Atheists for Human Rights et al v. County of Washington, Minnesota et al

Filing 48

ORDER: Defendants' Motion for Summary Judgment [Docket No. 34 ] is GRANTED. Plaintiffs' Motion for Summary Judgment [Docket No. 41 ] is DENIED. The action is DISMISSED as moot. (Written Opinion) Signed by Judge Joan N. Ericksen on May 13, 2015. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Atheists For Human Rights,
a Minnesota not-for-profit corporation, and
Rodney Michael Rogers,
Plaintiffs,
v.

Case No. 14-cv-3769 (JNE/JJK)
ORDER

County of Washington, Minnesota,
and Steve Gransee, in his official capacity
as manager of the Taxpayer Services Division
for Defendant County of Washington,
Defendants.
Minnesota law requires marriages to be solemnized by state-authorized individuals.
Among the categories of individuals authorized by law are ministers of any religious
denomination. Before solemnizing marriages, religious ministers must file their celebrant
credentials with one of Minnesota’s counties. Defendant Washington County initially refused to
accept marriage celebrant credentials issued by Plaintiff Atheists for Human Rights (AFHR) to
Plaintiff Rodney Michael Rogers because AFHR did not profess to be a religion. Plaintiffs filed
suit, alleging that Washington County’s refusal violated the First and Fourteenth Amendments.
Nearly three months into the litigation, Washington County changed its practice and vowed that
it would record credentials issued by AFHR from that date forward. This matter is now before
the Court on Plaintiffs’ and Defendants’ motions for summary judgment. For the reasons
provided below, Plaintiffs’ motion is denied and Defendants’ motion is granted.
BACKGROUND
Civil marriages in Minnesota may be solemnized by several methods including by “a
licensed or ordained minister of any religious denomination.” Minn. Stat. § 517.04. To obtain

licenses to solemnize marriages, ministers of religious denominations “shall file a copy of their
credentials of license or ordination . . . with the local registrar of a county in this state, who shall
record the same and give a certificate of filing thereof.” Minn. Stat. § 517.05.
AFHR is a not-for-profit corporation organized under the laws of Minnesota to promote
atheism and the separation of church and state. AFHR issued marriage celebrant credentials to
Rogers, a resident of Washington County and AFHR member. On September 4, 2014, Rogers
attempted to register his credentials with Washington County. The clerk on duty did not accept
the application. Rogers requested a written statement explaining why his application was
rejected. Rogers was handed a copy of Minn. Stat. § 517.04 with the word “religious”
underlined.
On September 24, 2014, Plaintiffs filed this lawsuit, alleging that Minnesota’s marriage
solemnization statutes and Washington County’s policy of refusing to record marriage celebrant
credentials issued by atheist organizations are unconstitutional on their face and as applied to
Plaintiffs. On October 2, 2014, Plaintiffs filed a motion for a preliminary injunction seeking to
enjoin Defendants from refusing to record Plaintiffs’ marriage celebrant credentials based on
their atheistic beliefs, until the action is determined on its merits. On December 19, 2014, three
days before a scheduled hearing on the motion, Defendants submitted an affidavit stating:
“Effective the morning of December 17, 2014, the Office of the Washington County Recorder
accepts for recording credentials signed by the Atheists for Human Rights, a Plaintiff herein, to
perform civil marriages.” Washington County represented that this “reflects a permanent change
in the operating procedures of the Washington County Recorder.” On January 27, 2015, the
Court issued an order denying Plaintiffs’ motion for a preliminary injunction because Plaintiffs
had received the relief they sought in their motion.

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Defendants have filed a motion for summary judgment seeking dismissal of Plaintiffs’
complaint. Plaintiffs have filed a motion for summary judgment seeking a declaratory judgment
that Minnesota’s marriage solemnization statutes are unconstitutional, a permanent injunction
enjoining Defendants from refusing to record Plaintiffs’ celebrant credentials, and reasonable
costs and attorneys’ fees.
DISCUSSION
A. Standing
To have Article III standing, a plaintiff must show: “(1) it has suffered an ‘injury in fact’
that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 180–81 (2000).
Washington County argues that AFHR’s standing fails at the first prong because Washington
County’s refusal to record credentials issued by AFHR did not injure the corporation.
Minn. Stat. § 517.04 distinguishes between religious entities and non-religious entities
and confers a valuable benefit—the ability to issue celebrant credentials legally sufficient for
recording in a Minnesota county—on the former but not the latter. Defendants took the position
that AFHR could not receive this benefit in Washington County because AFHR is an atheistic
organization that does not call itself a church or religion. Regardless of whether Washington
County’s position was unconstitutional, it inflicted a concrete injury by denying AFHR a stateconferred benefit available to other entities. Cf. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 7–8
(1989) (the publisher of a non-religious periodical had standing to pursue an Establishment
Clause challenge to a tax exemption available for religious periodicals); Time Warner Cable, Inc.

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v. Hudson, 667 F.3d 630, 636 (5th Cir. 2012) (an incumbent cable provider had standing to
challenge a statute that extended the benefit of a statewide license to some competitors while
denying the same benefit to incumbent providers because, “[w]hen the government targets
certain speakers for the exclusion of benefits bestowed on similar parties, no further showing of
suffering based on that unequal positioning is required for purposes of standing”) (internal
quotation marks omitted). The remaining two prongs are easily established. The injury is
traceable to the County’s policy, and a favorable decision for Plaintiffs would remedy the injury
by ensuring that the County could not refuse to record marriage celebrant credentials issued by
AFHR. Accordingly, AFHR has standing.
B. Mootness
Defendants argue that the case is moot because they no longer refuse to record Plaintiffs’
credentials. “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Kennedy Bldg. Associates v. Viacom, Inc., 375 F.3d
731, 745 (8th Cir. 2004) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
“The defendant faces a heavy burden of showing that the challenged conduct cannot reasonably
be expected to start up again.” Ctr. for Special Needs Trust Admin., Inc. v. Olson, 676 F.3d 688,
697 (8th Cir. 2012) (internal quotation marks omitted). “Mere voluntary cessation of allegedly
illegal conduct does not moot a case.” Id. “Instead, a case becomes moot if it is absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. However,
“[a] speculative possibility is not a basis for retaining jurisdiction over a moot case.” McCarthy
v. Ozark Sch. Dist., 359 F.3d 1029, 1036 (8th Cir. 2004). For the following reasons, the Court
finds that the challenged conduct cannot reasonably be expected to recur and thus the action is
moot.

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Washington County has clearly and unequivocally changed its allegedly wrongful
practice. The County has not gone through a formal amending process because there was no
formal written policy in place. Rather, Washington County’s prior practice was based on the
advice of Washington County’s legal counsel. The County’s legal counsel has clearly and
definitely changed that advice. Counsel filed an affidavit with the Court and sent a letter to
Plaintiffs’ counsel attesting to a new permanent policy under which Washington County will
accept credentials issued by AFHR. In changing its policy, the County has not expressly reserved
the right to apply the old policy against Plaintiffs in the future or otherwise equivocated. See
Olson, 676 F.3d at 697 (holding that a challenge to North Dakota’s application of Medicaid
regulations was not moot after the state stopped relying on the regulations because “North
Dakota expressly reserved the right to apply its regulations against the [plaintiff] in the future”).
Plaintiffs argue that the timing of Defendants’ policy change—a few days before a
hearing on Plaintiffs’ motion for a preliminary injunction—suggests Defendants’ change is “akin
to strategic, litigation-related acts” to deprive the court of jurisdiction. Charleston Housing
Authority v. U.S. Dep’t of Agriculture, 419 F.3d 729, 740 (8th Cir. 2005). While the lawsuit may
have spurred Washington County to reexamine its position, this fact does not mean the County’s
allegedly wrongful conduct is likely to recur when the litigation is over. The Washington County
Attorney’s December 17, 2014 letter to Plaintiffs’ counsel states that Washington County “did
legal, historical and factual analysis of the precepts of [AFHR]” and decided to change its
practice “after giving new consideration to the precepts of this organization and learning the
other major counties have apparently determined your corporate client meets the definition and
criteria established in Minnesota Statutes § 517.04.” It is undisputed that other large Minnesota
counties accept celebrant credentials issued by AFHR. There is no indication that Washington

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County, having aligned its policy with these other Minnesota counties, is poised to revert to its
old ways.
AFHR also argues that, even if the issue of injunctive relief is moot, there remains the
issue of whether Minn. Stat. § 517.04 is unconstitutional on its face, an issue that is not and
cannot be resolved by Washington County agreeing to record Plaintiffs’ credentials. A case is
moot when it has “lost its character as a present, live controversy of the kind that must exist if we
are to avoid advisory opinions on abstract questions of law.” Princeton Univ. v. Schmid, 455
U.S. 100, 103 (1982). Here, the issue of the facial constitutionality of Minn. Stat. § 517.04 has
become an abstraction untied to any live dispute between the parties. The Court declines to opine
on this abstract matter of constitutional law.
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Defendants’ Motion for Summary Judgment [Docket No. 34] is GRANTED.
2. Plaintiffs’ Motion for Summary Judgment [Docket No. 41] is DENIED.
3. The action is DISMISSED as moot.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 13, 2015
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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