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Copas v. Haslam

United States District Court, M.D. Tennessee, Nashville Division

May 25, 2018

BLEU COPAS, Plaintiff,
BILL HASLAM, in his official capacity as GOVERNOR OF THE STATE OF TENNESSEE, Defendant.


          ALETA A. TRAUGER United States District Judge

         Pending 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 part.


         Copas 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 therapist retired.

         On May 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.

         Copas 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.[2]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.


         In 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)).

         The 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.


         In 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, 518 (1975).

         The 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.

         When a 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)).

         In 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.”).

         i. Establishment Clause

         The 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.

         Governor Haslam argues that Copas's alleged injury is insufficiently concrete and particularized to confer standing. ...

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