United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
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).
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.
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 religious orthodoxy, ”
id. at 6 (Compl. ¶ 15).
“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).
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).
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).
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
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 motion 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.
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.
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.
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.
Motion to Dismiss Under Rule 12(b)(1) and 12(b)(6)
have first moved under Rule 12(b)(1) to dismiss the case for
lack of subject 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,
504 U.S. 555, 561 (1992). “At the pleading stage,
general factual allegations of injury resulting from the
defendant's conduct” will often suffice.
Id.; see also Owner-Operator Indep. Drivers
Ass'n v. Dep't of Transp., 879 F.3d 339, 346-47
(D.C. Cir. 2018). “[T]hreadbare recitals of the
elements of [standing], supported by mere conclusory
statements, ” however, will not. Arpaio v.
Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The
Court need not “assume the truth of legal
conclusions” nor must it “accept inferences that
are unsupported by the facts set out in the complaint.”
Id. (quoting Islamic Am. Relief Agency v.
Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)) (internal
quotation marks omitted).
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, 292 F.3d 235, 242 (D.C. Cir.
2002). In evaluating such a motion, the Court “must
first ‘tak[e] note of the elements a plaintiff must
plead to state [the] claim' to relief, and then determine
whether the plaintiff has pleaded those elements with
adequate factual support to ‘state a claim to relief
that is plausible on its face.'” Blue v.
District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015)
(quoting Iqbal, 556 U.S. at 675, 678) (alterations
in original) (citation omitted). The Court need not accept as
true legal conclusions disguised as factual allegations,
“‘naked assertions' devoid of ‘further
factual enhancement, '” or a
“‘formulaic recitation of the elements of a cause
of action.'” Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 557 (2007)) (alterations omitted). The plaintiff,
however, is entitled to “the benefit of all inferences
that can be derived from the facts alleged.” See
Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011) (quoting Thomas v. Principi, 394
F.3d 970, 972 (D.C. Cir. 2005)).
Motion to Intervene Under Rule 24
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, 717 F.3d
189, 192 (D.C. Cir. 2013). First, “the application to
intervene must be timely.” Id. (quoting
Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir.
2008)). Second, “the applicant must demonstrate a
legally protected interest in the action.” Id.
(quoting Karsner, 532 F.3d at 885). Third,
“the action must threaten to impair that
interest.” Id. (quoting Karsner, 532
F.3d at 885). Fourth, “no party to the action can be an
adequate representative of the applicant's
interests.” Id. (quoting Karsner, 532
F.3d at 885). A movant seeking to intervene as of right