United States District Court, N.D. Texas, Dallas Division
CENTER FOR INQUIRY, INC., ARTHUR BRATTENG, and ERIC MCCUTCHAN, Plaintiffs,
JOHN F. WARREN in his capacity as Clerk of Dallas County, Texas, Defendant.
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
Center for Inquiry, Inc. (CFI)-a nonprofit organization whose
mission is to foster a secular society in part through a
celebrants program offering secular marriage ceremonies-and
two of its celebrants authorized by CFI to solemnize
marriages, Arthur Bratteng and Eric McCutchan, bring suit
asking this Court to declare unconstitutional parts of a
Texas statute governing who can solemnize marriages in Texas.
In sum, Plaintiffs argue the statute-by only allowing
religious officiants and certain government officials to
lawfully solemnize marriage ceremonies, while denying that
right to secular individuals-infringes on several of their
constitutional rights. Defendant in turn seeks dismissal of
this suit under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) arguing that Plaintiffs lack standing to bring their
claims and that the Statute is otherwise constitutional.
Having been fully briefed on this Motion, the Court finds
that Plaintiffs do have Article III standing to bring their
claims, and therefore, the Court DENIES
Defendant's Motion to Dismiss under Rule 12(b)(1).
However, the Court finds that the Statute is constitutional
under the various constitutional claims brought by
Plaintiffs, and therefore, the Court GRANTS
Defendant's Motion to Dismiss under Rule 12(b)(6) and
DISMISSES all of Plaintiffs' claims
dispute involves the constitutionality of Section 2.202 of
the Texas Family Code (hereinafter “Section
2.202” or the “Statute”), which only
authorizes persons who are officers of a religious
organization and authorized by the organization to conduct
marriages (e.g., ministers, priests, rabbis) and
secular governmental officials (e.g., current and
retired state and federal judges) to solemnize marriage
ceremonies in Texas, while not granting that same right to
non-governmental secular individuals. Doc. 1, Compl.,
¶¶ 1, 14. The suit is brought by CFI, “an
organization that is devoted to the pursuit of ethical
alternatives to religion, ” and two of its Texas
members-Eric McCutchan and Arthur Bratteng-who are
“celebrants” certified by CFI to solemnize
secular marriage ceremonies. Id. ¶¶ 1,
4-6, 21-22. Plaintiffs allege that they wish to conduct
marriage ceremonies in Texas, but due to the Statute, they
are unable to lawfully perform these services. Id.
¶¶ 21-22, 27. Plaintiffs further allege that CFI
has members in Texas who would like to be married by
CFI's celebrants but are unable to have such a wedding
ceremony because of the Statute. Id. ¶¶
23, 30. This suit is brought against John F. Warren, in his
official capacity as Dallas County Clerk, who is ultimately
given the authority to record marriages licenses in Dallas
County, and who allegedly refuses to record licenses returned
by secular celebrants. Id. ¶¶ 7, 31.
filed suit under 42 U.S.C. § 1983 challenging the
constitutionality of Section 2.202 on four separate grounds.
As discussed in more detail below, Plaintiffs argue that the
Statute is unconstitutional because: (Count I) it creates a
preference for religion over nonreligion in violation of the
First Amendment's Establishment Clause, id.
¶¶ 33-38; (Count II) it violates the Fourteenth
Amendment's Equal Protection Clause by extending the
right to officiate weddings to religious leaders and allowing
persons of faith to be married by religious leaders of their
choice while denying that right to Plaintiffs and couples who
desire secular weddings, id. ¶¶
39-43; (Count III) it violates Article VI, Clause 3
of the Constitution's protection against religious tests
being used as qualifiers for any office or position of public
trust in the United States by requiring a person to profess a
religious faith before being given legal authority to
solemnize marriages in Texas, id. ¶¶
44-49; and (Count IV) it violates the
unconstitutional-conditions doctrine by conditioning a
benefit-solemnizing marriages in Texas-only on those who
profess a religion, id. ¶¶ 50-56.
Ultimately, Plaintiffs seek a declaratory judgment under the
Federal Declaratory Judgment Act, 28 U.S.C. § 2202, that
Section 2.202 is unconstitutional and that Defendant must
accept marriages solemnized by Plaintiffs. Id.
response to Plaintiffs' Complaint, Defendant filed this
Motion to Dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Doc. 11, Def.'s Mot. to Dismiss,
1. Defendant moved to dismiss Plaintiffs' claims arguing
that: (1) Plaintiffs lack standing to bring this suit; and
(2) even if the Court were to find that Plaintiffs have
standing, they have failed to state any claim upon which
relief can be granted. Id. Plaintiffs filed their
Response (Doc. 18) to Defendant's Motion, and Defendant
his Reply (Doc. 19). Defendant's Motion is therefore ripe
for the Court's review.
Federal Rule of Civil Procedure 12(b)(1)
courts are courts of limited jurisdiction.'”
MacKenzie v. Castro, No. 3:15-cv-0752-D, 2016 WL
3906084, at *2 (N.D. Tex. July 19, 2016) (quoting
Stockman v. Fed. Election Comm'n, 138 F.3d 144,
151 (5th Cir. 1998)). For that reason, they can adjudicate
claims only when subject matter jurisdiction “is
expressly conferred by the Constitution and federal
statute.” Armstrong v. Tygart, 886 F.Supp.2d
572, 584 (W.D. Tex. 2012). And Federal Rule of Civil
Procedure 12(b)(1) provides the vehicle through which a party
may challenge that jurisdiction. Id. “Standing
is an issue of subject matter jurisdiction, and thus can be
contested by a Rule 12(b)(1) motion to dismiss.”
Little v. Tex. Attorney Gen., 2015 WL 5613321, at *2
n.5 (N.D. Tex. Sept. 24, 2015) (citing Lee v. Verizon
Commc'ns Inc., 954 F.Supp.2d 486, 496 (N.D. Tex.
Rule 12(b)(1) motion can mount either a facial or factual
challenge.” MacKenzie, 2016 WL 3906084, at *2.
A facial challenge occurs “[w]hen a party files a Rule
12(b)(1) motion without including evidence.”
Id. A factual challenge, by contrast, occurs when a
party supports its Rule 12(b)(1) motion with evidence.
cases, the burden of proof “‘is on the party
asserting jurisdiction.'” Id. (quoting
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001) (per curiam)). So Plaintiffs must prove
jurisdiction exists. Here, Defendant filed his Rule 12(b)(1)
motion without any additional evidence, so it is considered a
facial attack. Thus, the Court considers just the sufficiency
of “the allegations in the complaint because they are
presumed to be true.” Paterson v. Weinberger,
644 F.2d 521, 523 (5th Cir. 1981). And “[i]f those
jurisdictional allegations are sufficient, the complaint
Federal Rule of Civil Procedure 12(b)(6)
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes
a court to dismiss a plaintiff's complaint for
“failure to state a claim upon which relief can be
granted.” Id. 12(b)(6). In considering a Rule
12(b)(6) motion to dismiss, “[t]he court accepts all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). The
court will “not look beyond the face of the pleadings
to determine whether relief should be granted based on the
alleged facts.” Spivey v. Robertson, 197 F.3d
772, 774 (5th Cir. 1999).
survive a motion to dismiss, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. When well-pleaded facts fail to achieve this
plausibility standard, “the complaint has alleged-but
it has not shown-that the pleader is entitled to
relief.” Id. at 679 (internal quotation marks
and alterations omitted).
Court now turns to Defendant's grounds for dismissal
under Rules 12(b)(1) and 12(b)(6). Because the Fifth Circuit
has instructed courts to first address jurisdictional
arguments before any attack on the merits, the Court will
begin with Defendant's arguments under Rule 12(b)(1).
See Ramming, 281 F.3d at 161. However, to put this
dispute in context, the Court first summarizes the
marriage-licensing scheme in Texas, including the
requirements of Section 2.202.
issue in this case is Section 2.202 of the Texas Family Code,
which provides in relevant part that:
(a) The following persons are authorized to conduct a
(1) a licensed or ordained Christian minister or priest;
(2) a Jewish rabbi;
(3) a person who is an officer of a religious organization
and who is authorized by the organization to conduct a
(4) a justice of the supreme court, judge of the court of
criminal appeals, justice of the courts of appeals, judge of
the district, county, and probate courts, judge of the county
courts at law, judge of the courts of domestic relations,
judge of the juvenile courts, retired justice or judge of
those courts, justice of the peace, retired justice of the
peace, judge of a municipal court, retired judge of a
municipal court, associate judge of a statutory probate
court, retired associate judge of a statutory probate court,
associate judge of a county court at law, retired associate
judge of a county court at law, or judge or magistrate of a
federal court of this state; and
(5) a retired judge or magistrate of a federal court of this
Tex. Fam. Code § 2.202(a). The person who performs the
ceremony must return the license to a County Clerk, such as
Defendant, who will then record and issue the completed
marriage certificate. Id. §§ 2.206, 2.208.
Although a marriage ceremony conducted by an unauthorized
person may be invalid, and a person who knowingly conducts a
marriage ceremony in Texas without the requisite authority is
guilty of a Class A misdemeanor, id. §§
2.202(c), 2.302, Defendant is not required by the Texas
Family Code to examine the credentials of the person who
returns a marriage license, see id. § 2.208. In
fact, Defendant argues that neither the Texas Family Code,
and by extension himself, in his capacity as Clerk of Dallas
County, Texas, “make any judgment with respect to the
sincerity, validity, or merit of any religion's beliefs
or the qualifications of any religion's officers, instead
treating all religions equally.” Doc. 11, Def.'s
Mot. to Dismiss, 2. However, Plaintiffs still take issue with
this Statue because “persons seeking to celebrate a
secular marriage ceremony in Texas must either choose from a
list of unfamiliar state and federal judges or forsake their
secular philosophies and employ a religious celebrant.”
Doc. 18, Pls.' Resp., 4.
Dismissal Under Rule 12(b)(1)-Article III Standing
first challenges Plaintiffs' constitutional claims
arguing that Plaintiffs-both CFI, the organization; and
McCutchan and Bratteng, the two individual celebrants
(hereinafter the “Individual Plaintiffs”)-lack
standing because they have not suffered any injury-in-fact.
Doc. 11, Def.'s Mot. to Dismiss, 4-6.
judicial power of federal courts is limited by Article III of
the Constitution. Rivera v. Wyeth-Ayerst Labs., 283
F.3d 315, 318 (5th Cir. 2002). “‘[T]he
Constitution's central mechanism of separation of powers
depends largely upon common understanding of what activities
are appropriate to legislatures, to executives, and to
courts.'” Id. (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559-60 (1992)).
Constitutional or Article III standing “‘is an
essential and unchanging part of the case-or-controversy
requirement of Article III.'” Ford v. NYLCare
Health Plans of Gulf Coast, Inc., 301 F.3d 329, 332 (5th
Cir. 2002) (quoting Lujan, 504 U.S. at 560). To
satisfy the prerequisites of Article III standing, Plaintiffs
must show that: (1) they suffered an injury in fact (one that
is “concrete and particularized” and
“actual or imminent, not conjectural or
hypothetical”); (2) there is a causal connection
between the injury and the challenged conduct of the
defendant; and (3) the injury will likely be redressed by a
favorable decision. Lujan, 504 U.S. at 559-60.
does not challenge Plaintiffs' ability to demonstrate the
traceability or redressability elements of the constitutional
standing doctrine. The sole inquiry is whether
Plaintiffs' claims-both for CFI as an organization and
the Individual Plaintiffs-meet the first element of Article
III standing, injury-in-fact. However, because the
injury-in-fact showing required for CFI is different from the
showing required for the Individual Plaintiffs and because
the Court's determination on the Individual
Plaintiffs' standing is partially relevant to CFI's
associational standing, the Court addresses whether the
Individual Plaintiffs have suffered an injury-in-fact before
discussing the same for CFI.
Individual Plaintiffs' Standing
regards to the Individual Plaintiffs, Defendant argues that
they have not suffered “an invasion of a legally
protected interest” because “they have no legally
cognizable right to perform marriage
ceremonies.” Doc. 11, Def.'s Mot. to Dismiss, 4-5
(emphasis in original) (quoting Barber v. Bryant,
860 F.3d 345, 352 (5th Cir. 2017)). Defendant argues that
because “the asserted right to conduct a marriage
ceremony is not found anywhere in the Constitution . . . all
of Plaintiffs' claims must be dismissed for failure to
establish an injury in fact.” Id. at 5.
Plaintiffs instead argue that these celebrants have suffered
an injury-in-fact sufficient to satisfy constitutional
standing because the Statute “allows religious
celebrants to obtain a benefit-the ability to lawfully
solemnize a marriage-but erects a barrier that prevents
secular celebrants from being able to do the same.”
Doc. 18, Pls.' Resp., 7.
the Court finds that Plaintiffs' argument prevails.
When the government erects a barrier that makes it more
difficult for members of one group to obtain a benefit than
it is for members of another group, a member of the former
group seeking to challenge the barrier need not allege that
he would have obtained the benefit but for the barrier in
order to establish standing. The ‘injury in fact'
in an equal protection case of this variety is the denial of
equal treatment resulting from the imposition of the barrier,
not the ultimate inability to obtain the benefit.
Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v.
City of Jacksonville, Fla., 508 U.S. 656, 666 (1993).
Thus, [d]iscriminatory treatment at the hands of the
government is an injury ‘long recognized as judicially
cognizable.'” Tex. Cable & Telecomms.
Ass'n v. Hudson, 265 Fed.Appx. ...