Sevier v. Lowenthal
Sevier v. Lowenthal
Opinion of the Court
Plaintiff Chris Sevier, proceeding pro se , seeks the removal of "the Gay Pride Rainbow Colored Flag" from "the halls and public access way[s] of Federal legislative buildings." Dkt. 1 at 2 (Compl. ¶ 2). "[H]omosexuality," he says, "is a religion," id. at 16 (Compl. ¶ 32), which the public display of the gay pride flag impermissibly favors, id. at 28-30 (Compl. ¶¶ 65-76). According to Sevier, display of the flag violates the Establishment Clause, discourages him from lobbying Congress, and violates his rights to equal protection and substantive due process. Id. at 28-32 (Compl. ¶¶ 65-91). Sevier has made similar claims in, by his count, "more than [fifteen]" other lawsuits. Dkt. 25 at 3. In addition, Sevier asks that the Court "declare that the holdings in United States v. Windsor , ... and Obergefell v. Hodges , ... are intellectually dishonest and amount to acts of judicial tyranny and judicial malpractice." Dkt. 1 at 36 (Compl. Prayer for Relief).
Currently pending before the Court are Defendants' motion to dismiss, Dkt. 8, Sevier's motion for leave to amend his complaint, Dkt. 25, a motion to intervene, Dkt. 5, and numerous other motions. For the reasons explained below, the Court will GRANT Defendants' motion to dismiss, will DENY the motion to amend, will DENY the motion to intervene, and will dispose of the remaining motions.
I. BACKGROUND
Sevier's complaint consists largely of his views regarding homosexuality and criticisms of the Supreme Court's Obergefell decision. See, e.g. , Dkt. 1 at 3, 6, 10-28 (Compl. ¶¶ 5-6, 14, 19, 21, 23-31, 33, 35-45, 51-52, 56-58, 62-64). It also recounts Sevier's efforts to "put[ ] [Obergefell ] to the test" by marrying inanimate objects. Id. at 5 (Compl. ¶ 12); see also, e.g., id. at 22-23 (Compl. ¶¶ 49-54). The present action appears to focus, however, on the following allegations: Defendants, who are four members of the U.S. House of Representatives, have allegedly "authorized and installed [one or more] Gay Pride Rainbow Colored Flag[s]" in the hallways outside their offices, id. at 6-11 (Compl. ¶¶ 16-19), which Sevier "frequently encounter[s]," id. at 5 (Compl. ¶ 12). Given Sevier's "religious worldview" that "homosexuality is obscene, immoral, [and] subversive to human flourishing," id. at 5-6, 11-12 (Compl. ¶¶ 13, 21), he "[i]s offended by [the flags'] presence," id. at 4-5, 23 (Compl. ¶¶ 11, 55). The flags, he says, make him "feel[ ] unwelcome[ ]," id. at 5 (Compl. ¶ 12), because he does not "adhere to [Defendants'] particular *315religious orthodoxy," id. at 6 (Compl. ¶ 15).
The "religious ideology" that Sevier has in mind is homosexuality itself. See, e.g., id. at 16 (Compl. ¶ 32) ("[H]omosexuality is a religion ...."). He contends that "the [h]omosexual church" is "the largest denomination" of "the overall church of 'western expressive individualism postmodern moral relativism,' " id. at 2-3, 28, 29 (Compl. ¶¶ 4, 69, 74), which posits that "nobody's version of morality as a basis of law matters except for the private moral code that [the adherent] personally advocat[es]," id. at 12 (Compl. ¶ 22). In Sevier's view, then, the gay pride flag "is a 'religious symbol' for the homosexual denomination," id. at 2-3 (Compl. ¶ 4), and its "placement ... amounts to [Defendants'] endorsement of a particular religion," id. at 28 (Compl. ¶ 67).
The public display of these flags, moreover, allegedly "treats different sects within the church of moral relativism with different degrees of favorability." Id. at 24-25 (Compl. ¶ 59). Sevier says he belongs to "a less popular sect" of the church of moral relativism, id. (Compl. ¶ 59), which he calls the "machinist sect[ ]," id. at 29 (Compl. ¶ 72). As a "machinist," Sevier's "sex-based self-asserted identity narrative is that he prefers to be married to an inanimate object." Id. at 22 (Compl. ¶ 49). So, according to Sevier, unless Defendants "install a flag that represents people who self-identify as polygamists, machinists, zoophiles, and heterosexuals," id. at 21 (Compl. ¶ 47), their actions "treat ... the homosexual denomination of ... the church of moral relativism with disproportionate favor," id. at 29 (Compl. ¶ 72).
Based on these allegations, Sevier alleges violations of the Establishment, Equal Protection, and Due Process clauses. Id. at 28-32 (Compl. ¶¶ 65-91). He seeks an injunction requiring that Defendants remove the flags, or, in the alternative, "fly the [f]lags that represent the people in the zoophile, polygamy, and machinism sects [of] the overall church of moral relativism." Id. at 36 (Compl. Prayer for Relief). He also seeks declaratory judgments that (1) Defendants' display of the flags "is unconstitutional;" (2) that Obergefell and Windsor are "intellectually dishonest ... acts of judicial tyranny and judicial malpractice;" and (3) that "homosexuality is a 'religion' ... [that the] government cannot legally recognize." Id. (Compl. Prayer for Relief).
Sevier's initial lawsuit was filed on March 23, 2017, Dkt. 1, and on August 9, 2017, he filed a motion for summary judgment, Dkt. 4. On August 15, 2017, John Gunter Jr., Whitney Kohl, and Joan Grace Harley-"three self-identified polygamists" who appear to be coordinating with Sevier in this and other cases-moved to intervene as of right under Federal Rule of Civil Procedure 24(a)(2), or alternatively, to intervene permissively under Rule 24(b)(1)(B). Dkt. 5 at 8. Gunter, Kohl, and Harley allege Equal Protection, Due Process, and Establishment Clause claims that are similar in form to those advanced by Sevier, although their allegations of injury focus even more on their opposition to gay marriage generally and their "feel[ing] deeply offended" by "[t]he Defendants['] display of the gay pride flag for self-serving political reasons." Dkt. 5 at 8-10, 21.
On September 22, 2017, Defendants-four members of the House of Representatives who have displayed the flags outside their offices-moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) on the grounds that Sevier lacks standing and that the case presents a nonjusticiable political question; under Rule 12(b)(5) for insufficient service of process; and under Rule 12(b)(6) for failure to state a claim. See Dkt. 8. They ask also that the Court treat their motion to dismiss as an opposition to the motion to intervene and Sevier's *316motion for summary judgment. Id. at 10 n.2. Because Defendants' motion raises a number of threshold issues, the Court denied Sevier's motion for summary judgment as premature, Minute Order (Sept. 24, 2017), and ordered him to respond to Defendants' motion to dismiss, Dkt. 9. Instead, he filed two "affidavits" in support of his complaint. Dkt. 10; Dkt. 11. Then, on October 2, 2017, he moved to stay these proceedings pending the resolution of his motion to intervene in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , No. 16-111, a case currently before the Supreme Court. Dkt. 12. The Court denied that motion, Minute Order (Oct. 4, 2017), and Sevier continued to file affidavits in support of his complaint, Dkt. 15; Dkt. 16; Dkt. 17; Dkt. 18; Dkt. 19. On October 7, 2017, Sevier filed a "motion for the court to make an expedited ruling on the intervention motion." Dkt. 20 at 1. Although not styled as such, this document responds to the arguments made in Defendants' motion to dismiss. See id. at 2-6.
On November 4, 2017, Sevier moved to amend his complaint, elaborating on his earlier objections to the Supreme Court's decision in Obergefell and incorporating additional arguments in response to the motion to dismiss. See Dkt. 25; Dkt. 26. Sevier filed this document-he refers to it as a combined motion to amend, statement in support of the motion to intervene, and response to the motion to dismiss-twice, but with different exhibits attached. Compare Dkt. 25, with Dkt. 26. Defendants, in turn, filed a reply to the portion of the document opposing the motion to dismiss, Dkt. 27, and a response to the portion seeking to amend the complaint, Dkt. 28. Sevier then sought leave to file an overlength reply in support of his motion to amend, Dkt. 30, and an overlength surreply to the motion to dismiss, see Dkt. 32, in addition to filing shorter versions of both, Dkt. 30-2; Dkt. 32-2.
Since the conclusion of briefing on the motion to dismiss and motion to amend, two of the proposed intervenors filed motions for summary judgment, Dkt. 34; Dkt. 47, one of which is "essentially the same document" as Sevier's proposed surreply, Dkt. 32 at 2. Sevier has continued to file additional "affidavits" or "notices" not clearly relevant to any of the pending motions. See Dkt. 29; Dkt. 35; Dkt. 37; Dkt. 38; Dkt. 42; Dkt. 43; Dkt. 44; Dkt. 45; Dkt. 50. He has also moved for a scheduling conference, Dkt. 36, to strike a filing that the Clerk of the Court identified as having been entered in error, Dkt. 40, and to supplement his earlier pleadings with filings he or the proposed intervenors have made in other cases, Dkt. 41; Dkt. 46. Finally, the National Alliance of Black Pastors, Dkt. 48, and the Coalition of Doctors Defending Reparative Therapy, Dkt. 49, have sought leave to file amicus briefs.
For the reasons explained below, the Court will GRANT Defendants' motion to dismiss, Dkt. 8; DENY the motion to intervene, Dkt. 5; DENY the motion to amend the complaint, Dkt. 25; GRANT the motion for leave to file an overlength reply in support of the motion to amend the complaint, Dkt. 30; DENY the motion for leave to file an overlength surreply to the motion to dismiss, Dkt. 32; DENY the motions for summary judgment filed by proposed intervenors, Dkt. 34; Dkt. 47, DENY the motion for a scheduling conference, Dkt. 36; DENY the motion to strike, Dkt. 40; DENY the motions to supplement, Dkt. 41; Dkt. 46; and GRANT the motions for leave to file amicus briefs, Dkt. 48; Dkt. 49.
II. LEGAL STANDARD
A. Motion to Dismiss Under Rule 12(b)(1) and 12(b)(6)
Defendants have first moved under Rule 12(b)(1) to dismiss the case for lack of *317subject matter jurisdiction. "The party invoking federal jurisdiction bears the burden of establishing" each of the elements of Article III standing, although "the manner and degree of evidence required" varies with "the successive stages of the litigation." Lujan v. Defs. of Wildlife ,
Defendants have also moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Such a motion is designed to "test[ ] the legal sufficiency of a complaint." Browning v. Clinton ,
B. Motion to Intervene Under Rule 24
Parties seeking to intervene as of right under Federal Rule of Civil Procedure 24(a) must comply with four requirements. Deutsche Bank Nat'l Tr. Co. v. FDIC ,
"Permissive intervention is governed by Federal Rule of Civil Procedure 24(b), which provides, in pertinent part, that ... [']the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact.' " Aristotle Int'l, Inc. v. NGP Software, Inc. ,
C. Motion for Leave to File an Amended Complaint Under Rule 15(a)
A party may amend its complaint "once as a matter of course within ... 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1). After 21 days, a party may only amend "with the opposing party's written consent or the court's leave." Fed R. Civ. P. 15(a)(2). Although courts "should freely give leave [to amend] when justice so requires,"
III. ANALYSIS
A. Motion to Dismiss
Defendants advance several arguments in their motion to dismiss. First, they contend that the Court lacks subject matter jurisdiction because Sevier does not have standing to challenge the display of the rainbow flags at issue and, in any event, regulation of the display of such flags presents a nonjusticiable political question. Dkt. 8 at 10. Second, they argue that service was defective.
Defendants correctly observe that Sevier's pleadings allege various injuries that are insufficient to establish Article III standing. The Court here, however, focuses on what it reads to be the nub of his complaint: "As a lobbyist in DC ... Plaintiff has to frequently encounter the Gay Pride Rainbow Flag in the public hallways of these federal buildings, where he often goes to lobby [for] legislation .... The Plaintiff feels unwelcome[ ] to access the buildings, to approach the Defendants, and to consult with other members of the Democratic Party ...." Dkt. 1 at 5 (Compl. ¶ 12). Sevier also asserts that his "principal place of business is in the District of Columbia,"
*319in numerous "religious display and prayer cases ... courts have found (or at least apparently assumed)" that standing exists when the government "engag[es] in religious speech that was observed, read, or heard by the plaintiffs"); Books v. City of Elkhart ,
Defendants' argument that the political question doctrine deprives the Court of jurisdiction also fails because, as Defendants note, "[t]he authority possessed by the House to make its own rules is bounded only by 'constitutional restraints and fundamental rights.' " Dkt. 8 at 22 (quoting Rangel v. Boehner ,
The Court will nevertheless grant the motion to dismiss because Sevier has failed to state a claim for a violation of the Establishment, Equal Protection, or Due Process clauses. With respect to Sevier's Establishment Clause claim, he contends that his allegations must be measured against the three-pronged test first set forth in Lemon v. Kurtzman ,
Regardless of whether Lemon or the Van Orden plurality sets forth the relevant test, Plaintiff has failed to state a claim. Under Lemon , government actions must "(1) have a secular legislative purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) not result in excessive entanglement with religion or religious institutions." In re Navy Chaplaincy ,
Sevier has not cleared this initial hurdle. His claim rests on the premise that "homosexuality is a religion" within the meaning of the Establishment Clause. Dkt. 1 at 16 (Compl. ¶ 32). Elsewhere he describes homosexuality as a "sect/denomination of the 'sex-based self-asserted' religion of 'western postmodern expressive individualism moral relativism.' " Id. at 6 (Compl. ¶ 15). Sevier offers no legal support for this proposition. Instead, he has presented the Court with thousands of pages of news clippings and affidavits from his supporters expressing their opposition to homosexuality, and more recently, with filings from other litigation in which he alleges similar injuries. To be sure, the governing case law does not precisely define the contours of what constitutes "religion." See Alvarado v. City of San Jose ,
Common sense similarly forecloses Sevier's claim here. Whatever else religion might entail, it at minimum requires adherence to one or more fundamental beliefs. See, e.g., Kalka v. Hawk ,
In short, Sevier's argument proves way too much. If the mere acceptance of homosexuality-or support for gay rights-constitutes a "religion" for Establishment Clause purposes, then the same conclusion would presumably follow for any value judgment about how people should or should not live their lives. The Establishment Clause's meaning is not so capacious. See, e.g., *322United States v. Seeger ,
"[I]f anything can be religion, then anything the government does can be construed as favoring one religion over another, and ... the government is paralyzed ...." While the First Amendment must be held to protect unfamiliar and idiosyncratic as well as commonly recognized religions, it loses its sense and thus its ability to protect when carried to [such] extreme[s] ....
Alvarado ,
Although all of Sevier's claims appear to rely on this premise, his equal protection and due process claims fail for other reasons as well. Both merely reiterate Sevier's view (expressed in other lawsuits) that the Constitution gives him the right to marry his computer. Dkt. 1 at 30, 31-32 (Compl. ¶¶ 81, 87). The only relevance these allegations have to his present lawsuit-which again, seeks the removal of gay pride flags-is that those flags "remind [ ]" him that he cannot presently marry his computer.
For these reasons, the Court will grant Defendants' motion to dismiss.
B. Remaining Motions
In the interest of promptly and conclusively resolving this litigation, the Court addresses in brief the remaining pending motions.
1. Motion to Intervene and Motion for Summary Judgment
A proposed intervenor under Rule 24(a) must first demonstrate Article III standing. See Roeder ,
The strongest case for standing rests on Gunter's single, unsupported statement that "[h]e is a D.C. lobbyist," id. at 22, and the proposed intervenors' suggestion *323that they do not "feel welcomed or comfortable walking the halls of the legislative buildings with the gay pride rainbow colored flags on display," id. at 23. These assertions are less detailed than those made by Sevier, whose argument for standing at least alleged personal contact with the flags in question. The lack of any further detail regarding interactions with the flags at issue, or past lobbying or legislative efforts, combined with the proposed intervenors stating that they live in Utah, not Washington, D.C., see, e.g., id. at 1, leaves the Court without any basis to conclude that they have alleged facts sufficient to establish standing to sue. Moreover, unlike Sevier, their motion places its heaviest emphasis on grievances that are substantially more generalized, including opposition to homosexuality, gay rights, and-again-the Obergefell decision. Taken together, the Court concludes that Gunter, Kohl, and Harley have failed to establish that they possess Article III standing to challenge the display of the flags displayed by Defendants.
Even if the proposed intervenors did have standing, however, the Court would still deny them leave to intervene. Gunter, Kohl, and Harley have advanced the same legal theories and arguments as Sevier, down to-frequently-the very wording of their motion to intervene and subsequent motions for summary judgment. In light of this congruence, the Court concludes that the proposed intervenors have failed to identify any way in which Sevier fails to represent their interests in this litigation. See Bldg. & Const. Trades Dep't, AFL-CIO v. Reich ,
That leaves the question whether permissive intervention is appropriate. "It remains ... an open question in [the D.C.] Circuit whether Article III standing is required for permissive intervention." Defs. of Wildlife v. Perciasepe ,
2. Motion to Amend
Sevier filed a motion to amend his complaint on November 4, 2017. Dkt. 25. Defendant's motion to dismiss was filed on *324September 22, 2017. Dkt. 6. As applicable here, the Federal Rules of Civil Procedure provide that a motion to amend may only be filed as of right within 21 days of the receipt of a responsive pleading or "21 days after service of a motion under Rule 12(b)." Fed. R. Civ. P. 15(a)(1). Because Sevier filed forty-four days after service of Defendants' motion to dismiss, he may not amend as of right. Sevier briefly suggests that the Court's order extending the time for his opposition to the motion to dismiss also constituted an extension of the deadline to amend his complaint. Dkt. 25 at 7. Sevier's interpretation of the Court's Minute Order (Sept. 24, 2017), is incorrect. "While the Court has the authority to extend both the time period for filing an opposition to a motion and the 21-day time period for filing an amended complaint as a matter of course under Rule 15, the simple fact that the Court granted an extension of the former time period does not automatically effect an extension of the latter and fuse these two separate deadlines into one, as plaintiff contends." Hayes v. District of Columbia ,
Sevier has moved, in the alternative, to amend his complaint with leave of the Court. Fed. R. Civ. P. 15(a)(2). Sevier's amended complaint, however, does nothing to cure the deficiencies in his original pleadings. Because the proposed amendment is therefore futile, the Court will deny Sevier leave to file the amended complaint. See Willoughby v. Potomac Elec. Power Co. ,
3. Motions to File Overlength Documents
Sevier seeks leave to file an overlength brief in reply to Defendants' opposition to his motion to amend. Dkt. 30. Defendants have not opposed that request, and the Court, accordingly, will grant it. Sevier also seeks leave to "file a reply to the Defendants' reply" to his opposition to the motion to dismiss, preferably at a length beyond that specified in Local Rule 7(e). Dkt. 32 at 1. "[S]urreplies are generally disfavored, and the determination as to whether to grant or deny leave is entrusted to the sound discretion of the district court." Banner Health v. Sebelius ,
4. Motion for Scheduling Conference
Sevier has moved for a scheduling conference. He requests oral argument on his motion for summary judgment and requests, in the alternative, that the Court set a schedule for discovery. Because the Court concludes that oral argument is unnecessary and that the case should be dismissed, it will deny that motion.
5. Motion to Strike
Sevier has also moved to strike from the docket a document that the Clerk of the Court found to have been entered in error. See Dkt. 40; Dkt. 39; Notice of Error (Dec. 28, 2017). Because the filing was already deemed to have been entered in error and removed from the docket, nothing remains to strike. The Court will therefore deny the motion.
*3256. Motion to Supplement
Sevier has moved to supplement many of his earlier filings with documents either he or the proposed intervenors have filed in other cases. Beyond reiterating arguments already made, these filings add nothing material to the Court's consideration of the pending motions. Under Rule 15(d), the Court retains discretion over when and whether to permit supplementation of earlier pleadings, but declines to do so in the present case given that the filings are duplicative of those already contained in the record.
7. Motion for Leave to File Amicus Brief
The National Alliance of Black Pastors, Dkt. 48, and Coalition of Doctors Defending Reparative Therapy, Dkt. 49, have both moved for leave to file amicus briefs. The Court will order that those motions be granted, and the briefs be filed.
CONCLUSION
For these reasons, the Court will GRANT Defendants' motion to dismiss, Dkt. 8; DENY the motion to intervene, Dkt. 5; DENY the motion to amend the complaint, Dkt. 25; GRANT the motion to file an overlength reply in support of the motion to amend the complaint, Dkt. 30; DENY the motion to file an overlength surreply to the motion to dismiss, Dkt. 32; DENY the motions for summary judgment filed by the proposed intervenors, Dkt. 34; Dkt. 47; DENY the motion for a scheduling conference, Dkt. 36; DENY the motion to strike, Dkt. 40; DENY the motions to supplement, Dkt. 41; Dkt. 46; and GRANT the motions for leave to file amicus briefs, Dkt. 48; Dkt. 49.
A separate order will issue.
Sevier's definition of "religion" as "a set of unproven faith[-]based assumptions and naked assertions that can only be taken on faith," Dkt. 1 at 17-18 (Compl. ¶ 34), has already been rejected by the D.C. Circuit, see Crowley v. Smithsonian Inst. ,
Both the proposed intervenors and Sevier at times make nods toward taxpayer standing, but such a theory of standing is unavailable in this action because it requires the identification of a specific "exercise[ ] of congressional power under the taxing and spending clause of Art. I, § 8 of the Constitution." Hein v. Freedom from Religion Found., Inc. ,
Reference
- Full Case Name
- Chris SEVIER v. Alan LOWENTHAL, U.S. Representative for California's 47th Congressional District
- Cited By
- 3 cases
- Status
- Published