Universal Life Church Monastery Storehouse v. Nabors

• Decision Date: 27 May 2022
• Docket Number: s. 21-5048/5055/5057/5058/5059/5100
• Parties: UNIVERSAL LIFE CHURCH MONASTERY STOREHOUSE, a Washington non-profit corporation; Erin Patterson and Gabriel Biser, individuals, Plaintiffs-Appellees/Cross-Appellants, Plaintiffs-Appellants (21-5100), v. Wayne NABORS, in his official capacity as County Clerk of Putnam County, Tennessee (21-5059/5100); Lisa Duke Crowell, in her official capacity as County Clerk of Rutherford County, Tennessee (21-5057/5100); William F. Knowles, in his official capacity as County Clerk of Hamilton County, Tennessee (21-5058/5100); Elaine Anderson, in her official capacity as County Clerk of Williamson County, Tennessee (21-5055/5100); Herbert H. Slatery III, in his official capacity as Attorney General of the State of Tennessee, Jennings H. Jones, in his official capacity as District Attorney General of Rutherford County, Tennessee, Neal Pinkston, in his official capacity as District Attorney General of Hamilton County, Tennessee, Bryant C. Dunaway, in his official capacity as District Attorney General of Putnam County, Tennessee, and Kim R. Helper, in her official capacity as District Attorney General of Williamson County, Tennessee (21-5048/5100), Defendants-Appellants/Cross-Appellees, Bill Lee, in his official capacity as Governor of the State of Tennessee, Defendant-Appellee (21-5100).
• Court: U.S. Court of Appeals — Sixth Circuit

35 F.4th 1021

UNIVERSAL LIFE CHURCH MONASTERY STOREHOUSE, a Washington non-profit corporation; Erin Patterson and Gabriel Biser, individuals, Plaintiffs-Appellees/Cross-Appellants, Plaintiffs-Appellants (21-5100),

v.Wayne NABORS, in his official capacity as County Clerk of Putnam County, Tennessee (21-5059/5100); Lisa Duke Crowell, in her official capacity as County Clerk of Rutherford County, Tennessee (21-5057/5100); William F. Knowles, in his official capacity as County Clerk of Hamilton County, Tennessee (21-5058/5100); Elaine Anderson, in her official capacity as County Clerk of Williamson County, Tennessee (21-5055/5100); Herbert H. Slatery III, in his official capacity as Attorney General of the State of Tennessee, Jennings H. Jones, in his official capacity as District Attorney General of Rutherford County, Tennessee, Neal Pinkston, in his official capacity as District Attorney General of Hamilton County, Tennessee, Bryant C. Dunaway, in his official capacity as District Attorney General of Putnam County, Tennessee, and Kim R. Helper, in her official capacity as District Attorney General of Williamson County, Tennessee (21-5048/5100), Defendants-Appellants/Cross-Appellees,

Bill Lee, in his official capacity as Governor of the State of Tennessee, Defendant-Appellee (21-5100).

Nos. 21-5048/5055/5057/5058/5059/5100

United States Court of Appeals, Sixth Circuit.

Argued: December 9, 2021

Decided and Filed: May 27, 2022

ARGUED: Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Herbert H. Slatery III, et al. Lisa M. Carson, BUERGER, MOSELEY & CARSON, PLC, Franklin, Tennessee, for Elaine Anderson. Jeffrey G. Jones, WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC, Cookeville, Tennessee, for Wayne Nabors. Ambika K. Doran, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, for Universal Life Church Monastery Storehouse, et al. ON BRIEF: Matthew D. Cloutier, Leslie Ann Bridges, Steven A. Hart, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Herbert H. Slatery III, et al. and Bill Lee. Lisa M. Carson, Lee Ann Thompson, BUERGER, MOSELEY & CARSON, PLC, Franklin, Tennessee, for Elaine Anderson. Jeffrey G. Jones, WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC, Cookeville, Tennessee, for Wayne Nabors. Ambika K. Doran, Bruce E.H. Johnson, Robert E. Miller, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, Rocklan W. King III, ADAMS AND REESE LLP, Nashville, Tennessee, Lucian T. Pera, ADAMS AND REESE LLP, Memphis, Tennessee, for Universal Life Church Monastery Storehouse, et al. Nicholas C. Christiansen, Daniel W. Ames, HUDSON, REED & CHRISTIANSEN, PLLC, Murfreesboro, Tennessee, for Lisa Crowell. Rheubin M. Taylor, Mary Neill Southerland, Sharon McMullan Milling, HAMILTON COUNTY ATTORNEY'S OFFICE, Chattanooga, Tennessee, for William F. Knowles.

Before: SUTTON, Chief Judge; STRANCH and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

Universal Life Church Monastery ("ULC") permits anyone who feels so called to become ordained as a minister—over the Internet, free of charge, and in a matter of minutes. Should the newly minted minister wish to solemnize a marriage in Tennessee, however, she will encounter a problem. Tennessee law permits only those "regular" ministers—ministers whose ordination occurred "by a considered, deliberate, and responsible act"—"to solemnize the rite of matrimony." Tenn. Code Ann. ("TCA") § 36-3-301(a)(1)–(2). And since 2019, the law has explicitly clarified that "[p]ersons receiving online ordinations may not solemnize the rite." Id. § 36-3-301(a)(2).

Asserting that those restrictions violate the federal and Tennessee constitutions, ULC and various of its members sued several Tennessee officials to pursue an injunction and declaratory judgment. Yet the officials contend that they have sovereign immunity from suit and that, in any event, plaintiffs lack standing to sue. The district court rejected those contentions by and large, entering a preliminary injunction against several defendants. We are now asked to take up the same questions and reverse the district court. And, indeed, we hold that many of plaintiffs' claims must be dismissed for lack of standing. But we also hold that as to the remaining claims presenting a live case or controversy, the district court properly denied sovereign immunity. We will thus remand a narrow portion of plaintiffs' suit for further proceedings below.

I.

Tennessee's tradition of regulating who may solemnize marriages is evidently nearing its two-hundred-fiftieth anniversary. A 1778 act¹ authorized "all regular ministers of the gospel of every denomination, having the care of souls, and all justices of the peace, to solemnize the rites of matrimony." First Br. [21-5048] at 6 n.1 (quoting Bashaw v. State , 9 Tenn. 177, 183 (1829) ). That language remains substantially the same today, though it is now somewhat more ecumenical in scope. As § 36-3-301 explains, "[a]ll regular ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief, more than eighteen (18) years of age, having the care of souls," may solemnize marriages in Tennessee. TCA § 36-3-301(a)(1).

ULC's objection to that language is of more recent vintage. A non-profit corporation now headquartered in Seattle, ULC espouses two key tenets: to do "that which is right" and that everyone has a right "to practice their beliefs." SAC ¶¶4, 23–24, R. 80 Whether ULC has any other views is unclear. But at least one thing it strongly advocates is that anyone "who feel[s] so called can become [a] minister[ ] through the Church." SAC ¶26, R. 80. ULC will thus ordain as a minister—for free and over the Internet—anyone who completes a simple, online form. Id.

For its part, the Tennessee Attorney General's office appears to have first opined upon ULC's practices in September 1997. In its Opinion No. 97-41, it considered whether ULC ministers could solemnize marriages under an earlier version of § 36-3-301. See AG Op. No. 15-14, R. 123-7 (describing AG Op. No. 97-41); see also Scott v. Ashland Healthcare Ctr., Inc. , 49 S.W.3d 281, 287 (Tenn. 2001) (explaining that Tennessee Attorney General opinions, though nonbinding, are entitled to "considerable deference" (citing State v. Black , 897 S.W.2d 680, 683 (Tenn. 1995) )). It determined that they could not, reasoning that the statute's text at the time implicitly required ordination to be "a considered, deliberate, and responsible act." AG Op. No. 15-14, R. 123-7. Because ULC's ordination process, in the Attorney General's view, is none of those things, the opinion concluded that "ministers of the Universal Life Church are not permitted to solemnize marriages." Id.

A month later, the Attorney General released further opinions addressing related issues: First, assuming that a ULC minister does solemnize a marriage, is that putative marriage necessarily invalid? See AG Op. No. 97-138, R. 123-6. And second, do the county clerks who issue and record marriage licenses have the power or duty to enforce § 36-3-301 ? See AG Op. No. 97-139, R. 116-1.

Opinion No. 97-138 dealt with the first question—whether couples in Tennessee are "legally married when the person who conducted the ceremony was an ordained minister in the Universal Life Church[.]" AG Op. No. 97-138 at *1, R. 123-6. The opinion presented that issue as a complicated one. Ordinarily, Tennessee has a "very strong" "presumption in favor of marriage." Id. So Tennessee courts sometimes treat couples as married even if their original ceremony had some technical defect, like having been performed before the proper license was obtained. See id. at *2 (citing Johnson v. Johnson , 41 Tenn. 626, 631 (1860) ). But they sometimes may also declare a marriage "void" when "the officer who attempted to solemnize the ... ceremony ‘was without authority to do so.’ " Id. at *3 (citing Moore v. Moore , 1986 WL 8426, at *1, *3 (Tenn. Ct. App. Aug. 4, 1986) ). The opinion thus concluded that a Tennessee court indeed could find a ULC-minister-solemnized marriage "void," given ULC ministers' apparent failure to "meet the statutory qualifications" for solemnizing a marriage. Id. at *5.

Opinion No. 97-139 then answered the second question—whether "county clerks have discretion to examine the qualifications of officiants to determine that the person is a minister of the gospel under Tenn. Code. Ann. § 36-3-301 [.]" AG Op. No. 97-139, R. 116-1. The Attorney General's opinion answered that question in the negative. "[T]he General Assembly," it explained, "has not given county clerks the authority to examine the qualifications of a person seeking to solemnize a marriage." Id. at 1. Rather, "[t]he duty of the county clerk to record marriage licenses upon certification by the officiant remains a ministerial duty." Id. ; see also id. (describing the "duty of the county clerk to register marriage licenses upon certification by the officiant [as] a purely ministerial duty"). Clerks thus have no authority or discretion to reject a marriage license simply because the officiant listed upon it was ordained by ULC. See id. at 3 (explaining that the legislature "has not created any discretion for the clerk to examine the qualifications of persons solemnizing the marriage").

Soon after, the Tennessee General Assembly inserted that "considered, deliberate, and responsible act" construction from Opinion No. 97-41 into the statute itself with a 1998 amendment to § 36-3-301. See AG Op. No. 15-14, R. 123-7. The new language thus reads, in relevant part, "[i]n order to solemnize the rite of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act ." TCA § 36-3-301(a)(2) (emphasis added). ULC argues that this legislative...