Copas v. Haslam

Filing 21

MEMORANDUM AND ORDER: For the foregoing reasons, Haslam's Motion to Dismiss is hereby GRANTED in part. Copas's Equal Protection claims are dismissed due to lack of standing. With regard to Copas's Establishment Clause claim, Haslam's Motion is hereby DENIED. Signed by District Judge Aleta A. Trauger on 5/25/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BLEU COPAS,

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

Case No. 3:17-cv-01447
Judge Aleta A. Trauger

MEMORANDUM AND ORDER
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.
BACKGROUND 1
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.

1

The facts are viewed in the light most favorable to Copas.
1

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 statesponsored 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
2

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.
LEGAL STANDARD
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

2

Copas filed an Amended Complaint the following day. The court’s analysis relies on the
Amended Complaint.
3

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.
ANALYSIS
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-orcontroversy requirement of Article III.”). Standing is a “threshold determinant[ ] of the propriety
of judicial intervention.” Warth v. Seldin, 422 U.S. 490, 518 (1975).

4

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 nonspeculative, 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.”).

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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.

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Governor Haslam argues that Copas’s alleged injury is insufficiently concrete and
particularized to confer standing. The court will address each requirement in turn.
A. Concreteness
Belying its sturdy namesake, the concreteness requirement often leaves courts on flimsy
conceptual ground. As the Supreme Court recently explained:
When we have used the adjective “concrete,” we have meant to
convey the usual meaning of the term—“real,” and not “abstract”
. . . . “Concrete” is not, however, necessarily synonymous with
“tangible.” Although tangible injuries are perhaps easier to
recognize, we have confirmed in many of our previous cases that
intangible injuries can nevertheless be concrete.
Spokeo, 136 S.Ct. at 1549 (citing Webster’s Third New International Dictionary 472 (1971);
Random House Dictionary of the English Language 305 (1967)). But distinguishing the real
intangible from the abstract intangible can be difficult. “The concept of a ‘concrete’ injury is
particularly elusive in the Establishment Clause context . . . because the Establishment Clause is
primarily aimed at protecting non-economic interests of a spiritual, as opposed to a physical or
pecuniary, nature.” Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1250 (9th Cir. 2007).
Copas claims that he has been marginalized by the Bill, made to feel ostracized and
unworthy as a non-adherent to the religiously-based, anti-LGBT preference he alleges the Bill
endorses. 3 Governor Haslam contends that this is not a concrete injury. He cites Valley Forge
Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464
(1982), a seminal Establishment Clause case, for the proposition that psychological injury alone

3

Because Copas’s alleged marginalization is a continuous, ongoing injury, the court need not
address Governor Haslam’s contention that Copas is not entitled to equitable relief under United
States v. Lyons. Lyons requires a demonstration of real or immediate threat to obtain equitable
relief. Lyons, 461 U.S. at 111. Because Copas’s alleged injury constitutes a present harm,
injunctive relief is available to him.
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cannot establish standing. In Valley Forge, a non-local advocacy group and its employees sued
to prevent the transfer of federal property in Pennsylvania to a Christian nonprofit intending to
use the land for a secular educational institution. The Court found that the respondents failed “to
identify any personal injury suffered by them as a consequence of the alleged constitutional
error, other than the psychological consequence presumably produced by observation of conduct
with which one disagrees” and held that injury “[in]sufficient to confer standing under Art. III,
even though the disagreement is phrased in constitutional terms.” Id. at 485–86. But courts have
not interpreted Valley Forge as foreclosing all Establishment Clause claims grounded in
psychological injury. In fact, since Valley Forge, the Supreme Court itself has heard
Establishment Clause cases based on a multitude of psychological injuries:
Standing was adequate for jurisdiction in Establishment Clause
cases in the Supreme Court in the following contexts: prayer at a
football game, a crèche in a county courthouse or public park, the
Ten Commandments displayed on the grounds of a state capitol or
at a courthouse, a cross display at a national park, school prayer, a
moment of silence at school, Bible reading at public school, and a
religious invocation at a graduation. No one was made to pray, or
to pray in someone else’s church, or to support someone else’s
church, or limited in how they prayed on their own, or made to
worship, or prohibited from worshiping, in any of these cases. The
Court treated standing (and therefore the concreteness element
of standing) as sufficient in all of these cases, even though
nothing was affected but the religious or irreligious sentiments
of the plaintiffs.
Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043,
1049–50 (9th Cir. 2010) (emphasis added). The Sixth Circuit has explicitly adopted this more
expansive approach:
[W]e do not take the Supreme Court’s decision in [Valley Forge]
to stand for the proposition that psychological injury can never be
a sufficient basis for the conferral of Article III standing . . . .
Although the Supreme Court explicitly stated that injuries that
merely amount to “the psychological consequence presumably
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produced by observation of conduct with which one disagrees” are
insufficient to confer standing under Article III, we believe that
this statement cannot be read without taking the particular
circumstances of that case into account.
Am. Civil Liberties Union of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484, 489 n.3 (6th Cir.
2004). Accordingly, the Sixth Circuit has found standing based on psychological injury incurred
from seeing a courtroom poster of the Ten Commandments, 4 from future encounters with a
proposed Ten Commandments monument on the state capitol grounds, 5 and from passing a
portrait of Christ in a public school hallway. 6
Spokeo instructs that we look to history to determine whether an intangible harm
constitutes injury in fact because “the doctrine of standing derives from the case-or-controversy
requirement, and because that requirement in turn is grounded in historical practice . . . .” Courts
should thus “consider whether an alleged intangible harm has a close relationship to a harm that
has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”
Spokeo, 136 S.Ct. at 1549. The court sees no meaningful distinction between the marginalization
alleged by Copas, who feels that the state has deemed him unworthy of equal status because of
his non-adherence to Evangelical beliefs, 7 and that suffered by Mormon and Catholic high
school students when their majority-Baptist school district implemented a policy allowing a
pregame prayer at football games. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)
(finding policy violated Establishment clause). Nor does the court see significant difference
between Copas’s marginalization and that of the lawyer practicing under the Ten

4

Ashbrook., 375 F.3d at 390.
Adland v. Russ, 307 F.3d 471, 478 (6th Cir. 2002).
6
Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 682–83 (6th Cir. 1994).
7
“[T]he Bill impermissibly advances the particular (and far from universal) religious disapproval
of LGBT people.” (Docket No. 2 at 12.)
5

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Commandments poster, Ashbrook., 375 F.3d at 390, nor that of the student made to see a
representation of Jesus, Washegesic 33 F.3d at 681. Copas’s alleged harm is comparable to those
psychological injuries of litigants whose cases the Supreme Court and Sixth Circuit have heard.
The Ninth Circuit reached a similar outcome in Catholic League for Religious & Civil
Rights v. City & Cty. of San Francisco. There, a group of San Francisco Catholics sued the city
and county for adopting an official resolution denouncing a Cardinal’s directive that the
Archdiocese of San Francisco should not place children for adoption in homosexual households.
Catholic League, 624 F.3d at 1047. The court found standing on the well-reasoned grounds that
the Catholic citizens’ psychological harm was indistinguishable from that of myriad other
Establishment Clause plaintiffs:
A “psychological consequence” does not suffice as concrete harm
where it is produced merely by “observation of conduct with which
one disagrees.” But it does constitute concrete harm where the
“psychological consequence” is produced by government
condemnation of one’s own religion or endorsement of another’s
in one’s own community. For example, in the school prayer and
football game cases, nothing bad happened to the students except a
psychological feeling of being excluded. Likewise in the crèche
and Ten Commandments cases, nothing happened to the nonChristians, or to people who disagreed with the Ten
Commandments or their religious basis, except psychological
consequences. What distinguishes the cases is that in Valley
Forge, the psychological consequence was merely disagreement
with the government, but in the others, for which the Court
identified a sufficiently concrete injury, the psychological
consequence was exclusion or denigration on a religious basis
within the political community.
Id. at 1052. This approach is consistent with the principles underlying the unique treatment of
injury in Establishment Clause cases:
Feelings of marginalization and exclusion are cognizable forms of
injury, particularly in the Establishment Clause context, because
one of the core objectives of modern Establishment Clause
jurisprudence has been to prevent the State from sending a
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message to non-adherents of a particular religion “that they are
outsiders, not full members of the political community.”
Moss, 683 F.3d at 607 (quoting McCreary Cnty. v. ACLU, 545 U.S. 844, 860 (2005)). With this
objective in mind, the court finds that Copas’s alleged marginalization is sufficiently concrete to
confer standing for his Establishment Clause claim.
B. Particularization
The Court in Valley Forge found a lack of standing because the plaintiff had not
“personally . . . suffered some actual or threated injury.” Valley Forge, 454 U.S. at 472. As the
Sixth Circuit has explained, Valley Forge is best understood as a decision hinging on
particularization:
[T]he Supreme Court’s decision that the Valley Forge plaintiffs
lacked standing because its members had suffered no direct injury
was based, in large part, on the fact that although the property
transfer occurred in Chester County, Pennsylvania, [] the named
plaintiffs resided in Maryland and Virginia and “learned of the
transfer through a news release.” Accordingly, this circuit and
other circuits have read Valley Forge’s language as depending in
no small part on the directness of the harm alleged.
Ashbrook, 375 F.3d at 489 n.3. Courts have thus approached the particularization requirement
for alleged Establishment Clause violations as testing whether a plaintiff “is feeling the direct,
painful effects . . . in his everyday life.” See Int’l Refugee Assistance Project v. Trump, 857 F.3d
554, 585 (4th Cir.), as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, 137
S. Ct. 2080 (2017), and vacated and remanded sub nom. Trump v. Int’l Refugee Assistance, 138
S. Ct. 353 (2017) (“IRAP 1”). This approach dovetails with “the essence of the standing
inquiry,” which is “whether [plaintiffs] have alleged such a personal stake in the outcome of the
controversy” so as to ensure necessary adverseness to “illuminate[s] difficult constitutional
questions.” Larson v. Valentine, 456 U.S. 228, 238–39 (1982).

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Copas adequately alleges that the Bill has directly affected him. He cites “his feelings of
marginalization and exclusion as a result of the Therapist Bill” which “directly and personally
impact [him as] a gay man suffering from PTSD and Chronic Adjustment disorder who has
sought psychological counseling in the past but is now discouraged from doing so . . . .” (Docket
No. 17 at 9.) He also claims that, as a member of the LGBT community, the Bill makes him feel
“not worthy of being guaranteed counseling services” from a counselor of his choosing. (Docket
No. 2 at 8.) This is sufficient to satisfy the particularization requirement. See Int’l Refugee
Assistance Project v. Trump, 883 F.3d 233, 261 (4th Cir. 2018), as amended (Feb. 28, 2018)
(“IRAP 2”) (“Plaintiffs here have alleged a violation of their own Establishment Clause rights,
and they have presented evidence that the violation is particular to them: they have articulated
specific feelings of marginalization and exclusion . . . .”) (internal quotation marks omitted). The
IRAP cases—dealing with the Executive Branch’s travel bans restricting immigration from
certain countries, most of which are Muslim-majority—are instructive. The Fourth Circuit found
in IRAP 2 8 that Muslim plaintiffs who felt, amongst other things, “insulted,” “demeaned,”
“unwanted,” and “different” as a result of the bans had suffered “personal, particularized injuries
cognizable under Article III . . . .” Id. at 260.
Critical to the Fourth Circuit’s finding was the fact that the plaintiffs suffered harm in
their own homes, businesses, streets, and neighborhoods. See id. The court explained that,
“unlike the plaintiffs in Valley Forge, Plaintiffs here have not ‘roam[ed] the country in search of
governmental wrongdoing.’ Instead, the purported government wrongdoing has found them.”
Id. at 262 (internal citation omitted). The Sixth Circuit places similar emphasis on whether an

8

IRAP 1 addressed the second iteration of the Executive Branch’s travel ban, while IRAP 2
addressed the third iteration. The Executive Branch voluntarily vacated the first iteration. See
IRAP 2, 883 at 251.
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alleged Establishment Clause injury is suffered at home. See Washegesic, 33 F.3d at 683 (“The
practices of our own community may create a larger psychological wound than someplace we are
just passing through.”). Other circuits have followed suit. See, e.g., Am. Civil Liberties Union of
Ill. v. Cty. of St. Charles, 794 F.2d 265, 268 (7th Cir. 1986) (“Maybe it ought to make a
difference if (as here) a plaintiff is complaining about the unlawful establishment of a religion by
the city, town, or state in which he lives, rather than about such an establishment elsewhere.”),
cert. denied, 479 U.S. 961 (1986). Copas is a resident of Tennessee. He did not set off in search
of the Bill, but rather was subjected to its alleged effects in his home state.
Further strengthening Copas’s argument for particularization is the fact that he has
changed his behavior as a result of his stigmatic and psychological injuries. See Docket No. 2 at
2 (“Copas desires to re-engage in therapy, but fears that a therapist will refuse to treat him
because of his sexuality.”); Docket No. 17 at 3 (“[H]is fear of being rejected by a counselor
because of his sexual preference prevents him from reengaging in therapy.”). “For purposes of
standing, these change[s in] personal conduct on account of allegedly unlawful conduct are
indicative of injury.” Moss, 683 F.3d at 607; see Am. Civil Liberties Union of Ill., 794 F.2d at
269 (holding that one plaintiff has standing because “she detours from her accustomed route to
avoid the [lighted] cross”).
In Moss, the Fourth Circuit held that a student and parent who received a letter about an
opportunity for high school class credit for off-campus Christian religious instruction had
standing to sue. Haslam contends that Moss supports his position, because another student and
parent who did not receive letters were found not to have standing. This, according to Haslam,
shows that Copas has not suffered a sufficiently particular injury, because he has knowledge of
the alleged discriminatory policy but has not been personally confronted by it. Haslam’s reading

13

of Moss is incomplete. Failure to receive the letter was only one factor the court examined in
denying standing to those plaintiffs:
Tillett has not suggested, however, that either she or her child
altered conduct as a result of the released time policy. Tillett’s
allegations amount to little more than simple disagreement with the
wisdom of the School District's policy. Tillett and her child do not
suggest that they were the targets or victims of this alleged
religious intolerance—indeed, they are Christians. Thus they are
seeking to vindicate, not their own rights, but the rights of others.
Moss, 683 F.3d at 606. Unlike the Tilletts, Copas has changed his behavior as a result of his
injury. Moreover, unlike the Tilletts, Copas is a member of the class allegedly discriminated
against by the Bill. 9 He is seeking to vindicate his own rights, rather than the rights of others.
His injury is not “based on a generalized interest of all citizens in the government’s complying
with the Establishment Clause . . ,” Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017) (internal
quotation marks omitted), but rather on personal harms inflicted by a policy he alleges
discriminates against him, specifically, as a gay Tennessean in continuing need of therapy. 10

9

Governor Haslam makes various arguments to the effect that the Bill does not actually
discriminate against homosexuals. The Bill need not discriminate on its face to inflict an Equal
Protection injury. See IRAP 2, 883 F.3d at 266 (“But even if the Proclamation’s stated objective
is religiously neutral, that cannot be dispositive as the entire premise of our review . . . is that
even facially neutral government actions can violate the Establishment Clause.”) (internal
quotation marks omitted). Regardless, whether or not the Bill violates the Establishment Clause
is a merits question not properly addressed on an inquiry into standing. Copas has alleged a
colorable Establishment Clause violation. No further merits analysis is proper at this stage.
10
Governor Haslam relies heavily on Barber, for which this court stayed this case at Copas’s
request. In Barber, the Fifth Circuit rejected standing for an Establishment Clause claim based
on stigmatic and psychological injuries allegedly caused by a Mississippi statute similar to the
Bill. Barber v. Bryant, 860 F.3d at 355. The court found that standing based on those injuries
would be “indistinguishable” from standing based on a generalized interest because “an
individual . . . cannot confront statutory text.” Id. at 353. This categorical approach hinges
entirely on the assumption that one can only “confront” an instance of state expression by seeing
or hearing it. But this assumption has no basis in the Establishment Clause or its underlying
concerns. Being physically exposed by proximity to a prayer or a statue is one form of
confrontation. Being forced to acknowledge and consider a potential barrier placed between
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That he has not been rejected services as the result of the Bill does not mean that he has suffered
no concrete, particularized injury by its passage.
[T]he Constitution also requires that we keep in mind the myriad,
subtle ways in which Establishment Clause values can be eroded,
and that we guard against other different, yet equally important,
constitutional injuries. One is the mere passage by the District of a
policy that has the purpose and perception of government
establishment of religion.
Doe, 530 U.S. at 314 (internal citation and quotation marks omitted). The court finds that Copas
has satisfied Article III’s standing requirements for his Establishment Clause claim.
ii.

Equal Protection
The Fourteenth Amendment mandates that no state “deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV. “[T]he Equal Protection Clause requires the
consideration of whether the classifications drawn by any statute constitute an arbitrary and
invidious discrimination.” Loving v. Virginia, 388 U.S. 1, 10 (1967). The injury-in-fact analysis
for Equal Protection claims differs from Establishment Clause claims: “Allen and its progeny
make clear that those same types of injuries [that confer Establishment Clause standing] are not a
basis for standing under the Equal Protection Clause—that is, exposure to a discriminatory
message, without a corresponding denial of equal treatment, is insufficient to plead injury in an
equal protection case. Moore v. Bryant, 853 F.3d 245, 250 (5th Cir.), cert. denied, 138 S. Ct.
468 (2017) (citing Allen v. Wright, 468 U.S. 737, 755 (1984)). The analyses are different
because “the injuries protected against under the Clauses are different . . . . [T]he gravamen of

oneself and one’s needed medical coverage is another. Neither is more particularized than the
other.
15

an equal protection claim is differential governmental treatment, not differential governmental
messaging.” Id.
Copas alleges that he “faces an actual and imminent threat of discrimination” (Docket
No. 2 at 8) and that he “has not re-engaged with a counselor because of his fear that the
counselor will refuse to treat him due to the counselor’s undisclosed religious beliefs against
homosexuality” (Docket No. 17 at 5). To have standing for an equal protection claim based on
the threat of discrimination, Copas must satisfy the injury-in-fact requirement’s imminence
component. “[T]hreatened injury must be certainly impending to constitute injury in fact” and . .
. “allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int’l USA, 568
U.S. 398, 409 (2013) (internal quotation marks omitted). Copas fails to show that rejection from
a counselor based on his sexuality is certainly impending. He pleads that he “desires to reengage in therapy, but fears that a therapist will refuse to treat him . . . .” (Docket No. 2 at 2.) .
But he pleads no specific plans to seek treatment in the near future. Even if the court were to
grant that Copas is likely to seek treatment, there is no factual basis to find rejection certainly
impending. Copas does not, for example, plead facts indicating that a counselor from whom he
expects to seek treatment was a proponent of the Bill, or has expressed animus towards
homosexuals, or even is an Evangelical Christian. The imminence requirement “cannot be
stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for
Article III purposes.” Clapper, 568 U.S at 409. Absent specific facts supporting a likelihood of
discriminatory rejection, the court will not assume that the state’s therapists will be likely to
discriminate, merely because it is lawful for them to do so. See id. at 414 (“We decline to
abandon our usual reluctance to endorse standing theories that rest on speculation about the
decisions of independent actors.”).

16

Without an imminent threat of discriminatory treatment, Copas cannot bring an Equal
Protection claim based on stigmatic injury. See Moore, 853 at 250 (holding that Equal
Protection claims based on stigma must be accompanied by allegations of discriminatory
treatment); see also Nat’l Ass’n for the Advancement of Colored People v. Horne, 626 F. App’x.
200, 201 (9th Cir. 2015) (“Plaintiffs have not alleged that their members were personally denied
equal treatment under Allen, as stigmatic injury caused by being a target of official
discrimination is not itself a personal denial of equal treatment.”). And because rejection is not
certainly impending, Copas’s unwillingness to reengage in therapy due to the Bill is not an
independent injury sufficient to confer standing. The Court in Clapper explicitly rejected this
line of argument:
Respondents’ contention that they have standing because they
incurred certain costs as a reasonable reaction to a risk of harm is
unavailing—because the harm respondents seek to avoid is not
certainly impending. In other words, respondents cannot
manufacture standing merely by inflicting harm on themselves
based on their fears of hypothetical future harm that is not certainly
impending.
Clapper, 568 U.S. at 416. Copas therefore does not have standing to bring an equal protection
claim based on the threat of discriminatory rejection by a therapist, or any attendant
psychological effects or behavioral changes resulting from that perceived threat.
Copas also alleges several additional Equal Protection violations. He incorrectly claims
that the Bill does not distinguish between government-employed counselors and private
counselors. It clearly does. See Tenn. Code Ann. § 63-22-301 (“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”) (emphasis added). Copas’s claim that the
Bill creates a barrier for him to receive government-provided mental health care is therefore

17

meritless. He also claims that the Bill makes it more difficult to obtain a $60 fee-waiver offered
by the state for undergoing pre-marital therapy by a licensed counselor. But Copas has not
alleged that he is engaged to be married, considering getting married, or even in a long-term
relationship. “[T]hreatened injury must be certainly impending to constitute injury in fact, and
. . . allegations of possible future injury are not sufficient.” Clapper, 568 U.S. at 409 (internal
quotation marks omitted). Copas’s failure to plead any facts indicating any impending difficulty
in obtaining pre-marital therapy dooms his claim under this theory.
In addition to claims brought as a potential client, Copas brings an Equal Protection claim
in his capacity as a state-certified Peer Recovery Specialist with a Master’s degree in counseling.
Copas claims that the Bill “prefers Evangelical Christian counselors who disapprove of
homosexuals over Copas and other counselors who don’t share those beliefs by allowing the
Evangelical Christian Counselors to graduate from public universities and obtain licensure
without complying with all of the ACA’s Coded [sic] of Ethics.” (Docket No. 17 at 6.)
Specifically, he claims that the Bill violates Section C.5 of the American Counseling Association
(“ACA”)’s Code of Ethics, which prohibits counselors from “engag[ing] in discrimination
against prospective or current clients . . . based on gender, gender identity, sexual orientation,
[and] marital/partnership status.” (Docket No. 2 at 6.) Copas alleges that the Bill “requires a
Tennessee public university to confer a degree upon, and the State of Tennessee to license, a
counselor who refuses to abide by Section C.5, but provides no protections to a potential
counselor who refuses to abide by any other section in the ACA’s Code of Ethics.” (Id.) Copas
alleges he is harmed by this inequity because, unlike Evangelical Christian Counselors, he
“could not obtain his Master’s Degree or a State-issued [sic] license in counseling without
complying with Section C.5 . . . .” (Docket No. 17 at 5.)

18

To support his theory that this alleged inequity confers standing for his Equal Protection
claim, Copas relies on the Supreme Court’s decision in Ne. Fla. Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656 (1993), in which the Court held
that, for Equal Protection Clause claims:
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.
(Docket No. 17 at 7) (quoting Ne. Fla. Chapter of Associated Gen. Contractors of Am., 656 U.S.
at 666). But that decision stands for the proposition that, for Equal Protection claims such as
Copas’s, “the ‘injury in fact’ is the inability to compete on an equal footing . . . .” Ne. Fla.
Chapter of Associated Gen. Contractors of Am., 656 U.S. at 666; see also Aiken v. Hackett, 281
F.3d 516, 519 (6th Cir. 2002) (“If, however, the plaintiffs allege some kind of on-going
constitutional violation and seek forward-looking relief to level the playing field, then the
plaintiffs need only show that the [discriminatory] preference hinders their ability to “compete
on an equal footing.”).
According to Copas’s pleadings, he has already obtained a master’s degree in counseling
and state certification to work as a peer recovery specialist. He does not allege that he is
currently seeking or planning to seek any licensure from the state of Tennessee. Even accepting
Copas’s premise that Evangelical students pursuing degrees in counseling or therapists seeking
licensure enjoy easier access to those benefits by not having to conform with Section C.5, Copas
cannot establish standing to challenge these claims because he does not allege that he himself is
seeking those benefits. There can be no hindrance to competition on an equal footing when
Copas has already obtained or is not attempting to obtain the benefits at issue.

19

Thus, the only cognizable basis for Copas’s claim would be his status as a state-certified
Peer Recovery Specialist. (Docket No. 2 at 2.) But his arguments with regard to the ACA’s
Code of Ethics deal exclusively with state licensure, not certification. See, e.g.¸ (Docket No. 2 at
6.) (alleging the Bill “requires . . . the State of Tennessee to license[] a counselor who refuses to
abide by Section C.5, but provides no protections to a potential counselor who refuses to abide
by any other section in the ACA’s Code of Ethics.”). Copas does not allege that he plans to seek
renewal of his Peer Recovery Specialist certification. Regardless, Tennessee does not require
compliance with the ACA’s Code of Ethics for Peer Recovery Specialist certification—that
program has its own Code of Ethics with which compliance is required for certification. 11
Copas’s certification is thus not implicated by any inequality stemming from conflict between
the Bill and the ACA Code of Ethics.
CONCLUSION
For the foregoing reasons, Haslam’s Motion to Dismiss is hereby GRANTED in part.
Copas’s Equal Protection claims are dismissed due to lack of standing. With regard to Copas’s
Establishment Clause claim, Haslam’s Motion is hereby DENIED.
It is so ORDERED.
ENTER this 25th day of May 2018.
______________________________
ALETA A. TRAUGER
United States District Judge

11

See
https://www.tn.gov/content/dam/tn/mentalhealth/documents/Certified_Peer_Recovery_Specialist
_Handbook_December_20_2016.pdf.
20