Pre-Enforcement Standing Requires Concrete, County-Specific Plans to Violate Texas Marriage-Solemnization Restrictions

Case: McCutchan v. Nicholson (5th Cir. Apr. 7, 2026) (per curiam, unpublished)  |  Topic: Article III standing; pre-enforcement challenges; marriage-solemnization statutes

1. Introduction

This appeal arose from a constitutional challenge to a Texas statute restricting who may conduct a marriage ceremony. The plaintiffs were (1) Eric McCutchan, a secular celebrant certified by the Center for Inquiry and residing in Tarrant County, Texas, and (2) the Center for Inquiry, Incorporated, an organization that trains and certifies secular celebrants to perform non-religious marriage ceremonies.

The challenged law, Tex. Fam. Code Ann. § 2.202(a), limits marriage-ceremony officiants to specified religious officials (e.g., “a licensed or ordained Christian minister or priest,” “a Jewish rabbi,” or an officer of a religious organization authorized to conduct ceremonies) and to current or former judges. Section 2.202(c) makes it a Class A misdemeanor to “knowingly conduct[] a marriage ceremony without authorization,” punishable under Tex. Penal Code Ann. § 12.21.

McCutchan and the Center sued the Tarrant County Clerk and the Tarrant County District Attorney (in their official capacities), seeking declaratory and injunctive relief against enforcement and asserting multiple constitutional theories (Establishment Clause, Equal Protection, Freedom of Speech, Religious Tests Clause of Article VI, and unconstitutional conditions). The Texas Attorney General’s Office intervened to defend the statute’s constitutionality.

The district court dismissed for lack of subject-matter jurisdiction, holding that plaintiffs lacked Article III standing. The Fifth Circuit affirmed, focusing entirely on the threshold standing defect rather than the merits of any constitutional claim.

2. Summary of the Opinion

The Fifth Circuit (per curiam) affirmed dismissal under Rule 12(b)(1) because McCutchan failed to allege an injury in fact adequate for pre-enforcement standing. While acknowledging that a plaintiff need not wait for arrest or prosecution to bring a pre-enforcement challenge, the court held that McCutchan did not plead a “serious intent” to engage in conduct proscribed by § 2.202—specifically, concrete plans to solemnize a wedding in Tarrant County in a manner that would violate the statute.

The complaint alleged only that McCutchan “wishes” to conduct ceremonies and that unspecified couples in Texas had requested that he or other secular celebrants officiate. But the complaint did not identify any particular couple, any scheduled ceremony, any steps taken toward performing a ceremony using a Tarrant County marriage license, or any past instances of McCutchan performing the proscribed conduct. Because the Center conceded it had no standing independent of McCutchan, the Center’s claims failed as well.

3. Analysis

3.1 Precedents Cited

The opinion is a standing decision that synthesizes Supreme Court and Fifth Circuit precedent on Article III injury in fact in pre-enforcement contexts. The cited authorities supply the governing test, what counts as “concrete plans,” and why speculative intentions dependent on third parties are insufficient.

• Ctr. for Inquiry, Inc. v. Warren, 845 F. App'x 325 (5th Cir. 2021)
  • Role in the opinion: Provides the immediate procedural and factual backdrop. The court notes that in Warren similar plaintiffs previously sued only a county clerk and lost standing because, without the prosecutor, a favorable ruling would not redress the threat of enforcement.
  • Influence: Explains why the plaintiffs adjusted their defendant selection here (adding the district attorney). Importantly, the Fifth Circuit still finds standing lacking—this time not because of redressability against the wrong defendant, but because McCutchan failed to plead a concrete injury (serious intent).
• T.B. ex rel. Bell v. Nw. Indep. Sch. Dist., 980 F.3d 1047 (5th Cir. 2020)
  • Role: States the de novo standard of review for Rule 12(b)(1) dismissals.
  • Influence: Frames appellate posture—no deference to the district court’s jurisdictional conclusion.
• King v. U.S. Dep't of Veterans Affs., 728 F.3d 410 (5th Cir. 2013) (quoting Ramming v. United States, 281 F.3d 158 (5th Cir. 2001))
  • Role: Sets the framework for how courts evaluate jurisdictional facts on a 12(b)(1) motion (complaint alone; supplemented by undisputed facts; or with fact-finding).
  • Influence: Emphasizes that standing is a jurisdictional prerequisite and can be resolved at the pleadings stage.
• Ballew v. Cont'l Airlines, Inc., 668 F.3d 777 (5th Cir. 2012)
  • Role: Confirms that the party asserting jurisdiction bears the burden of proof on a 12(b)(1) motion.
  • Influence: Supports dismissal where plaintiffs’ allegations do not carry that burden.
• Wang v. Paxton, 161 F.4th 357 (5th Cir. 2025) (quoting TransUnion LLC v. Ramirez, 594 U.S. 413 (2021))
  • Role: Supplies the three-part Article III standing test: injury in fact, traceability, redressability.
  • Influence: Anchors the analysis in the modern Supreme Court emphasis on concreteness and imminence.
• NetChoice, L.L.C. v. Fitch, 134 F.4th 799 (5th Cir. 2025)
  • Role: Defines associational standing: an association may sue only if at least one member has standing.
  • Influence: Makes McCutchan’s standing dispositive for the Center.
• Inst. for Free Speech v. Johnson, 148 F.4th 318 (5th Cir. 2025) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014))
  • Role: States the Fifth Circuit’s pre-enforcement injury test: (1) intent to engage in constitutionally implicated conduct; (2) conduct arguably proscribed; (3) substantial threat of enforcement.
  • Influence: Provides a concrete comparator: in Inst. for Free Speech, standing existed because the plaintiff identified “two named clients” and detailed specific steps taken—precisely the kind of concreteness missing here.
• Texas v. Yellen, 105 F.4th 755 (5th Cir. 2024)
  • Role: Cited as the source of the quoted three-part pre-enforcement framework (as incorporated in Inst. for Free Speech).
  • Influence: Reinforces that standing in pre-enforcement settings turns on credible, imminent injury, not abstract disagreement.
• Barilla v. City of Houston, 13 F.4th 427 (5th Cir. 2021) (quoting Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir. 2018))
  • Role: Explains how a plaintiff shows “serious intent” to violate a law: taking steps toward the activity, identifying concrete plans, or showing past violations.
  • Influence: Supplies the Fifth Circuit’s operational test for distinguishing actionable intent from speculation.
• Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir. 2018)
  • Role: Central analogy. In Zimmerman, generalized intent to solicit donations was insufficient because it did not show intent to exceed legal limits and depended on third-party donor behavior.
  • Influence: The court uses Zimmerman to characterize McCutchan’s alleged intent as too general and his risk of prosecution as speculative and dependent on unidentified couples’ choices (including where they obtain a license).
• Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)
  • Role: Source of the “some day intentions” principle.
  • Influence: Underwrites the conclusion that McCutchan’s allegations amount to non-justiciable aspirations.
• Miss. State Democratic Party v. Barbour, 529 F.3d 538 (5th Cir. 2008)
  • Role: Cited through Inst. for Free Speech and Zimmerman for the “concrete plans” requirement.
  • Influence: Supports the proposition that identifying prospective participants and specific steps can establish intent.
• Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)
  • Role: Confirms pre-enforcement plaintiffs need not await enforcement and that past similar conduct can indicate credible future injury.
  • Influence: The court contrasts McCutchan’s lack of alleged prior proscribed conduct with plaintiffs who had previously engaged in similar speech/activity.
• Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869 (7th Cir. 2014)
  • Role: Used as a comparative example where merits were reached because individuals desiring a secular celebrant for their own marriage were plaintiffs.
  • Influence: Highlights what was missing here: identified, imminently affected couples tying the injury to an actual planned wedding.

3.2 Legal Reasoning

The court’s reasoning is a straightforward application of Article III limits to a pre-enforcement constitutional challenge. It does not decide whether § 2.202 violates the Establishment Clause (or any other provision) because standing is a “first principle”: without a concrete case or controversy, federal courts cannot adjudicate the statute’s validity.

(a) The decisive standing element: injury in fact

The panel treats injury in fact as the dispositive defect. While the opinion notes that the deficiency also “implicates traceability and redressability,” it expressly declines to analyze those elements “in depth” because the absence of a concrete injury ends the inquiry.

For pre-enforcement injury, the opinion uses the Fifth Circuit’s established three-part test (as articulated in Inst. for Free Speech v. Johnson and tracing to Susan B. Anthony List v. Driehaus):

• (1) Intent: an intention to engage in conduct arguably affected with a constitutional interest;
• (2) Proscription: intended future conduct arguably proscribed by the challenged law; and
• (3) Threat: a substantial threat of future enforcement.

The court focuses on the first prong—intent—through the “serious intent” sub-requirement: plaintiffs must plead facts showing more than abstract desire, typically by (i) identifying concrete plans, (ii) taking steps toward the conduct, or (iii) alleging past engagement in the proscribed conduct.

(b) Why the pleadings failed: no concrete, Tarrant County–tethered plan

The complaint alleged that McCutchan “wishes” to conduct marriages and that unspecified couples in Texas have requested secular celebrants. The court holds this is not enough, emphasizing what is missing:

• No identified couple or client;
• No date, location, or other specifics of an upcoming ceremony;
• No allegation that any ceremony would use a Tarrant County marriage license (a key jurisdictional linkage given the defendants sued);
• No detailed steps taken by McCutchan toward performing a ceremony that would violate § 2.202 (contrast Inst. for Free Speech);
• No past violations or history of engaging in the same conduct (contrast Driehaus, and the “past engagement” pathway described in Barilla).

The court treats this absence as fatal because, under Lujan v. Defs. of Wildlife, “some day intentions” do not create imminence. And under Zimmerman v. City of Austin, the injury is speculative when it depends “in large part on the actions” of third parties.

(c) The third-party contingency problem

The opinion stresses that risk of violating § 2.202 depends on choices by unidentified couples, including whether they will: (i) seek a ceremony in Tarrant County, (ii) obtain a marriage license from Tarrant County, and (iii) ask McCutchan to perform a legally operative ceremony rather than a non-legal/ceremonial event. Without allegations resolving these contingencies, prosecution is not “inevitable” and the threat is too speculative.

(d) Associational standing falls with the member

Invoking NetChoice, L.L.C. v. Fitch, the Center’s claims rise or fall with McCutchan because the Center conceded it had no independent standing. Once McCutchan’s injury in fact fails, there is no member with standing, so the association cannot proceed.

(e) What the court did not decide

The panel did not reach any merits question—e.g., whether restricting solemnization to religious officials and judges violates the Establishment Clause, discriminates under Equal Protection, burdens speech, imposes a religious test (Article VI), or triggers unconstitutional-conditions concerns. It also avoided the district court’s alternative determination about whether the Center is a “religious organization” for § 2.202 purposes, noting the parties and amici disputed it but agreed it need not be addressed if standing is absent.

3.3 Impact

Even though the opinion is “not designated for publication,” it is still a clear signal of how the Fifth Circuit is likely to treat similar pre-enforcement challenges: standing will be tightly policed, and plaintiffs must plead specific, jurisdiction-linked facts showing imminent exposure to enforcement.

• For future challenges to solemnization restrictions: Plaintiffs should expect dismissal if they cannot identify specific couples, scheduled ceremonies, and steps taken that make prosecution a realistic threat, not a hypothetical possibility.
• County-by-county enforcement litigation: By emphasizing the absence of plans tied to a “marriage license from Tarrant County,” the decision underscores that standing allegations should align with the defendants sued (county clerk/prosecutor) and the locale of the contemplated conduct.
• Strategic plaintiff selection: The court’s favorable reference to Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk suggests that including couples who imminently intend to marry—whose ceremony will necessarily implicate licensing and solemnization requirements—can strengthen standing.
• Doctrinal consolidation: The case reinforces a through-line from Lujan to TransUnion LLC v. Ramirez in Fifth Circuit pre-enforcement jurisprudence: concreteness and imminence are not relaxed merely because criminal penalties exist on the books.

4. Complex Concepts Simplified

• Article III standing: The constitutional requirement that a plaintiff show a real dispute appropriate for a federal court: a concrete injury, caused by the defendant, likely fixable by the court.
• Pre-enforcement challenge: A lawsuit filed before the law is enforced against the plaintiff. Courts allow these, but plaintiffs must show a credible, imminent risk—not just disagreement with the law.
• Injury in fact (concrete and imminent): Not an abstract harm. Here, it would mean a realistic, near-term prospect that McCutchan will be prosecuted because he is about to officiate a ceremony the statute forbids.
• “Serious intent” / “concrete plans”: Courts look for objective indications (identified clients, scheduled events, steps taken, past conduct) showing the plaintiff is truly about to do the prohibited act.
• Third-party dependence: If the alleged injury turns on what unknown other people might do (e.g., whether couples will seek a Tarrant County license), courts often deem the harm too speculative.
• Associational standing: An organization can sue on behalf of members only if at least one member could sue in their own right.
• Rule 12(b)(1): A motion to dismiss for lack of subject-matter jurisdiction; standing is a jurisdictional issue and can end a case immediately.

5. Conclusion

McCutchan v. Nicholson is a standing-focused decision that blocks a constitutional attack on Texas’s marriage-solemnization limits without reaching the merits. The Fifth Circuit holds that a secular celebrant’s generalized desire to officiate weddings—paired with vague references to unspecified interested couples— does not establish pre-enforcement injury in fact. To enter federal court, the plaintiff must allege concrete, specific, and jurisdiction-linked plans showing a “serious intent” to violate Tex. Fam. Code Ann. § 2.202 and a non-speculative threat of prosecution.

The broader significance is procedural but substantial: the decision clarifies the pleading and evidentiary rigor required for pre-enforcement challenges in the Fifth Circuit, particularly where the alleged injury hinges on the future choices of third parties and on localized enforcement realities.