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. Continue reading ““Offended Observers” and Public Religious Displays: the Question of Standing”