BRONSON v. SWENSEN
500 F.3d 1099 (2007)
J. BRONSON, G. Lee Cook, and D. Cook, Plaintiffs-Appellants,
v.
Sherrie SWENSEN, Salt Lake County Clerk, Defendant-Appellee.
No. 05-4161.
United States Court of Appeals, Tenth Circuit.
August 29, 2007.
Brian M. Barnard, Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-Appellants.
Mark Shurtleff, Utah Attorney General (Nancy L. Kemp, Assistant Utah Attorney General), Salt Lake City, UT, for Defendant-Appellee.
Before TACHA, Chief Judge, HARTZ and HOLMES, Circuit Judges.*
HOLMES, Circuit Judge.
Plaintiffs-Appellants J. Bronson, G. Cook, and D. Cook ("plaintiffs") subscribe to the religious doctrine of polygamy. G. Cook is married to D. Cook. G. Cook and J. Bronson filed an application for a marriage license, and Defendant-Appellee Sherrie Swensen ("Swensen"), the Clerk for Salt Lake County, Utah, refused to issue the marriage license. Plaintiffs subsequently brought a civil rights action under 42 U.S.C. § 1983, alleging that Swensen's refusal to issue the marriage license violated their associational, substantive due process, and free exercise rights under the First and Fourteenth Amendments to the United States Constitution.
The district court held that plaintiffs possessed standing to challenge the constitutionality of Utah's civil and criminal prohibitions against the practice of polygamy, as reflected in Utah Code Ann. § 76-7-101, § 3 of the Utah Enabling Act, and § 1 of Article III of the Utah Constitution. Reaching the merits of plaintiffs' claims, the district court applied controlling Supreme Court and Tenth Circuit precedent and found the absence of a constitutional violation. Consequently, the district court granted summary judgment to Swensen on all of plaintiffs' claims.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. After concluding that plaintiffs have forfeited any challenge to the constitutionality of Utah's civil prohibition of polygamous marriages, we hold that plaintiffs lack standing to bring claims against Swensen based upon the purported unconstitutionality of Utah's criminal prohibition of polygamy. We therefore VACATE the district court's judgment in favor of Swensen on the merits of these criminal-prohibition claims and REMAND the case for entry of an order dismissing these claims for lack of subject matter jurisdiction.I. BACKGROUND
A. Legislative Background
In 1894, Congress passed the Utah Enabling Act, which demanded as a condition of statehood that Utah enact an "irrevocable" ordinance preserving the security of religious beliefs, but forever prohibiting "polygamous or plural marriages." See Act of July 16, 1894, ch. 138, § 3, 28 Stat. 107, 108 ("That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship: Provided, That polygamous or plural marriages are forever prohibited." (emphasis in original)). Utah complied with this requirement, and, in 1895, a nearly identical version of this proscription was included in Article III of Utah's Constitution:
* After examining the briefs and appellate record, this panel has determined unanimously to honor the appellants' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f). The case is therefore submitted without oral argument.
1. Although this opinion uses the terms interchangeably, a conceptual difference exists between "bigamy" and "polygamy." "Bigamy" is defined as "the act of marrying one person while legally married to another." See Black's Law Dictionary 172 (8th ed.2004). "Polygamy," on the other hand, includes and exceeds the scope of bigamous behavior; it is defined as "the state or practice of having more than one spouse simultaneously." Id. at 1197.
2. Utah enacted a child bigamy statute in 2003. See Utah Code Ann. § 76-7-101.5. Under this statute, it is a second degree felony for a person, knowing he or she has a wife or husband, to marry or to cohabit with a person under the age of eighteen. Id.
3. On October 6, 1890, the Church of Jesus Christ of Latter Day Saints officially abolished polygamy as an institutional church practice. See Oliverson v. West Valley City,875 F.Supp. 1465, 1476 n. 20 (D.Utah 1995). 4. In mounting their attack on Utah's criminal prohibition of polygamy, plaintiffs purport to seek the invalidation of § 3 of the Utah Enabling Act and § 1 of Article III of the Utah Constitution. Standing alone, however, these provisions do not establish a criminal regulatory regime. By their terms, they do not establish crimes nor do they impose criminal penalties. Rather, they have provided the foundation for both civil and criminal legislative enactments that prohibit polygamy. Plaintiffs' singular attack on Utah's criminal prohibition of polygamy is therefore properly viewed as an effort to invalidate on constitutional grounds Utah's criminal statute that bars polygamy among consenting adults — that is, § 76-7-101.
5. Plaintiffs' "Summary of Argument" refers only to the absence of a legally-adequate justification for "criminalizing polygamy." Aplt. Br. at 11. Each topic heading argues solely for the invalidation of Utah's criminal prohibition of polygamy, specifically referring in most instances to § 76-7-101, which plaintiffs describe as Utah's "anti-bigamy law" or "anti-polygamy law." And most significantly, the content of plaintiffs' argument section exclusively analyzes the unconstitutionality of § 76-7-101.
6. In their reply brief, plaintiffs protest the idea that they have forfeited any argument concerning the alleged unconstitutionality of Utah's civil proscriptions regarding polygamy. However, plaintiffs do not identify where in their opening brief they mounted a challenge to these provisions. Indeed, plaintiffs' reply brief underscores the exclusive criminal-law focus of their appellate challenge, stating: "This action seeks a judicial determination as to the unconstitutionality of provisions of Utah law and federal law that make criminal the religious practice of polygamy." Aplt. Reply Br. at 1 (emphasis added).
7. By purporting to enter into a polygamous marriage, J. Bronson and G. Cook would violate § 76-7-101. See Holm, 137 P.3d at 734 ("marry" in § 76-7-101 includes marriages that are not state-sanctioned). Furthermore, D. Cook, by continuing to live with G. Cook after his second, extra-legal marriage, would fall within the literal language of the statute, which also proscribes "cohabit[ation]." Utah Code Ann. § 76-7-101.
8. The Utah Attorney General recently made to the Utah Supreme Court a representation of prosecutorial selectivity similar to the one found in The Primer. See Holm, 137 P.3d at 775 (Durham, C.J., concurring in part and dissenting in part) ("Further, the State itself has indicated that it does not prosecute those engaged in religiously motivated polygamy under the criminal bigamy statute unless the person has entered a religious union with a girl under eighteen years old.")
9. We note that in their complaint plaintiffs did not even request the form of relief upon which they build their theory of causation — in other words, they did not seek injunctive relief that would require Swensen to issue them a marriage license.
10. Plaintiffs allude to the possibility that Swensen's refusal to issue a marriage license has enhanced the likelihood of their criminal prosecution under § 76-1-101. See Aplt. Reply Br. at 4 ("While Ms. Swensen has no power to initiate a criminal prosecution, her actions directly lead to or would prevent criminal prosecutions." (emphasis added)). We summarily reject this theory. Plaintiffs have failed to cite any evidence in the record to suggest that the denial of a marriage license carries any influence on the decision to prosecute a defendant under § 76-7-101. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ("[i]n response to a summary judgment motion, . . . the plaintiff . . . must `set forth' by affidavit or other evidence `specific facts'" that establish each element of standing); Gandy, 416 F.3d at 1154 (same). Moreover, even if it did have some influence on the prosecutors authorized to enforce the criminal prohibition, we would not be able to conclude that this influence is "determinative or coercive." See Bennett v. Spear,520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (recognizing that the injury-in-fact concept "does not exclude injury produced by determinative or coercive effect upon the action of someone else"). 11. In Rasmussen, we noted: "While a declaratory judgment is generally prospective relief, in some situations, it has been recognized as retrospective. . . . Thus, we consider declaratory relief retrospective to the extent that it is intertwined with a claim for monetary damages that requires us to declare whether a past constitutional violation occurred." 298 F.3d at 1202 n. 2; see Winsness, 433 F.3d at 735.