CROSSING DOCTRINES: CONFLATING STANDING AND THE MERITS UNDER THE ESTABLISHMENT CLAUSE.

• Author: Bhagwat, Ashutosh
• Position: Taking Stock of the Religion Clauses

ABSTRACT

In American Legion v. American Humanist Ass'n, the Supreme Court upheld the constitutionality of a thirty-two-foot tall Latin cross honoring soldiers killed during World War I against an Establishment Clause challenge. In a concurring opinion, Justice Gorsuch argued that the case should have been dismissed for lack of standing. He claimed that lower court decisions upholding standing for "offended observers " to challenge government religious displays are inconsistent with standing law, and were driven by the Supreme Court's holding in Lemon v. Kurtzman that government endorsement of religion violated the Establishment Clause. Since, Gorsuch concluded, a majority of the Court explicitly disowned the Lemon test in American Legion, it was now time to abandon offended observer standing as well.

In this Essay, I argue that Justice Gorsuch is correct, but for the wrong reasons. Justice Gorsuch's assertion that offended observer standing arose from the Lemon endorsement test is not supported by history. He is, however, correct that such standing is recognized only in the Establishment Clause context. The question then arises, is there something unique about substantive law in this area which justifies special standing rules. And that in turn raises the very complex question of how the "injury in fact" requirement of standing doctrine interacts with substantive law.

My conclusion is that substantive law and injury are related because Congress possesses the power to create new injuries that would not have supported common law claims, and that it regularly exercises that power in the administrative context. On the other hand, the Constitution, acting on its own, should not be read to create new forms of injury. This means that the cases recognizing standing to challenge religious display are incorrect, because they rely on the Establishment Clause alone to create injury where none would have been recognized under the common law. The paper concludes by exploring the implications of this conclusion for the Establishment Clause, andfor other areas of law. It ends with the important insight that if standing should not have been recognized in religious display cases, then the Supreme Court was also wrong to recognize standing in its leading cases considering Equal Protection challenges to affirmative action programs.

INTRODUCTION I. STANDING AND SUBSTANCE II. ENDORSEMENT AND OFFENDED OBSERVERS III. CREATING INJURY IV. IMPLICATIONS BEYOND RELIGIOUS DISPLAYS CONCLUSION [Standing ... often turns on the nature and source of the claim asserted. (1)

[T]here is absolutely no basis for making the Article III inquiry [about standing] turn on the source of the asserted right. (2)

INTRODUCTION

In American Legion v. American Humanist Ass'n, (3) the Supreme Court upheld the constitutionality of a thirty-two-foot tall Latin cross, erected on public property in 1925 to honor soldiers killed during World War I, (4) against an Establishment Clause challenge. The majority opinion by Justice Alito, writing for an unusual cross-ideological coalition of five Justices, (5) relied primarily on history to uphold the cross--both the cross's long pedigree and the specific history that, during World War I, made the cross the preeminent symbol of fallen American soldiers. (6) As a doctrinal matter, the case will probably be remembered as the occasion when a majority of the Court finally fully interred the long-maligned three-part "test" for Establishment Clause cases announced in Lemon v. Kurtzman. (8) This is because even though Justice Kagan refused to join those parts of Justice Alito's opinion denouncing and abandoning Lemon, (8) both Justice Thomas (9) and Justice Gorsuch (10) in their separate opinions concurring in the judgment unequivocally agreed that Lemon was incorrect, bringing to six the number of the Justices voting to abandon Lemon. Justice Scalia's "ghoul" appears to finally be dead for good. (11)

The focus of this Essay, however, is not on the holding in American Legion, or (directly) on the demise of Lemon. It is rather on the argument that Justice Gorsuch (joined by Justice Thomas) made in his opinion concurring in the judgment, that the case should have been dismissed for lack of standing rather than decided on the merits. (12) In brief, Justice Gorsuch argues that lower courts have granted standing, in cases challenging religious displays on government property, to individuals who are forced to regularly suffer "unwelcome direct contact" with such displays because those courts believed that the Lemon test, as interpreted in later cases, required this result. (13) This is an anomaly because in no other area of law has the Court found "offense" alone to constitute injury-in-fact for standing purposes. (14) With Lemon gone, he concludes, the Court can now reconcile standing in Establishment Clause cases with its broader standing doctrine. (15)

Justice Gorsuch's argument, drawn from an amicus brief fded by Michael McConnell on behalf of the Becket Fund for Religious Liberty, (16) is intriguing and at first fairly persuasive. He is, after all, quite correct that the Court has repeatedly rejected offense or hurt feelings alone as sufficient to establish Article III injury in other contexts. (17) The ways in which Justice Gorsuch (and the Becket Fund) intertwine their standing argument with the test on the merits for Establishment Clause violations, however, raise some deep and difficult questions. Consider now the two quotes at the head of this Essay, both drawn from majority opinions by the Supreme Court in leading and often-cited standing cases (and in both of which the Court rejected standing). They are, of course, flatly contradictory. Can it be, as Justice Gorsuch argues, that a change in the substantive standard for evaluating Establishment Clause claims will also alter the universe of plaintiffs who have standing to bring such claims? Not according to Justice Scalia's opinion in Lujan, but perhaps under Justice Powell's opinion in Warth. So who is right? I will argue here that neither is exactly right (though the Lujan quote, written in Justice Scalia's typically forceful language, is probably more clearly wrong than the one from Warth). And ultimately, I will argue that while Justice Gorsuch is probably correct that what he calls "offended observer" (18) standing in religious display cases is inappropriate, it is not because of the recent change in substantive law. Rather, such standing was always inappropriate.

Part I summarizes current standing doctrine and discusses the relationship between substantive law and the doctrine's requirement of an "injury in fact." Part II describes the basis and current status of "offended observer" or "unwelcome direct contact" standing in religious display cases in the lower courts, including an extant circuit split on the issue, as well as Justice Gorsuch's objections to such standing in American Legion. Part III considers whether the Establishment Clause should be understood to create Article III standing for "offended observers" challenging religious displays, and what the consequences of denying such standing are for government religious displays. Finally, Part IV will consider the broader implications of rejecting "offended observer" standing, both for Establishment Clause litigation, and for other areas of standing law.

1. STANDING AND SUBSTANCE

   Though standing doctrine has its roots in decisions going back to the 1930s, (19) the modern doctrine began to emerge in Justice Douglas's 1970 opinion in Ass 'n of Data Processing Services Organizations v. Camp (20)[R] interpreting the Administrative Procedure Act. Over the subsequent two decades or so, the Supreme Court formalized the doctrine, holding that to establish standing, a "plaintiff (21) must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." (22) These requirements, the Court has said, are constitutional and derive from the language of Article III limiting the jurisdiction of federal courts to "cases" and "controversies." (23) As such, standing is nonwaivable and jurisdictional. One consequence of this analysis, however, is that standing is not constitutionally required in tribunals other than Article III federal courts, such as administrative tribunals and (crucially, as we shall see (24)) state courts.

   The three elements of standing (injury, causation, and redressability) are now well established and have been elucidated in a huge number of cases. Regarding the injury (or as later cases would have it, "injury in fact") requirement in particular, the Lujan Court clarified that the injury must be "concrete and particularized" as well as "actual or imminent." (25) More recently, we have learned that plaintiffs may not "manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm." (26) In other regards, however, the Court has notably failed to define what precisely constitutes a requisite "injury."

   One area where the Court has been particularly unclear is the relationship between cognizable injuries and the underlying substantive law under which a claim has been brought. Ironically, the case in which the Court has considered (and muddled) this question most thoroughly is Lujan. The second opening quote above, from Lujan, suggests that there should be no relationship at all between injury and substantive law. Just two pages later, however, Justice Scalia's majority opinion acknowledges that Congress may "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." (27) And in an important and influential concurring opinion in Lujan, Justice Kennedy made the point that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before."...