A guest post by Lawrence Friedman
That a majority of the U.S. Supreme Court found the Bladensburg Peace Cross not to offend the Establishment Clause in American Legion v. American Humanist Association should not be surprising. The court has for years treated religious symbols on public property with a relatively light touch, relying upon the history and context of the particular display to determine whether it was intended to favor one religious sect over another, or to promote religion over non-religion.
Though he agreed with the majority’s conclusion, Associate Justice Neil Gorsuch would have gone farther and denied the plaintiffs standing to challenge the cross. He argues in his concurring opinion that the plaintiffs, who claimed to be “offended observers,” failed to satisfy the most basic requisites of modern standing. As articulated by Associate Justice Antonin Scalia in Lujan v. Defenders of Wildlife, a plaintiff must show (1) injury-in-fact, (2) causation, and (3) redressability. The first element requires an injury to be both (a) concrete and particularized and (b) actual or imminent.
Gorsuch maintains in American Legion that offense alone cannot qualify as a “concrete and particularized” injury “sufficient to confer standing.” And he is surely correct that, if “offense” is defined as “disagreement,” it should not count as the kind of injury necessary to trigger standing. The court has long held that standing requires some personal connection to government action, which is why individuals generally have no standing unless they can point to an injury they have suffered that is quantifiable and not contingent.
But maybe Establishment Clause challenges are different—or at least one kind of Establishment Clause challenge. The American Legion majority catalogs the Establishment Clause issues with which the federal courts typically reckon. There are, as noted above, the cases involving public religious displays and speech. But there are also instances of government action that accommodates religion or exempts religious persons from generally applicable laws; or government benefits for religious organizations; or religious expression in public schools; or, finally, the regulation of religious speech in otherwise public places. Aside from the cases involving public displays, it is relatively easy to see how an individual could suffer an injury in one of these other situations—by, for example, not receiving an exemption based upon religion, or by being compelled to participate in religious expression.
But that first category of government action – public religious displays and monuments, like crosses, or representations of the Ten Commandments – likely would elude judicial review if individuals could not claim standing as offended observers. (Howard Wasserman makes a similar point here.) That might be Gorsuch’s goal, of course—to have these cases go away before the federal courts need to wrestle with the difficult and fact-intensive questions about the provenance and legitimacy of displays and monuments. If the American Legion case shows nothing else, it is that the court has yet to settle on a single, clear test to guide the lower courts in making these determinations.
Though it might remove cases like American Legion from the federal dockets, abandoning “offended observer” standing in the Establishment Clause context would also mean that public displays that obviously violate the constitution would become more common. As Associate Justice Stephen Breyer notes in his concurring opinion, the court upheld the constitutionality of the Bladensburg Peace Cross “only after considering its particular historical context and its long-held place in the community,” while “[a] newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.” What, for example, of a memorial erected last year, in the form of a cross and lacking the historical associations with the First World War that the court credited in American Legion? Who would have standing to challenge such a display?
There are other areas of constitutional law in which the court has stretched its understanding of injury-in-fact to allow the lower courts to police government action that would otherwise be unreviewable. In the context of higher education affirmative action, it is clear that plaintiffs challenging the use of admissions policies that allow some consideration of an applicant’s race would not have standing if the injury were not defined broadly. In Fisher v. University of Texas, for instance, Abigail Fisher could not show that, even had race not been a factor in the admissions process, she would have been admitted.
But Fisher’s injury was not the university’s decision not to admit her—it was the mere consideration of race in the admissions process. That consideration provided a window through which the courts could determine whether the university’s use of race as a factor in admissions ran afoul of the constitutional commitment to equal protection. Fisher’s standing, in other words, gave the federal courts an opportunity to evaluate whether the use of a classification ordinarily forbidden by the Fourteenth Amendment nonetheless could be justified even though it might at some point harm an applicant who, unlike Fisher, could show that she would have gained admission absent the consideration of race.
This is why offended observer standing is important in the Establishment Clause context. So long as the court maintains that public religious displays are not always unconstitutional, judicial review is necessary to determine which ones stray too far from the pluralistic values the American Legion majority attaches to the Establishment Clause. A future offended observer may simply be someone the government intentionally or otherwise did not consider when it took action—indeed, it is likely that he or she will be someone whose religious beliefs or non-beliefs are not shared by a majority of the community. Offense in this sense stands in not for mere disagreement with government action, but for the justifiable belief that government action has crossed a constitutional line designed to protect those who cannot, through the political process, protect themselves.
The Interdependent Third Branch 