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Thursday, June 20, 2019

Justice Gorsuch, standing, and the end of the Establishment Clause

Justice Gorusch, joined by Justice Thomas, concurred in the judgment in American Legion v. American Humanist Association. Gorsuch argues that the plaintiffs lacked standing, because "offended observer" standing should not exist (and really is a product of Lemon, which he reads as having been buried today). Offense is not a basis for standing in any other context and is inconsistent with the rule against generalized grievances. Recourse for offense is either averting one's eyes or resort to political solutions.

If Gorsuch is right, it is difficult to imagine who has standing to bring an Establishment Clause claim. He offers three examples: A student forced to recite a prayer in school, a person denied public office because of his religious affiliations (or lack thereof), and a person denied government benefits for not practicing a favored religion. This seems disingenuous. Two of those examples are not purely Establishment Clause issues--the government official, at least at the federal level, also has a claim under the Religious-Tests Clause; the government benefits claim also could be pursued under the Free Exercise Clause or, as in Texas Monthly (which Gorsuch cites) the Free Press Clause. But a student would not have standing to challenge the prayer if she were merely forced to watch others recite it or to leave the room to avoid it. And no one has standing to challenge any public religious displays. In fact, looking at those examples, it would appear that a state could establish an official church  and no one would have standing to challenge that as long as individuals are not forced to participate in that church or otherwise disadvantaged for their non-participation in the religion.

Gorsuch's rejection of offended-observer standing also is inseparable from the narrowing of Flast taxpayer standing. Gorsuch did not offer a taxpayer as an example of someone with standing, so it appears he does not consider that a viable route. But this further constricts the range of available plaintiffs. The core Flast case has remained narrow because there is usually someone who can show something other than a pocketbook injury--there has been no need for a taxpayer to challenge the use of public funds for the Christmas tree display at City Hall because someone who had to encounter the display in City Hall could bring the claim. That avenue is foreclosed. So I expect the next target will be the core Flast case, where Gorsuch almost certainly lines up with the Chief, Thomas, and Alito.

Gorsuch's argument illustrates, in two directions, the Fletcherian point that "injury" is inseparable from the constitutional right at issue and so is really a merits issue. First, the response to Gorsuch's offense-is-not-injury argument is that the Establishment Clause is different than the Free Speech Clause or the Free Exercise Clause or the Equal Protection Clause. The point of the Establishment Clause is to prevent the government from creating a state religion, either formally or in practice; it prohibits the government from elevating religion and from imposing that elevation on members of the public. Thus, individual constitutional rights are violated by that elevation and being confronted with that elevation, as by erection of a large cross. But there is no equivalent provision prohibiting the government establishing or elevating racist ideas, as by flying the Confederate Flag. Or, to put it in the school context: The Free Speech Clause is satisfied so long as a student need not recite the Pledge of Allegiance (put aside "Under God"); the Establishment Clause prohibits the government from sponsoring prayer, even if participation is not required.

Second, Gorsuch's apparent view of standing reveals the substantive scope of his Establishment Clause. Government elevation or promotion or sponsorship of religion is constitutionally permissible--even to the point of establishing the Church of Alabama or naming the Southern Baptist Convention as the official religion of the State of Alabama--so long as no one is forced to participate or loses out for non-participation. Certainly no one would have standing to challenge that action, because the only injury would be the offense and message of exclusion. In any event, that Establishment Clause does not do any work independent of the Free Exercise Clause.

I would add that I do not follow offended-observer standing wherever it leads. In the travel ban cases, I argued against standing for those individuals claiming offense from the existence of the ban and its application against other people. But the key was that standing (or constitutional violation, as I like to think of it) is tied to execution, not the existence, of a law. So one can claim offense from the erection of the cross, but not from the law authorizing erection; one can claim offense from being barred because of religion, but not from the law authorizing the barring.

Posted by Howard Wasserman on June 20, 2019 at 04:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


'it would appear that a state could establish an official church and no one would have standing to challenge that as long as individuals are not forced to participate in that church or otherwise disadvantaged for their non-participation in the religion."

Not trying to defend Gorsuch but I don't get your point. Under your own example I don't see how a religion is established in any sense greater than National Turkey Day or National Day to Honor Fidget Spinners. Congress does that thing all the time and no one gets hot and bothered about it.

Posted by: James | Jun 21, 2019 9:49:57 AM

Wonder whether Gorsuch would allow a rival church to sue over the establishment of a church. A business who is illegally disadvantaged in the market can have standing to sue (under for example anti-trust laws) and Roman-Catholic church would seem to have an excellent similar claim to injury if the SBC was proclaimed the established church.

Posted by: Jr | Jun 21, 2019 8:31:40 AM

There is a world of difference between saying that establishment of the Church of Alabama is permissible, and that anyone has standing to challenge it.

Posted by: Salem Al-Damluji | Jun 21, 2019 3:44:59 AM

Important. But the source of the mess is bit different it seems. And it is very simple:

How to reconcile, symbolic religious historical values with current or actual injuries or grievance. One can't expect simply to root out or dismantle such monuments, while the historical and religious value is huge, and the act itself, would be by itself per se, be considered as not neutral one. Here I quote from the ruling:

Finally, as World War I monuments have endured through the years and become a familiar part of the physical and cultural landscape, requiring their removal would not be viewed by many as a neutral act. And an alteration like the one entertained by the Fourth Circuit—amputating the arms of the Cross, see 874 F. 3d, at 202,n. 7—would be seen by many as profoundly disrespectful.One member of the majority below viewed this objection as inconsistent with the claim that the Bladensburg Cross serves secular purposes, see 891 F. 3d, at 121 (Wynn, J.,concurring in denial of en banc), but this argument misunderstands the complexity of monuments. A monument may express many purposes and convey many different messages, both secular and religious. Cf. Van Orden, 545 U. S., at 690 (plurality opinion) (describing simultaneous religious and secular meaning of the Ten Commandments display). Thus, a campaign to obliterate items with
religious associations may evidence hostility to religion even if those religious associations are no longer in the forefront.For example, few would say that the State of California is attempting to convey a religious message by retaining the names given to many of the State’s cities by their
original Spanish settlers—San Diego, Los Angeles, Santa Barbara, San Jose, San Francisco, etc. But it would be something else entirely if the State undertook to change all those names. Much the same is true about monuments to soldiers who sacrificed their lives for this country more than a century ago.

End of quotation:

So, it seems that in order to reconcile, what is by nature so hard to do, the judges, have turned to the standing issue as scapegoat simply. This is by the way, a Universal issue all over the world. Take for example, the " Brit milah " ceremony in Judaism. The law forbids any physical harm of course, surly to helpless baby, surly with no consent. Yet, it is a religious ritual. What to do ? Would one challenge it in court ? Surly it is per se against the law. No doubt. But, it is historically deeply rooted.So, one should deal with it, differently.For it won't do good to public trust.


Posted by: El roam | Jun 20, 2019 6:34:29 PM

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