Doe v. Pryor, 02-14899 D. C. Docket No. 02-00546-CV-D-N.

• Decision Date: 11 September 2003
• Docket Number: No. 02-14899 D. C. Docket No. 02-00546-CV-D-N.,02-14899 D. C. Docket No. 02-00546-CV-D-N.
• Parties: JOHN DOE, proceeding anonymously, THOMAS ROE, proceeding anonymously, JANE POE, proceeding anonymously, J.B., proceeding anonymously, Plaintiffs-Appellants, versus WILLIAM H. PRYOR, JR., in his official capacity as Attorney General of the State of A labama, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

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JOHN DOE, proceeding anonymously, THOMAS ROE, proceeding anonymously, JANE POE, proceeding anonymously, J.B., proceeding anonymously, Plaintiffs-Appellants versus WILLIAM H. PRYOR, JR., in his official capacity as Attorney General of the State of A labama, Defendant-Appellee.

No. 02-14899 D. C. Docket No. 02-00546-CV-D-N.

United States Court of Appeals, Eleventh Circuit.

September 11, 2003.

Appeal from the United States District Court for the Middle District of Alabama.

Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and CARNES^*, District Judge.

CARNES, Circuit Judge:

This is a gay rights standing case which began before Lawrence v. Texas, 539 U.S. ___, 123 S. Ct. 2472 (2003), but which we decide in light of that decision. At the center of the case is an Alabama statute which criminalizes "deviate sexual intercourse," defined as "[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another," Ala. Code § 13A-6-65(a)(3); § 13A-6-60(2). In the wake of the Lawrence decision the statute has been declared dead by the Alabama Attorney General, who as the chief law enforcement officer of the state ought to know. But the corpse is not dead enough to suit the plain tiffs, who want the federal courts to drive a stake through its heart by adding our pronouncement to the Attorney General's. For the reasons that follow, they don't have standing to get us to speak on the subject beyond what we must say in order to dispose of their appeal from the district court's dismissal of their com plaint for lack of standing.

I

The anonymous plaintiffs in this case are two gay men proceeding as John Doe and Thomas Roe and two lesbians proceeding as Jane Poe and J.B. All four plaintiffs contend that the Alabama statute in question violates their First Amendment rights. J.B. makes the additional claim that it violates her right to equal protection.¹

J.B.'s equal protection claim has its genesis in an Alabama state court custody proceeding. The facts of that proceeding are set out in full in J.B.F. v. J.M.F., 730 So. 2d 1186 (Ala. Civ. App. 1997), and Ex parte J.M.F., 730 So. 2d 1190 (Ala. 1998). We will give only a Cliffs Notes version of them here, which is all that is necessary to frame the standing issue.

In January of 1993, J.B. and her husband divorced and she received custody of their then three-year-old daughter. After the divorce, J.B. began a lesbian relationship, and J.B. and the child moved in with her partner in April of 1993. J.B.'s former husband knew of her lesbian relationship but initially thought that J.B. and her partner were pretending to be "roommates" and keeping the true nature of their relationship from the child. He later found out that they were actually living in an open lesbian relationship and not hiding it from the child. After discovering the true circumstances surrounding J.B.'s relationship, the former husband, who had since remarried, felt that he could provide a more stable and beneficial environment for their child than J.B. could. On December 9, 1994, he filed a petition to modify the custody order, claiming that circumstances had changed since the divorce and asking to have the child, who was then four years old, placed in his custody.

Finding that there were changed circumstances supporting an alteration in custody for the benefit of the child, the trial court ordered that the child be placed with J.B.'s former husband and also ordered J.B. not to visit the child in the presence of her lesbian partner. J.B. appealed both the custody and visitation restriction aspects of the trial court order. The Alabama Court of Civil Appeals reversed on the custody issue which made it unnecessary to reach the visitation issue. J.B.F. v. J.M.F., 730 So. 2d at 1190.

The Alabama Supreme Court then reversed the Court of Civil Appeals, concluding in the process that J.B.'s former husband had shown two changed circumstances warranting the trial court's determination that the child should be placed in his custody. First, he had rem arried and thus could provide a stable environment in which there were parents of both sexes. Second, J.B. had chosen a lifestyle that "is neither leg al in this state, nor mo ral in the eyes of most of its citizens," and thus she was "unable, while choosing to conduct an open cohabitation with her lesbian life partner, to provide [the] benefit" of a "loving home environment that is anchored by a successful marriage." Ex parte J.M.F., 730 So. 2d at 1196 (citation and internal quotation marks omitted).

The Alabama Supreme Court decided that in view of those changed circumstances, the trial court had not abused its discretion in finding that "the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child." Id. at 1194. In support of its decision to uphold the trial court's change-in-custody ruling, the Court cited in a footn ote section 13A-6-65(a)(3), which it characterized as criminalizing "all homosexual conduct." Id. at 1196 n.5.

Because the Court of Civil Appeals had not reached the visitation issue, the Alabama Supreme Court remanded the case to that court for a determination of whether the restriction on visitation was proper. Id. at 1196. On remand, the Court of Civil Appeals held that the restriction on visitation was proper, because "[a]s we consider the opinion of the supreme court, it effectively prevents the child from being in the presence of the mother's companion under any circumstances." J.B.F. v. J.M.F., 730 So. 2d 1197, 1197 (Ala. Civ. App. 1998).

II

J.B. filed this action against the Alabama Attorney General in his official capacity, challenging section 13A-6-65(a)(3). She claimed that the statute violates both the Equal Protection Clause of the Fourteenth Am endment and the First Amendment. Doe, Roe, and Poe joined with J.B. in challenging the constitutionality of section 13A-6-65(a)(3) because they feared "its continued use and enforcement by Alabama officials against lesbians and gay men." Brief of Appellant at 5.

The Attorney General filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim. The district court granted the Rule 12(b)(1) part of the motion, concluding that none of the plaintiffs had alleged facts in the complaint sufficient to give them standing to challenge section 13A-6-65(a)(3).

The plaintiffs then filed a motion for reconsideration, which included an alternative request for leave to amend their complaint, although the grounds for the amendment were not specified. The district court denied that motion as well. J.B., Doe, Roe, and Poe all appeal the district court's ruling that they lacked standing to challenge section 13A-6-65(a)(3) on First Amendment grounds and its denial of their motion for reconsideration. J.B. also appeals the district court's conclusion that she lacked standing to challenge section 13A-6-65(a)(3) on equal protection grounds.

III

We review de novo the district court's grant of a motion to dismiss the complaint, taking as true the facts as they are alleged in the co mplaint. Covad Communication Co. v. BellSouth Corp., 299 F.3d 1272, 1276 n.2 (11th Cir. 2002). The three-part test we app ly to determ ine if a plain tiff has stan ding to b ring suit in federal court is this familiar one:

First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized and (b) "actual or imminent, not `conjectural' or `hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favo rable decision."

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992) (citations, footnote, and some intern al marks omitted). The district court dismissed this case at the pleading stage, so "general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Id. at 561, 112 S. Ct. at 2137 (citation and internal marks omitted).

A.

We start with the issue of J.B.'s standing to challenge the constitutionality of section 13A-6-65(a)(3) on equal protection grounds. J.B. alleges four distinct injuries. According to her: she had her child removed from her custody; she is not able to visit her child in the presence of her lesbian partner; she was subjected to a custody proceeding where the illegality of her conduct under an unconstitutional statute was used against her in the proceeding; and she suffered the stigma of being "declared a criminal" by the Alabama Supreme Court. In any event, all of her alleged injuries arise out of the Alabama custody proceeding. Even if we assume that all of those alleged injuries meet the Lujan injury-in-fact requ irement, she still does not have standing to bring this claim because her injuries are not fairly traceable to the Alabama Attorney General and they cannot be redressed through this action against him.

None of J.B.'s alleged equal protection injuries are "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party n ot before the court." Lujan, 504 U.S. at 560, 112 S. Ct. at 2136 (internal marks omitted) (emphasis added). The only defendant in this case is the Alabama Attorney General, and the only injuries J.B. has alleged stem from a state court custody proceeding in which the Attorney General...