The Volokh Conspiracy

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Ending the Epicycles of the Establishment Clause

Like abortion, separationism has distorted standing doctrine.


In the run-up to Dobbs, I identified many areas of the law that abortion had distorted. Among these epicycles were stare decisis, freedom of speech, facial challenges, the tiers of scrutiny, third-party standing, and so on. Dobbs, thankfully, ended these epicycles. (Alas, some litigants are trying to drag religious liberty into the fray.)

Like abortion, the Supreme Court's doctrine concerning the Establishment Clause has distorted other areas of the law. As a threshold matter, I'm not even certain the Establishment Clause can be incorporated. I think the better answer, as Akhil Amar has written, is that this federalism provision prevents the federal government from interfering with state established churches. But that ship has probably sailed. Perhaps the most obvious category of distortion is standing. Flast v. Cohen allowed a taxpayer to contest government spending that may run afoul of the Establishment Clause. Flast is an anomalous outlier to Article III that permits taxpayer standing.

A related distortion of standing doctrine concerns the "offended observer" standard. In short, if a person sees or hears some government-related religious content that offends him, he has Article III standing. For example, Thomas Van Orden was an atheist who walked past the Ten Commandment monuments by the Texas Capitol. Boom, standing! I have long questioned standing in cases like Van Orden v. Perry. And more recently, Justice Gorsuch cast doubt on this doctrine in American Legion and Kennedy v. Bremerton.

Today Justice Gorsuch continued that theme on the *gasp* shadow docket. The Supreme Court denied cert in City of Ocala, Florida v. Rojas. In this case, a police chief organized a prayer vigil after a shooting spree. A resident of the City went to the vigil, knowing that she would be offended by the prayer. And that offense triggered standing. A cynic could argue the plaintiff attended the vigil for the sole purpose of generating standing. If the vigil truly bothered her, she could have stayed home.

Justice Gorsuch concurred in the denial of certiorari. He explained that the Court has never actually endorsed the "offender observer" standard. True enough, the Lemon test considered how a "reasonable observer" would view an endorsement of religion. But it is tough to square this doctrine with Valley Forge. And going forward, Kennedy has interred Lemon.

But if that logic ever made sense, it no longer does. In Kennedy, this Court put to rest any question about Lemon's vitality. We held that claims alleging an establishment of religion must be measured against the Constitution's original and historical meaning, not the sensitivities of a hypothetical reasonable observer. 597 U. S., at ___ (slip op., at 22). And with the demise of Lemon's reasonable observer test, "little excuse" now remains "for the anomaly of offended observer standing." American Legion, 588 U. S., at ___ (opinion of GORSUCH, J.) (slip op., at 9). "[T]he gaping hole it tore in standing doctrine in [the lower courts] should now begin to close." Ibid. 

Still, Gorsuch did not think cert was warranted now. The case was on an interlocutory appeal, and the lower courts can consider Kennedy in the first instance.

Justice Thomas dissented from the denial of cert. He thought the issue was jurisdictional, so a remand was not warranted.

Because standing based on mere offense is in significant tension with Article III and our precedents, I would have granted certiorari to determine whether the courts below lacked jurisdiction.

Thomas agreed with Gorsuch's opinion in American Legion, and identified the tension between Lemon and Valley Forge.

For decades, members of the Judiciary have noted that offended observer standing appears to be flatly inconsistent with our opinion in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 (1982). . . .

Offended observer standing appears to warp the very essence of the judicial power vested by the Constitution. Under Article III, federal courts are authorized "to adjudge the legal rights of litigants in actual controversies," not hurtfeelings 

Thomas also explains how the Establishment Clause's epicycles have distorted other areas of the law:

And, anomalous exceptions that expand an institution's power have a tendency to swallow rules that limit it. The same is true here: Far from naturally receding, offended observer standing threatens to dilute Article III requirements in other areas. See, e.g., Gerber v. Herskovitz, 14 F. 4th 500, 506 (CA6 2021) (employinga direct analogy to offended observer cases to hold that individuals had standing to bring various federal statutory,due process, and free exercise claims solely because they suffered psychological harm from alleged legal violations).We should reconsider this seeming aberration before it further erodes bedrock Article III restrictions on the judicial power.

Thomas includes a lengthy string cite of several circuit court judges who have identified this anomalous exception to the usual standing doctrine:

In that case, we held "that 'the psychological consequence presumably produced by observation of religious conduct with which one disagrees' is 'not an injury sufficient to confer standing under Article III, even though the disagreement is phrased in constitutional terms.'" Kondrat'yev v. Pensacola, 949 F. 3d 1319, 1335 (CA11 2020) (Newsom, J., concurring) (quoting 454 U. S., at 485–486; alterations omitted); Freedom From Religion Foundation, Inc. v. Mack, 49 F. 4th 941, 949 (CA5 2022) (Smith, J.) ("[T]he law of Establishment Clause standing is hard to reconcile with the general principle that standing is absent where a plaintiff has only a generalized grievance shared in substantially equal measure by all or most citizens" (internal quotation marks omitted)); Freedom From Religion Foundation, Inc.v. Obama, 641 F. 3d 803, 807 (CA7 2011) (Easterbrook, C. J.) ("[H]urt feelings differ from legal injury"); Barnes-Wallace v. San Diego, 530 F. 3d 776, 795 (CA9 2008) (Kleinfeld, J., dissenting) ("[B]eing there and seeing the offending conduct does not confer standing"); Doe v. Tangipahoa Parish School Bd., 494 F. 3d 494, 500 (CA5 2007) (DeMoss, J., specially concurring) (explaining that offended observer standing "opens the courts' doors to a group of plaintiffswho have no complaint other than they dislike any government reference to God"); American Civil Liberties Union of Ohio Foundation, Inc. v. Ashbrook, 375 F. 3d 484, 497 (CA62004) (Batchelder, J., dissenting) (explaining that standing based on "unwelcome contact" with governmental religiousdisplays is "inconsistent with . . . Valley Forge"); Washegesic v. Bloomingdale Public Schools, 33 F. 3d 679, 684–685 (CA6 1994) (Guy, J., concurring) (explaining that offended observer standing "establishe[s] . . . a class of 'eggshell' plaintiffs of a delicacy never before known to the law"); Penkoski v. Bowser, 486 F. Supp. 3d 219, 231 (DC 2020)(McFadden, J.) (explaining that offended observer standing "cannot be squared with" Valley Forge).

Thomas explains that Establishment Clause cases that did not squarely address standing lack precedential effect:

Fortunately, "'drive-by jurisdictional rulings of this sort' carry 'no precedential effect.'" Ibid. (quoting Steel Co., 523 U. S., at 91; alteration omitted). But we should not "continue to hold expressly that the injury in fact requirement is no different for Establishment Clause cases, while . . . implicitly assum[ing]standing in" those cases based on an injury that, "in a non-Establishment Clause case, would not get the plaintiff intothe courthouse." Doe, 494 F. 3d, at 500 (DeMoss, J., specially concurring). Nor should we continue to countenance the undermining of our well-reasoned Valley Forge precedent by the Courts of Appeals.

The Court should jettison the "offended observer" standard. And eventually, the Court should get rid of Flast v. Cohen. Simply seeing a religious display, or being aware of government spending, should not give rise to a valid claim. To quote Justice Gorsuch, offended observes can simply avert their eyes. Consistent with Kennedy v. Bremerton, an Establishment Clause claim could only arise when there is some evidence of actual coercion. Separationism should no longer justify a distortion of Article III. The easiest way to prevent lower court judges from resisting Kennedy, and continue to quietly follow Lemon, is to divest "offended observers" of Article III standing.

Update: My colleague Howard Wasserman reaches a similar conclusion about the import of the Gorsuch/Thomas position:

I therefore re-up my 2019 post on why the Gorsuch/Thomas position eliminates pure Establishment Clause challenges to government religious expression and activities by eliminating any plaintiff with standing. Absent some compelled participation or exclusion (which would violate other constitutional provisions), no one suffers an injury from the display or program.