AMERICAN MARRIAGE MINISTRIES v. CHERYL COLLINS (2025)

ORDER

Before the Court is Defendants Jennings H. Jones, Russell Johnson, and Coty Wamp's (collectively, “Defendants”) motion to dismiss Plaintiff American Marriage Ministries' amended complaint for lack of subject-matter jurisdiction (Doc. 20). For the following reasons, Defendants' motion will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Tennessee state law regulates who may solemnize marriages. See Tenn. Code Ann. § 36-3-301. Persons who are authorized to solemnize marriages under this statute include several categories of state and federal officials, as well as “[a]ll regular ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief, more than eighteen (18) years of age.”¹ Id. at (a)(1). For a marriage to be legally valid in Tennessee, it must be solemnized by a person in compliance with such provisions. See generally § 36-3-301. In recent decades, the legislature has imposed additional restrictions on ministers' authority to solemnize marriages, including two relevant to the present dispute: (1) a 1998 amendment providing that an eligible minister must be ordained or designated “by a considered, deliberate, and responsible act”; and (2) a 2019 amendment to the same provision adding expressly that “[p]ersons receiving online ordinations may not solemnize the rite of matrimony” (the “Online Ordination Ban”). § 36-3-301(a)(2).

In addition, the Online Ordination Ban became effective on the same day as an amendment to Tennessee Code Annotated § 39-16-504(a)(1) (the “false-statement statute”), which criminalizes “mak[ing] a false entry in ․ a government record,” that heightened the offense level to a Class E felony. As the Sixth Circuit explains,

It works like this: Ministers completing a marriage license must attest that they have “solemnized the rite of matrimony between the” now-married couple. But making a false statement on the license—for instance, by claiming to have solemnized a marriage despite knowingly lacking the requisite authority—may be construed as making a false entry in a government record.

Universal Life Church Monastery Storehouse v. Nabors (hereinafter, ULCM), 35 F.4th 1021, 1028 (6th Cir. 2022) (cleaned up) (citing T.C.A. § 36-3-304 (governing the form of a marriage certificate, which must be “signed by the person solemnizing the marriage” and delivered to a county clerk)).

A. The ULCM Litigation

The Universal Life Church Monastery Storehouse (“ULCM”) is a nonprofit corporation that performs online ordinations, ordaining as a minister “anyone who completes a simple, online form.” ULCM, 35 F.4th at 1026. ULCM's history is intertwined with the legislative amendments described above because, beginning in 1997, the Tennessee Attorney General's office issued a series of opinions on how the state's laws regulating the solemnization of marriages apply to ULCM's practices, as well as the implications of those laws for marriages solemnized by ULCM-ordained ministers. See id. at 1026–28 (detailing how the amendments adopted language from the Attorney General's opinions, thus “targeting” ULCM's practices). Following the 2019 amendments, ULCM—along with some of its ministers and couples wishing to be married by them—brought suit under 42 U.S.C. § 1983 in the Middle District of Tennessee against a group of state officials in their official capacities including the governor, the state attorney general, multiple district attorneys general, and multiple county clerks. See id. at 1028. The ULCM plaintiffs alleged multiple federal and state constitutional violations, including on Equal Protection, Free Exercise, Establishment, and Free Speech grounds. See id.

The ULCM defendants moved to dismiss for lack of subject-matter jurisdiction on standing and sovereign-immunity grounds, and the Middle District granted in part and denied in part this motion. See id. at 1029–30. The defendants then filed an interlocutory appeal to the Sixth Circuit, arguing that the plaintiffs lacked standing because the Online Ordination Ban has no enforcement mechanism and, relatedly, that the plaintiffs' claims were barred by sovereign immunity because they “either have not threated enforcement of, or lack an enforcement connection to, the contested laws.” Id. at 1030. The Sixth Circuit affirmed in part and reversed in part, leaving remaining claims against three district attorneys general and one county clerk, and remanded to the Middle District. See id. at 1042.

After remand, ULCM was resolved when the remaining parties agreed to dismiss based on a set of stipulations, dated August 28, 2023, and the Middle District so ordered the case dismissed the following day. (See Case. No. 2:19-cv-49 (M.D. Tenn.), Docs. 340–41 (stipulations), 342–43 (dismissal orders).) Specifically relevant to the instant case are the stipulations that facilitated dismissal against the district attorneys general (the “ULCM Stipulations”); these provide, in full, as follows:

1. On June 21, 2019, Plaintiffs filed this lawsuit, challenging the constitutionality of Tenn. Code Ann. § 36-3-301. Plaintiffs contend that they could be prosecuted under Tenn. Code Ann. § 39-16-504 because they make a false statement when they make the attestation required by Tenn. Code Ann. § 36-3-304. Defendants contend that Plaintiffs do not have standing to challenge the statute because there is no credible threat of prosecution.

2. Defendants stipulate and represent that it has always been their position that there is no criminal prosecution mechanism in Tenn. Code Ann. § 36-3-301 and thus Plaintiffs cannot be prosecuted under that statute.

3. In addition, Defendants stipulate and represent that it has always been their position that notwithstanding Tenn. Code Ann. § 36-3-301, by simply making the attestation required by Tenn. Code Ann. § 36-3-304, Plaintiffs are not making a false statement and thus there is no prosecutable offense under Tenn. Code Ann. § 39-16-504.

4. Defendants also stipulate and represent that it has always been their position that they are not involved with the issue of whether any marriage is valid and Defendants will not challenge the validity of marriages officiated or solemnized by ULCM ministers.

5. Defendants acknowledge that Plaintiffs ULCM and its ministers, including Gabriel Biser and Erin Patterson, intend to solemnize weddings in Defendants' respective counties in reliance on these stipulations.

(Doc. 20-1, at 2.² )

B. The Present Dispute

Plaintiff American Marriage Ministries (“AMM”) is a nonprofit organization and non-denominational church. (See Doc. 19, at 3.) AMM believes, “[a]s a religious organization, ․ ‘that every couple has the constitutionally protected right to enter into the institution of marriage on their own terms, which includes the right to choose who performs their wedding ceremony.’ ” (Id. (quoting “Our Philosophy on Marriage,” http://www.theamm.org/about).) AMM has three core tenets: “(1) All people, regardless of race, gender, or sexual orientation, have the right to marry[;] (2) It is the right of every couple to choose who will solemnize their marriage[; and] (3) All people have the right to solemnize marriage.” (Id.) In accordance with these beliefs, AMM ordains people as ministers, provided they attest they are at least eighteen years of age and “that they undertake their request to become an AMM minister as a considered, deliberate, and responsible act,” through both in-person services and (like ULCM) online applications. (Id. at 3–4.) In addition to ordaining ministers, AMM's “ministry includes educating and supporting its ministers on how to perform the sacred rite of matrimony and advocating for religious freedom.” (Id. at 3.)

Defendants are three Tennessee district attorneys general sued in their official capacities: Russell Johnson, as District Attorney General for Morgan County, Jennings H. Jones, as District Attorney General for Rutherford County, and Coty Wamp, as District Attorney General for Hamilton County. (See id. at 1, 4.) Two among them, Jones and Wamp, are also parties to the ULCM Stipulations.³ AMM understands portions of the ULCM Stipulations—specifically those relating to the validity of ULCM-officiated marriages—as “apply[ing] only to ULCM and its ministers.” (Id. at 7.) Thus, AMM alleges, it began to seek clarification on whether Tennessee officials would extend the same protections to AMM and its ministers. (See id.) When AMM allegedly reached out to a representative of Putnam County (whose district attorney general was a party to the ULCM Stipulations), it “received a response ․ assuring AMM that it, and its ministers, would be treated equally to ULCM and its ministers.” (Id.) But when AMM sought the same assurance from Jones and Wamp, it allegedly “never received a response” from anyone representing their counties. (Id.) AMM therefore alleges, “[u]pon information and belief, Hamilton County and Rutherford County do not intend to treat AMM and its ministers equally as to ULCM and its ministers.” (Id.) In addition to alleging the Online Ordination Ban is facially unconstitutional, then, AMM alleges that “[b]y taking a public position as to the validity of weddings officiated by ministers of one religious institution ([ULCM]) yet refusing to acknowledge any similar stance as to weddings officiated by AMM ministers,” Jones and Wamp have caused it to suffer “reputational and pecuniary harm.” (Id. at 4.)

In its amended complaint, AMM pleads eight claims under 42 U.S.C. § 1983, alleging violations of six different constitutional provisions or doctrines: (1) the Equal Protection Clause; (2) the Free Exercise Clause (and its state constitutional equivalent); (3) the Establishment Clause; (4) the Free Speech Clause (and its state constitutional equivalent); (5) the Due Process Clause, specifically on vagueness grounds; and (6) the unconstitutional-conditions doctrine. (See id. at 11–18.) It seeks various forms of injunctive relief including (a) a declaration that “Defendants' policy and practice of denying AMM ministers the authority under § 36-3-301 ․ to officiate weddings is unconstitutional”; (b) a declaration that the Online Ordination Ban as unconstitutional facially and as applied to AMM and its ministers; (c) an injunction enjoining Defendants from enforcing the Online Ordination Ban “to the extent [it] prevent[s] AMM ministers from solemnizing valid marriages in Tennessee”; (d) an injunction enjoining Defendants from prosecuting AMM ministers under the false-statement statute; and (e) an injunction enjoining Defendants from prosecuting AMM for “advising its ministers that they are authorized to solemnize weddings in Tennessee notwithstanding” the Online Ordination Ban. (Id. at 19.) Defendants move to dismiss on standing and sovereign immunity grounds. (See generally Doc. 21.)

II. STANDARD OF LAW

A complaint that lacks subject-matter jurisdiction must be dismissed. See Fed. R. Civ. P. 12(b)(1), (h)(3). Under Rule 12(b)(1), a motion to dismiss for lack of subject-matter jurisdiction “may either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). “A facial attack is a challenge to the sufficiency of the pleading itself,” and “the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (citing Scheuer v. Rhodes, 416 U.S. 232, 235–37 (1974). “A factual attack, on the other hand, is ․ a challenge to the factual existence of subject matter jurisdiction.” Id. at 598. With a factual attack, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. (citation omitted). In reviewing factual motions, “a trial court has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Plaintiff bears the burden of proving jurisdiction exists. Golden, 410 F.3d at 881; Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

III. ANALYSIS

Defendants move to dismiss under Rule 12(b)(1) on the grounds that AMM lacks standing and that its claims are barred by the doctrine of sovereign immunity. (See generally Doc. 21.)

A. Standing

The case-or-controversy requirement of Article III, Section 2, mandates that a plaintiff have standing to sue. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To have standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Daunt v. Benson, 956 F.3d 396, 417 (6th Cir. 2020) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338, (2016)). An injury, for standing purposes, means the “invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent.’ ” Id. (quoting Lujan, 504 U.S. at 560). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’ ” Spokeo, 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560). A “concrete” injury in fact does not have to be tangible, but it must be “ ‘real,’ and not ‘abstract.’ ” Id. at 340. Further, “[w]here plaintiffs seek to establish standing based on an imminent injury, the Supreme Court has explained ‘that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient.’ ” Galaria v. Nationwide Mut. Ins. Co., 663 F. App'x 384, 388 (6th Cir. 2016) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (emphasis in original)).

An organization may have standing in two forms: (1) associational standing, where it alleges an injury to its members and sues on their behalf; and (2) organizational standing, where it alleges an injury to the organization itself and sues on its own behalf. See Food & Drug Admin. v. All. For Hippocratic Med., 602 U.S. 367, 393 (2024). When (as here) a plaintiff asserts organizational standing, it “must satisfy the usual standards for injury in fact, causation, and redressability that apply to individuals.” Id. at 393–94.

Finally, the plaintiff bears the burden of showing that standing exists. Id. at 387 (citing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). When a case is at the pleading stage, the plaintiff must clearly allege facts demonstrating each element of standing. See Spokeo, 578 U.S. at 338 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

i. Morgan County District Attorney General Russell Johnson

AMM does not allege that Defendant Johnson has taken any action—with respect to itself, its ministers, or any other person or organization—pursuant to Tennessee's Online Ordination Ban. (See generally Doc. 19.) The Court must therefore analyze AMM's claims against Johnson as a pre-enforcement challenge. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014). A plaintiff satisfies the injury-in-fact requirement of standing in a pre-enforcement suit “where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but [arguably] proscribed by a statute, and there exists a credible threat of prosecution thereunder.’ ” Id. (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). Here, AMM makes two standing arguments that are relevant to its pre-enforcement suit against Johnson: (1) there is a credible threat of criminal prosecution against AMM; and (2) it has had to divert organizational resources to respond to the Online Ordination Ban. (See Doc. 24, at 6–8.)

a. Threat of Criminal Prosecution

In the Sixth Circuit, “[t]he mere possibility of prosecution,” such as the plaintiff's intended course of action falling within the plain text of a non-moribund statute, “does not amount to a ‘credible threat’ of prosecution. Instead, the threat of prosecution must be certainly impending to constitute injury in fact.” Daly v. McGuffey, No. 21-3266, 2021 WL 7543815, at *2–3 (6th Cir. Nov. 15, 2021) (internal quotation marks omitted) (emphasis in original) (quoting Crawford v. U.S. Dep't of Treasury, 868 F.3d 438, 454 (6th Cir. 2017)) (citing Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 293 (6th Cir. 1997); Fieger v. Mich. Sup. Ct., 553 F.3d 955, 967 (6th Cir. 2009)). The Sixth Circuit applies a four-factor test, first articulated in McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016) and known as the “McKay factors,” to determine whether an alleged threat of prosecution is credible:

Various factors inform our analysis of whether there is a credible threat of prosecution sufficient to confer standing: (1) “a history of past enforcement against the plaintiffs or others”; (2) “enforcement warning letters sent to the plaintiffs regarding their specific conduct”; (3) “an attribute of the challenged statute that makes enforcement easier or more likely, such as a provision allowing any member of the public to initiate an enforcement action”; and (4) the “defendant's refusal to disavow enforcement of the challenged statute against a particular plaintiff.”

Online Merchs. Guild v. Cameron, 995 F.3d 540, 550 (6th Cir. 2021) (quoting McKay, 823 F.3d at 869). “These McKay factors are not exhaustive, nor must each be established,” but plaintiffs must “point to some combination” of the factors to demonstrate a credible threat of enforcement. Id.; McKay, 823 F.3d at 869; Plunderbund Media, L.L.C. v. DeWine, 753 F. App'x 362, 366, 372 (6th Cir. 2018) (holding that plaintiffs failed to allege a “factual, non-conjectural basis for their fear of prosecution” where plaintiffs did not show a history of enforcement against them, there was no feature of the statute making enforcement easier, and the statute did not clearly apply to plaintiffs); W.O. v. Beshear, 459 F. Supp. 3d 833, 841 (E.D. Ky. 2020) (citing Plunderbund, 753 F. App'x at 367) (finding plaintiffs lacked standing where, on a motion for preliminary injunction, “even construed in the light most favorable to [p]laintiffs, they fail to provide any allegation or point to any evidence which would establish any of these ‘McKay factors.’ ”); Block v. Canepa, No. 20-cv-3686, 2021 WL 1909650, at *3 (S.D. Ohio May 12, 2021) (“Courts find a credible threat exists when some combination of these factors are present.”).

Particularly relevant here is ULCM, where the Sixth Circuit held, inter alia, that ULCM had associational standing against a district attorney general based on a credible threat of prosecution as to its members. See 35 F.4th at 1034–36. In determining that UCLM had standing, the ULCM court outlined three rationales that are instructive for the McKay analysis in the instant case:⁴ (1) although there was no history of past enforcement against ULCM's ministers, the lack thereof was attributable to the preliminary injunction the district court entered “[a]lmost as soon as the law went into effect” and, therefore, did not indicate a lower likelihood of criminal prosecution in the absence of that injunction; (2) the legislature's contemporaneous amendment of the false-statement statute, which heightened criminal penalties for that offense, suggested a legislative intent to make false-statements prosecutions available to enforce the Online Ordination Ban; and (3) the attorney general had “refused to disavow intent to prosecute ministers criminally or to stipulate to the law's unconstitutionality.” Id. (internal citations omitted). Of the four McKay factors, then, the ULCM court's analysis suggests the first factor (history of enforcement) could not provide evidence against a credible threat, and that the third and fourth factors (prosecution-friendly attributes of the statute and refusal to disavow) weighed clearly in favor of ULCM's argument for associational standing. See id.

Here, as AMM points out, its case for standing differs from ULCM's in several material respects, including that it alleges organizational rather than associational standing and, relatedly, that AMM alleges its conduct might subject it to criminal liability as an organization, whereas ULCM alleged only that its members might be subject to criminal liability. (See Doc. 24, at 4, 6.) This argument implicates the same false-statement statute at issue in ULCM, which criminalizes making a false entry in a government record, 35 F.4th at 1028, while adding a second alleged means of prosecution—advising, aiding, or abetting a violation of state law, which is criminalized under Tennessee Code Annotated § 8-7-103(1). (See Doc. 19, at 8; Doc. 24, at 11.) Given that its ministers could be criminally liable under the false-statement statute, AMM contends, it faces potential prosecution under the aiding-and-abetting statute for providing online ordinations to those wishing to solemnize marriages in Tennessee, or for advising prospective ministers or couples in ways that might lead to violations of the Online Ordination Ban. (See id.) (Presumably, AMM cannot itself be prosecuted under the false-statement statute because its ordinations are not entries in government records.)

Under the first McKay factor, whether there is “a history of past enforcement against the plaintiffs or others,” AMM does not allege any past prosecutions related to the Online Ordination Ban. Online Merchs. Guild, 995 F.3d at 550; (see generally Doc. 19). And unlike in ULCM, where the lack of enforcement was compelled by the preliminary injunction, there has never been an injunction against enforcement as to AMM. See 35 F.4th at 1034–36; (Doc. 24, at 10). As to the second McKay factor, “enforcement warning letters sent to the plaintiffs regarding their specific conduct,” AMM makes no such allegation. Online Merchs. Guild, 995 F.3d at 550; (see generally Doc. 19). The third McKay factor, whether any feature of the challenged statute makes criminal enforcement more likely, is somewhat more helpful to AMM because the fact remains (as it was in ULCM) that the timing of the legislature's amendment of the false-statements statute is consistent with an intent to facilitate criminal enforcement of the Online Ordination Ban. See 35 F.4th at 1028. However, this can take AMM only so far because it has not alleged any facts or statutory attributes that would make enforcement of the Online Ordination Ban easier or more likely through the aiding-and-abetting statute—which is critical to whether there is a credible threat as to AMM itself. (See Doc. 19, at 8; Doc. 24, at 11.) The fourth McKay factor, whether the defendant has refused to disavow enforcement, is no help, as AMM does not allege it directed any such inquiries to Johnson (or indeed to any Morgan County officials), nor does the complaint allege Johnson has made any statements on the matter. (See generally Doc. 19.)

In sum, three of the four McKay factors provide no support for a credible threat of prosecution. The remaining factor (whether any attributes of the challenged statute make enforcement more likely) suggests, at best, that enforcement may be easier against ministers but, crucially, does little to suggest an increased likelihood of enforcement against AMM itself. See Online Merchs. Guild, 995 F.3d at 550. Accordingly, AMM does not allege a credible threat of prosecution sufficient to establish standing against Johnson.

b. Diversion of Organizational Resources

In some contexts, an organization may establish standing by alleging injuries in the form of organizational expenditures or diversions of resources resulting from the alleged unlawful conduct. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). In Havens, the Supreme Court found a housing-counseling organization had standing to sue Havens Realty for allegedly engaging in discriminatory racial-steering practices in violation of the Fair Housing Act because those practices “perceptibly impaired [the plaintiff organization's] ability to provide counseling and referral services for low-and moderate-income homeseekers.” Id., at 379. See also Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., a Div. of Gannett Co., Inc., 943 F.2d 644, 646 (6th Cir. 1991) (plaintiff challenging newspaper's publication of allegedly discriminatory housing advertisements alleged a concrete injury when the advertisement's deterring effect on potential renters “caused [plaintiff] to devote resources to investigate and negate the impact of these advertisements”); Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp. 725 F.3d 571, 576 (6th Cir. 2013) (fair housing organization alleging gender discrimination in a housing advertisement had standing when the organization alleged it “ ‘had to divert its resources, its staff time and energy to identify the ad and then to bring the ad to the attention of the appropriate authorities,’ thereby suffering a harm of $5,292.15 in costs”).

But there is reason to hesitate here. In the recent Alliance for Hippocratic Medicine decision, the Supreme Court cautioned, “Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context.” 602 U.S. at 396. The Alliance for Hippocratic Medicine court explained that it was inappropriate to extend Havens when the plaintiffs, medical associations that opposed the use of mifepristone and challenged multiple actions taken by the Food and Drug Administration regulating the drug's approval and use, asserted injuries that amounted to merely an attempt to “manufacture ․ standing” by “expending money to gather information and advocate against the defendant's action.” Id. at 394. Such a “manufacture[d]” attempt was a far cry from Havens, where the plaintiff had standing to bring its claim under the Fair Housing Act because the defendant's conduct “directly affected and interfered with [the plaintiff's] core business activities.” Id. at 395.

Defendants contend that Alliance for Hippocratic Medicine thus forecloses AMM's allegation of organizational standing. (See Doc. 25, at 3.) Yet notwithstanding the Supreme Court's warning regarding its history of narrow Havens jurisprudence, AMM does cite one Sixth Circuit case that it argues supports recognition of a diversion-of-resources organizational injury here, Online Merchants, 995 F.3d 540, despite diverging from Havens's fair-housing context. (See Doc. 24, at 7.) In Online Merchants, the Sixth Circuit held that plaintiff Online Merchants Guild (“OMG”), an online trade association challenging the constitutionality of Kentucky price-gouging statutes, likely had organizational standing when the state initiated civil investigations into certain online merchants (including at least one of OMG's members) for price gouging during the COVID-19 pandemic, and OMG had to expend time and resources to advise its members on how to respond to subpoenas and other investigative demands. See 995 F.3d at 547–59.

Online Merchants is distinguishable from AMM's case against Johnson in two ways. First, the defendant in Online Merchants, a state attorney general, had taken concrete actions under the challenged laws by (a) announcing his office would enforce them and (b) initiating civil investigations, which likely made some diversion of OMG's resources necessary to respond to those actions, see id. at 544, 547–48; whereas here, AMM has not alleged that Johnson has taken any action under the challenged law (see generally Doc. 19). Viewed in this light, AMM's allegations of organizational expenditures seem more like preemptive attempts at advocacy—that is, somewhat closer to the insufficient injuries in Alliance for Hippocratic Medicine—than they do necessary responses to a defendant's conduct like in Online Merchants or Havens. See 602 U.S. at 395; 995 F.3d at 547–49. Second, while the Court has found Johnson does not pose a credible threat of prosecution in the instant case, the Online Merchants court found a credible threat under McKay that the attorney general would bring criminal prosecutions against OMG's members. See id. at 552. Although this holding in Online Merchants was in the context of OMG's assertion of associational standing (which is not alleged here), that credible threat arguably lends additional support to its finding of organizational standing insofar as the imminence of criminal prosecution would have likely compounded the need for OMG to help its members navigate the already-in-progress civil investigations (and presumably would have impacted how OMG carried out its organizational duties in doing so).⁵ See id.

Ultimately, both these distinctions point to a traceability problem: AMM has not shown its alleged organizational efforts were expenditures or diversions of resources made necessary—that is, caused—by the actions, or imminent prosecutions, of Johnson. See Alliance for Hippocratic Medicine, 602 U.S. at 394. AMM's allegations are thus insufficient to establish organizational standing to sue Johnson, and all claims against him must be dismissed.

ii. Rutherford County District Attorney General Jennings H. Jones and Hamilton County District Attorney General Coty Wamp

AMM's allegations against Jones and Wamp, however, assert a different story. They, unlike Johnson, were parties to the ULCM Stipulations. (See Doc. 20-1, at 1.) AMM contends the ULCM Stipulations also make this suit crucially different from the case before the Sixth Circuit in ULCM: “AMM alleges harm it feels as an organization that ULCM did not experience—the discriminatory treatment (and associated reputational and pecuniary harm) occasioned by Defendants' stipulation to not challenge marriages conducted by UCLM ministers.” (Doc. 24, at 6 (emphasis in original).) As a result, the injuries AMM alleges that are relevant to its suit against Jones and Wamp include those previously discussed with respect to Johnson (threat of criminal prosecution and diversion of organizational resources) as well as a third theory—reputational and pecuniary harm resulting from allegedly disparate treatment of AMM. (See Doc. 24, at 6–8.)

Furthermore, the fact of the ULCM Stipulations (and Jones and Wamp's alleged conduct with respect to them) arguably takes this standing inquiry out of the pre-enforcement realm. See Susan B. Anthony List, 573 U.S. at 159. The parties seem to disagree on this point: Defendants' arguments deal primarily in pre-enforcement terms and pre-enforcement precedents, while AMM suggests it has already been harmed as a result of the ULCM Stipulations. (See Doc. 19, at 4; Doc. 24, at 6–8; see generally Docs. 21, 25.) Put differently, in a typical pre-enforcement suit, the defendant has taken no action under the challenged law, or at minimum has taken no action with respect to the plaintiff. See Susan B. Anthony List, 573 U.S. at 159. But here, AMM alleges Jones and Wamp have acted—by agreeing to the ULCM Stipulations and declining to extend the same protections to AMM—in a way that has already begun to cause it injury.⁶ See id.; (Doc. 24, at 6).

a. Threat of Criminal Prosecution and Diversion of Organizational Resources

As explained previously, AMM has not established standing against Johnson based on a credible threat of criminal prosecution or a necessary diversion of organizational resources; the Court will now consider whether it fares any better on those grounds against Jones and Wamp.

Under the McKay factors, AMM's allegations as to a credible threat of criminal prosecution differ in some ways for Jones and Wamp, though the Court still finds AMM cannot establish standing on this ground. See Online Merchs., 995 F.3d at 550. The first and second McKay factors are unchanged as to Jones and Wamp because there is still no history of past enforcement, and AMM still does not allege it has received any enforcement letters. See id.; (see generally Doc. 19). The third factor (statutory attributes that make enforcement easier or more likely) arguably favors Jones and Wamp more than it did Johnson because, although the Tennessee legislature's contemporaneous amendment of the false-statement statute may have made it easier to enforce the Online Ordination Ban through criminal prosecution, Jones and Wamp stated in the ULCM Stipulations that “it has always been their position” that the minister plaintiffs in ULCM were “not making a false statement and thus there is no prosecutable offense under [the false-statement statute].” (Doc. 20-1, at 2); see ULCM, 35 F.4th at 1028. While the parties dispute the extent to which the ULCM Stipulations can be read as applying to anyone other than ULCM, the fact that this stipulation is phrased as a matter of general policy suggests at least some diminished likelihood of criminal prosecution despite the legislature's amendment of the false-statement statute.⁷ See id. In any event, AMM still faces the same ultimate problem under the third factor that it did against Johnson: it has not alleged any statutory attributes that make it more likely AMM itself will face criminal prosecution. (See Doc. 19, at 8; Doc. 24, at 11.) The fourth McKay factor (refusal to disavow enforcement) is also lacking because, though AMM does allege it “wrote to both Wamp and Jones seeking to clarify whether [the] would apply the agreement not to challenge the validity of marriages officiated by ULCM ministers to ․ AMM and its ministers” and received no response, it does not allege Jones or Wamp have refused to disavow criminal enforcement of the Online Ordination Ban. (Doc. 19, 7.) Thus, AMM cannot establish standing against Jones and Wamp based on a credible threat of criminal prosecution.

AMM's argument for standing based on diversion of organizational resources differs for Jones and Wamp to the extent that AMM alleges that diversion was caused by the ULCM Stipulations. (See Doc. 24, at 7.) Specifically, AMM argues the ULCM Stipulations caused it to divert resources by (1) contacting Jones and Wamp to ask whether they would apply the ULCM Stipulations to them; (2) advising its ministers and prospective ministers “about their ability to solemnize marriages in Tennessee”; and (3) “responding to and assisting its ministers in Tennessee, as well as couples who have relied on or intent to rely on the services of AMM ministers, when they have encountered roadblocks because of [the Online Ordination Ban] or have concerns relating to the statute.” (Id. at 7–8.) However, it is unclear whether these arguments (and their corresponding complaint allegations) are sufficient to establish standing. While AMM did certainly divert resources to contact Jones and Wamp, the Court is not convinced it was necessary for AMM to do so in the way it was necessary in Online Merchants for OMG to help its members respond to civil investigations; rather, reaching out Jones and Wamp was an affirmative, voluntary act. See 995 F.3d at 547–59.

As to AMM's arguments about diverting resources to assist ministers, prospective ministers, and couples, the actual complaint allegations relevant to these claims are somewhat thin. (See Doc. 24, at 7–8.) For example, AMM alleges it is “aware of at least one situation in October 2023 in which the County Clerk of Morgan County, Tennessee, refused, at least temporarily, to process a marriage license because the wedding was officiated by an AMM-ordained minister.” (Doc. 19, at 9.) But nowhere does the complaint allege that this incident led to a diversion of resources (it appears just as likely, in other words, that AMM learned of this temporary “roadblock” only after the marriage was processed), and the Court cannot invent facts to remedy this gap. (See id., Doc. 24, at 7–8.)⁸ AMM's argument that it has diverted resources to respond to inquiries from ministers and prospective ministers about the Online Ordination Ban is somewhat stronger; yet at the same time, the complaint's allegations say little about the relative amount of resources AMM devotes to advising Tennessee ministers compared to other tasks, or how much its allegation of resources has changed since the ULCM Stipulations. See (Doc. 19, at 8); Online Merchs., 995 F.3d at 548–49 (noting OMG had not previously expended significant resources helping members respond to civil investigations). Given these reasons, as well as the Supreme Court's recent warning regarding extensions of Havens, the Court is not convinced AMM has pled sufficient allegations to establish standing against Jones and Wamp based on diversion of organizational resources. See Alliance for Hippocratic Medicine, 602 U.S. at 396. The Court need not decide this issue, however, because AMM has standing based on reputational and pecuniary harm.

b. Reputational and Pecuniary Harm

AMM argues it has experienced reputational and pecuniary harm as a result of Jones and Wamp's conduct in and relating to the ULCM Stipulations. Since the Court is aware of no relevant precedent on the question of whether injuries allegedly traceable to stipulations from separate litigation can satisfy standing, it returns to the three basic requirements: injury, traceability, and redressability. See Daunt, 956 F.3d at 417.

AMM's allegations of pecuniary and reputational harm satisfy the injury requirement. See Daunt, 956 F.3d at 417. Consider its alleged interests: AMM is a nonprofit religious organization that believes “[i]t is the right of every couple to choose who will solemnize their marriage and that “[a]ll people have the right to solemnize marriage.” (Doc. 19, at 3.) “To further its tenets, AMM ordains people as ministers.” (Id.) In addition, AMM alleges its “ministry includes educating and supporting its ministers on how to perform the sacred rite of matrimony and advocating for religious freedom.” (Id.) The Court finds these allegations sufficient to show AMM has a pecuniary interest in ordaining ministers, including ministers who solemnize marriages in Tennessee.

AMM further alleges it has “received inquiries from its ministers asking about the status of their ability to preside over weddings in Tennessee and relaying problems and concerns related to the same.” (Id. at 8.) It seeks to advise those ministers that the marriages they solemnize will be valid and will not subject them to criminal prosecution; however, AMM feels it cannot so assure its ministers at present due to its uncertainty regarding whether the Online Ordination Ban will be enforced against AMM ministers or otherwise invalidate the marriages they perform. (See id. at 7–8.) AMM alleges that situations like the incident of a Morgan County clerk temporarily refusing to process a marriage performed by an AMM-ordained minister “cause significant distress to affected AMM ministers and couples reliant on [their] services.” (Id. at 9.) “Such situations,” it alleges, “harm AMM's reputation with ministers, prospective ministers, and couples considering whether to have an AMM minister officiate their wedding ceremony.”⁹ (Id.) Because AMM has a pecuniary interest in ordaining ministers, it also has an interest in being able to give its ministers and prospective ministers some assurance that the marriages they perform will be valid. And given the facts of the ULCM Stipulations and Jones and Wamp's alleged refusal to extend them to AMM—facts that leave AMM to compete with an organization, ULCM, who can assure its ministers their marriages will be uncontested because a legally binding stipulation says so—AMM's reticence in advising its ministers goes beyond a mere “setback to [its] abstract social interests.” (Doc. 21, at 5 (quoting Greater Cincinnati Coal. for the Homeless v. City of Cincinnati, 56 F.3d 710, 716 (6th Cir. 1995).) The Court therefore finds AMM's alleged pecuniary and reputational harm constitutes a “concrete and particularized” injury sufficient to survive dismissal. Daunt, 956 F.3d at 417.

As the Supreme Court observed in Alliance for Hippocratic Medicine, “[t]he second and third standing requirements—causation and redressability—are often ‘flip sides of the same coin.’ If a defendant's action causes an injury, enjoining the action or awarding damages for the action will typically redress that injury.” 602 U.S. at 380–81 (quoting Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, 288 (2008)). AMM contends that, by entering into the ULCM Stipulations and thus “taking a public position as to the validity of weddings officiated by [ULCM] ministers ․ yet refusing to acknowledge any similar stance as to weddings officiated by AMM ministers,” Jones and Wamp “have set up favored and disfavored religious institutions under the law” in violation of AMM's constitutional rights. (Doc. 19, at 4.) Essentially, AMM is alleging Jones and Wamp have blessed the activities of one similarly situated religious organization over another, and that this disparate treatment has caused its ministers and prospective ministers—who are functionally its customers—to question whether they can rely on AMM's services. (See id. at 4, 8–9.) When those customers have inquired about its ordination services, AMM alleges, it has been unable to represent those services will be effective because of Jones and Wamp's refusal to extend the ULCM Stipulations and, as a result, suffers pecuniary and reputational harm. (See id.)

Defendants object that AMM's allegations of pecuniary harm are insufficient because the ULCM Stipulations should already offer relief to AMM: “there is no need for Generals Wamp and Jones to give the same broad assurances they have already given,” they argue, because “[t]he ULCM stipulations already state General Wamp's and Jones' position that there is no prosecutable offense; that ministers do not give a false statement by merely confirming their performance of a wedding; and that Generals Wamp and Jones are not involved with enforcing the validity of marriages.” (Doc. 21, at 7.) Yet while portions of the ULCM Stipulations can be construed as statements of general policy, their binding force hinges on two terms that pertain clearly, and specifically, to ULCM: “Defendants will not challenge the validity of marriages officiated or solemnized by ULCM ministers”; and “Defendants acknowledge that Plaintiffs ULCM and its ministers ․ intend to solemnize weddings in Defendants' respective counties in reliance on these stipulations.” (Doc. 20-1, at 2 (emphasis added).) It is these terms that give the ULCM Stipulations teeth; without them, for instance, nothing would stop Jones or Wamp from changing their then-held policies regarding enforcement of the Online Ordination Ban (which would be well within their discretion), or challenging ULCM-officiated marriages through other means. (See id.)

Still, Jones and Wamp contend the ULCM stipulations should satisfy AMM while also declining to extend their protections affirmatively to AMM when asked. (See Doc. 19, at 7.) But the Court is not convinced they can have it both ways. As the Supreme Court suggests, redressability often mirrors traceability, and here, if the Court were to grant some combination of the injunctive relief AMM seeks, AMM would be in a tangibly different position relative to the Online Ordination Ban: it would (like ULCM) have a legally binding order guaranteeing that Jones and Wamp will not challenge AMM-officiated marriages in their jurisdictions, and it would be able to advise its customers accordingly. Alliance for Hippocratic Medicine, 602 U.S. at 380–81. Thus, the Court finds AMM has sufficiently alleged that Jones and Wamp's conduct is traceable to its alleged pecuniary and reputational injury, and that the relief it seeks can remedy that injury. See id.

There is one remaining hurdle for AMM to clear in this case because, “[a]s the Supreme Court has reminded us, ‘standing is not dispensed in gross.’ ” ULCM, 35 F.4th at 1021 (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)). A plaintiff must establish standing not only to sue each defendant but for “each claim [it] seeks to press.”¹⁰ Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (cleaned up)). This is essentially a traceability issue in that, for traceability to be satisfied, an injury must be traceable to the “challenged conduct”—that is, it must have some causal connection to the allegedly unlawful conduct—of the defendant. Daunt, 956 F.3d at 417. Recall that AMM's complaint pleads violations of six different constitutional provisions or doctrines: (1) the Equal Protection Clause; (2) the Free Exercise Clause (and its state constitutional equivalent); (3) the Establishment Clause; (4) the Free Speech Clause (and its state constitutional equivalent); (5) the Due Process Clause, specifically on vagueness grounds; and (6) the unconstitutional-conditions doctrine. (See Doc. 19, at 11–18.) Here, the “challenged conduct” on which AMM has established standing against Jones and Wamp is their allegedly disparate enforcement of the Online Ordination Ban with respect to similarly situated religious organizations. (See Doc. 19, at 4.) This conduct sounds clearly in Equal Protection; it sounds in Free Exercise and Establishment because Jones and Wamp have allegedly burdened AMM's right to exercise its religious beliefs and “set up favored and disfavored religious institutions under the law”; and this conduct sounds in Free Speech insofar as it allegedly prevents AMM from engaging in expressive speech or conduct about its beliefs. (See id. at 3–4, 8–11.) Therefore, AMM has standing to bring its Equal Protection, Free Exercise, Establishment, and Free Speech claims against Jones and Wamp.

However, it is not clear that Jones and Wamp's “challenged conduct” can be construed as violating the Due Process Clause on vagueness grounds or the unconstitutional-conditions doctrine such that violations of those doctrines can be traced to AMM's injury. Daunt, 956 F.3d at 417. Vagueness generally suggests a problem with statutory language—as here, where AMM alleges the Online Ordination Ban “fails to inform regulated parties as to what is required of them” because of language like “considered, deliberate, responsible act” and “online ordinations.” (Doc. 19, at 18.) But Jones and Wamp's allegedly unconstitutional conduct pertains to their enforcement of the statute, not necessarily the statute itself, and the complaint allegations do not explain how the alleged vagueness of the statutory language contributes to AMM's pecuniary and reputational harm.¹¹ (See id. at 17–18; see generally id.) For its unconstitutional-conditions claim, AMM alleges the Online Ordination Ban unconstitutionally conditions the rights of ministers and couples on refraining from certain forms of religious exercise. (See id. at 18.) But, similar to vagueness, the complaint allegations do not account for how this alleged unconstitutional conditioning corresponds to Jones and Wamp's disparate enforcement of the statute, nor how it is traceable to an injury to AMM itself.¹² (See generally id.) Accordingly, the Court finds AMM has not met its burden of demonstrating standing to bring its vagueness and unconstitutional-conditions claims against Jones and Wamp. See Galaria, 663 F. App'x at 388.

B. Sovereign Immunity

The Court will now consider whether AMM's remaining claims must be dismissed on account of sovereign immunity. A court lacks subject-matter jurisdiction over a claim barred by sovereign immunity. E.g., Ladd v. Marchbanks, 971 F.3d 574, 577 (6th Cir. 2020) (analyzing a motion to dismiss based on sovereign immunity under Federal Rule of Civil Procedure 12(b)(1)). Pursuant to the Eleventh Amendment, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Courts have interpreted the Eleventh Amendment as conveying sovereign immunity to states and, in some cases, their officials. See Boler v. Earley, 865 F.3d 391, 409–10 (6th Cir. 2017). Specifically, “[s]overeign immunity protects states, as well as state officials sued in their official capacity for money damages, from suit in federal court.” Id. (citing Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005)). There are, however, three exceptions sovereign immunity: (1) “when the state has waived immunity by consenting to suit”; (2) “when Congress has expressly abrogated the states' sovereign immunity”; and (3) “when the doctrine set forth in in Ex parte Young, [209 U.S. 123 (1908),] applies.” Id. (citing Puckett v. Lexington-Fayette Urban Cnty. Gov't, 833 F.3d 590, 598 (6th Cir. 2016)).

The Ex parte Young exception to sovereign immunity provides that “the Eleventh Amendment does not bar a lawsuit seeking an injunction against a state official prohibiting the state official from enforcing a state statute that allegedly violates the United States Constitution.” Dubuc v. Mich. Bd. of L. Exam'rs, 342 F.3d 610, 616 (6th Cir. 2003). The rationale for this doctrine is that when a state official violates federal law, he is considered to be acting outside of his official authority: “when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011) To determine whether Ex Parte Young applies, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ ” Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002) (alteration in original) (quoting Idaho v. Couer d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O'Connor, J., concurring)). Finally, Ex Parte Young does not create an exception to sovereign immunity for state officers whose conduct allegedly violates state law. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law”).

Here, AMM alleges Jones and Wamp are in “ongoing violation” of the federal Equal Protection, Free Exercise, Establishment, and Free Speech clauses. Verizon Md., 535 U.S. at 645. It seeks relief that is “properly characterized as prospective” because it seeks injunctive relief that will prevent Jones and Wamp from violating its rights going forward. Id.; (see Doc. 19, at 18). Thus, under Ex Parte Young, sovereign immunity does not bar AMM's federal claims.¹³ See Dubuc, 342 F.3d at 616. As to the state claims, however, Pennhurst dictates that Ex Parte Young cannot apply and, thus, that sovereign immunity shields Jones and Wamp from suit in federal court for alleged violations of the Tennessee state constitution.¹⁴ See 465 U.S. at 106; Fox v. Faison, 668 F. Supp. 3d 751, 770–71 (M.D. Tenn. 2023) (finding Ex Parte Young applied to alleged violation of the federal First Amendment but not the corresponding free speech clause of the Tennessee state constitution). Accordingly, AMM's state law claims must be dismissed.

IV. CONCLUSION

For the foregoing reasons, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss (Doc. 20). The following claims are DISMISSED: all claims against Johnson, the Due Process claim against Jones and Wamp, the unconstitutional-conditions claim against Jones and Wamp, and the state constitutional claims against Jones and Wamp. AMM's federal Equal Protection, Free Exercise, Establishment, and Free Speech claims against Jones and Wamp will proceed.

SO ORDERED.

FOOTNOTES

1.   The Court will refer to all persons included in this language as “ministers.”

2.   This citation, which the Court will use going forward, is to the copy of the ULCM Stipulations that appears on the docket in the instant case (as Defendants attached it to their motion). It is identical to the filing that appears on the original docket in the Middle District. (See Case. No. 2:19-cv-49, Doc. 340.)

3.   Though both are parties to the ULCM Stipulations, only Jones was a named defendant in the ULCM litigation. See 35 F.4th 1021; (Case. No. 2:19-cv-49 (M.D. Tenn.)).

4.   The ULCM opinion does not actually cite McKay; however, as the above discussion will show, its analysis appears to track the McKay factors. See id.

5.   It is unclear from the written opinion whether the Online Merchants court would have found organizational standing had it not also found associational standing due to the credible threat of criminal prosecution to OMG's members. See id. at 547–52. Still, this Court interprets Online Merchants's organizational and associational standing holdings as—at least to some extent—intertwined.Consider that the possibility of criminal prosecution was not an issue in Havens because the plaintiff in that case was challenging the constitutionality of private conduct, rather than legislation (thus making criminal prosecution irrelevant). See 455 U.S. 363. See also Hous. Opportunities Made Equal, 943 F.2d 644 (challenging private conduct); Miami Valley Fair Hous. Ctr., 725 F.3d 571 (same). This fact alone makes Havens and its fair-housing progeny distinguishable from Online Merchants and the instant case, both of which challenge state legislation. Criminal prosecution is a key means—arguably the key means in some contexts—whereby states enforce their legislation, which helps explain the principle that pre-enforcement standing generally requires a credible threat of prosecution. See Susan B. Anthony List, 573 U.S. at 159. Given this context—as well as the generally narrow scope of Havens jurisprudence—there is reason for courts to treat assertions of organizational standing based on expenditures or resource diversion in pre-enforcement challenges to legislation with serious hesitation. See Alliance for Hippocratic Medicine, 602 U.S. at 396.

6.   This point does not apply, however, to AMM's argument that it faces a credible threat of criminal prosecution. That theory of its standing is unambiguously pre-enforcement (since the parties agree that no criminal proceeding has been initiated against AMM) as to Jones and Wamp, just as it is as to Johnson.

7.   But see infra 23–24.

8.   An additional problem is that this incident (which is the only such incident alleged in the complaint) took place in Morgan County, where the district attorney general is Johnson; it is not clear, therefore, whether it is traceable to the conduct of Jones and Wamp. See Doc. 19, at 9.

9.   While, as mentioned previously, this alleged incident took place in Morgan County, the Court interprets AMM's allegations as asserting more incidents like it may have taken place in other counties. See supra 20 n. 8. For pleading purposes, therefore, the Court finds these allegations sufficiently relevant to the injuries it asserts against Jones and Wamp.

10.   In many cases, it is unnecessary for courts to evaluate standing separately for each individual claim because the plaintiff alleges standing based on only one form of injury; this was the case in ULCM, for instance, because all of ULCM's claims were pre-enforcement challenges based on a credible threat of criminal prosecution. See generally id.

11.   AMM does not allege, for instance, that it has suffered harm because it is uncertain of whether its services constitute “online ordinations” (on the contrary, its allegations suggest a considerable confidence that providing its services in Tennessee would indeed violate the statute on its face, which is why it seeks injunctive relief mirroring the assurances of the ULCM Stipulations). (See generally Doc. 19.)

12.   Note also that AMM's due process and unconstitutional-conditions claims resemble closely those in the ULCM complaint. (See 2:19-cv-49 (M.D. Tenn.), Doc. 80, at 17–18, 20.) Given that ULCM alleged (and the Sixth Circuit found) it had associational standing, but that AMM alleges only organizational standing, it is perhaps unsurprising that AMM's complaint falls short of showing these alleged violations are traceable to its organizational injury. See ULCM, 35 F.4th at 1036.

13.   Defendants contend, citing a Sixth Circuit standard that “[t]here must be a realistic possibility the official will take legal or administrative actions against the plaintiff's interests” for Ex Parte Young to apply, that they have sovereign immunity because “there is simply no realistic threat that [Defendants] will prosecute AMM or its members under the online ordination or false statement statements.” (See Doc. 25, at 4 (citing EMW Women's Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 445 (6th Cir. 2019).) However, this argument is unavailing because AMM's remaining claims are not based on a credible threat of criminal prosecution. AMM alleges Jones and Wamp's conduct with respect to the ULCM Stipulations and their subsequent refusal to extend their protections is an ongoing—not threatened or imminent—violation of their constitutional rights. Given this, the Court reads AMM's complaint as alleging Jones and Wamp have already “take[n] legal or administrative actions against [its] interests.” (Id.)

14.   AMM cites no authority to the contrary. (See Doc. 24, at 8–12.)

TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE