Lawyer who says he was stigmatized by Mississippi flag has no standing to sue, 5th Circuit says

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Constitutional Law


Mississippi Capitol

State Capitol of Mississippi in Jackson.

A black Mississippi lawyer who said he was stigmatized by the state flag’s incorporation of the Confederate flag has no standing to sue, a federal appeals court has ruled.

The 5th U.S. Circuit Court of Appeals at New Orleans ruled against lawyer Carlos Moore in a March 31 opinion (PDF), report NPR, Texas Lawyer (sub. req.) and Courthouse News Service.

Moore had claimed the state violated his equal protection rights because of its flag, which incorporates the Confederate flag in the upper left-hand corner. He said he encountered the flag at courthouses because of his work as a prosecutor.

Moore had asserted that the state flag carries a message that is painful, threatening and offensive to him, making him feel like a second-class citizen. But stigmatic injury alone, absent discriminatory treatment, is not enough to support an equal protection claim, the appeals court said.

“Stigmatic injury does not transform into injury in fact just because the source of the stigmatic injury is frequently confronted or the stigmatic harm is strongly, sincerely and severely felt,” the appeals court said.

Moore also had claimed his daughter’s First Amendment rights will be violated when she begins school as a result of two state laws. The appeals court said Moore’s daughter could not show an injury that would support standing.

One of the laws requires that students be exposed to the flag and taught “proper respect” for it. The appeals court found no facial violation of the Constitution.

“The statute demands that children be taught ‘proper respect’ for the flag,” the appeals court said. “ ‘Proper’ means ‘correct’ or ‘marked by suitability, rightness or appropriateness.’ The words ‘correct’ or ‘suitable’ imply neither a positive nor a negative level of respect; under a plain reading of the statute all that is required to be taught is the history of the flag and the respect that it is due, whatever that may be.”

The appeals court also upheld a second law that requires schoolchildren to be taught the state Pledge of Allegiance. The law doesn’t require the teaching of a particular viewpoint about the pledge, the court said.

Moore’s claim on behalf of his daughter “boils down to an assertion that Mississippi could, but need not, apply its law in an unconstitutional way,” the appeals court said. “This assertion is too speculative to support standing.”




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