### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1756

J OHN D OE

, formerly known as J ANE D OE

, Plaintiff

‐ Appellant

,

v.

E RIC H OLCOMB

, in his official capacity as Governor of the State

of Indiana, C URTIS T. H ILL

, J R

., in his official capacity as

Attorney General for the State of Indiana, M YLA E LDRIDGE

, in

her official capacity as Marion County Clerk of the Court, and

M ARY W ILLIS

, in her official capacity as Executive Director of

the Indiana Supreme Court Division of State Court

Administration,

Defendants

‐ Appellees

. 

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:16

‐ cv

‐ 02431

‐ JMS

‐ DML

— Jane Magnus

‐ Stinson

, Chief Judge

.

____________________

A RGUED S EPTEMBER 27, 2017

— D ECIDED M ARCH 2, 2018

 Michael Pence has been replaced by Eric Holcomb as Governor of

Indiana, Gregory Zoeller has been replaced by Curtis T. Hill, Jr., as Attor

‐

ney General for the State of Indiana, and Lilia G. Judson has been replaced

by Mary Willis as Executive Director of the Indiana Supreme Court Divi

‐

sion of State Court Administration.2 No. 17

‐ 1756

____________________

Before W OOD

, Chief Judge

, and F LAUM and K ANNE

, Circuit

Judges

.

K ANNE

, Circuit Judge

. John Doe, whose legal name is Jane

Doe, 1 is a transgender man residing in Marion County, Indi

‐

ana. Though Doe is originally from Mexico, the United States

granted him asylum in 2015 because of the persecution he

might face in Mexico for being transgender. But this suit arises

out of Doe’s treatment in the United States. He alleges that he

faces harassment and discrimination in the United States

when he gives his legal name or shows his identification bear

‐ ing it to others. Consequently, Doe seeks to legally change his

name from Jane to John so that his name conforms to his gen

‐

der identity and physical appearance, which are male.

Doe asserts that the Indiana statute governing name

changes is unconstitutional because it requires name

‐ change

petitioners to provide proof of U.S. citizenship. Ind. Code

§ 34

‐ 28

‐ 2

‐ 2.5(a)(5) (2016). 2 As an asylee, Doe can’t provide

such proof. He brought this case against the Governor and At

‐

torney General of Indiana, the Marion County Clerk of Court,

and the Executive Director of the Indiana Supreme Court Di

‐

1 On November 22, 2016, U.S. Magistrate Judge Debra McVicker

Lynch granted the plaintiff’s unopposed motion to proceed anonymously,

ordering that he be referred to in court filings as John Doe (or John Doe

formerly known as Jane Doe). (R. 42 at 1, 4.)

2 “(a) If a person petitioning for a change of name under this chapter

is at least seventeen (17) years of age, the person’s petition must include

at least the following information:

... (5) Proof that the person is a United

States citizen.”No. 17

‐ 1756 3

vision of State Court Administration in their official capaci

‐

ties. He seeks a declaration that the citizenship requirement

violates his First and Fourteenth Amendment rights and an

injunction to prevent the defendants from enforcing it.

The district court dismissed Doe’s case against all the de

‐

fendants for lack of standing after the defendants filed mo

‐

tions to dismiss for lack of subject

‐ matter jurisdiction. Doe ap

‐ peals. We review the district court’s dismissal de novo

, accept

‐ ing well

‐ pleaded allegations as true and drawing reasonable

inferences in favor of Doe. See Lewert v. P.F. Chang’s China Bis

‐

tro, Inc.

, 819 F.3d 963, 966 (7th Cir. 2016); Evers v. Astrue

, 536

F.3d 651, 656 (7th Cir. 2008). For the reasons discussed below,

we affirm.

I. A NALYSIS

Federal courts have jurisdiction over certain cases and

controversies. U.S. Const. art. III, § 2. Standing is “the irreduc

‐

ible constitutional minimum” that determines which cases

and controversies “are of the justiciable sort referred to in Ar

‐

ticle III.” Lujan v. Defs. of Wildlife

, 504 U.S. 555, 560 (1992). The

party invoking federal jurisdiction must establish the ele

‐

ments of standing: (1) that he suffered an injury in fact, (2) that

the injury is causally connected to the challenged conduct of

the defendant, and (3) that the injury is likely to be redressed

by a favorable judicial decision. Id. at 560–61.

But even if a plaintiff could otherwise establish that he has

standing to sue a state or a state official, the Eleventh Amend

‐

ment generally immunizes those defendants from suit in fed

‐

eral court. A plaintiff can avoid this bar, however, by naming

a state official who has “some connection with the enforce

‐

ment” of an allegedly unconstitutional state statute for the4 No. 17

‐ 1756

purpose of enjoining that enforcement. Ex parte Young

, 209

U.S. 123, 157 (1908).

Thus, where a plaintiff sues a state official to enjoin the

enforcement of a state statute, the requirements of Ex parte

Young overlap significantly with the last two standing require

‐

ments—causation and redressability. That is, a plaintiff must

show that the named state official plays some role in enforc

‐ ing the statute in order to avoid the Eleventh Amendment.

But, in order to satisfy the requirements of causation and re

‐ dressability, he must also establish that his injury is causally

connected to that enforcement and that enjoining the enforce

‐

ment is likely to redress his injury.

Here, Doe sued three state officials—the Governor, the At

‐

torney General, and the Executive Director of the Indiana Su

‐

preme Court Division of State Court Administration—and

one county official—the Marion County Clerk of Court. We

take each defendant in turn to address whether Doe can sue

them in federal court. He cannot.

A. The Eleventh Amendment bars Doe’s suit against the named

state officials.

Doe has not shown that any of the named state officials are

connected with the enforcement of the name

‐ change statute,

so the Eleventh Amendment bars his suit against them.

1. The Governor

“The mere fact that a governor is under a general duty to

enforce state laws does not make him a proper defendant in

every action attacking the constitutionality of a state statute.”

Shell Oil Co. v. Noel

, 608 F.2d 208, 211 (1st Cir. 1979). Instead,

Doe must allege that the Indiana Governor played some role

in enforcing the name

‐ change statute.No. 17

‐ 1756 5

Doe’s strongest argument, though it still fails, is that the

Governor plays a role in enforcing the name

‐ change statute as

head of the Bureau of Motor Vehicles (“BMV”). The BMV law

provides that applications for driver’s licenses or state

‐ issued

IDs must include “the full legal name of the applicant.” Ind.

Code § 9

‐ 24

‐ 9

‐ 2(1) (2016). And the BMV will not issue an ID

to an applicant that reflects a different full name than what

appears on the person’s other legal documents unless the ap

‐ plicant provides a court order approving a full name change.

See 140 Ind. Admin. Code 7

‐ 1.1

‐ 3(b)(1)(K) (2017). Together, In

‐

diana’s name

‐ change statute and the BMV’s requirements

deny non

‐ citizens the privilege of a full

‐ name change on their

identification.

Doe may have been able to overcome the Eleventh

Amendment had he sued the Governor to enjoin the enforce

‐

ment of the BMV’s requirements. Instead, Doe sued the Gov

‐

ernor in his official capacity to prevent him from enforcing the

name

‐ change statute. But the Governor was not specifically

charged with a duty to enforce the name

‐ change statute, s ee

Ex parte Young

, 209 U.S. at 158, and he has not taken on any

duty to enforce it either, see Love v. Pence

, 47 F. Supp. 3d 805,

808 (S.D. Ind. 2014). In short, the Governor doesn’t do any

‐ thing to enforce the name

‐ change statute ; if Indiana’s statute

permitted non

‐ citizens to obtain a name change, then the

BMV would, too. Consequently, the Eleventh Amendment

bars this suit against the Indiana Governor. See Watford v.

Quinn

, No. 14–cv–00571–MJR, 2014 WL 3252201, at *2–3 (S.D.

Ill. July 8, 2014) (noting that an Illinois statute prohibiting

prisoners from petitioning for name changes “makes clear

that it is the exclusive prerogative of the state circuit courts,

not the Governor, to grant a name change,” and holding that,6 No. 17

‐ 1756

consequently, the Eleventh Amendment barred the suit

against the governor).

2. The Attorney General

An attorney general cannot be sued simply because of his

duty to support the constitutionality of a challenged state stat

‐

ute. See Mendez v. Heller, 530 F.2d 457, 460 (2d Cir. 1976). This

duty does not make an attorney general an adverse party, but

rather “a representative of the State’s interest in asserting the

validity of its statutes.” Id. Instead, in order for a plaintiff to

overcome the Eleventh Amendment, the attorney general

must play some role in enforcing (not just defending) the

complained

‐ of statute.

Doe argues that the Attorney General enforces the

name

‐ change statute because he is vested with the broad au

‐ thority to enforce criminal laws. To the contrary, however, the

general rule in Indiana is that the Attorney General cannot in

‐

itiate prosecutions; instead, he may only join them when he

sees fit. See Ind. Code § 4

‐ 6

‐ 1

‐ 6 (2016); Ind. Code §§ 33

‐ 39

‐ 1

‐ 5,

12

‐ 15

‐ 23

‐ 6(d) (2017); State v. Holovachka

, 142 N.E.2d 593, 603

(Ind. 1957). But see Arnold v. Sendak

, 416 F. Supp. 22, 23 (S.D.

Ind. 1976) (holding that the Attorney General was a proper

defendant in a suit challenging a statute that made “abortion

... a criminal act” because of his “broad powers in the enforce

‐

ment of the criminal laws of the state”), aff’d without addressing

standing

, 429 U.S. 968 (1976).

Moreover, there are no criminal penalties for violating Ind.

Code § 34

‐ 28

‐ 2

‐ 2.5(a)(5). It is true that the Attorney General

could assist a local prosecuting attorney in a perjury prosecu

‐

tion if Doe perjured himself on his name

‐ change petition by

indicating he was a citizen. See Ind. Code §§ 4

‐ 6

‐ 1

‐ 6,No. 17

‐ 1756 7

34

‐ 28

‐ 2

‐ 2(a) (2016); Ind. Code § 35

‐ 44.1

‐ 2

‐ 1 (2014). Some

courts have suggested this would be enough. See, e.g., Baskin

v. Bogan

, 12 F. Supp. 3d 1144, 1152–53 (S.D. Ind. 2015) aff’d

without addressing standing

, 766 F.3d 648 (7th Cir. 2014). But

that connection is too attenuated, especially considering that

the Attorney General could not initiate the prosecution him

‐

self. Permitting Doe’s complaint challenging § 34

‐ 28

‐ 2

‐ 2.5 to

bring the Attorney General into court would extend Ex parte

Young past its limits.

The Attorney General has not threatened to do anything,

and cannot do anything, to prosecute a violation of

§ 34

‐ 28

‐ 2

‐ 2.5. Children’s Healthcare is a Legal Duty, Inc. v. Deters

,

92 F.3d 1412, 1415 (6th Cir. 1996) (“ Young does not apply when

a defendant state official has neither enforced nor threatened

to enforce the allegedly unconstitutional state statute.”). Our

ultimate inquiry is whether the Attorney General’s connection

to the enforcement of the name

‐ change statute “is sufficiently

intimate to meet the requirements of Ex parte Young .” Shell Oil

Co.

, 608 F.2d at 210. In this case, it is not. The Eleventh Amend

‐

ment bars Doe’s suit against the Attorney General from being

heard in federal court.

3. The Executive Director of State Court Administration

Doe also named the Executive Director of the Indiana Su

‐

preme Court Division of State Court Administration as a de

‐

fendant. He alleges that the Director caused his injuries be

‐

cause her office “prevent[s] or discourage[s] non

‐ citizens

from accessing changes of legal name.” (R. 24 at 4.) The Direc

‐

tor’s office generates a form that is available online or at the

clerk’s office to help petitioners file name

‐ change petitions.

The form instructs petitioners to provide proof of U.S. citizen

‐ ship. The Director’s office also generates a form order for the8 No. 17

‐ 1756

state court’s use that includes the finding that “[t]he Petitioner

has presented proof of United States citizenship.” (Appel

‐

lant’s Br. at 11 (alteration in original).) These forms are pro

‐

vided for convenience; they are not mandatory.

Even though the Director works for the judiciary, she is

nonetheless a state official for the purpose of the Eleventh

Amendment. See Hess v. Port Auth. Trans

‐ Hudson Corp.

, 513

U.S. 30, 48 (1994) (“[T]he impetus for the Eleventh Amend

‐

ment [is] the prevention of federal

‐ court judgments that must

be paid out of a State’s treasury.”). The Director’s generation

and publication of non

‐ mandatory forms are not connected to

the enforcement of the name

‐ change statute. Accordingly, the

Eleventh Amendment bars Doe from bringing this suit

against the Director in federal court.

B. Doe failed to prove that he has standing to sue the Marion

County Clerk of Court.

The Marion County Clerk of Court concedes that she is not

a state official, and therefore the Eleventh Amendment does

not bar Doe’s suit against her. Nonetheless, Doe does not have

standing to bring this suit against the Clerk. Though Doe al

‐ leged an injury in fact, he did not satisfy the final two require

‐

ments for standing: causation and redressability.

1. Doe alleged an injury in fact

.

An injury in fact must be “concrete and particularized,”

Lujan

, 504 U.S. at 560, and “actual or imminent,” id. (quoting

Whitmore v. Arkansas

, 495 U.S. 149, 155 (1990)). “When the gov

‐

ernment erects a barrier that makes it more difficult for mem

‐

bers of one group to obtain a benefit than it is for members of

another group,

... [t]he ‘injury in fact’

... is the denial of equal

treatment resulting from the imposition of the barrier.” Ne.No. 17

‐ 1756 9

Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jack

‐

sonville

, 508 U.S. 656, 666 (1993).

This is the case here. Though Doe never submitted a peti

‐

tion, he alleged an actual, concrete, and particularized injury:

that the statute denies him the benefit of obtaining a name

change simply because he is not a U.S. citizen. See Associated

Gen. Contractors at 666; see also Lac Du Flambeau Band of Lake

Superior Chippewa Indians v. Norton

, 422 F.3d 490, 496 (7th Cir.

2005) (noting that a plaintiff does not “lack[] standing merely

because [he] asserts an injury that is shared by many people”).

In fact, the barrier Doe faces is much worse than the one in the

affirmative

‐ action cases like Associated General Contractors

, be

‐

cause it makes it impossible—not just difficult—for people in

his class to obtain the desired state benefit, and that benefit is

freely available to persons in the favored class (U.S. citizens).

This injury supports his due process and free speech

claims just as it supports his equal protection claim. If the In

‐

diana statute permitted citizens and non

‐ citizens alike to

change their legal names, Doe would not need to bring this

suit claiming that he is denied due process and freedom of

speech by not being able to change his.

2. Doe has not satisfied the final two standing requirements of

causation and redressability.

There must be a causal connection between the plaintiff’s

injury and the conduct of which he complains. Lujan

, 504 U.S.

at 560. That is, the plaintiff’s injury must be “fairly traceable”

to a defendant’s actions. Id. Standing is not always lost when

the causal connection is weak, Banks v. Sec’y of Ind. Family &10 No. 17

‐ 1756

Soc. Servs. Admin.

, 997 F.2d 231, 239 (7th Cir. 1993), and a de

‐

fendant’s actions need not be “the very last step in the chain

of causation,” Bennett v. Spear

, 520 U.S. 154, 168–69 (1997).

Once a plaintiff establishes an adequate causal connection,

he must show that it is likely a favorable decision against the

named defendant would redress the plaintiff’s injury. Lujan

,

504 U.S. at 561.

Doe argues that he has standing to sue the Clerk because

her office distributes the Director’s forms advertising the non

‐

citizen exclusion, advises non

‐ citizens that the statute re

‐ quires proof of citizenship when they ask about the statute’s

requirements, and processes name

‐ change petitions through

an allegedly unconstitutional system.

But in processing the name

‐ change petitions, the Clerk has

no power to grant or deny a petition. She is tasked only with

accepting and processing petitions without any authority to

screen them. In fact, Doe’s complaint acknowledged that the

Clerk filed at least one non

‐ citizen application in the past. (R.

24 at 13.) Because Doe failed to show that the Clerk has any

authority in the name

‐ change process, Doe has failed to show

that his injury is fairly traceable to the Clerk’s action of pro

‐ cessing petitions. Cf. Campaign for S. Equal. v. Miss. Dep’t of Hu

‐

man Servs.

, 175 F. Supp. 3d 691, 703–05 (S.D. Miss. 2016) (find

‐ ing that the plaintiffs had standing to sue the director of hu

‐

man services in a constitutional challenge to a state statute

prohibiting adoptions by same

‐ sex couples because the de

‐

partment of human services had the ability to block adoption

applications).

The Clerk’s other two actions can best be characterized as

educating and informing the public about the name

‐ changeNo. 17

‐ 1756 11

statute’s requirements. Even assuming Doe’s injury was fairly

traceable to this activity, Doe has not shown that any injunc

‐

tion the court may issue against the Clerk would be likely to

redress his injury. The state courts would still deny Doe’s pe

‐

tition on the basis of the citizenship requirement regardless of

what information the Clerk provided to him.

II. C ONCLUSION

The Eleventh Amendment bars Doe’s suit against the

named state officials. And though the Marion County Clerk

of Court is not a state official, Doe does not have standing to

sue her. We therefore AFFIRM the district court’s dismissal of

Doe’s suit. The federal courts are not the proper forum for his

claims.12 No. 17

‐ 1756

W OOD

, Chief Judge

, dissenting. This is an unusual case, but

in the end it is not one that we should bar from adjudication.

I therefore dissent from the majority’s conclusion that John

Doe’s suit to change his name cannot move forward in its pre

‐

sent form. As the majority notes, Doe is a Mexican national

who is lawfully in the United States after a grant of asylum.

As a transgender male, he wants to change his name from his

birth

‐ name of “Jane Doe” to the gender

‐ appropriate name

“John Doe.” His efforts have been blocked by an Indiana law

that requires name

‐ change petitioners to provide proof of U.S.

citizenship. Ind. Code § 34

‐ 28

‐ 2

‐ 2.5(a)(5) (2016).

My colleagues conclude that Doe’s suit must be rejected

before it is ever considered. They first note that Indiana’s

Governor is under no legal obligation to enforce the name

‐ change statute. This fact, they say, means that the Eleventh

Amendment bars Doe’s suit against the Governor. Ante at 5–

6. (I do not understand why a conclusion that a certain action

lies outside the scope of a statute conferring authority on an

official leads inexorably to a conclusion that the state’s

sovereign immunity also shields that official, but I put that

question to one side for present purposes.) Next, they

conclude that the state Attorney General is not a proper

defendant, because they can identify no criminal penalties

associated with name changes. Id. at 7. The Executive Director

of State Court Administration falls out of the case because all

the Director does is create non

‐ mandatory forms, and they

regard the link between those forms and name changes as too

tenuous to support this lawsuit. Id. at 7–8. Finally, they

conclude that Doe lacks standing to sue the Marion County

Clerk of Court because Doe can neither establish a link

between the Clerk’s authority and a name

‐ change order norNo. 17

‐ 1756 13

can he show that any court order addressed to the Clerk

would make a difference. Id

. at 9–10.

In my view, the majority’s analysis gives insufficient

weight to the significant roles played by the Attorney General,

Executive Director, and Clerk in enforcing the name

‐ change

statute and preventing Doe from securing official recognition

of his identity. Because the authority and duties of all three

undergird the deprivation of constitutional rights asserted by

Doe, all three must answer to his suit. Moreover, while I agree

with the majority that the Governor’s role in administering

section 34

‐ 28

‐ 2

‐ 2.5(a)(5) is attenuated, I would give Doe an op

‐ portunity to amend his complaint to name other executive

‐

branch officials whose responsibilities include the policing of

the name a person uses in order to receive services or to deal

with the state.

Looking first at the Executive Director and the Clerk, one

can see that their authority to create forms, issue guidance,

and move along petitions, enables them to exert substantial

influence on the name

‐ change process. This is best illustrated

by example. Suppose, for example, the Executive Director’s

name

‐ change form stated at the top that no traditionally

Muslim names could be submitted, and that the Clerk

routinely discouraged or refused to accept applications with

such names. Over and above the psychic harm of such an

action (which itself would be at least as offensive as

forbidding the teaching of a particular language, for instance,

see Meyer v. Nebraska

, 262 U.S. 390 (1923)), the chilling effect

on name

‐ changes for the group experiencing such

discrimination would be powerful—powerful enough, I

should think, to support an injunction against that practice.14 No. 17

‐ 1756

I therefore do not agree with the majority that the Clerk’s

role is so minor that no effective relief can come from that

quarter. Doe seeks to compel the Clerk to accept an applica

‐

tion with a name that does not reflect his birth name and to

stop discouraging attempts to submit such an application.

The majority accepts counsel’s word for the fact that Clerks in

the past have accepted applications that do not conform to In

‐

diana’s name

‐ change law, but at this early stage in the pro

‐ ceedings we do not have a complete record on this point. We

must accept Doe’s representation that such applications are

normally rejected for noncompliance with Indiana law, and

that an application from him would suffer the same fate.

As for the Attorney General, the majority acknowledges

that Indiana’s courts have the power to punish perjurers or

those who commit a fraud on the court, but that is where it

leaves matters. It observes that there are no criminal penalties

directly tied to violations of Ind. Code §§ 34

‐ 28

‐ 2

‐ 2 and 34

‐ 28

‐

2

‐ 2.5, and from this it assumes that the Attorney General has

no meaningful role to play in their implementation. In fact,

both perjury and fraud can also be prosecuted independently:

Indiana recognizes perjury as a stand

‐ alone crime, see Ind.

Code § 35

‐ 44.1

‐ 2

‐ 1 (a felony; see also Ind. Code § 34

‐ 28

‐ 2

‐ 2(a)

(requiring that name

‐ change petitions include proof of citi

‐ zenship and be sworn “under the penalties of perjury”), as

well as obstruction of justice, see Ind. Code § 35

‐ 44.1

‐ 2

‐ 2 (a

felony). Nonetheless, the majority appears to treat these con

‐

sequences as too indirect to sweep in the Attorney General. I

would not dismiss them so readily.

Furthermore, even if the majority has correctly assessed

those criminal remedies, there is more to Doe’s case than the

possibility of abuse of the state court’s process. Doe also citesNo. 17

‐ 1756 15

the misdemeanor of “false identity statement,” which

punishes knowing material misstatements of identity in

connection with official proceedings or investigations, when

done with the intent to mislead public servants. Ind. Code §

35

‐ 44.1

‐ 2

‐ 4. This is a big problem for Doe: if he presents

himself in a manner that accords with his gender identity—

that is, as John Doe, rather than under his “legal” name, Jane

Doe—he is at risk of being prosecuted for a Class A

misdemeanor. Id. at 35

‐ 44.1

‐ 2

‐ 4(a). And that is not all. For

example, an applicant for a driver’s license must provide

“[t]he full legal name of the applicant.” Ind. Code § 9

‐ 24

‐ 9

‐

2(a)(1). Failure to comply with this requirement (or any other

rule in that chapter of the Indiana Code) is a Class C

infraction. Ind. Code § 9

‐ 24

‐ 9

‐ 6. These might not be the

strictest penalties in the world, but they lie within the

authority of the Attorney General to pursue, see Ind. Code

§ 4

‐ 6

‐ 1

‐ 6, and they easily support injury

‐ in

‐ fact, causation,

and redressability. (Although Doe did not cite the BMV

provision in his briefs, we are entitled to take judicial notice

of Indiana’s statutes. The extent to which these matters are

addressed by the state’s statutes is a pure question of law

within this court’s de novo review powers.) Taking all these

provisions into account, Doe’s case proves to be much closer

to Baskin v. Bogan

, 766 F.3d 648 (7th Cir. 2014), than the

majority allows. Indeed, I would find it controlled by Baskin

insofar as he is suing the Attorney General.

Last, we have the state’s Governor. I agree with the major

‐ ity that he was properly dismissed. From a practical stand

‐ point, as it notes, one should not be able simply to sue the

Governor every time some part of the state’s executive branch

does something objectionable. Instead, it is necessary in each

instance to see how directly the Governor is connected with16 No. 17

‐ 1756

the contested action. If the Governor has meaningful over

‐ sight over a particular area, it has been established since at

least Ex parte Young

, 209 U.S. 123 (1908), that an aggrieved per

‐

son may sue him or her as the responsible official for prospec

‐

tive injunctive relief without running afoul of the Eleventh

Amendment. If instead the responsibility is lodged in a de

‐

partment head, such as the Commissioner of the BMV, then

that official is the proper person to sue under the Ex parte

Young regime. There are practical reasons for taking care not

to have a system under which the Governor automatically

stands in for every department head. Such a rule would bur

‐

den the Governor’s office with litigation over countless mat

‐

ters for which state law assigns primary responsibility to

other officials (some of whom, such as the Attorney General,

are independently elected).

The majority hints that Doe might “have been able to over

‐

come the Eleventh Amendment had he sued the Governor to

enjoin the enforcement of the BMV’s requirements.” Ante at 5.

But then it immediately says that such a suit would have

failed, because the Governor has no duty to enforce the name

‐ change statute. Yet someone must have the authority to en

‐

force that statute; I have explained above why I believe that

one such person is the Attorney General, and I add here that

another such person would have been the Commissioner of

the BMV. This is not a case that forces us to accept the unpal

‐

atable notion that alleged constitutional violations escape all

judicial review.

Consider the consequences if any state function entrusted

to the state

‐ court system were placed beyond the power of the

federal courts to address (an outcome, I note, that would be

incompatible with Mitchum v. Foster

, 407 U.S. 225 (1972),No. 17

‐ 1756 17

which upheld the power of the federal courts to issue civil

‐ rights injunctions against state

‐ court proceedings). A state hy

‐ pothetically could refuse to allow an African

‐ American per

‐

son to change his or her surname on an identification

‐ card to

that of a Caucasian spouse, in flagrant violation of Loving v.

Virginia

, 388 U.S. 1 (1967), or it could pass a statute refusing to

allow a single surname for a same

‐ sex couple, in disregard of

the Supreme Court’s decision in Obergefell v. Hodges

, 135 S. Ct.

2584 (2015). The expedient of placing final authority for name

‐ changes in the state court system cannot operate to avoid ac

‐ countability for potential violations of the federal constitution

by other state officials. Nor can it have the effect of negating

the right of any person to bring an action under 42 U.S.C.

§ 1983, which lies within the subject

‐ matter jurisdiction of the

federal courts, see 28 U.S.C. §§ 1331, 1343(a).

In the end, I believe that the majority has attached too

much importance to the fact that the state courts are the ones

charged with the duty of issuing name

‐ change orders. The

fact that this responsibility is lodged in the courts does not

mean that Doe’s suit is nonjusticiable. Name changes are not

the only state function that is assigned to state courts.

Uncontested divorces go straight to the state court, for

example, as do probate matters when a will needs to be

probated, or an estate needs to be administered. When there

is a problem in the system, those aggrieved by that problem

sue the state official best suited to the situation. As I noted

earlier, in addition to the avenues he chose, Doe could have

sued the Commissioner of the BMV to compel the director to

issue a driver’s license to him in the name of “John Doe.” If

the Commissioner had refused, Doe could have raised his

complaints about Indiana’s name

‐ change statute in a lawsuit

in state or federal court. It is likely that the Commissioner18 No. 17

‐ 1756

would have defended his action in such a lawsuit on the basis

of the state statute, but Doe’s response to such a defense

would have rested on his constitutional rights.

Suing each department head, one by one, for particular re

‐

dress would not be a particularly efficient system, but that

seems to be the only path the majority has left open for an

action in federal court. Evidently it acknowledges that Doe

could sue the Commissioner of the BMV in order to get the

proper name on his driver’s license; the Commissioner of the

Indiana Department of Revenue for the right to file his taxes

under the proper name; the Recorder of Deeds where he lives

in order to have a property deed listed under the proper

name, and so on. I also understand the majority to be leaving

open the door to a more general suit in state court. Such a suit

might be triggered by the state court’s predictable rejection of

Doe’s application for a name change. Doe might have a right

to appeal that rejection to a higher Indiana court. If he does,

then he can raise his federal claims there. If no such right of

appeal exists—that is, if the name

‐ change court is “the highest

court of [the] State in which a decision could be had,” 28

U.S.C. § 1257(a)—he could go straight to the U.S. Supreme

Court. See Thompson v. City of Louisville

, 362 U.S. 199, 202

(1960) ( certiorari to local police court whose decisions were not

otherwise appealable within the state

‐ court system). What the

majority has not explained to my satisfaction, however, is

why the same suit cannot be brought in the form and forum

Doe has chosen—that is, in a federal court, when no conflict

‐ ing state

‐ court proceeding or judgment exists.

What we know is enough to support Doe’s lawsuit. We

know that state law presently stands in the way of Doe’s name

change, because it insists on U.S. citizenship even though DoeNo. 17

‐ 1756 19

is lawfully in the country and is here as a recipient of asylum,

meaning that he cannot safely return to his own country. The

defendants (save the Governor) whom Doe already has

named have the power to do something about his quandary.

To repeat, Doe is alleging that the various state officials are

refusing to process his case to correct his name, and that the

state court would similarly deny relief unless the underlying

law demanding U.S. citizenship is enjoined or otherwise set

aside. This is more than enough to permit adjudication of the

question whether such an injunction or declaratory judgment

should be entered.

I would find that Doe can move forward against the

Executive Director, the Clerk, and the Attorney General. I

agree with my colleagues that the Governor was the wrong

defendant. As I understand them, in addition, if Doe had

named the various heads of agency or department who were

responsible for recording a name on the different state

‐ issued

documents he holds, they may have come to a different result.

In my view, Doe did not need to take the latter step, although

if that is all that is needed to save the case, I would remand to

give him the opportunity to do so. The underlying principle

Doe is trying to vindicate is an important one, which has a

broader application than may initially be apparent. I therefore

respectfully dissent.