1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-16-1994

Presbytery of NJ v. Florio, et al.

Precedential or Non-Precedential:

Docket 93-5559

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Recommended Citation

"Presbytery of NJ v. Florio, et al." (1994). 1994 Decisions. Paper 191.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/191
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 93-5559 

 ___________ 

 THE PRESBYTERY OF NEW JERSEY OF THE ORTHODOX 

 PRESBYTERIAN CHURCH, a New Jersey corporation; 

 CALVARY ORTHODOX PRESBYTERIAN CHURCH OF WILDWOOD, 

 a New Jersey corporation; REV. DAVID B. CUMMINGS 

 Appellants 

 v. 

 JAMES FLORIO, GOVERNOR OF NEW JERSEY, in his 

 official capacity; ROBERT J. DEL TUFO, ATTORNEY 

 GENERAL OF NEW JERSEY, in his official capacity; 

 MARILYN FLANZBAUM; ROMAN ANGEL; BETTY CARSON; OLGA L. 

 VAZQUEZ-CLOUGH; FELTON LINGO, SR.; REINHOLD W. 

 SMYCZEK; CASEY TAM, all in their official 

 capacities as members of THE DIVISION ON CIVIL RIGHTS; 

 C. GREGORY STEWART, in his official capacity as 

 executive of THE DIVISION ON CIVIL RIGHTS; JOHN DOE(S); 

 JANE DOE(S), addresses unknown, the last two being 

 fictitious names, the real names of said defendants 

 being presently unknown or known only in part to 

 plaintiffs, said fictitious names being intended 

 to designate organizations, persons and others 

 acting in concert with any of the defendants who 

 engage in, are engaged in, or who intend to engage 

 in, the conduct of defendants complained of herein, 

 or who would have the right to file or seek enforcement 

 of administrative, equitable or legal complaints or 

 suits or to assert any other legal claims or remedies 

 or enforcement thereof against the plaintiffs under 

 the New Jersey Law Against Discrimination, as amended 

 by the 1992 affectional and sexual orientation 

 amendments, and all others similarly situated, 

 Appellees 

 ___________ 

 Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Civil Action No. 92-cv-01641) 

 ___________ 
 ___________ 

 Argued: March 25, 1994 

 PRESENT: HUTCHINSON, ROTH and ROSENN, Circuit Judges

 (Filed November 16, 1994) 

 ____________ 

Thomas Stephen Neuberger, Esquire (Argued) 

Suite 702 

Ninth Street Plaza 

200 West Ninth Street 

Wilmington, DE 19801-1646 

 and 

James J. Knicely, Esquire 

Knicely & Cotorceanu 

Suite 2 

487 McLaws Circle 

Williamsburg, VA 23185 

 Attorneys for Appellants 

Fred Devesa, Esquire 

 Acting Attorney General of New Jersey 

Andrea M. Silkowitz, Esquire 

 Assistant Attorney General 

William H. Lorentz, Esquire (Argued) 

 Deputy Attorney General 

Charles S. Cohen, Esquire 

 Deputy Attorney General 

Office of Attorney General of New Jersey 

124 Halsey Street 

P.O. Box 45029 

Newark, NJ 07101 

 Attorneys for Appellees 

David L. Grove, Esquire 

Montgomery, McCracken, Walker & Rhoads 

20th Floor 

Three Parkway 

Philadelphia, PA 19102 

 and 
Richard S. Hyland, Esquire 

Louis A. Petroni, Esquire 

Montgomery, McCracken, Walker & Rhoads 

Suite 2C 

1010 Kings Highway South 

Cherry Hill, NJ 08034 

 and 

Eric J. Graninger, Esquire 

Presbyterian Church (U.S.A.) 

Associate General Counsel 

100 Witherspoon Street 

Louisville, KY 40202 

 Attorneys for Amici Curiae James E. Andrews, as 

Stated Clerk of the Presbyterian Church (U.S.A.) 

General Assembly, The Diocesan Council of the 

Episcopal Diocese of Newark, John S. Spong, Bishop 

of the Episcopal Diocese of Newark, The Lutheran 

Office of Governmental Ministry in New Jersey, The 

New Jersey-West Hudson Valley Council of the Union 

of American Hebrew Congregations, New Jersey Synod 

Council of the New Jersey Synod, Evangelical 

Lutheran Church in America, New Jersey Council of 

Churches, United Church of Christ Office for 

Church in Society 

Lewis H. Robertson, Esquire 

Evans, Osborne & Kreizman 

P.O. Box BB 

Red Bank, NJ 07701 

 Attorney for Amicus Curiae ACLU NJ 

 ____________ 

 OPINION OF THE COURT 

 ____________ 

HUTCHINSON, Circuit Judge. 

 Appellants, the Presbytery of New Jersey of the 

Orthodox Presbyterian Church ("Presbytery"), the Calvary Orthodox 

Presbyterian Church of Wildwood ("Calvary") and Reverend David B. 
Cummings ("Cummings"), a clergyman of the Orthodox Presbyterian 

denomination (collectively "plaintiffs"), appeal an order of the 

district court dismissing their complaint.1 Plaintiffs assert 

recent amendments to the New Jersey Law Against Discrimination 

(the "LAD" or "Act"), N.J. Stat. Ann. §§ 10:5-1 to 10:5-42 (West 

1993 & Supp. 1994), violate the First Amendment right to freedom 

of speech. The amendments they question added to the category of 

impermissible distinctions "affectional or sexual orientation" to 

the statute's ban on certain forms of discrimination. Relying on 

a responsible state official's affidavit that the state would not 

enforce the LAD against Calvary or Presbytery as churches or 

Cummings as a church pastor, the district court held that the 

case was not ripe. 

 We conclude, however, that the controversy is ripe 

because Cummings arguably alleges the statute threatens his right 

as an individual citizen to speak out against male and female 

homosexual acts and the state has expressly refused to offer any 

assurance it will not prosecute Cummings if he does so outside 

his church. The same, however, is not true of the institutional 

church plaintiffs, Presbytery and Calvary. Accordingly, we will 

reverse the district court's order and remand for further 

proceedings consistent with this opinion in so far as its order 

 

1. The caption in this case lists James Florio as the Governor 

of New Jersey. After it was filed, Christine Todd Whitman was 

elected to that office, but there has not yet been a substitution 

of parties. The failure to amend the caption in this respect 

does not affect this appeal. See Fed. R. Civ. P. 25(d)(1). We 

note the change for purposes of clarification only. 
applies to Reverend Cummings. We will, however affirm the 

district court's dismissal without prejudice of this action as it 

pertains to the institutional plaintiffs. 

I. 

 In April 1992, the plaintiffs brought this suit to 

enjoin enforcement of recent amendments to the LAD which had 

added "affectional or sexual orientation" to the personal traits 

or characteristics generally protected against discrimination in 

public accommodations,2 employment and housing. See N.J. Stat. 

Ann. §§ 10:5-4, 10:5-12 (West Supp. 1994). The statute also 

prohibits "aid[ing], abet[ting], incit[ing], compel[ing] or 

coerc[ing]" others into violations of its prohibitions against 

discrimination. N.J. Stat. Ann. § 10:5-12(e); see N.J. Stat. 

Ann. § 10:5-12(n). The plaintiffs originally challenged these 

and other provisions as an infringement on the First Amendment 

right to the free exercise of religion and association as well as 

the right to freedom of speech. On May 15, 1992, they filed a 

motion for a preliminary injunction and on May 22, filed an 

amended complaint. On June 11, 1992, the state filed a motion 

for summary judgment along with a motion for dismissal. The 

district court heard oral argument but denied the motion for a 

preliminary injunction holding that the plaintiffs failed to 

 

2. Public accommodations are defined quite broadly in N.J. Stat. 

Ann. § 10:5-5(l). They include, but are not limited to, taverns, 

hotels, trailer camps, day camps, health facilities, stores and 

other retail establishments, restaurants, public conveyances, 

movie theaters, pool halls, schools, etc. See id.
establish both a likelihood of success on the merits and 

irreparable harm. The plaintiffs appealed to this Court and on 

December 14, 1992, we affirmed the district court in an 

unpublished memorandum opinion. Presbytery of New Jersey v. 

Florio, No. 92-5339, slip. op. at 13 (3d Cir. Dec. 14, 1992) 

("Presbytery I"), see 983 F.2d 1052 (3d Cir. 1992) (Table). 

Because of the state's affidavit stating its intention not to 

enforce the Act against religious institutions, we held that the 

plaintiffs failed to demonstrate the possibility of immediate and 

irreparable harm. Id. at 9-10. We also held that the 

possibility of private enforcement of the Act by activist 

homosexual groups was too remote to constitute an immediate 

threat of potential harm and, in any event, the private parties 

would not be bound by the injunction sought. Id. at 10-12. We 

specifically refused to comment on the district court's 

discussion of the plaintiffs' likelihood of success on the 

merits. Id. at 13. 

 Following our decision, the district court heard 

argument on the state's Rule 12(b)(1) motion to dismiss. The 

state argued that the plaintiffs lacked standing, the case was 

not ripe and that the federal court should abstain under Railroad 

Commission of Texas v. Pullman, 312 U.S. 496 (1941). The 

district court granted the state's motion and dismissed the 

complaint. Presbytery of New Jersey v. Florio, 830 F. Supp. 241 

(D.N.J. 1993) ("Presbytery II"). It held that the case was not 

ripe, based on the state's affidavit that it would not enforce 

the Act against the institutional plaintiffs as churches or 
Cummings in his capacity as a clergyman of the Orthodox 

Presbyterian Church. Id. at 248-50.3 The plaintiffs filed a 

timely notice of appeal. 

II. 

 The LAD, originally enacted in 1945, prohibits 

discrimination in employment, labor organization membership, 

public accommodations and real estate, financial, and business 

transactions. In 1991, the New Jersey legislature added 

"affectional or sexual orientation" to the personal 

characteristics of race, creed, color, national origin, ancestry, 

age, sex, and marital status previously protected.4 Under the 

 

3. The court did not reach the issue of standing or Pullman

abstention. 

4. The legislature's finding and declaration states: 

 The Legislature finds and declares that 

practices of discrimination against any of 

its inhabitants, because of . . . affectional 

or sexual orientation . . . [is a] matter[] 

of concern to the government of the State, 

and that such discrimination threatens not 

only the rights and proper privileges of the 

inhabitants of the State but menaces the 

institutions and foundation of a free 

democratic State . . . . 

 . . . 

 The Legislature further finds that 

because of discrimination, people suffer 

personal hardships, and the State suffers a 

grievous harm. . . . The Legislature intends 

that such damages be available to all persons 

protected by this act and that this act shall 

be liberally construed in combination with 

other protections available under the laws of 

this State. 
Act, it is unlawful for an employer "to refuse to hire or employ 

or to bar or to discharge or require to retire" any individual on 

the basis of a protected characteristic. Id. § 10:5-12(a). The 

Act also prohibits the printing or circulating of any statement 

which expresses, directly or indirectly, that employment 

opportunities for persons with the protected characteristics will 

be limited. Id. § 10:5-12(c). Public accommodations are 

similarly restrained. See id. § 10:5-12(f). In addition, the 

LAD makes it illegal for any individual to refuse to transact 

business with individual groups who have any of the protected 

characteristics. Id. §§ 10:5-12(l), (m). The Act also makes it 

illegal "to aid, abet, incite, compel or coerce the doing of any 

of the acts forbidden under this act, or to attempt to do so." 

Id. § 10:5-12(e). Still another section applying the Act's 

prohibition against aiding, abetting, inciting or coercing 

violations of subsection (l) and (m) specifically prohibits 

incitements to boycott persons who belong to the protected 

groups. Id. § 10:5-12(n)(2). Finally, the Act requires owners 

of public accommodations and employers to post public notices 

informing employees and patrons of their rights under the Act. 

Id. § 10:5-12(j). 

 The Act exempts religious organizations from compliance 

in the selection of their own employees and it permits religious 

organizations to restrict rental or use of their own property to 

(..continued) 

N.J. Stat. Ann. § 10:5-3 (West Supp. 1994). 
members of their own faith. Id. §§ 10:5-12(a), 10:5-5(n). The 

Act does not apply to private clubs or facilities for religious 

education. Id. § 10:5-5(l). 

 The state itself may enforce the Act's civil penalties 

against violators. An aggrieved individual may begin the process 

of civil enforcement by filing a complaint with the state 

Division on Civil Rights ("DCR") or proceeding directly to state 

court. Id. § 10:5-13 (West 1993). The Act specifically grants 

standing to sue to "[a]ny individual who has been discriminated 

against" and "any organization which represents or acts to 

further the interests of individuals who have been discriminated 

against." Id. § 10:5-38 (West 1993). The successful plaintiff 

may recover compensatory and punitive damages, fines, and 

attorney fees. Id. § 10:5-3; id. § 10:5-14.1a (West 1993); id.

§ 10:5-27.1 (West 1993). The Act is to be liberally construed to 

accomplish its purpose of eradicating the kinds of discrimination 

it prohibits. See id. § 10:5-3. 

 The Orthodox Presbyterian Church ("OPC") is a national 

denomination with 170 member churches, including Calvary. The 

OPC split from the Presbyterian Church (U.S.A.) in 1936 over a 

doctrinal difference.5 Presbytery is a New Jersey religious 

corporation and the formal governing body of OPC churches in New 

 

5. The Presbyterian Church (U.S.A.) as well as a number of other 

mainstream organized religions have filed a joint amicus brief 

setting out their opposition to OPC's doctrinal views and 

teachings. These amici support the state's position on the 

merits of this case. Because we are only concerned with 

jurisdiction on this appeal we do not decide the merits. 
Jersey. At the time plaintiffs initially filed their complaint, 

the OPC had 2,113 members in New Jersey. 

 In their complaint, the plaintiffs allege the 

following. Based upon The Holy Bible and church doctrine, the 

OPC teaches that homosexuality, bisexuality, and heterosexual sex 

outside of marriage are grievous sins. Plaintiffs also allege 

that they 

 have always in the past, presently do and 

since the 1992 amendments, have directly or 

indirectly discriminated against and made 

reasonable distinctions based upon 

homosexuality, bisexuality and heterosexual 

sex outside of marriage. For example, in New 

Jersey the plaintiffs express, speak and 

preach against homosexuality, adultery and 

fornication, calling it variously an 

abomination and sinful. . . . They also 

disseminate and circulate such speech and 

distinctions throughout New Jersey and the 

world. . . . [T]hey even print and 

disseminate materials condemning sexual 

sins. . . . Plaintiffs, and their members, 

also inquire about the sexual practices of 

prospective employees and are continuing to 

do so despite the existence of the 1992 

amendments. 

Complaint ¶ 49, Appellants' Appendix ("App.") at 217. Cummings 

and members of his congregation "speak out about homosexuality, 

bisexuality and heterosexual sex outside of marriage, make 

reasonable distinctions based on such practices, lobby against 

them, and circulate literature condemning them. They encourage, 

aid and abet discrimination and reasonable distinctions against 

homosexuals, bisexuals and heterosexuals engaging in sex outside 

of marriage." Id. ¶ 51, App. at 217-18. Furthermore, 
"[p]laintiffs have always in the past, presently do and since the 

amendments have refused to knowingly buy from, contract with or 

otherwise do business with persons on the basis of that person's 

homosexual, bisexual or heterosexual practices." Id. ¶ 57, App. 

at 220. Plaintiffs also "have always in the past, presently do 

and since the amendments have refused to employ any individual 

who is practicing any public sexual sin, including fornication, 

adultery and homosexuality, and they make reasonable distinctions 

based on such acts." Id. ¶ 69, App. at 223. 

 Initially, plaintiffs contended that various elements 

of the Act violated their First, Fifth, Ninth and Fourteenth 

Amendment rights. The allegedly offending sections included: 

sections 10:5-12(a) and (c) (applicable to employers); section 

10:5-12(f) (applicable to public accommodations); sections 10:5-

12(e) and (n) (prohibition against aiding, abetting, or inciting 

violations); section 10:5-12(j) (notice posting provision); and 

sections 10:5-12(l) and (m) (prohibition of boycotts and refusal 

to do business). 

 In response to plaintiffs' initial request for a 

preliminary injunction, the Director of the DCR, C. Gregory 

Stewart, filed an affidavit setting forth the DCR's and attorney 

general's position on enforcement of the Act against religious 

institutions. The Stewart affidavit averred that the state did 

not consider churches places of "public accommodations." Thus, 

the sections relating to public accommodations were inapplicable 

to the institutional plaintiffs. Stewart further stated that 
churches were considered exempt in their hiring of internal 

employees. Due to "First Amendment concerns," 

 the Division has not in the past prosecuted 

and has no intention to prosecute [under 

sections 10:5-12(c), (e), (f), (j), (l) & 

(m)] essentially exempt churches for 

sincerely-held religious belief or practice, 

or speech consistent with such belief, or for 

a refusal to engage in certain speech or for 

following their religious tenets . . . . 

Hence, the Division would not even attempt to 

enforce those provisions in the circumstances 

of sincerely-held religious reasons such as 

plaintiffs express here. . . . 

App. at 296. Stewart also made the following general statement: 

 [I]t has been the consistent 

construction and interpretation of the LAD 

that, consonant with constitutional legal 

barriers respecting legitimate belief and 

free exercise protected by the First 

Amendment, the State was not authorized to 

regulate or control religious worship, 

beliefs, governance, practice or liturgical 

norms, even where ostensibly or colorably at 

odds with any of the LAD prohibited 

categories of discrimination. 

 . . . 

 

 Moreover, the Division has not and has no 

intention to engage in any determination or 

judgment as to what is or is not a "religious 

activity" of a church, or to determine what 

is or is not a "tenet" of religious faith. 

Within First Amendment limits, all of 

plaintiffs' claimed religiously-based free 

exercises of faith are unthreatened by a 

reasoned construction of the LAD consistent 

with its meaning and long enforcement 

history. 

App. at 294-96. The affidavit did not, however, disavow 

enforcement against the members of the church for their public 
activities nor does it preclude enforcement against Cummings for 

his activities outside the Church. 

 In light of the Stewart affidavit and our prior 

decision in Presbytery I, the parties agree that the scope of 

their challenge on the merits to the Act has been significantly 

limited. The plaintiffs now challenge only section 10:5-12(e), 

which makes it illegal "to aid, abet, incite, compel or coerce" 

forbidden acts, section 10:5-12(n), which makes it illegal "to 

aid, abet, incite, compel, coerce or induce" boycotts or refusals 

to do business and section 10:5-12(j), the notice posting 

provision. Presbytery II, 830 F. Supp. at 247; Brief of 

Appellants at 6. Plaintiffs argue that the first two sections 

are impermissible restrictions on freedom of speech and the last 

provision is a violation of the freedom of conscience and forced 

speech. Before the district court, however, the plaintiffs 

conceded that in light of the representations of the DCR, the 

sections have no applicability to the institutional plaintiffs 

Presbytery and Calvary. Id.

III. 

 If this case is ripe, and if any of the plaintiffs have 

standing to assert their free speech claim, the district court 

would have subject matter jurisdiction under 28 U.S.C.A. §§ 1331, 

1343 (West 1993) and 28 U.S.C.A. §§ 2201, 2202 (West 1994). The 

state contends, however, that the district court lacked 

jurisdiction because the plaintiffs did not present an 

Article III justiciable controversy. The district court agreed 
and dismissed the case on this ground. Because the district 

court did not reach the merits of the plaintiffs' claim, the 

dismissal was without prejudice.6 The district court's order is, 

however, a final resolution of the plaintiffs' claims and 

therefore we have appellate jurisdiction pursuant to 28 U.S.C.A. 

§ 1291 (West 1993). 

 Our review of ripeness and standing determinations is 

plenary. Taylor Inv. Ltd. v. Upper Darby Township, 983 F.2d 

1285, 1289 (3d Cir.), cert. denied, 114 S. Ct. 304 (1993); Roe v. 

Operation Rescue, 919 F.2d 857, 863 (3d Cir. 1990). 

IV. 

 The issue on this appeal is whether the plaintiffs have 

presented a ripe controversy so that an Article III court may 

assert jurisdiction. We examine the merits of the claim only to 

the extent necessary to determine whether there is any potential 

for immediacy of harm. 

 Federal courts may only resolve actual "cases" and 

"controversies." See U.S. Const. art. III, § 2. The existence 

of a case and controversy is a prerequisite to all federal 

 

6. Generally, when a district court dismisses a case without 

prejudice, it is not a final order unless the party seeking 

appeal has specifically elected to stand on the complaint as set 

forth. See generally Borelli v. City of Reading, 532 F.2d 950, 

951-52 (3d Cir. 1976) (per curiam). In a case such as this where 

the district court has dismissed based on justiciability and it 

appears that the plaintiffs could do nothing to cure their 

complaint, the principle of Borelli does not apply. Cf. Green v. 

Humphrey Elevator and Truck Co., 816 F.2d 877, 878 n.4 (3d Cir. 

1987) (dismissal without prejudice does not destroy finality 

where party cannot cure defect). 
actions, including those for declaratory or injunctive relief. 

See Cardinal Chem. Co. v. Morton Int'l, Inc., 113 S. Ct. 1967, 

1974 (1993); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 

667, 671 (1950). "Concerns of justiciability go to the power of 

the federal courts to entertain disputes, and to the wisdom of 

their doing so. We presume that federal courts lack jurisdiction 

'unless "the contrary appears affirmatively from the record."'" 

Renne v. Geary, 501 U.S. 312, 316 (1991) (quoting Bender v. 

Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986) (quoting 

King Bridge Co. v. Otoe County, 120 U.S. 225, 226 (1887))). 

 The concepts of standing and ripeness are related. 

Each is a component of the Constitution's limitation of the 

judicial power to real cases and controversies. Correct analysis 

in terms of ripeness tells us when a proper party may bring an 

action and analysis in terms of standing tells us who may bring 

the action. See Armstrong World Indus., Inc. v. Adams, 961 F.2d 

405, 411 & nn. 12-13 (3d Cir. 1992); see also Erwin Chemerinsky, 

Federal Jurisdiction 99 (1989) ("standing focuses on whether the 

type of injury alleged is qualitatively sufficient to fulfill the 

requirements of Article III and whether the plaintiff has 

personally suffered that harm, whereas ripeness centers on 

whether that injury has occurred yet"). Because these concepts 

are so closely related, they can be confused or conflated. "It 

is sometimes argued that standing is about who can sue while 

ripeness is about when they can sue, though it is of course true 

that if no injury has occurred, the plaintiff can be told either 

that she cannot sue, or that she cannot sue yet." Smith v. 
Wisconsin Dep't of Agriculture, Trade & Consumer Protection, 23 

F.3d 1134, 1141 (7th Cir. 1994) (emphasis in original). It is 

the plaintiff's responsibility to allege facts that invoke the 

court's jurisdiction. Renne, 501 U.S. at 316. 

 The district court did not reach the issue of standing 

but focused on whether any of the plaintiffs presented a ripe 

controversy.7 Ripeness prevents courts from "entangling 

themselves in abstract disagreements." Abbott Labs. v. Gardner, 

387 U.S. 136, 148 (1967). "[R]uling on federal constitutional 

matters in advance of the necessity of deciding them [is to be 

avoided], to postpone judicial review where it would be 

premature." Armstrong, 961 F.2d at 413. The ripeness 

determination "evaluate[s] both the fitness of the issues for 

judicial decision and the hardship to the parties of withholding 

court consideration." Abbott Labs., 387 U.S. at 149. 

Ultimately, the case must involve "'a real and substantial 

controversy admitting of specific relief through a decree of a 

conclusive character, as distinguished from an opinion advising 

what the law would be upon a hypothetical state of facts.'" 

North Carolina v. Rice, 404 U.S. 244, 246 (1971) (quotation 

omitted). "A federal court's jurisdiction therefore can be 

 

7. The district court did opine, however, that "even if the 

Church's members were parties, nothing in the record indicates 

any realistic threat that the state will enforce the amendments 

against them." Presbytery II, 830 F. Supp. at 249. That 

conclusion is open to doubt considering the state's refusal to 

negate in its affidavit an intention to enforce the statute 

against members of the Orthodox Presbyterian denomination in 

their secular activities. 
invoked only when the plaintiff himself has suffered 'some 

threatened or actual injury resulting from the putatively illegal 

action . . . .'" Warth v. Seldin, 422 U.S. 490, 499 (1975) 

(citation omitted). 

 As Professor Chemerinsky recognizes, "[r]ipeness 

properly should be understood as involving the question of when 

may a party seek preenforcement review of a statute or 

regulation." Chemerinsky, supra, at 100 (emphasis in original). 

Thus, it is not surprising that the ripeness inquiry often 

involves declaratory actions which present special problems. See

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270 273 

(1941) ("Basically, the question in each case is whether the 

facts alleged, under all the circumstances, show that there is a 

substantial controversy, between parties having adverse legal 

interests, of sufficient immediacy and reality to warrant the 

issuance of a declaratory judgment."). 

 We have adopted a three part test in determining 

whether we will engage in preenforcement review in the context of 

a declaratory action; specifically, we examine "the adversity of 

the interest of the parties, the conclusiveness of the judicial 

judgment and the practical help, or utility, of that judgment." 

Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d 

Cir. 1990); see also Armstrong, 961 F.2d. at 412-24 (applying 

test while noting that factors are not exclusive). 

 On the first part, adversity of interest, we have 

observed, "'[f]or there to be an actual controversy[,] the 

defendant must be so situated that the parties have adverse legal 
interests.'" Step-Saver, 912 F.2d at 648 (quoting 10A Charles 

Wright, Arthur Miller & Mary Kane, Federal Practice and Procedure

§ 2757, at 582-83 (2d ed. 1983)). Although the party seeking 

review need not have suffered a "completed harm" to establish 

adversity of interest, Armstrong, 961 F.2d at 412, it is 

necessary that there be a substantial threat of real harm and 

that the threat "must remain 'real and immediate' throughout the 

course of the litigation." Salvation Army v. Department of 

Community Affairs, 919 F.2d 183, 192 (3d Cir. 1990). Thus, where 

intervening events remove the possibility of harm, "the court 

must not address the now-speculative controversy." Id.; see also

Pacific Gas & Elec. Co. v. State Energy Resources Conservation & 

Dev. Comm'n, 461 U.S. 190, 201 (1983) (threatened injury must be 

"certainly impending"). 

 Second, the parties must not only retain adverse 

interests throughout the litigation, but "[a]ny contest must be 

based on a 'real and substantial controversy admitting of 

specific relief through a decree of a conclusive character, as 

distinguished from an opinion advising what the law would be upon 

a hypothetical state of facts.'" Step-Saver, 912 F.2d at 649 

(quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 

(1937)). "A declaratory judgment granted in the absence of a 

concrete set of facts would itself be a 'contingency,' and 

applying it to actual controversies which subsequently arise 

would be an 'exercise in futility.'" Armstrong, 961 F.2d at 412 

(quoting Step-Saver, 912 F.2d at 648). The requirement of 

concreteness has some play in the joints. We have noted, "the 
need for a concrete set of facts is greater in some instances 

than others." Id. For example, an "actual factual setting" is 

"particularly important in cases raising allegations of an 

unconstitutional taking," id. (quoting Hodel v. Virginia Surface 

Mining & Reclamation Ass'n, 452 U.S. 264, 294-95 (1981)), whereas 

facts are not so important where the question is "predominantly 

legal." Id. (quoting Pacific Gas & Elec. Co., 461 U.S. at 201). 

 The third part of the test, utility of the judgment, is 

important because "[o]ne of the primary purposes behind the 

Declaratory Judgment Act was to enable plaintiffs to preserve the 

status quo . . ., and a case should not be considered justiciable 

unless 'the court is convinced that [by its action] a useful 

purpose will be served.'" Step-Saver, 912 F.2d at 649 (quoting 

E. Borchard, Declaratory Judgments 29, 58 (1941)). Thus, with 

these three inquiries in mind, we turn to an analysis of whether 

the district court erred by determining this case did not present 

a ripe controversy. 

 1. Adversity of interest

 In Armstrong we said, "[w]here the plaintiff's action 

is based on a contingency, it is unlikely that the parties' 

interest will be sufficiently adverse to give rise to a case or 

controversy within the meaning of Article III." Armstrong, 961 

F.2d at 411-12. In concluding that the instant case was not ripe 

for adjudication, the district court relied in large part on the 

representations of the DCR through the Stewart affidavit and a 

history of the LAD's non-enforcement against religiously 
motivated speakers. Thus, in terms of the Step-Saver test, the 

district court determined that the parties had no adverse 

interest. Despite Cummings' assertion that he has engaged, does 

engage and will engage in prohibited discrimination, the court 

stated: 

 [N]o enforcement action or private suit has 

been commenced against [Cummings or the other 

plaintiffs] as a result. Moreover, although 

Plaintiffs allege that they intend to engage 

in similar conduct in the future, without an 

actual or imminent threat of enforcement of 

the statute the constitutional issues are not 

presented in a sufficiently "'clean-cut and 

concrete form'" to render this action ripe.'" 

See [Renne], 111 S. Ct. at 2339. 

 Plaintiffs argue that this case is ripe 

because, although Defendants have conceded 

that they will not enforce the LAD against 

the institutional plaintiffs, they have not 

waived enforcement of the statute against 

Cummings or against the Church's individual 

members. The Court, however, disagrees with 

Plaintiffs' interpretation of Defendants' 

waiver as not including a waiver of 

enforcement against Cummings. The 

Defendants, recognizing the First Amendment 

concerns raised in this action, have 

represented that the LAD does not apply to 

and will not be enforced against Plaintiffs' 

religious worship, beliefs, practice, speech 

or refusal to speak. See Stewart Aff., 

¶¶ 10-13. This Court reads these statements 

as clearly including Plaintiff Cummings. 

Accordingly, the Court sees no possibility of 

state enforcement against him. 

Presbytery II, 830 F. Supp. at 248-49. 

 The state argues that the district court correctly held 

that none of the named plaintiffs face an imminent threat that 

the LAD's prohibitions against incitement or otherwise inducing 
or helping others to induce boycotts, any of its other 

prohibitions against discrimination or its notice posting 

requirement will be enforced against them. In support, the state 

contends that the complaint and its allegations refer to Cummings 

only in his capacity as pastor of an Orthodox Presbyterian 

Church. Because it has waived enforcement against the plaintiffs 

when they act in their capacity as religious organizations or as 

clergymen performing religious functions, the state concludes 

that Cummings does not face any imminent threat of enforcement, 

but yet refuses to guarantee that he will not be prosecuted if he 

acts as an individual outside the church. 

 Applying the usual standards for construing the 

allegations of a complaint which give the plaintiff the benefit 

of all favorable inferences that can be drawn from them,8 we 

conclude that the complaint fairly asserts Reverend Cummings' 

rights as both a pastor and a citizen and therefore that the 

Stewart affidavit is insufficient to remove the threat of 

enforcement against Cummings in his individual capacity. 

 In order to determine what rights Cummings asserts, we 

turn to the amended complaint. Complaints need not be models of 

precise information. Rather, a complaint suffices when it serves 

fairly to notify the defendants of the facts and the alleged 

deprivation. See, e.g., Holder v. City of Allentown, 987 F.2d 

188, 194 (3d Cir. 1993). Moreover, when judged on their face, 

 

8. See Markowitz v. Northeast Land Company, 906 F.2d 100, 103 

(3d Cir. 1990). 
complaints should be construed in favor of the party defending 

against a motion to dismiss. Cf. id. ("The test in reviewing a 

motion to dismiss for failure to state a claim is whether, under 

any reasonable reading of the pleadings, plaintiff may be 

entitled to relief.") (citing Colburn v. Upper Darby Township, 

838 F.2d 663, 665-66 (3d Cir. 1988), cert. denied, 489 U.S. 1065 

(1989)); Williams v. New Castle County, 970 F.2d 1260, 1266 (3d 

Cir. 1992). 

 The state contends that the complaint asserts Cummings' 

rights only in terms of his institutional capacity. A careful 

review of the record, however, reveals a different conclusion. 

Although it is helpful for a complaint to specify if a party is 

bringing suit in his individual or official capacity, we are not 

aware of any rigid rule that requires an express statement of 

such capacity. We recognize that Cummings is listed as the "Rev. 

David B. Cummings" in the caption of the complaint, App. at 195, 

but his participation is nowhere limited to his institutional 

capacity.9 Again, in paragraph 4 of the complaint, Cummings is 

identified as being an ordained minister of the Presbytery, the 

pastor of one of its New Jersey churches and a plaintiff, but no 

 

9. Use of the term "Reverend" in written documents is generally 

a respectful acknowledgment of the clergyman's calling or 

profession. In the same way persons in other professions are 

respectfully addressed as "doctor," "attorney," "professor," etc. 

At oral argument, appellants' counsel stated he listed Cummings 

as the "Rev. David B. Cummings" in the caption "because that is 

his title." Transcript of Oral Argument, March 25, 1994 ("Tr.") 

at 5. He also indicated that if a pastor is suing in an official 

capacity he normally would add "as pastor of such and such" in 

the caption. Id.
mention is made of his suing only as a leader of an institution. 

In paragraph 14, Cummings is described without limitation to his 

capacity as a clergyman or religious leader. In paragraph 51, 

the complaint states: 

 Plaintiff Cummings, other pastors and 

members of their congregations . . . do speak 

out about homosexuality, bisexuality and 

heterosexual sex outside of marriage, make 

reasonable distinctions based on such 

practices, lobby against them, and circulate 

literature condemning them. They encourage, 

aid and abet discrimination and reasonable 

distinctions against homosexuals, bisexuals 

and heterosexuals engaging in sex outside of 

marriage. 

App. at 218. Paragraph 53 of the complaint alleges: 

 [P]laintiffs publish, circulate, issue, 

display, post and mail printed material 

condemning homosexuality, bisexuality and 

heterosexual sex outside of marriage, making 

reasonable distinctions based on such acts 

. . . . 

Id. Paragraph 57 of the complaint alleges: 

 Plaintiffs have always in the past, 

presently do and since the amendments have 

refused to knowingly buy from, contract with 

or otherwise do business with persons on the 

basis of that person's homosexual, bisexual 

or heterosexual practices. 

Id. at 220. None of these allegations limit the acts Cummings 

avers he wishes to perform without fear of prosecution or 

reprisal under the LAD to acts he would perform only as a pastor 

of the OPC. Rather, the clear implication of these allegations, 

when we construe them in favor of the plaintiff, as we must, is 
that Cummings has in the past, currently does and in the future 

will engage in conduct both in his professional and personal life 

that could run afoul of the statute. We see nothing in the 

complaint that would support the state's conclusion that Cummings 

asserts only his right to preach and teach within the confines of 

the church as a clergyman or religious leader. To the contrary, 

the portions of the complaint just quoted indicate that Cummings, 

as an individual, plans to engage in conduct that has a potential 

for violating the LAD's ban on incitement of prohibited 

discrimination against male or female homosexuals in employment, 

commerce and places of public accommodation by boycott or 

otherwise.10 Thus, provided that a threat of enforcement 

 

10. In an affidavit submitted in support of his opposition to 

summary judgment, Cummings specifically reaffirmed certain 

paragraphs of the complaint. He omitted, however, paragraphs 

alleging the intention to engage in prohibited conduct outside 

the church. The state argues that this omission indicates that 

Cummings does not intend to engage in such conduct outside the 

institutional setting therefore removing the possibility of 

prosecution. 

 We do not think that Cummings' failure to specifically 

reference the relevant paragraphs of the complaint is tantamount 

to a disavowal of their content. If, during the pendency of the 

litigation, Cummings were to disavow his intention to engage in 

proscribed conduct, that disavowal could deprive this case of 

ripeness. See Salvation Army, 919 F.2d at 192. At this 

preliminary juncture, however, we are advised Cummings intends to 

prove at trial the allegations contained in the complaint. At 

oral argument this intention was reiterated by his counsel, 

speaking as an officer of the court. Absent strong indications 

that the allegations of the complaint have been disavowed, we are 

reluctant to hold a first amendment freedom of expression claim 

is not ripe when the complaint adequately alleges that claim, 

without considering Cummings' standing to assert the chilling 

affect of the statute's prohibitions on freedom of expression, 

and we are equally reluctant to consider the standing issue on 

this record. 
restricting Cummings' First Amendment right of free speech 

exists, the controversy would be ripe. Focusing solely on the 

question of ripeness, however, it would not be sufficient for the 

complaint merely to assert Cummings' rights as a citizen. There 

must remain a credible threat of enforcement against him even 

though representations were made by the state in its affidavit 

disclaiming any intention to enforce the statute against 

religious institutions. 

 We have held that "[i]n order to present a justiciable 

controversy in an action seeking a declaratory judgment to 

protect against a feared future event, the plaintiff must 

demonstrate that the probability of that future event occurring 

is real and substantial, 'of sufficient immediacy and reality to 

warrant the issuance of a declaratory judgement.'" Salvation 

Army, 919 F.2d at 192 (quoting Steffel v. Thompson, 415 U.S. 452, 

460 (1974)). "Where the plaintiff seeks a declaratory judgment 

with respect to the constitutionality of a state statute, even 

where the attack is on First Amendment grounds, there must be a 

'real and immediate' threat of enforcement against the 

plaintiff." Id. (quoting Hardwick v. Bowers, 760 F.2d 1202, 

1206-07 (11th Cir. 1985), rev'd on other grounds, 478 U.S. 186 

(1986)). This threat must remain extant throughout the course of 

the litigation and "[w]here an intervening event removes these 

conditions, the court must not address the now-speculative 

controversy." Id. (citing Steffel, 415 U.S. at 459 n.10 

(remanding for determination of whether plaintiff still faced 

threat of prosecution)). 
 In paragraph 12 of the Stewart affidavit, the state has 

forsworn enforcement of the LAD with respect to church employment 

decisions. Stewart then states, 

 Under this provision [regarding church 

employment practices], the plaintiffs here 

are free, without fear of prosecution, to 

make employment decisions which discriminate 

respecting a current or prospective 

employee's actual or perceived sexual 

orientation. Hence, such a "religious 

association or organization" may make 

decisions and engage in the practice of its 

sincerely-held religious beliefs within the 

limits only of the First Amendment. The 

Division has not and has no intention of 

construing nor enforcing the LAD in any 

manner which, liberally construed, would even 

tend or threaten to violate the sincere 

"tenets" of any religion. Moreover, the 

Division has not and has no intention to 

engage in any determination or judgment as to 

what is or is not a "religious activity" of a 

church, or to determine what is or is not a 

"tenet" of religious faith. 

App. at 295-96. Although this paragraph could fairly be 

construed to remove the threat of enforcement against the church 

and its religious activities, we think it fails to eschew 

enforcement against speech or expressive conduct outside the 

setting of a religious institution or office. Similarly, in 

paragraph 13 of his affidavit, Stewart avers that "the Division 

has not in the past prosecuted and has no intention to prosecute 

essentially exempt churches for sincerely-held religious belief 

or practice, or speech consistent with such belief, or for a 

refusal to engage in certain speech or for following their 

religious tenets, all within only the limits of the First 
Amendment." Id. at 296 (emphasis added). Moreover, at oral 

argument before this court, the state pointedly limited the scope 

of the immunity it offered: 

 THE COURT: Do you agree with [plaintiffs' 

counsel's] interpretation of your affidavit? 

 MR. LORENTZ: That the state has not waived 

enforcement against unnamed individuals, and 

against Reverend Cummings in his role outside 

of pastor because there's nothing in the 

complaint or anywhere in the case that 

indicates that he has any other role. 

Certainly, he is an individual. 

Tr. at 25-26.11

 The literal terms of the DCR waiver go no farther than 

the religious activities of the institutional plaintiffs and at 

oral argument, counsel reiterated the limits of the waiver in 

 

11. The colloquy continues: 

 THE COURT: But [appellants] argued this 

morning . . . that the title of "Reverend" in 

that [sic] complaints is only descriptive in 

that he still remains as an individual 

plaintiff. Now is that sophistry or is there 

some merit to that? 

 MR. LORENTZ: It is not our--we don't 

understand that the thrust of the attack that 

was launched on the statute originally before 

it was severely constricted was anything but 

by an institution. 

 Obviously, because institutional 

protection of religion is greater under the 

first amendment than it is for individuals. 

Individuals are required to obey laws of 

general application. 

Tr. at 26. 
this respect. It is nevertheless also the state's position that 

the case is not ripe absent an actual prosecution. That is not 

the law. 

 In Steffel v. Thompson, 415 U.S. 452 (1974), the United 

States Supreme Court held that where a plaintiff seeks to 

exercise the First Amendment's guarantee of freedom of 

expression, the state need not prosecute in order to present a 

ripe controversy. Id. at 459. In Steffel, the plaintiff 

attempted to distribute handbills in a shopping center protesting 

the United States's involvement in Vietnam. Id. at 455. After a 

prior encounter with police, plaintiff returned with a companion. 

Id. The police arrived and informed the protestors that if they 

remained, they would be arrested. Id. Plaintiff left although 

his companion stayed and was arrested. Id. at 456. Plaintiff 

then commenced an injunctive and declaratory action claiming the 

law interfered with his First Amendment right. Id. at 454-55. 

The state argued the case was not ripe because there was no 

prosecution. The Supreme Court disagreed. "In these 

circumstances, it is not necessary that petitioner first expose 

himself to actual arrest or prosecution to be entitled to 

challenge a statute that he claims deters the exercise of his 

constitutional rights." Id. at 459; see also McKay v. Heyison, 

614 F.2d 899, 904 (3d Cir. 1980) ("'When the plaintiff has 

alleged an intention to engage in a course of conduct, arguably 

affected with a constitutional interest, but proscribed by a 

statute, and there exists a credible threat of prosecution 

thereunder, he "should not be required to await and undergo a 
criminal prosecution as the sole means of seeking relief."'" 

(quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 

289, 298 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 180 

(1973))); Chemerinsky, supra at 103 ("[I]t is well established 

that a case is ripe because of the substantial hardship to 

denying preenforcement review when a person is forced to choose 

between forgoing possibly lawful activity and risking substantial 

sanctions."). 

 We recognize that Steffel differs from the instant 

case. There the state demonstrated its willingness to prosecute 

others. This added immediacy to Steffel's claim that he faced 

prosecution if he engaged in proscribed expressive activity. 

Here the state has forsworn prosecution of Cummings in his 

clerical role, but it has refused to forswear his prosecution if 

he were to step off the pulpit and engage in the activities he 

alleges his first amendment right to freedom of expression 

protects. The pointed nature of that refusal, both in the 

state's affidavit and at oral argument indicates to us that 

Reverend Cummings and others who engage in the expressive 

activity he describes face a real threat of prosecution. In 

short, to the extent this record eliminates any free exercise 

claims as unripe it does not do so with respect to the individual 

free expression claims Cummings appears to advance. Here, the 

state has had ample opportunity to indicate that it will not 
prosecute religiously motivated speakers under the aid and abet 

or boycott provisions. It has elected not to do so.12

 Accordingly, in light of the state's refusal to waive 

prosecution against Cummings when he acts outside of his 

institutional capacity as a pastor of the OPC, we conclude the 

threat of prosecution is "real and substantial," see Salvation 

Army, 919 F.2d at 192, and at least the presence of Reverend 

Cummings as a plaintiff in this law suit presents interests 

sufficiently adverse to those of the state so as to satisfy the 

first prong of the Step-Saver inquiry. 

 2. Conclusiveness

 The second Step-Saver factor requires us to determine 

whether judicial action at the present time would amount to more 

than an advisory opinion based upon a hypothetical set of facts. 

See Step-Saver, 912 F.2d at 649. As mentioned supra, 

predominantly legal questions are generally amenable to a 

conclusive determination in a preenforcement context; however, 

"plaintiffs raising predominantly legal claims must still meet 

the minimum requirements for Article III jurisdiction." 

 

12. The state contends that its waiver was crafted in terms of 

the institutional plaintiffs alone because the state considered 

the plaintiffs to be litigating in their institutional capacity 

alone and that its waiver should not be read too narrowly. The 

responses of counsel at oral argument before us, however, show 

the state still refuses to waive prosecution outside the 

religious setting once the plaintiffs made it clear that they 

sought to assert Cummings' rights as an individual. See supra

typescript note 10. We have already rejected the contention 

supra typescript at 21-24 that the complaint fails to invoke the 

private rights of Reverend Cummings. 
Armstrong, 961 F.2d at 421 (citing Office of Communication of 

United Church of Christ v. FCC, 826 F.2d 101, 105 (D.C. Cir. 

1987) ("[T]he presence of 'a purely legal question' is not 

enough, of itself, to render a case ripe for judicial review, not 

even as to that issue.")). 

 In Armstrong, we approved a rationale used by the 

United States Court of Appeals for the Eleventh Circuit in 

Atlanta Gas Light Co. v. United States Department of Energy, 666 

F.2d 1359 (11th Cir.), cert. denied, 459 U.S. 836 (1982). In 

Atlanta Gas Light, the court held that its conclusion of ripeness 

was supported by factors which included the fact that the 

parties' claims would not substantially change in future 

litigation, that the current parties were appropriate to raise 

the issues at bar and that the parties would be subject to 

enforcement of the challenged act were it implemented. See id.

at 1363 n.7. 

 Here, we see no reason why disposition of this case 

could not conclusively determine the largely legal issues at 

stake. Factual development would not add much to the plaintiffs' 

facial challenges to the constitutionality of the statute. To 

the extent that it is not distinguishable, we are unpersuaded by 

Voluntary Association of Religious Leaders v. Waihee, 800 

F. Supp. 882 (D. Haw. 1992), where the court determined that a 

challenge similar to one now before us was not factually 

developed adequately enough to make the case ripe for 

disposition. Id. at 890. There, the plaintiffs challenged an 

amendment to an anti-discrimination statute that added sexual 
orientation to the protected categories and made it illegal "to 

aid, abet, incite, compel, or coerce" any of the discriminatory 

practices listed by the statute. Id. at 884. The plaintiffs, 

who included a minister and a parishioner, "fail[ed] to allege 

that they are engaging in, or plan to engage in, any activities 

that would subject them to enforcement." Id. at 888. The court 

concluded that a vague allegation that a minister would preach to 

his employees about the evils of homosexuality was insufficient 

to pose any clear threat that he would be prosecuted under the 

statute. Id. at 888-89. To the extent, however, that the court 

concluded that a facial challenge to a statute that seeks to 

proscribe otherwise protected First Amendment conduct such as 

oral advocacy and boycott is not ripe until a concrete factual 

situation is before the court, see id. at 890, we disagree. 

Presumably, in order to give the court in Waihee a concrete 

factual situation, a prosecution would first be necessary. We 

believe that Steffel teaches that a plaintiff need not choose 

between prosecution and stifling otherwise protected activities. 

 Furthermore, the Waihee court relied on the Supreme 

Court decision in Renne. Id. Renne involved a challenge to a 

California law that prohibited political parties from endorsing 

candidates for non-partisan offices. Renne, 501 U.S. at 315. 

The Court there held that the plaintiffs' allegations that they 

sought to endorse officials in the future was insufficient to 

render the case ripe. Id. at 321. 

 Here, unlike Renne, Cummings alleges that he currently 

engages in speech and acts allegedly circumscribed by the LAD and 
that he will continue to do so in the future. Even if this case 

were finally dismissed as not ripe, Reverend Cummings or others 

who share his beliefs could in the future easily assert 

substantially similar facial attacks on the LAD in their 

individual capacities. Such claims would most likely parallel 

those claims already presented in the present action, and as such 

it is unlikely that there would be any change in the substance or 

clarity of the challenges to the LAD. Furthermore, if the LAD is 

enforced against private citizens and Reverend Cummings engages 

in the acts alleged in paragraphs 49, 51, 57, and 69 of the 

complaint, in his individual capacity, he would appear to be 

exposed to a threat of enforcement. Reverend Cummings appears to 

be an appropriate party to raise the first amendment freedom of 

expression objections to the provisions of the LAD set out in the 

claim. Thus, the principles discussed in Atlanta Gas Light

support a conclusion that this case is ripe if Reverend Cummings 

has at this point expressed enough of an adverse interest to the 

provisions of the LAD he refers to in the complaint to permit 

this case to go forward. 

 Indeed, it is hard to see how a more concrete factual 

situation would aid resolution of the plaintiffs' First Amendment 

free speech challenge to the statute. See Armstrong, 961 F.2d at 

412. Such factual development is of minimal assistance in facial 

challenges such as this. Present resolution of the facial 

challenge would completely and decisively determine whether the 

amendments to the LAD that the plaintiffs object to affect the 

fundamental right of free speech the First Amendment protects. 
Accordingly, we believe the second Step-Saver element also favors 

holding the controversy to be ripe. 

 3. Utility

 The final Step-Saver factor focuses on the utility 

served by current entry of a judgment resolving the facial 

challenge to the Act. In this inquiry we consider "whether the 

parties' plans of actions are likely to be affected by a 

declaratory judgment." Step-Saver, 912 F.2d at 649 n.9. 

 It appears to us that entry of a declaratory judgment 

deciding the free speech issues the LAD amendments pose in the 

instant case would be useful to the parties and others who could 

be affected. Although Cummings alleges that he will engage in 

allegedly prohibited conduct in the future, we assume his 

willingness to do so is likely to be affected by resolution of 

this action.13 Similarly, the state's effort to enforce certain 

portions of the amended LAD will be affected by the resolution of 

this litigation. Unlike the plaintiffs in Armstrong who "d[id] 

not face the threat of sanction for noncompliance with [the 

challenged act]," Cummings does. Armstrong, 961 F.2d at 423. A 

declaration of his rights and those of all others who would seek 

to engage in similar activity would permit a person to speak 

 

13. Current First Amendment jurisprudence does not require a 

Thoreau or a Gandhi who is willing to go to jail for his beliefs 

but permits the more cautious Emersons among us to assert our 

fears of interference with our this country's fundamental rights 

in the civilized atmosphere of a court before subjecting 

ourselves to the risk of arrest and jail. 
without fear of governmental sanction or regulation of their 

activities protected by the statute. 

 Accordingly, we conclude that a grant or denial of 

relief in this case would materially affect the parties and thus 

this Step-Saver factor also weighs in favor of our conclusion 

that this controversy is ripe. We express no opinion on the 

merits of this case, a task that involves the meaning and 

interpretation of the statutory provisions under attack and their 

effect on our fundamental constitutional right to freedom of 

speech. We think that task should be performed by the district 

court in the first instance. 

 We therefore conclude that Reverend Cummings has 

demonstrated a ripe controversy under the three factor test set 

forth in Step-Saver. Because the state's representation 

regarding enforcement does not eliminate the threat of 

enforcement against plaintiff Cummings and Cummings has averred 

that he does and will engage in potentially violative conduct, 

the parties present adverse interests in this dispute. Moreover, 

a final resolution of this dispute would be both conclusive on 

the issue and of practical help to those who seek to engage in 

potentially protected activity. We hold, therefore, that the 

district court erred in dismissing the action as unripe.14

 

14. Our reasons for so concluding also establish Cummings' 

standing to assert a violation of his First Amendment rights. In 

order for a party to present a justiciable controversy, the 

litigant must be "entitled to have the court decide the merits of 

the dispute or of particular issues." Warth v. Selden, 422 U.S. 

490, 498 (1975). At a constitutional minimum, the litigant 

seeking the intervention of the federal court: 
(..continued) 

 must demonstrate three things: (1) "injury 

in fact," by which we mean an invasion of a 

legally protected interest that is "(a) 

concrete and particularized, and (b) actual 

or imminent, not conjectural or 

hypothetical"[;] (2) a causal relationship 

between the injury and the challenged 

conduct, by which we mean that the injury 

"fairly can be traced to the challenged 

action of the defendant," and has not 

resulted "from the independent action of some 

third party not before the court"[;] and (3) 

a likelihood that the injury will be 

redressed by a favorable decision, by which 

we mean that the "prospect of obtaining 

relief from the injury as a result of a 

favorable ruling" is not "too speculative[.]" 

Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am. v. 

City of Jacksonville, 113 S. Ct. 2297, 2301-02 (1993). It is 

clear that Cummings can assert his own rights as an individual 

and, in light of our conclusion that the state has not foregone 

the threat of prosecuting Cummings for what he claims are the 

expressive activities he wishes to engage in as a citizen, we 

conclude Cummings has standing without reference to the 

plaintiff's standing to assert the First Amendment rights of 

others whose expressive activities may be chilled by the threat 

of prosecution under the LAD. 
V. 

 For the foregoing reasons, we will reverse the order of 

the district court dismissing Reverend Cummings first amendment 

freedom of expression claims for lack of jurisdiction and remand 

for further proceedings consistent with this opinion. The 

state's representations clearly show that the claims of the 

institutional plaintiffs, Presbytery and Calvary are not ripe. 

Stewart, the Director of the Division on Civil Rights in the 

Department of Law and Public Safety of the State of New Jersey 

and an officer of the court swears: "[the State] . . . has no 

intention to prosecute essentially exempt churches for sincerelyheld religious belief or practice, or speech consistent with such 

belief . . . . [T]his would include N.J.S.A. 10:5-12c, N.J.S.A. 

10:5-12e, N.J.S.A. 10:5-12j, N.J.S.A. 10:5-12 l and N.J.S.A. 

10:5-12m." App. at 296-97. Therefore, we will affirm the 

district court's decision as it applies to the institutional 

plaintiffs. 
RE: THE PRESBYTERY OF NEW JERSEY OF THE ORTHODOX PRESBYTERIAN 

 CHURCH, et al., Appellants v. JAMES FLORIO, GOVERNOR OF 

 NEW JERSEY, et al., No. 93-5559 

_________________________________________________________________ 

ROSENN, Circuit Judge, dissenting. 

 The majority correctly concludes that this suit is not 

ripe with respect to the institutional parties. However, I 

disagree with the majority's conclusion that "the controversy is 

ripe" because Rev. David Cummings arguably alleges as an 

individual that the statute threatens his right of speech. This 

conclusion ignores completely the allegations in the complaint 

that he is suing as the pastor of the Orthodox Presbyterian 

Church of New Jersey. I therefore respectfully dissent because I 

believe this case is not ripe for judicial disposition. 

 Article III, section 2 of the United States 

Constitution limits federal jurisdiction to actual "cases" and 

"controversies." U.S. Const. art III § 2. Thus, it forbids the 

issuance of advisory opinions. "The case or controversy 

requirement must be met regardless of the type of relief sought, 

including declaratory relief." Armstrong World Indus., Inc. v. 

Adams, 961 F.2d 405, 410 (3d Cir. 1992) (citation omitted). 

Additionally, "even if a declaratory judgment would clarify the 

parties' legal rights, it should ordinarily not be granted unless 

`the parties' plans of actions are likely to be affected by a 

declaratory judgment.'" Id. at 412 (citation omitted). Also, in 

cases concerning the Constitutionality of state statutes, this 
court should consider "the advantage of permitting state courts 

further opportunity to construe the challenged provision and 

perhaps in the process materially alter the question to be 

decided." Id. (citation omitted) (quotation 

omitted). Finally, this court must presume that it lacks 

jurisdiction unless the record affirmatively demonstrates that 

jurisdiction exists; i.e. the plaintiff must persuade this court 

that jurisdiction exists. Renne v. Geary, 501 U.S. 312, 316 

(1991). 

 Federal courts consider three primary factors when 

reviewing a declaratory judgment action for ripeness: (1) 

adversity of interest between plaintiffs and defendants, (2) 

conclusivity, and (3) utility. Step-Saver Data Systems, Inc. v. 

Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990).15 The court 

weighs these and other relevant factors to determine if the issue 

is ripe. Here, the case is not ripe because no adversity of 

interest exists between the parties involved in this suit in 

light of the extensive protection afforded by New Jersey's Law 

Against Discrimination (LAD) from interference with plaintiffs' 

religious practices. Moreover, the Director of New Jersey's 

Division on Civil Rights has represented that the State has not 

in the past prosecuted and has no intention to prosecute exempt 

religious organizations for religious beliefs, practices, or 

 

15. See, majority opinion at 14-19 for a thorough and 

informative discussion of ripeness jurisprudence. 
speech. Therefore, the conclusiveness and utility of a judgment 

rendered at this time are doubtful. 

 The majority correctly notes that the State of New 

Jersey has expressed its intention not to prosecute Rev. Cummings 

for actions taken as a member of the clergy engaging in the 

performance of religious functions and that the State has refused 

to waive enforcement of LAD against Cummings as an individual. 

The majority properly concludes that Cummings cannot pursue this 

suit as a representative of the church. The majority, however, 

strains in an effort to conclude that Cummings has sued in his 

individual capacity and in that capacity can pursue this case. 

 Cummings is clearly identified in the complaint as 

"Rev. David B. Cummings." see e.g., plaintiffs' caption in First 

Amended Complaint and ¶¶ 1 and 4. The complaint does not allege 

that he sues in a secular capacity as an individual church 

member. Moreover, when this court heard an earlier appeal in 

this same case on an appeal from an order denying the plaintiffs' 

application for a preliminary injunction, its memorandum opinion 

addressed Cummings only in his role as "an ordained minister of 

the Presbytery and the pastor of one of its member churches." In 

that appeal, appellants did not maintain that Cummings was acting 

as an individual and appellants have never amended their 

complaint to include Cummings or others as individual plaintiffs. 

Paragraph 4 of the complaint in this case specifically avers: 

"plaintiff, Rev. David B. Cummings, is an ordained minister of 
the Presbytery, and the pastor of one of its New Jersey 

churches." No reference is made to him as an individual. If any 

residual question still remains at this point as to Cummings' 

status in this litigation, it is dissipated by paragraph 45 of 

the complaint. It states: "[t]he individual plaintiff 

[Cummings] is an agent of these entities [the churches]." 

 The majority does not point to any language that 

describes Cummings as an individual.16 In fact, the first of the 

three paragraphs from the complaint quoted by the majority in 

support of their conclusion begins "[p]laintiff Cummings, other 

pastors and members of their congregations . . . ." ¶ 51 of 

complaint (emphasis added). The plaintiffs' use of the words 

"other pastors" immediately after "plaintiff Cummings" confirms 

that Cummings is acting as a pastor in this litigation and not as 

an individual. The additional paragraphs from the complaint 

quoted by the majority contain references to actions by 

"plaintiffs" without providing any evidence that the referenced 

"plaintiffs" include any individuals. 

 The district court observed that the individual members 

of the appellant churches were not plaintiffs in this action. 

Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 830 

F.Supp 241, 249 (D.N.J. 1993). The record supports this 

observation. First, the complaint's caption lists only one 

 

16. Interestingly, of the three paragraphs quoted by the 

majority, Cummings only adopts paragraph 53 in his Affidavit in 

support of the complaint. 
individual, Reverend Cummings.17 Second, the record contains no 

information demonstrating that any of the church members are 

represented by the named plaintiffs or have consented to 

inclusion in this law suit.18 The district court properly noted 

that a ripe declaratory judgment action requires "a `real and 

immediate' threat of enforcement against the plaintiff." 830 

F.Supp at 249 (quoting Salvation Army v. Department of Community 

Affairs, 919 F.2d 183, 192 (3d Cir. 1990) (emphasis added by 

district court). Cummings brought this suit as an institutional 

representative. After the State's affidavit averred that it 

would not prosecute him under LAD for actions taken as a pastor, 

no legitimate case or controversy remained. 

 Even if Cummings had pursued this case as an individual 

from the beginning, it is not ripe. "Where the plaintiff seeks a 

declaratory judgment with respect to the constitutionality of a 

state statute, even where the attack is on First Amendment 

grounds, there must be a `real and immediate' threat of 

 

17. I do not agree with the majority's supposition that 

"Reverend" is used as a purely honorary term. In the context of 

this litigation, where the plaintiffs have carefully shielded 

Cummings from the possibility of counter-claims and the 

assessment of costs, "Reverend" is used precisely; it signifies 

Cummings' role as an institutional representative and separates 

Cummings the church representative, the plaintiff in this case, 

from Cummings the individual. 

18. On appeal, appellant contends that they are acting on behalf 

of their church members. However, they have provided no 

persuasive evidence to support this contention; mere references 

to church members within the body of the complaint are 

insufficient. 
enforcement." Salvation Army, 919 F.2d at 192 (quoting Hardwick 

v. Bowers, 760 F.2d 1202, 1206-7 (11th Cir. 1985)). Nothing in 

the record demonstrates any realistic threat that the state will 

enforce the amendments against Cummings as an individual. The 

State has merely refused to waive its right to prosecute 

Cummings; it has not taken any steps to prosecute him or anyone 

else under LAD. In a careful analysis, the able and experienced 

district judge noted that "[t]he plaintiffs' professed fears of 

state enforcement of the LAD against their members appear to be 

based only on imagination or speculation, which is insufficient 

to create a ripe controversy." 830 F.Supp at 249 (citation 

omitted). 

 Despite the State's refusal to waive enforcement of the 

LAD against Cummings and other members of the congregation as 

individuals, the record supports the district court's finding 

that there is no realistic threat that the State will enforce the 

law against them. In the almost two years since the LAD became 

effective, neither the State nor any private individual has filed 

a complaint against a church member. Moreover, the district 

court found that the threat of an administrative or private suit 

has not had any discernible effect on their conduct. 830 F.Supp 

at 249. To the contrary, the plaintiffs concede that since the 

enactment of the LAD in 1992, they have discriminated and spoken 

out against people based on their sexual orientation. The court 

thus found that the prospect that the plaintiffs will alter their 
actions out of fear of a suit under the LAD is highly unlikely. 

830 F.Supp at 249. See Salvation Army, 919 F.2d at 193. 

 The plaintiffs have not demonstrated a real and 

substantial probability that the litigation they fear will occur; 

almost two years have passed since the LAD became effective and 

no private suit or administrative complaint has been filed. See

Armstrong, 961 F.2d at 412. Additionally, the district court 

found that there is "no credible evidence that any person or 

organization is contemplating such an action." 830 F.Supp at 249. 

The theoretical possibility that someone may file such a suit at 

some time in the future is not sufficient to render this action 

ripe. See Salvation Army, 919 F.2d at 193. Moreover, this court 

has noted that the relief the plaintiffs seek would not bind 

unidentified private parties and protect plaintiffs from private 

suits. 

 In addition to showing that the issues in this case are 

not fit for judicial decision, the record also shows that the 

withholding of an opinion at this time will not work a hardship 

on the parties. Despite the plaintiffs' arguments to the 

contrary, they will suffer no "immediate and significant" 

hardship from the district court's decision not to adjudicate 

this action at this time. See Felmeister v. Office of Attorney 

Ethics, Div. of New Jersey Administrative Office of Courts, 856 

F.2d 529, 537 (3d Cir. 1988). The court found that the 

plaintiffs have not changed their behavior due to the LAD 
amendments, that defendants will not subject the plaintiffs to an 

enforcement action, and that private enforcement of the statute 

against the plaintiffs is uncertain. Thus, the court did not err 

in concluding that its withholding of an opinion will not work a 

hardship on the plaintiffs. 

 Regardless how one views the merits of the amendments 

to the LAD, there is no reason whatsoever why this court should 

struggle to construct a theoretical controversy where none 

exists. Under the three Step-Saver factors, this case is not 

ripe for resolution. Therefore, I would affirm the order of the 

district court dismissing plaintiffs' action.