MEMORANDUM OPINION AND ORDER
Carlton W. Reeves, UNITED STATES DISTRICT JUDGE.
Plaintiff Carlos Moore filed this lawsuit against Governor Phil Bryant challenging the constitutionality of the Mississippi state flag. The flag includes the Confederate battle emblem in the top left corner. Moore alleges that the incorporation of the Confederate battle emblem in the state flag violates the Thirteenth Amendment as well as various clauses of the Fourteenth Amendment.
Before reaching the merits of the case, the Court asked the parties to submit simultaneous briefing on standing and the political question doctrine. The parties did so and presented oral argument on April 12, 2016.
I. Factual and Procedural Background
A. The Parties
Carlos Moore is an African-American attorney and Mississippi native who has lived in the state for most of his life. He resides in Grenada, Mississippi where he operates his own law firm and represents clients in state and federal courts throughout Mississippi.
Governor Phil Bryant, the chief executive officer of the state, is sued in his official capacity. He is statutorily mandated to "see that the laws are faithfully executed."
B. Constitutional Claims
Moore contends that Mississippi's state flag "is tantamount to hateful government speech [which has] a discriminatory intent and disparate impact" on African-Americans, in violation of the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment.
To support his allegation that the Confederate battle emblem incites racial violence, Moore points to the June 2015 mass killing of nine African-Americans at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. In addition, he cites a November 2015 incident at a Wal-Mart in Tupelo, Mississippi when a man set off an explosive to protest Wal-Mart's decision to cease the sale of Confederate-themed merchandise. Finally, Moore references a 2014 hate crime at the University of Mississippi where university students draped a noose and the former Georgia state flag — which contained the Confederate battle emblem — around the neck of a statue of James Meredith, the University's first African-American student.
Moore argues that the Governor should be enjoined from enforcing state statutes that adopt the flag's design and mandate or allow it to fly on public property.
Although the Governor has not been required to answer these specific allegations, he has filed a motion to dismiss contending that Moore's allegations fail to state a plausible claim for relief.
II. Historical Context
A. The Origin of the Confederate Battle Flag
Moore's claims challenge the constitutionality of the Mississippi state flag; however, his allegations hinge on the Confederate battle emblem contained in the state flag. Thus, the appropriate starting point is the historical landscape which spawned such a divisive emblem.
On January 9, 1861, Mississippi followed South Carolina's lead and became the second state to secede from the Union. Some argue that Mississippi's decision to secede was not at all connected to slavery, and instead assert that it was in response to an overreach of the federal government. Those who put forth this narrative need only read Mississippi's Declaration of Secession. It said:
To put it plainly, Mississippi was so devoted to the subjugation of African-Americans that it sought to form a new nation predicated upon white supremacy. As Confederate Vice President Alexander H. Stephens stated in March 1861, the "corner-stone" of the Confederacy "rests upon the great truth that the negro is not equal to the white man; that slavery — subordination to the superior race — is his natural and normal condition. This, our new government, is the first in the history of the world, based upon this great physical, philosophical, and moral truth."
At his inauguration in February 1861, Confederate President Jefferson Davis said, "[t]he time for compromise has now passed, and the South is determined to maintain her position, and make all who oppose her smell Southern powder and feel Southern steel."
The banner commonly referred to as the "Confederate flag" was not the flag of the Confederacy; it was adopted primarily for use by Confederate armies during battle.
B. Keeping the Spirit of the Confederacy Alive
Upon the readmission of the Confederate states to the Union, the South committed itself to two "new" causes — the continuation of a racial caste system and the endurance of Antebellum culture. During Reconstruction, organizations like the Ku Klux Klan, Knights of the White Camellias, and the White League sought to preserve white supremacy by using intimidation and violence to terrorize African-Americans.
In 1866, there were riots in Memphis and New Orleans; more than 30 African-Americans were murdered in each melee.
Alongside the terror permeating the South, there was a prominent movement to ensure the "proper" historical recollection of the Civil War — that the Southern cause had been just and necessary. This campaign was taken up by Confederate veterans and social groups.
What the South lost on the battlefield, it sought to recover in the collective memory of the next generation. "We have pledged ourselves to see that the truth in history shall be taught," proclaimed UDC officer Kate Noland Garnett, and there "shall be no doubt in the minds of future generations
The UDC also defended the KKK. One set of catechisms ended with a lesson teaching children that the Klan "protected whites from negro rule."
How the War would be remembered continued to be a point of contention between Union and Confederate veterans. At an event in 1900, Union veteran Albert D. Shaw argued that "the keeping alive of sectional teachings as to the justice and rights of the cause of the South, in the hearts of the children, is all out of order, unwise, unjust, and utterly opposed to the bond by which the great chieftain Lee solemnly bound the cause of the South in his final surrender."
Even into the 20th century, Southerners continued to defend secession and their supposed God-ordained supremacy. In 1904, Mississippi Congressman and later United States Senator John Sharp Williams offered the following reason for the war: "This other thing for which we fought was the supremacy of the white man's civilization in the country which he proudly claimed as his own; `in the land which the Lord his God had given him;' founded upon the white man's code of ethics, in sympathy with the white man's traditions and ideals."
Another piece of the South's revisionist campaign was the movement to construct Confederate monuments throughout the country.
In the 1940s, the Confederate battle flag became the emblem of the States' Rights Democratic Party, often referred to as the Dixiecrats.
Inspired by the Dixiecrats, after the Convention, University of Mississippi students adopted the Confederate battle emblem as a prominent symbol, synonymous with their school spirit. It remained on campus for decades.
In this era, States also hoisted the Confederate battle emblem in symbolic defiance of changing laws that threatened Jim Crow. In 1956, Georgia redesigned its flag to include the Confederate battle emblem, and in 1962, South Carolina placed the Confederate battle emblem atop its State Capito1.
The centennial of the Civil War gave Southern states yet another reason to commemorate the Confederacy. By early 1960, every Southern state had a commission to coordinate local centennial events.
The Confederate battle emblem's meaning has not changed much in the intervening decades. It should go without saying that the emblem has been used time and time again in the Deep South, especially in Mississippi, to express opposition to racial equality. Persons who have engaged in racial oppression have draped themselves in that banner while carrying out their mission to intimidate or do harm.
C. The Mississippi State Flag
1. 1890 Constitutional Convention and Adoption of the State Flag
Now, let us turn to Mississippi's banner. In 1890, Mississippians held a Constitutional Convention. Its purpose was clear. "Our chief duty when we meet in Convention, is to devise such measures, consistent with the Constitution of the United States, as will enable us to maintain a home government, under the control of the white people of the State," said State Senator Zachariah George.
During the Convention, delegates adopted voting laws that imposed landownership, poll tax, and literacy requirements, and excluded persons with certain criminal convictions.
Against this backdrop of legalized segregation, the current Mississippi state flag was adopted in 1894.
The flag adopted during that special session has remained, either officially or unofficially, the state banner.
2. Legal Challenges to he State Flag and the 2001 Referendum
This is not the first time parties have sought to litigate the constitutionality of the Mississippi flag.
Following the Supreme Court's decision, Governor Ronnie Musgrove appointed a special commission to examine the issue, determine an alternate design, and make a recommendation to the legislature.
In February 2001, the Mississippi legislature set a special election for April 17, 2001, where voters had the option of selecting the current flag or an alternate design as the state's official emblem.
3. Charleston Shooting
Although the Confederate battle emblem has been debated for decades, it was the June 2015 mass murder of nine African-Americans during Wednesday night prayer and Bible study at Charleston's Emanuel AME Church that forced the country's most recent reevaluation. Shortly after the massacre, a photo emerged of the alleged shooter holding the Confederate battle emblem. The media also reported that the shooter had intended to start a "race war."
The massacre had the opposite effect. Shocked and appalled, Americans came together with renewed appreciation for the racial divisiveness of the Confederate battle emblem. South Carolina and Alabama took action to remove the racially-charged symbol from their respective state houses.
Today, Mississippi stands alone. It is the only state to include the notorious "stars and bars" in its official flag.
4. Mississippi's Response
While waiting on the State to act on the flag, Mississippi's cities, counties, and universities took action. They did not want to stand alone. Instead, they understood the divisiveness of the flag and voted to remove it from their property.
Today, all but one of Mississippi's public universities-including traditionally white institutions like the University of Mississippi, the University of Southern Mississippi, and Mississippi State Universityhave removed the state flag from their campuses.
In Tupelo, racial tension has continued to swell following the shooting of an unarmed African-American man by a police officer.
Religious entities in Mississippi have also revisited the issue. The Episcopal Diocese of Mississippi urged state leaders to adopt a flag that "represents, unites, and respects" all Mississippians.
When the national discussion about the Confederate battle emblem came to Mississippi in 2015, Mississippi's highest political leaders also weighed in. Governor Bryant stated, "[a] vast majority of Mississippians voted to keep the state's flag, and I don't believe the Mississippi Legislature will act to supersede the will of the people on this issue."
January 2016 came. The Mississippi legislature convened with an opportunity to change the state flag. And to that end, at least 16 bills were introduced regarding the flag. The bills varied, yet generally fell into three categories: proposing a new state flag design;
It was in February 2016, the month designated as Black History Month, that Governor Bryant declared that April would be celebrated as Confederate Heritage Month.
After the session, Speaker Gunn expressed his disappointment that action was not taken on the state flag.
The Court, acting seta sponte, ordered the parties to brief two procedural issues — standing and the political question doctrine. Finding that standing is the controlling question, the Court will limit its analysis to this single issue.
Article III of the Constitution does not grant federal courts unfettered power to consider any issue. Instead, the authority of the federal courts extends only to cases and controversies.
It is well-established that standing requires the plaintiff to demonstrate three elements: (1) an injury in fact that is concrete and particularized as well as actual or imminent; (2) a causal connection between the injury and the conduct of the defendant; and (3) a likelihood that the injury will be redressed by a favorable judicial decision.
In other words, courts may dismiss due to lack of subject matter jurisdiction on any of the following bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts."
Because standing is a jurisdictional issue, the Court may act on its own motion and it must dismiss where subject matter jurisdiction is lacking.
A. Injury in Fact
To demonstrate an injury, the plaintiff must suffer "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical."
An injury is particularized if it "affect[s] the plaintiff in a personal and individual way."
To demonstrate an actual or imminent injury, "[t]he plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct."
In his third amended complaint, Moore contends that the state flag violates his Fourteenth Amendment rights because it (1) makes him fear for his safety; (2) denies him equal treatment and dignity under the law; and (3) causes high blood pressure, anxiety, sleep disturbances, and abnormal EKGs.
1. Fear for his Safety
In light of the June 2015 mass shooting in Charleston, the November 2015 Wal-Mart bombing in Tupelo, and the 2014 noose brandishing at the University of Mississippi, Moore alleges he fears for his safety.
Without question, each of these incidents was an atrocious act of violence or intimidation with clear racial overtones. In the University of Mississippi case, the students ultimately pled guilty to charges reflecting the racial motivation of their conduct, and they have been punished.
These incidents, however, cannot show that Moore is particularly at risk of harm as a result of the Confederate battle emblem.
Moore also does not show that any injury is imminent. He says that "[t]ime is of the essence for the removal of the current state flag" because of the Charleston shooting, but does not demonstrate how that incident increased the imminent threat of a similar attack.
To find an injury based on this plaintiff's fear for his safety would stretch the elasticity of imminence well beyond its purpose. Sadly, any person can be a victim of violence. And, while there are countless examples of violence against minority groups, including African-Americans, Moore's fear that the State flag and its continued display will lead to imminent violence against him falls short of Constitutional standing.
2. Denial of Equal Treatment
Next, the Court considers Moore's allegations that he has been deprived of equal dignity and equal treatment in violation of the Fourteenth Amendment of the United States Constitution.
Courts have recognized stigmatic injuries, which are often intangible, as sufficient to meet the Article III injury requirement.
Moore points to the Sixth Circuit's decision in Smith v. City of Cleveland Heights to support his argument that he has suffered a stigmatic injury.
Moore contends the Mississippi flag has the same effect on him, but the cases are not analogous. In Smith, the plaintiff's stigmatic injury was directly related to a city policy that expressly denied equal treatment to him on the basis of race.
In contrast, Moore has failed to allege any specific facts or incident where he was denied equal treatment due to the state flag or the message it communicates. Because the third amended complaint lacks such allegations, at oral argument, the Court asked him how he has been denied equal treatment. Moore was unable to provide an example of a deprivation of a legal right.
Moore also claims a right to "equal dignity" based on the Supreme Court's recent same-sex marriage decision, Obergefell v. Hodges.
The Court is well-aware of those cases, but Moore's argument attempts to contort their holdings beyond recognition. All of those cases involved a legal right guaranteed by the Fourteenth Amendment — specifically, the right to marry and the right to receive a public education free from racial discrimination. Those plaintiffs' rights had been infringed upon because they were actually treated differently than others. Moore alleges no analogous legal right; he feels like "a second-class citizen simply because of the fact [he is] African-American."
3. Physical Injuries
Moore says he feels "great concern and anxiety when I enter public property adorned with the state flag," which "has probably contributed to or caused the exacerbation of medical ailments, including but not limited to hypertension, insomnia and abnormal EKGs."
To the extent Moore experiences stress because of the state flag, he appears willing to experience it for economic gain. When the Court asked about limiting his practice to federal court, where he would not necessarily encounter the state flag, he said that his wife "has got accustomed after 15 years of marriage to a certain quality of life. And it's not fair to her" to accept "a lower standard of living because I only had certain cases in federal court."
Moore's arguments are phrased as constitutional claims, yet his allegations of physical injuries suggest that he is making an emotional distress tort claim. To succeed in constitutional litigation, however, Moore needs to identify that part of the Constitution which guarantees a legal right to be free from anxiety at State displays of historical racism.
B. Injury Traceable to Conduct
Even assuming that there is a cognizable injury in this case, that injury must be "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court."
The current state flag has been flying in Mississippi for Moore's entire lifetime. He did not file the instant case until February 2016, when he was 39 years old. The catalyst for this suit was evidently his fear resulting from recent instances of racial violence and intimidation in South Carolina and Mississippi, and the lack of action by Mississippi's leaders. Moore's fear and the necessity of this suit were apparently compounded by the Governor's proclamation of April as Confederate Heritage Month during Black History Month.
During oral argument, the Court inquired into the start date of Moore's physical injuries to determine how they are traceable to the state flag. Plaintiff's counsel stated that they were ongoing injuries that did not begin on a specific date.
A problem with Moore's argument is that any number of factors can contribute to these types of chronic health conditions: genetics, stress, the practice of law, diet, and lack of exercise, to name a few. Even the stress and anxiety he experiences when entering a courthouse (or awaiting a Court's ruling) could easily be attributable to concern about a pending proceeding. Moore offers no plausible allegation that these physical injuries are directly attributable or even exacerbated by the state flag, when there are so many other competing explanations of their cause. Thus, it is impossible for the Court to see how Moore could establish those injuries as fairly traceable to a flag that has been in existence for his entire life.
Lastly, Moore is again unlike the gay couples in the same-sex marriage cases. In those cases, the plaintiffs' injuries were traceable to state statutes and constitutional amendments which explicitly forbade governmental officials from issuing marriage licenses to gay couples, effectively giving government officials a license to discriminate. There is no comparable legal injury here, much less an injury traceable to the state flag.
C. Redressability by Favorable Judicial Decision
The final prong of standing requires the plaintiff to demonstrate that a favorable judicial decision is likely to redress his injury.
Here, Moore contends,
At oral argument, when Moore was asked whether the removal of the flag would improve his insomnia, EKGs, and stress, he responded, "[i]mmediately."
As the Court has discussed in detail, the injuries alleged by Moore are untethered to a legal right. In instances where this Court has found that a plaintiff's stigmatic injury could be redressed by a favorable judicial decision, the injury has been connected to a fundamental right. On the facts of this case, however, there is no legal right at issue which the Court can remedy.
For these reasons, Moore does not have standing to bring this action.
IV. Motion to Amend Complaint
Lastly, Moore filed a motion seeking leave to amend his third amended complaint. "The court should freely give leave when justice so requires."
Since the Court found no standing based on Moore's third amended complaint, the present analysis focuses on whether the proposed fourth amended complaint would confer standing. If it would not, allowing Moore to amend would be futile.
Moore's fourth amended complaint adds his minor child, A.M., as a plaintiff and the State Superintendent of Education and the Grenada Public School System as defendants.
Section 37-13-5 indeed requires public schools to provide a course of study about the American and Mississippi flags, as well as their history. In this facial challenge, however, Moore's complaint lacks any allegations that would allow this Court to conclude that requiring teachers to provide
The same is true for § 37-13-7. The statute does not require any student to recite the Mississippi pledge, and even if it did, Supreme Court precedent clearly prohibits students from being forced to say a pledge of allegiance.
Because Moore's proposed fourth amended complaint does not cure the issue of standing, allowing him to amend would be futile. The motion is denied.
To millions of people, particularly African-Americans, the Confederate battle emblem is a symbol of the Old Mississippi — the Mississippi of slavery, lynchings, pain, and white supremacy. As Justice Fred Banks noted, the Confederate battle emblem "takes no back seat to the Nazi Swastika" in its ability to provoke a visceral reaction.
The emblem offends more than just African-Americans. Mississippians of all creeds and colors regard it as "one of the most repulsive symbols of the past."
Since the Civil War, this nation has evolved and breathed new life into "We the People" and "all men are created equal."
At times there is something noble in standing alone. This is not one of those times. The Confederate battle emblem has
For that change to happen through the judiciary, however, the Confederate battle emblem must have caused a cognizable legal injury. In this case no such injury has been articulated.
This case is dismissed. A separate Final Judgment will issue.
To be clear, these organized groups were not the only perpetrators of this terror. "[L]ynchings and whippings, ... arson and random shooting[s], were just as frequently carried out by ad hoc mobs or even individuals." Bell, supra, at 230; see generally Ralph Ginzburg, One Hundred Years of Lynching (1988) (reprinting hundreds of newspaper articles chronicling lynchings throughout the United States); O'Reilly, supra, at 122 (noting nearly 4,000 lynchings in the United States between 1889 and 1941); Mark v. Tushnet, Thurgood Marshall: His Speeches, Writing, Argument, Opinions and Reminiscences ix (2001) (writing that between the 1880s and the 1930s more than 4,700 persons were lynched). One of the most pernicious things about these killings is that they were public spectacles, open to the community at large, with women and children as gleeful participants. See Manfred Berg, Popular Justice: A History of Lynching in America 91 (2011) ("During the decades between the end of Reconstruction and the 1920s `spectacle lynchings' before large crowds, often involving drawn out torture, mutilation, burning, and the dismemberment of the victim's body, occurred regularly in the New South); Barbara Holden-Smith, Lynching, Federalism, and the Intersection of Race and Gender in the Progressive Era, 8 Yale J. L. & Feminism 31, 36-37 (1996) ("Men constituted the majority of the actual lynchers, ... women and children took an active role in the murders by cheering on the lynchers, providing fuel for the execution pyre, and scavenging for souvenirs after the lynchings.").