanos this court was
necessarily satisfied that this threat of future was sufficient to establish the plaintiffs' standing
to seek prospective relief. Surely the threat of future injury to any one plaintiff in O'Hair v.
White and Ciudadanos was no more "credible," "distinct," "palpable," "real," or "immediate"
than the threat of future injury plaguing the plaintiffs in this case. O'Hair and other members
of the Society of Separationists have standing to obtain equitable relief.9
II.
From this conclusion, it follows that the Society of Separationists itself has the
requisite "associational standing" to bring this lawsuit. See maj. op. at 11 (applying the three
prong test articulated in Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333,
343 (1977)). I need not comment at length to make this point. I have explained why I believe
that O'Hair and other members of the association have demonstrated a sufficient threat of
future injury to establish that they have standing in their own right to challenge Judge
Herman's practice.10 That satisfies the first prong of the Hunt test. The majority does not
9
The majority's citation (maj. op. at 11) to Powers v.
Ohio, 111 S. Ct. 1364, 1373 (1991), is misplaced. The Powers
Court merely observed that a juror could not "easily obtain
declaratory or injunctive relief when discrimination occurs
through an individual prosecutor's exercise of peremptory chal-
lenges." Such would be the case because the use of a peremptory
strike depends so much on the subject matter of the underlying
prosecution. The threat of future injury would be particularly
remote and turn on a "chain of speculative contingencies."
10
Because the Society represents the interests of simi-
larly situated plaintiffs, it would be fitting, in my view, to
aggregate the probabilities of future injury to determine whether
the Society has standing to bring suit on behalf of its members.
Contrast Asarco Inc. v. Kadish, 109 S. Ct. 2037, 2044 (1989)
("[T]he doctrine of standing to sue is not a kind of gaming
15
dispute that the "interests [that the Society of Separationists] seeks to protect are germane
to the organization's purpose." Hunt, 432 U.S. at 343. So much for the second prong.
As for the third prong, the majority suggests that "the Society's claim would require
the participation of individual members ... [because] Society members' views [may] differ as
to the religious nature of an affirmance." Maj op. at 12. Even if that bit of speculation were
accurate -- that members of the Society take differing positions on affirmations --
associational standing does not require harmony of member interests. See Contractors Ass'n.
v. Philadelphia, 945 F.2d 1260, 1266 (3d Cir. 1991) (finding litigation not contrary to
interests of a majority of members); National Maritime Union v. Commander, Military Sealift
Command, 824 F.2d 1228, 1231-34 (D.C. Cir. 1987); Gillis v. U.S. Dept. of Health & Human
Servs., 759 F.2d 565, 572-73 (6th Cir. 1985). Contra Associated Gen. Contractors v. Otter
Tail Power Co., 611 F.2d 684, 691 (8th Cir. 1979) (rejecting associational standing when
factual or potential conflicts exist among members). See generally UAW v. Brock, 106 S. Ct.
2523, 2532-33 (1986) (declining to "reject the principles of associational standing,"
notwithstanding argument that associations "will not always be able to represent adequately
the interests of their injured members.").
device that can be surmounted merely by aggregating the allega-
tions of different kinds of plaintiffs, each of whom may have
claims that are remote or speculative taken by themselves."). By
this I mean that under the first prong of Hunt -- which asks
whether the association's "members would otherwise have standing
to sue in their own right," 432 U.S. at 343 -- the likelihood of
future injury should be measured by the probability that any one
member of the associational plaintiff would be injured, rather
than the probability that a particular member of the association-
al plaintiff might be injured. I believe that aggregating the
probabilities is appropriate in a case like this one, which does
not involve a generalized grievance and implicates both Lyons and
Hunt, because it more accurately reflects the reality, immediacy,
and palpability of the threatened injury to the associational
plaintiff and its membership.
16
It is also quite plain that in this challenge to Judge Herman's practice of demanding
an affirmation as a condition of jury service, the individual plaintiffs are not "indispensable to
proper resolution of the cause...." Warth v. Seldin, 422 U.S. 490, 511 (1975). The plaintiffs
merely seek a declaration that Judge Herman may not exclude or incarcerate a prospective
juror for refusing to affirm until he has proposed that the prospective juror make a
nonreligious, conscience-binding declaration of a commitment to tell the truth. "[T]he claim
asserted and the relief requested affect the membership as a whole" and therefore, "the claim
does not require individualized participation." Church of Scientology v. Cazares, 638 F.2d
1272, 1276-80 (5th Cir. 1981) (association had standing to bring free exercise challenge on
behalf of its members)
At least twice since Hunt, this court has held that the Society had standing to raise
constitutional claims on behalf of its members. See O'Hair v. White, 675 F.2d at 691-92
(holding that the Society satisfied the requirements of Hunt and thus had standing to litigate
alleged violations of its members voting rights); Murray v. City of Austin, 947 F.2d 147, 152
(5th Cir. 1991) ("because Murray has standing, the Society, of which he is a member, also has
standing" t o litigate the constitutionality of the inclusion of a religious symbol in a city
insignia). As in those two cases, I would find that the three-prong Hunt test poses no
obstacle to the Society's associational standing in this case.
III.
This is a case about the First Amendment, the cornerstone of all other rights and
freedoms which we, as citizens of this great Nation, have come to enjoy, and perhaps even
take for granted. It is very disturbing to think that we would contort the doctrine of standing
and employ it as an evasive device for dodging sensitive constitutional questions, especially
when First Amendment rights are at stake. Accord maj. op. at 7 ("We must not shrink from
17
our duty to decide a controversy...."). Not surprisingly, courts have consistently applied the
standing doctrine liberally, not grudgingly, in the context of First Amendment litigation.11
Standing is not a static concept. Rather, it is an evolutionary doctrine that continues
to mature. Although the doctrine appropriately restricts the flood of noxious litigation, we
must insure that it does not narrow the avenue for raising concrete constitutional claims. I
cannot believe that the Framers would say that a federal court lacks jurisdiction to hear a case
brought by a citizen who has been jailed for her refusal to participate in a religious exercise
in connection with the performance of a civic duty when that citizen can expect to be
summoned again. This court has historically opened its ears and hearts to the wailing cries
of those deprived of treasured rights. I would hold that these plaintiffs have standing to raise
their claims, and in so doing, preserve the reputation of this court as an open, not a closed,
circuit.
I respectfully, but fervently, dissent.
11
Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373, 380
n.5 (1985) (citing "the numerous cases in which [the Supreme
Court has] adjudicated Establishment Clause challenges by state
taxpayers to programs for aiding nonpublic schools"); Flast v.
Cohen, 392 U.S. 83 (1968) (Establishment Clause challenge to
federal aid-to-education program based upon federal taxpayer
standing); Everson v. Board of Education, 330 U.S. 1 (1947)
(local taxpayer standing to raise Establishment Clause challenge
to school district expenditures); Murray v. City of Austin, 947
F.2d 147, 152 (5th Cir. 1991) (concluding that the Society of
Separationists and its member had standing to raise Establishment
Clause challenge to inclusion of religious symbol in city insig-
nia); see generally Tribe, supra note 3, at 116 ("The Court has
been particularly generous in entertaining challenges under the
establishment clause of the first amendment to state or local aid
to church-related schools.").