O'Hair v. Hill, No. 79-1397

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CHARLES CLARK, TJOFLAT and GARZA; TJOFLAT; CHARLES CLARK
Citation641 F.2d 307
PartiesMadalyn Murray O'HAIR and Society of Separationists, Inc., Plaintiffs- Appellants, v. John HILL et al., Defendants-Appellees.
Docket NumberNo. 79-1397
Decision Date02 April 1981

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.

Page 309

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

Page 310

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

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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.

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8 practice notes
  • O'Hair v. White, No. 79-1397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 1982
    ...judges, and that it should abstain with respect to the other defendants. 10 A divided panel of this court affirmed, O'Hair v. Hill, 641 F.2d 307 (5th Cir. 1981), holding that: appellants had no standing to challenge section 4 under the establishment clause or to challenge state salary payme......
  • Ingebretsen on Behalf of Ingebretsen v. Jackson Public School Dist., No. 94-60631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 10, 1996
    ...v. Skinner, 931 F.2d 1020 (5th Cir.), cert. denied, 502 U.S. 907, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991). 8 See also, O'Hair v. Hill, 641 F.2d 307, 310 (5th Cir.1981) (without suffering actual injury, plaintiffs had no standing to make a First Amendment challenge to a provision of the Texas ......
  • U.S. v. Ernst & Whinney, No. 83-8009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 6, 1984
    ...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); O'Hair v. Hill, 641 F.2d 307, 310 (5th Cir.1981). In determining whether the IRS is entitled to an injunction in this case, it will be necessary for the district court to exa......
  • United States v. Savoie, Civ. A. No. 84-1043.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • October 5, 1984
    ...injury if denied equitable relief." Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750-51, 27 L.Ed.2d 669 (1971); O'Hair v. Hill, 641 F.2d 307, 310 (5th Cir.1981). It is also familiar doctrine that in considering injunctive relief, the courts may examine the effect of such relief on t......
  • Request a trial to view additional results
8 cases
  • O'Hair v. White, No. 79-1397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 1982
    ...judges, and that it should abstain with respect to the other defendants. 10 A divided panel of this court affirmed, O'Hair v. Hill, 641 F.2d 307 (5th Cir. 1981), holding that: appellants had no standing to challenge section 4 under the establishment clause or to challenge state salary payme......
  • Ingebretsen on Behalf of Ingebretsen v. Jackson Public School Dist., No. 94-60631
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 10, 1996
    ...v. Skinner, 931 F.2d 1020 (5th Cir.), cert. denied, 502 U.S. 907, 112 S.Ct. 298, 116 L.Ed.2d 242 (1991). 8 See also, O'Hair v. Hill, 641 F.2d 307, 310 (5th Cir.1981) (without suffering actual injury, plaintiffs had no standing to make a First Amendment challenge to a provision of the Texas ......
  • U.S. v. Ernst & Whinney, No. 83-8009
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 6, 1984
    ...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); O'Hair v. Hill, 641 F.2d 307, 310 (5th Cir.1981). In determining whether the IRS is entitled to an injunction in this case, it will be necessary for the district court to exa......
  • United States v. Savoie, Civ. A. No. 84-1043.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • October 5, 1984
    ...injury if denied equitable relief." Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750-51, 27 L.Ed.2d 669 (1971); O'Hair v. Hill, 641 F.2d 307, 310 (5th Cir.1981). It is also familiar doctrine that in considering injunctive relief, the courts may examine the effect of such relief on t......
  • Request a trial to view additional results

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