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Tuesday, March 07, 2023

Offended observer standing and the substance of the Establishment Clause

SCOTUS on Monday denied cert in an Establishment Clause case arising from a public vigil in Ocala, Florida. Justice Gorsuch agreed with the denial of cert while Justice Thomas dissented; both criticized "offended observer standing" in Establishment cases, repeating the themes in Gorsuch's concurring opinion (joined by Thomas) in American Legion.

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.

Posted by Howard Wasserman on March 7, 2023 at 11:28 AM in First Amendment, Howard Wasserman | Permalink

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