United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. TRAUGER United States District Judge
before the court is a Motion to Dismiss (Docket No. 9), filed
by the defendant, Governor Bill Haslam, to which the
defendant, Bleu Copas, has filed a Response (Docket No. 17)
and Governor Haslam has filed a Reply (Docket No. 20). For
the reasons discussed herein, the motion will be granted in
is a gay Tennessean residing in Anderson County. He has a
Master's degree in counseling and works as a
state-certified Peer Recovery Specialist. Also a
distinguished army veteran, Copas was honorably but
involuntarily discharged in 2006 pursuant to “Don't
Ask, Don't Tell, ” an official military policy that
prohibited openly gay Americans from serving in the armed
forces. Copas suffers from Post-Traumatic Stress Disorder
(“PTSD”) and Chronic Adjustment Disorder
(“CAD”), for which he saw a therapist from the
time of his discharge in 2006 until February 2016, when his
2, 2016, Governor Bill Haslam signed into law Tennessee House
Bill 1840, now codified as Tennessee Code Annotated Section
63-22-302 and known colloquially as the “Therapist
Bill” (hereinafter referred to as the
“Bill”). The Bill reads as follows:
(a) No counselor or therapist providing counseling or therapy
services shall be required to counsel or serve a client as to
goals, outcomes, or behaviors that conflict with the
sincerely held principles of the counselor or therapist;
provided, that the counselor or therapist coordinates a
referral of the client to another counselor or therapist who
will provide the counseling or therapy.
(b) The refusal to provide counseling or therapy services as
described in subsection (a) shall not be the basis for:
(1) A civil cause of action; or
(2) Criminal prosecution.
(c) Subsections (a) and (b) shall not apply to a counselor or
therapist when an individual seeking or undergoing counseling
is in imminent danger of harming themselves or others.
Tenn. Code Ann. § 63-22-302. The Bill defines the
relevant services as follows:
For purposes of this part, “counseling or therapy
services” means assisting an individual, who is seeking
or engaged in the counseling relationship in a private
practice setting, in a manner intended to facilitate normal
human growth and development, using a combination of mental
health and human development principles, methods, and
techniques, to achieve mental, emotional, physical, social,
moral, educational, spiritual, or career development and
adjustment throughout the individual's life span.
Tenn. Code Ann. § 63-22-301. Copas alleges that the Bill
was conceived as a means to protect Evangelical Christian
counselors. In support, he claims: 1) Tennessee has a long
history of state-sponsored discrimination against the LGBT
community; 2) earlier versions of the Bill protected
“sincerely held religious belief[s]” of
counselors or therapists, but the Bill's final version-
which became law-substituted the phrase “sincerely held
principle” for “sincerely held religious
belief”; and 3) no proponent of the Bill nor member of
the Tennessee legislature has identified a “sincerely
held principle” that the Bill was meant to protect
other than a religious belief.
alleges that he has suffered stigmatic and psychological
injury from the Bill. He suffers from feelings of
marginalization and exclusion and believes that the State of
Tennessee deems him unworthy of guaranteed access to
services. He desires to re-engage in therapy, but the
Bill's stigmatic effects and his fear of discrimination
have prevented him from doing so. On November 13, 2017, Copas
filed suit, alleging that the Bill is unconstitutional under
the First Amendment's Establishment Clause and the
Fourteenth Amendment's Equal Protection
Clause.He seeks declaratory relief that the Bill
is unconstitutional and injunctive relief enjoining Governor
Haslam from enforcing it. On December 12, 2017, Governor
Haslam filed a Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). Governor Haslam contends that Copas
lacks standing because he alleges only a speculative future
injury and that Copas is not entitled to equitable relief
because he cannot demonstrate a real or immediate threat.
deciding a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court will “construe the
complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007);
Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.
2002). The Federal Rules of Civil Procedure require only that
a plaintiff provide “a short and plain statement of the
claim that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957). The court must determine only whether “the
claimant is entitled to offer evidence to support the claims,
” not whether the plaintiff can ultimately prove the
facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)).
complaint's allegations, however, “must be enough
to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). To establish the “facial
plausibility” required to “unlock the doors of
discovery, ” the plaintiff cannot rely on “legal
conclusions” or “[t]hreadbare recitals of the
elements of a cause of action, ” but, instead, the
plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). “[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 679;
Twombly, 550 U.S. at 556. According to the Supreme
Court, “plausibility” occupies that wide space
between “possibility” and
“probability.” Iqbal, 556 U.S. at 678.
If a reasonable court can draw the necessary inference from
the factual material stated in the complaint, the
plausibility standard has been satisfied.
order to establish subject matter jurisdiction, the plaintiff
must show, among other things, that he has standing to
litigate a particular claim. See Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 102 (1998)
(“Standing to sue is part of the common understanding
of what it takes to make a justiciable case.”);
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (“[T]he core component of standing is an
essential and unchanging part of the case-or-controversy
requirement of Article III.”). Standing is a
“threshold determinant[ ] of the propriety of judicial
intervention.” Warth v. Seldin, 422 U.S. 490,
elements of standing are threefold-the plaintiff must
establish (1) injury in fact, (2) causation, and (3)
redressability. Steel Co., 523 U.S. at 103. The
injury-in-fact component requires the plaintiff to
“allege an injury to himself that is distinct and
palpable, as opposed to merely abstract, and the alleged harm
must be actual or imminent, not conjectural or
hypothetical.” Whitmore v. Arkansas, 495 U.S.
149, 155 (1990) (internal citations omitted). For an injury
to be sufficiently distinct, or “particularized,
” it “must affect the plaintiff in a personal and
individual way.” Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1548 (2016) (internal quotation marks omitted).
For an injury to be sufficiently palpable, or
“concrete, ” it “must be de facto;
that is, it must actually exist.” Id.
plaintiff seeks injunctive relief, the plaintiff must
demonstrate that there is a non-speculative, imminent threat
of ongoing or repeated injury to establish that there is a
redressable injury-in-fact. City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983); Fieger v. Mich.
Supreme Court, 553 F.3d 955, 966 (6th Cir. 2009)).
“Redressability . . . requires ‘that prospective
relief will remove the harm, ' and the plaintiff must
show ‘that he personally would benefit in a tangible
way from the court's intervention.'” Am.
Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d
644, 670 (6th Cir. 2007) (quoting Warth v. Seldin,
422 U.S. 490, 505, 508 (1975)).
determining whether a plaintiff has standing, “the
court must be careful not to decide the question on the
merits for or against the plaintiff, and must therefore
assume that on the merits the plaintiffs would be successful
in their claims.” Cooksey v. Futrell, 721 F.3d
226, 239 (4th Cir. 2013); see also Parker v. District of
Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007),
aff'd by District of Columbia v. Heller, 554
U.S. 570 (2008) (“The Supreme Court has made clear that
when considering whether a plaintiff has Article III
standing, a federal court must assume arguendo the
merits of his or her legal claim.”).
Establishment Clause “preclude[s] government from
conveying or attempting to convey a message that religion or
a particular religious belief is favored or preferred.”
Wallace v. Jaffree, 472 U.S. 38, 70 (1985)
(O'Conner, J. concurring). The Supreme Court interprets
the Establishment Clause “to mean that government may
not promote or affiliate itself with any religious doctrine
or organization, may not discriminate among persons on the
basis of their religious beliefs and practices, may not
delegate a governmental power to a religious institution, and
may not involve itself too deeply in such an
institution's affairs.” Cty. of Allegheny v.
ACLU, 492 U.S. 573, 590-91 (1989). For purposes of an
Establishment Clause claim, “plaintiffs may demonstrate
standing based on the direct harm of what is claimed to be an
establishment of religion.” Establishment Arizona
Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 129
(2011). Standing analyses thus must be “tailored to
reflect the kind of injuries Establishment Clause plaintiffs
are likely to suffer.” Suhre v. Haywood Cnty.,
131 F.3d 1083, 1086 (4th Cir.1997). “Consequently,
plaintiffs have been found to possess standing when they are
spiritually affronted as a result of direct and unwelcome
contact with an alleged religious establishment within their
community. Moss v. Spartanburg Cty. Sch. Dist.
Seven, 683 F.3d 599, 605 (4th Cir. 2012) (internal
citations and quotation marks omitted). “[S]o far the
[Supreme] Court has announced no reliable and handy
principles of analysis” for determining that an
Establishment Clause injury is sufficient. Cooper v. U.S.
Postal Serv., 577 F.3d 479, 489-90 (2d Cir. 2009),
cert. denied, 559 U.S. 971 (2010). “Lower
courts are left to find a threshold for injury and determine
somewhat arbitrarily whether that threshold has been reached
. . . . In short, there is uncertainty concerning how to
apply the injury in fact requirement in the Establishment
Clause context.” Id.
Haslam argues that Copas's alleged injury is
insufficiently concrete and particularized to confer