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

                           FOR THE FIFTH CIRCUIT
                                No. 90-8660
    GUY HERMAN, Judge of the Travis
    County Court at Law, ET AL.,
              Appeal from the United States District Court
                   for the Western District of Texas
                              (April 17, 1992)
    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.
          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
          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
    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
    sought $2 million in actual damages and $3 million in punitive
         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.
         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
              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.
    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.
          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.
    394 U.S. 103
         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
              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.
    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.
    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).
         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.
    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
    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.
         In finding that O'Hair lacks standing to obtain prospective
    relief, we need not embrace or disturb our decision in O'Hair v.
    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
    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
         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
              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
    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.
    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
              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
    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
    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
    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:
            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.
            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.
            See infra note 2.
    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.
            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,
    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
            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
      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.
    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
            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.
      "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.
              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
            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.
    109 S. Ct. 2893
    , 2899 (1990)).
           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.").
           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
           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
      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
               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
            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-
            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-
     "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
     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
             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.
           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).
      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
            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.
      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
                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
            The majority's citation (maj. op. at 11) to Powers v.
    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."
            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
      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
    824 F.2d 1228
    , 1231-34 (D.C. Cir. 1987); Gillis v. U.S. Dept. of Health & Human
    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.
            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.
            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
      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,
                 I respectfully, but fervently, dissent.
           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.
    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
    (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.").