Glenn v. Holder

• Decision Date: 02 August 2012
• Docket Number: No. 10–2273.,10–2273.
• Parties: Gary GLENN; Pastor Levon Yuille; Pastor René B. Ouellette; Pastor James Combs, Plaintiffs–Appellants, v. Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

690 F.3d 417

Gary GLENN; Pastor Levon Yuille; Pastor René B. Ouellette; Pastor James Combs, Plaintiffs–Appellants,

v.Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant–Appellee.

No. 10–2273.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 11, 2012.

Decided and Filed: Aug. 2, 2012.

ARGUED:Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellants.

Linda F. Thome, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellants. Linda F. Thome, Jessica Dunsay Silver, United States Department of Justice, Washington, D.C., Judith E. Levy, United States Attorney's Office, Detroit, Michigan, for Appellee.

Before: KETHLEDGE and STRANCH, Circuit Judges; GWIN, District Judge.^*

GWIN, D.J., delivered the opinion of the court, in which KETHLEDGE, J., joined. STRANCH, J. (pp. 424–27), delivered a separate concurring opinion.

OPINION

JAMES S. GWIN, District Judge.

Plaintiffs appeal the district court's decision that they do not have standing to challenge the constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (“Act” or “Hate Crimes Act”). That Act makes it a crime to batter a person because of the person's religion, national origin, gender, sexual orientation, gender identity, or disability. Generally, Plaintiffs say that the expression and practice of their anti-homosexual religious beliefs will lead to federal investigation and prosecution under the Act, in violation of their First Amendment rights. But Plaintiffs' underlying complaint is with the government's heightened protection of homosexuals from criminal violence—this lawsuit is really a political statement against the Hate Crimes Act.¹

We agree with the district court's determination that Plaintiffs have not demonstrated an intent to violate the Hate Crimes Act or offered sufficient evidence that they will nonetheless face adverse law enforcement action. Accordingly, they lack standing to prosecute this case, and we AFFIRM.

I.

Plaintiffs Gary Glenn, Pastor Levon Yuille, Pastor René B. Ouellette, and Pastor James Combs say that homosexuality is “forbidden by God.” They claim they “have a [religious] obligation to state clearly the immoral nature of homosexuality” that requires them to “publicly denounce homosexuality, homosexual activism, and the homosexual agenda as being contrary to God's law and His divinely inspired Word.” And they filed this lawsuit in an unnecessary effort to ensure that the Hate Crimes Act will continue not to prohibit them from “publicly denounc[ing]” others.

The Hate Crimes Act was enacted by Congress and signed into law in October 2009. Pub.L. No. 111–84, Div. E, 123 Stat. 2190 (2009) (codified in scattered sections of Title 18). It provides criminal penalties for “[w]hoever ... willfully causes bodily injury to any person ... because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.” 18 U.S.C. § 249(a)(2)(A). The enacted statute also includes six uncodified “Rules of Construction.” ² Hate Crimes Act § 4710(1)-(6). These Rules provide generally that the Hate Crimes Act “applies to violent acts,” § 4710(2); that the Act should not be construed to infringe, allow prosecution solely for, diminish, or prohibit constitutionally protected speech or conduct, § 4710(3)-(6); and that in a criminal trial for a violation of the Act, evidence of a defendant's speech or beliefs may be admitted only when otherwise admissible under the Federal Rules of Evidence, § 4710(1). The Act thus prohibits violent acts; it does not prohibit constitutionally protected speech or conduct.

Plaintiffs oppose the Hate Crimes Act. Somewhat inconsistently, they also say they oppose “crimes of violence.” They say the Act will allow government officials to deem certain ( i.e., Plaintiffs') ideas, beliefs, and opinions as criminal and to undertake “inherently divisive” prosecutions. According to Plaintiffs, the Act's criminal provisions will deter, inhibit, and chill their speech and activities and will subject them to “increased government scrutiny, questioning, investigation, surveillance, and intimidation on account of their strong, public opposition to homosexual activism, the homosexual lifestyle, and the homosexual agenda.” Plaintiffs—who, by the way, do not allege that they have been subjected to any government action stemming from the Hate Crimes Act—say that “[t]he enforcement history of similar ‘hate crimes' legislation, the public statements of homosexual activists, and the influence of homosexual activists within the federal government demonstrate that Plaintiffs' fears of adverse enforcement action under the Act on account of their deeply held religious beliefs are credible.”

The Attorney General moved to dismiss, arguing that Plaintiffs lack standing and that their claims were not ripe. The district court agreed, reasoning that the Hate Crimes Act does not apply to Plaintiffs' conduct because “Plaintiffs do not allege that they intend to ‘willfully cause’ any ‘bodily injury.’ ” Glenn v. Holder, 738 F.Supp.2d 718, 731 (E.D.Mich.2010). Thus, the court concluded, there is no “credible threat of prosecution.” Id. Similarly, the court held that Plaintiffs' claims are not ripe because the “hypothetical situations in which they believe that they will be prosecuted or subject to investigation” are not of “substantial and of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. at 733. Plaintiffs appealed.

II.

A. Standard of review

We review de novo a district court's decision to dismiss for lack of subject-matter jurisdiction. Simon v. Pfizer Inc., 398 F.3d 765, 772 (6th Cir.2005). Because Plaintiffs' “suit was dismissed at the pleading stage, we must accept as true all material factual allegations of the complaint,” which we must construe in their favor. White v. United States, 601 F.3d 545, 551 (6th Cir.2010) (internal quotation marks omitted). Nevertheless, “standing cannot be inferred from averments in the pleadings; rather, it must affirmatively appear in the record” from “sufficient factual matter in the complaint” so as to “state a claim to relief that is plausible on its face.” Id. at 551–52 (internal quotation marks omitted).

B. Standing

Federal-court jurisdiction is limited by Article III of the Constitution to “Cases” and “Controversies.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is a “core component” of the case-or-controversy requirement and requires a party invoking federal jurisdiction to establish, among other things, “an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (internal citations and quotation marks omitted). “Since this case deals with declaratory and injunctive relief, a pre-enforcement challenge may be made before the actual completion of an injury in fact.” Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th Cir.2001). However, a plaintiff must allege “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” and that there “exists a credible threat of prosecution thereunder.” Johnson v. Turner, 125 F.3d 324, 337 (6th Cir.1997) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)).

In addition, when a statute is alleged to be overly broad in violation of the First Amendment, the standing rules are relaxed to allow plaintiffs “to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir.2007) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)) (internal quotation marks omitted).

In this case, Plaintiffs could establish standing by showing that they intend to violate the Act or that the Act chills their constitutionally protected conduct. But they don't.

1. Plaintiffs have not alleged that they intend to violate the Act

Quite simply, we agree with the district court that Plaintiffs have not established standing because they have not alleged any actual intent to “willfully cause[ ] bodily injury,” the conduct proscribed by the Act. 18 U.S.C. § 249(a)(2)(A). To the contrary, Plaintiffs explicitly denounce “[a]ll crimes of violence perpetrated against innocent individuals,” and say that “[p]ersons who commit violent criminal acts, regardless of the ‘bias' or motive for the crime, are rightfully subject to severe criminal penalties ... under existing State criminal law.” Plaintiffs say they want no more than to “publicly denounce homosexuality” and “spread God's Word” based on their interpretation of the Bible, without engaging in unprotected forms of expression such as “fighting words,” “true threats,” or “advocacy [that] is directed to inciting or producing imminent lawless action,” Virginia v. Black, 538 U.S. 343, 358–59, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).

The Act does not prohibit Plaintiffs' proposed course of speech. “[T]he term ‘bodily injury’ ... does not include solely emotional or psychological harm to the victim,” 18 U.S.C. § 249(c)(1), and the legislative history shows that the term “violent acts” (not defined in the Act itself) is not intended to include “violent thoughts,” “expressions of hatred toward any group,” or “the lawful expression of one's deeply held religious or personal beliefs.” H.R.Rep. No. 111–86, at 16 (2009).³ Moreover, Plaintiffs provide no...