O'Hair v. Hill

• Decision Date: 02 April 1981
• Docket Number: No. 79-1397,79-1397
• Citation: 641 F.2d 307
• Parties: Madalyn Murray O'HAIR and Society of Separationists, Inc., Plaintiffs- Appellants, v. John HILL et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 307

641 F.2d 307

Madalyn Murray O'HAIR and Society of Separationists, Inc., Plaintiffs- Appellants, v. John HILL et al., Defendants-Appellees.

No. 79-1397.

United States Court of Appeals, Fifth Circuit.

April 2, 1981.

Madalyn Murray O'Hair, pro se.

Jon Murray, Robert A. Vort, Newark, N. J., for plaintiffs-appellants.

Mark White, Atty. Gen., Susan Bradshaw, Susan J. Dasher, Asst. Attys. Gen., Austin, Tex., for H. Jones, Clark, Dear and Dellana.

James McMurtry, County Atty., B. Neal Stokey, Asst. County Atty., Russell J. Bailey, Austin, Tex., for B. Jones, Renfro, Samuelson, Monts, Richards and Moya.

Susan O'Laughlin Bradshaw, Asst. Atty. Gen., for John Hill et al.

Appeal from the United States District Court for the Western District of Texas.

Before CHARLES CLARK, TJOFLAT and GARZA, Circuit Judges.

TJOFLAT, Circuit Judge:

The appellants in this case, Madalyn Murray O'Hair (O'Hair) and the Society of Separationists, Inc. (Society), commenced this action under 28 U.S.C. § 1343(3) & (4) (1976) and 42 U.S.C. § 1983 (Supp.1980), alleging a complex series of constitutional violations. In affirming the district court's dismissal of this suit, we shall address briefly each of these alleged violations, striving, as we do so, to construe them as properly pleaded.

We have isolated ten claims upon which varied forms of declaratory, injunctive and monetary relief are requested. All of these claims have their origin in article 1, section 4 of the Texas Constitution. This provision reads:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall anyone be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

Tex.Const. art. 1, § 4. Because of the disposition of this appeal, we emphasize at the outset that we express no opinion as to the constitutionality of this provision.

The appellants' first claim is that section four should be declared a violation of the first amendment's prohibition of the establishment of religion. Appellants lack standing to raise this claim. Pleading of an injury in fact is a prerequisite for maintenance of an action in federal court. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). See also Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Appellants have pleaded no cognizable injury in relation to this claim. They do not allege any effect the asserted establishment of religion has had on them, see, e. g. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), but, rather, have merely stressed that section four is facially in violation of the establishment clause of the first amendment. This is inadequate. This claim for declaratory relief, therefore, must be denied.

Appellants next contend that a declaratory judgment should issue proclaiming article 1, section 4 of the Texas Constitution a violation of the constitutional guarantee of a republican form of government. U.S.Const. art. 4, § 4. This is clearly a nonjusticiable political question, and must be dismissed on that ground. Luther v. Borden, 48 U.S. (7 How.) 1 (1849).

The third contention we are faced with is that a judgment should issue declaring section four in violation of the constitutional guarantee of equal protection. This claim is based upon the allegation that O'Hair was in fact excluded, and that in the future other Society members will be excluded, from jury service because of a belief in atheism. Appellants have standing to allege this claim, Carter v. Jury Commission of Greene County, 396 U.S. 320, 329-330, 90 S.Ct. 518, 523-24, 24 L.Ed.2d 549 (1970), but we are compelled to abstain from resolution of the issue. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), mandates avoidance of a decision which would be based upon a tentative interpretation of state law. We cannot anticipate with the requisite certainty whether Texas courts understand section four to require the exclusion of atheists from jury service. See Madeley v. Kern, 488 F.2d 865, 866 (5th Cir. 1974); Cobb v. State, 503 S.W.2d 249, 252 (Tex.Cr.App.1973); Craig v. State, 480 S.W.2d 680, 683-684 (Tex.Cr.App.1972). Appellants do not point to any authoritative state interpretation of section four that puts its constitutional implications in regard to jury service beyond peradventure, and thus we shall avoid a potentially unnecessary and intrusive resolution of this constitutional issue until adequate state decisional grounds exist upon which we may act.

Next, appellants request that this court enjoin four state civil proceedings pending against O'Hair. It is alleged that these civil cases are progressing before judges and juries selected pursuant to the requirements of section four, more precisely, that the judge and jury in each of the four named state civil proceedings pending against O'Hair were required to "acknowledge the existence of a Supreme Being." This requirement, it is argued, denied O'Hair due process of law by subjecting her to an inherently biased judge and to a jury not selected from an appropriate cross-section of the community suited in character and intellect for jury duty. See Carter v. Jury Commission of Greene County, 396 U.S. 320, 332-33, 90 S.Ct. 518, 525, 24 L.Ed.2d 549 (1970).

Sound jurisprudence requires "that courts of equity should not act ... when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). See also O'Shea v. Littleton, 414 U.S. 488, 502, 94 S.Ct. 669, 679, 38 L.Ed.2d 674 (1974). O'Hair asserts that she has no remedy at law because the Texas Constitution places section four, the source of the alleged denial of due process, beyond the interpretative reach of the Texas courts. Article 1, section 29 of the Texas Constitution reads in pertinent part:

To guard against transgressions of the high powers herein delegated, we declare that everything in the "Bill of Rights" (which includes article 1, section 4) is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto ... shall be void.

This provision allegedly denies all jurisdiction to Texas courts to remedy any constitutional defects inherent in section four. Thus, the argument proceeds, any legal remedy sought in the Texas courts would be impossible of implementation (herein is contemplated such legal remedies as disqualification of the relevant judges and juries), and therefore federal equitable relief is mandated.

For us to adopt this reasoning would require a definitive determination on our part of the import of article 1, section 29, an issue as yet unresolved by the Texas courts. This is decidedly a matter of state concern, and the mandate of Pullman, supra, precludes us from so overreaching into the realm of unresolved state jurisprudence. We must leave the interpretation of the Texas Constitution to the Texas courts until we can act with certainty on what is, in this case, surely a matter of particular concern to the state. Until such a definitive state interpretation is available, we cannot hold that O'Hair has no adequate state remedy at law, and until that time, federal equitable relief must be denied.

O'Hair's next claim is for an injunction halting state criminal proceedings currently pending against her in Texas. The grounds for this injunction are the same as those offered as the basis for the requested injunction of the four state civil cases discussed previously. For the same reasons we advanced for rejection of that injunction request, coupled with those federalist concerns expressed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) which come to the fore when a litigant seeks to enjoin state criminal proceedings, we must refuse to enjoin the Texas case. In sum, concerning the enjoining of these proceedings, O'Hair has demonstrated neither an absence of an adequate legal remedy, nor has she approached the threshold of the demonstration required for federal intervention in state criminal proceedings. ¹

The Society has joined O'Hair in petitioning for injunctions impeding these civil and criminal proceedings. Because the Society has no standing to do so, see Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), we need not reiterate the above arguments in relation to it.

The sixth claim offered by appellants is that a judgment should issue declaring the application of section four in the context of the four civil and one criminal Texas proceedings pending against O'Hair an unconstitutional denial of due process and equal protection. As has been discussed, equitable considerations force us to abstain from interference with these Texas proceedings; those same considerations compel us to deny declaratory relief. If we were to declare section four's application unconstitutional in the very context wherein we acknowledged our duty to abstain from interfering by way of injunction, we would be acting in clear self-contradiction. "(O)rdinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the longstanding policy limiting injunctions was designed to avoid." Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 767, 27 L.Ed.2d 688 (1971). Such relief is therefore inappropriate, and will be denied.

The seventh claim presented is that the payment of salaries to all those holding office or positions of trust in Texas should be enjoined because...