Ansley v. Warren

• Decision Date: 28 June 2017
• Docket Number: No. 16-2082,16-2082
• Parties: Kay Diane ANSLEY; Catherine McGaughey; Carol Ann Person; Thomas Roger Person; Kelley Penn; Sonja Goodman, Plaintiffs–Appellants, v. Marion WARREN, in his Official Capacity as Director of the North Carolina Administrative Office of the Courts, Defendant–Appellee. North Carolina Values Coalition; Thomas More Law Center; Brenda Bumgarner; Christian Legal Society; National Association of Evangelicals, Amici Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

861 F.3d 512

Kay Diane ANSLEY; Catherine McGaughey; Carol Ann Person; Thomas Roger Person; Kelley Penn; Sonja Goodman, Plaintiffs–Appellants,

v.Marion WARREN, in his Official Capacity as Director of the North Carolina Administrative Office of the Courts, Defendant–Appellee.

North Carolina Values Coalition; Thomas More Law Center; Brenda Bumgarner; Christian Legal Society; National Association of Evangelicals, Amici Supporting Appellee.

No. 16-2082

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2017

Decided: June 28, 2017

ARGUED: S. Luke Largess, TIN FULTON WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellants. Olga Eugenia Vysotskaya de Brito, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Jacob H. Sussman, John W. Gresham, Cheyenne N. Chambers, TIN FULTON WALKER & OWEN, PLLC, Charlotte, North Carolina; Meghann K. Burke, BRAZIL & BURKE, P.A., Asheville, North Carolina; Crystal M. Richardson, LAW OFFICE OF CRYSTAL M. RICHARDSON, Charlotte, North Carolina, for Appellants. Josh Stein, North Carolina Attorney General, Amar Majmundar, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. Deborah J. Dewart, Swansboro, North Carolina, for Amicus North Carolina Values Coalition. Richard Thompson, Kate Oliveri, THOMAS MORE LAW CENTER, Ann Arbor, Michigan; B. Tyler Brooks, MILLBERG GORDON STEWART PLLC, Raleigh, North Carolina, for Amicus Thomas More Law Center. Mary E. McAlister, Lynchburg, Virginia, Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, LIBERTY COUNSEL, Orlando, Florida, for Amicus Brenda Bumgarner. Kimberlee Wood Colby, CENTER FOR LAW & RELIGIOUS FREEDOM, Springfield, Virginia, for Amici Christian Legal Society and National Association of Evangelicals.

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Keenan and Judge Thacker joined.

WILKINSON, Circuit Judge:

Three couples assert that North Carolina's Senate Bill 2 ("S.B. 2"), which allows state magistrates to recuse themselves from performing marriages on account of a religious objection, violates the Establishment Clause. But the plaintiffs, all of whom are either married or engaged, do not claim that the state has impeded their right to get married. Instead, they challenge the religious exemption as taxpayers who object to the alleged spending of public funds in aid of religion. In light of the Supreme Court's admonitions on the narrow scope of taxpayer standing, we affirm the judgment of the district court that plaintiffs lack standing to press this claim.

I.

At the heart of this lawsuit is a debate over the extent to which religious accommodations can coexist with the constitutional right to same-sex marriage. In 2012, the citizens of North Carolina voted to amend their state constitution to limit the definition of marriage to heterosexual couples. Two years later, a federal district court ruled that the restriction against same-sex marriage violated the Fourteenth Amendment. See Gen. Synod of the United Church of Christ v. Resinger , 12 F.Supp.3d 790 (W.D.N.C. 2014). The director of the North Carolina Administrative Office of the Courts ("NCAOC") instructed state magistrates to begin conducting marriage ceremonies for all couples presenting a valid marriage license. Under North Carolina law at the time, any magistrate who refused "to discharge any of the duties of his office" could be removed from office and face misdemeanor charges. See N.C. Gen. Stat. § 14-230.

The North Carolina legislature quickly responded. On January 28, 2015, the President Pro Tempore of the Senate filed S.B. 2. Section 1 of the bill granted magistrates and registers of deeds the right to declare "any sincerely held religious objection" to performing certain kinds of marriages, after which they would be recused from participating in any marriages for a six-month period. If all of the officials in a county recused themselves, the NCAOC would arrange to bring a willing magistrate from another county to conduct marriages. Sections 2 and 3 revised the General Statutes to remove any offenses related to an official's recusal from a marriage ceremony. Section 4 recast the magistrates' individual duty to perform marriages as a collective responsibility and set a minimum requirement that magistrates remain available to conduct marriages at least ten hours per week. Finally, Section 5 provided that any magistrate who resigned and was subsequently rehired within ninety days of the effective date of S.B. 2 would receive full retirement service credit for the gap in service.

The House of Representatives approved the bill on May 28, 2015. Governor McCrory vetoed it the same day. Undaunted, the legislature overrode the Governor's veto on June 11, 2015 and S.B. 2 became law.

Plaintiffs brought this § 1983 action against the current director of the NCAOC, asserting that S.B. 2 violates the Establishment Clause by authorizing the spending of public funds in aid of religion. In particular, plaintiffs challenge two sets of expenditures. First, they allege that since the passage of S.B. 2, all of the magistrates in McDowell County have recused themselves from performing marriages. In the course of carrying out these religious exemptions, Section 1 directs the NCAOC to expend public funds transporting magistrates from Rutherford County to perform marriages in McDowell County and transporting magistrates from McDowell County to perform other judicial duties in Rutherford County. Second, Section 5 directs the NCAOC to make a one-time payment into the state retirement system on behalf of each reappointed magistrate.

The district court held that plaintiffs lacked taxpayer standing and dismissed the claim. Because the expenditures contemplated by S.B. 2 to administer the recusals were merely incidental, the court concluded that their suit did not fall within the narrow confines of Flast v. Cohen , 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). This appeal followed.

II.

Article III of the Constitution limits the federal judicial power to the resolution of "Cases" or "Controversies." An essential element of this bedrock principle is that any party who invokes the court's authority must establish standing. Arizona Christian Sch. Tuition Org. v. Winn , 563 U.S. 125, 133, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011). To demonstrate standing, a plaintiff must prove that he has suffered a "concrete and particularized" injury that is "fairly traceable to the challenged conduct of the defendant" and is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In other words, a party's "keen interest in the issue" is insufficient by itself to meet Article III's requirements. Hollingsworth v. Perry , ––– U.S. ––––, 133 S.Ct. 2652, 2659, 186 L.Ed.2d 768 (2013). "[C]oncerned bystanders" may not marshal the judiciary as a "vehicle for the vindication of value interests"—the exercise of judicial power is restricted to litigants who seek to rectify a personal and discrete harm. Id. at 2663 (quoting Diamond v. Charles , 476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) ).

The concept of standing finds its roots in the "idea of separation of powers." Allen v. Wright , 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). By confirming that the legal questions presented to the court are resolved "in a concrete factual context" rather than "in the rarefied atmosphere of a debating society," Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc. , 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the doctrine ensures that "we act as judges , and do not engage in policymaking properly left to elected representatives," Hollingsworth , 133 S.Ct. at 2659. After all, the federal courts "are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution." Hein v. Freedom from Religion Foundation, Inc. , 551 U.S. 587, 598, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (plurality opinion). "Vindicating the public interest (including the public interest in Government observance of the Constitution and laws)" is the function of the state and federal political branches. Lujan , 504 U.S. at 576, 112 S.Ct. 2130 ; see also United States v. Richardson , 418 U.S. 166, 188, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (Powell, J., concurring) ("The public confidence essential to the [judiciary] and the vitality critical to the [representative branches] may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches.").

These basic axioms outlining the proper role of the judiciary guide our approach to plaintiffs' claim.

III.

Although the concept of injury is often "elusive" in Establishment Clause claims, see Suhre v. Haywood County , 131 F.3d 1083, 1085 (4th Cir. 1997) (quoting Murray v. City of Austin , 947 F.2d 147, 151 (5th Cir. 1991) ), in the classic case a challenger demonstrates standing by alleging a distinct personal harm. One line of cases grants standing based on the particularized injury that is caused by "unwelcome" contact with state-sponsored "religious exercises," such as mandatory prayer in a public school classroom. See Valley Forge , 454 U.S. at 486 n.22, 102 S.Ct. 752 (citing Sch. Dist. of Abington Township v. Schempp , 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) ). Another set of decisions recognizes standing if a law or practice "disadvantages a particular religious group or particular nonreligious group," Winn , 563 U.S. at 145, 131 S.Ct. 1436, such as when the state imposes more onerous regulatory requirements on certain religious faiths, see Larson v. Valente , 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982).

These sorts of familiar Establishment Clause injuries are not...