Stephen Vukovits1Stephen Vukovits is a J.D. Candidate at the University of Chicago Law School, Class of 2024. He thanks Matthew Makowski, Anson Fung, Virginia Robinson, and the University of Chicago Law Review Online team.
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This past term, the Supreme Court in Kennedy v. Bremerton School District (2022) formally overturned the notorious Lemon test that had governed Establishment Clause jurisprudence for more than a half-century. This decision will undoubtedly have a major impact on how federal courts handle Establishment Clause claims going forward, as the Court dictated that the proper way to adjudicate such disputes is by focusing on history and tradition. However, the reaction to Kennedy has largely glossed over its ramifications for how courts will handle Article III standing disputes in cases implicating the Establishment Clause.
Specifically, offended-observer standing—a post-Lemon doctrine that bends the normal rules of standing to allow plaintiffs to vindicate substantive Establishment Clause claims—is arguably on the brink of being overruled. After tracing the roots of offended-observer standing, this Essay will argue that courts, now freed from the shackles of Lemon, should recognize that merely being offended by an alleged government endorsement of religion does not constitute a concrete and particularized injury-in-fact. Furthermore, this Essay will conclude by illustrating that Establishment Clause claims alleging symbolic or statutory endorsements of religion are judicially non-redressable—and thus fail to satisfy Article III standing requirements—because the power of judicial review does not permit a court to cancel or revoke a duly enacted statute.
I. Foundations of Offended-Observer Standing
Section 2 of Article III of the United States Constitution declares that the judicial power only extends to certain cases or controversies. Courts have subsequently developed standing doctrine to evaluate whether claims fall within these constitutional bounds. The exact test has taken on slightly different forms over the years, but the modern standard for establishing Article III standing requires a plaintiff to demonstrate “(i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” This limit preserves the separation of powers, as the Founders sought to bar courts from adjudicating disputes that are properly resolved by executive or legislative power. Courts adjudicate the vast majority of cases, ranging from disputes over search engines to endangered species, under this framework as a preliminary threshold inquiry before debating the merits of a case. Yet the conventional rules regarding Article III standing have been altered in the Establishment Clause context.
Much of this unconventional treatment can be traced to how the Supreme Court has come to interpret the Establishment Clause. The text of the First Amendment mandates that “Congress shall make no law respecting an establishment of religion.” Notably, most of the thirteen original states had their own established religions at the time of the Founding, so the qualifier that this Amendment only applied to action by the federal Congress signaled concern about a nationalized religion rather than a prohibition on all associations between government and religion. However, the ratification of the Fourteenth Amendment and subsequent selective incorporation has led to new interpretations of many provisions in the Bill of Rights, including the Establishment Clause, as applied to the states.
In Everson v. Board of Education of Ewing Township (1947) this updating significantly altered the trajectory of First Amendment jurisprudence. When the Supreme Court incorporated the Establishment Clause in Everson, it emphasized that a guiding principle should be maintaining “a wall of separation between Church and State.” The Supreme Court further standardized its jurisprudential principles in this area of law by creating a three-pronged test in Lemon v. Kurtzman (1971). The so-called Lemon test dictated that government action implicating the Establishment Clause must (1) have a clearly secular purpose, (2) elicit a primary effect that neither advances nor inhibits religion, and (3) avoid excessive government entanglement with religion. Wielding this test as a sword, the Court proceeded to reject certain religious displays on public property, including copies of the Ten Commandments in school classrooms and a crèche depicting the Christian Nativity scene outside a county courthouse. Yet the claimants in these and many other Establishment Clause challenges should likely never have reached the merits stage given that they arguably lacked Article III standing.
With Lemon (and its later endorsement test offshoot) on the books, lower courts modified normal standing considerations to allow suits to proceed against government actions that the Supreme Court had hinted were unconstitutional. Specifically, at least ten circuits held that a passerby that was merely offended by a religious display on public property had suffered a sufficient injury-in-fact to survive the standing inquiry in federal court.
As such, offended-observer standing was born. This doctrine has clear ties to the substantive values advanced in Lemon. The Tenth Circuit noted in Anderson v. Salt Lake City Corp. (10th Cir. 1973) that “standing is clearly conferred . . . when the plaintiffs assert a litigable interest under the Establishment [Clause],” with Lemon determining the bounds of what constituted a “litigable interest.” More recently, the Seventh Circuit affirmed the continued validity of offended-observer standing in Woodring v. Jackson County (7th Cir. 2021), emphasizing that “a plaintiff who must come into direct and unwelcome contact with a religious display when participating in government or fulfilling legal obligations suffers an injury in fact.”
Notably, offended-observer standing departs from the Supreme Court’s conventional declarations about standing’s injury-in-fact requirement, which has normally required a showing that the individual suffered a “particularized” injury. For example, in Hollingsworth v. Perry (2013) the Court was clear in a case involving a challenge to California’s Proposition 8 banning same-sex marriage that “concerned bystanders” should not dictate the terms of Article III standing because they will manipulate the doctrine to be a mere “vehicle for the vindication of value interests.” These kinds of rejections are also consistent with the Court’s decree in Schlesinger v. Reservists Committee to Stop the War (1974) that “generalized grievances about the conduct of government” do not create standing.
Yet offended-observer standing remained largely untouched for decades. Numerous scholars and attorneys called for rejecting offended-observer standing while Lemon was still on the books, with some declaring that the doctrine was inconsistent with historical understandings of Article III standing requirements and others criticizing it for creating injuries that courts would not have recognized under the common law. However, courts largely continued to breeze through the standing analysis in Establishment Clause challenges.
This posture started to change when Justice Neil Gorsuch took aim at the doctrine in his concurrence, joined by Justice Clarence Thomas, in American Legion v. American Humanist Ass’n (2019). Citing the separation-of-powers justification for Article III standing evaluations, Justice Gorsuch explained that “[i]f individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, we would risk exceeding the judiciary’s limited constitutional mandate and infringing on powers committed to other branches of government.” He even directly declared that the “‘offended observer’ theory of standing has no basis in law.” Yet lower courts were still bound by decades of precedent entrenching offended-observer standing. Judge Thomas Hardiman expressed frustration at this reality in Freedom from Religion Foundation, Inc. v. County of Lehigh (3d Cir. 2019), criticizing offended-observer standing but recognizing that it is up to “the Supreme Court—or this Court sitting en banc—to determine whether to discard it.” As such, it appeared that offended-observer standing would remain a widespread reality until the Supreme Court changed course.
II. After Kennedy’s Rejection of Lemon, There is No Injury to Support Offended-Observer Standing
By rejecting Lemon in Kennedy, the Supreme Court has finally offered lower courts freedom from the inconsistency of offended-observer standing—if they choose to take it. Kennedy involved a challenge by a high school football coach who was forced out of his job for saying a prayer after games. While the coach brought his action under the First Amendment’s Free Speech and Free Exercise Clauses, this case also implicated the Establishment Clause because the school admitted that the “sole reason” it suspended him “was its perceived risk of constitutional liability.” The school was worried that if it permitted him to continue to pray, it would be violating the Establishment Clause as measured by compliance with Lemon. The Court ultimately rejected the school’s justification, noting that allowing the coach to continue to pray would not have implicated the Establishment Clause. In reaching this conclusion, it called Lemon “ahistorical” and finally ended Lemon’s reign by declaring that “this Court long ago abandoned Lemon and its endorsement test offshoot.”
The Court’s reasons for rejecting Lemon highlight why offended-observer standing lacks any legitimate foundation in the law going forward. Citing Good News Club v. Milford Central School (2001), the Kennedy Court reaffirmed “that the Establishment Clause does not include anything like a ‘modified heckler’s veto, in which . . . religious activity can be proscribed based on perceptions or discomfort.’” Similarly, the Court noted that the Lemon test was “‘invit[ing] chaos’ in the lower courts” as exemplified by the fact that many courts had been violating this anti-heckler’s veto principle in the name of Lemon itself. For example, the Court cited multiple opinions from its unanimous decision in Shurtleff v. City of Boston (2022) that decried the “city’s attempt to censor religious speech based on Lemon.” In Shurtleff, the Court reversed the First Circuit’s determination that Boston’s decision to prohibit a Christian group from displaying its flag at City Hall did not violate the Constitution. While the Court decided this case on free speech grounds, it took issue with Boston’s argument that the Establishment Clause required the city to reject the Christian group’s flag—a concern that the First Circuit called “legitimate” given Lemon. Justice Gorsuch’s concurrence was particularly blunt, observing that “[t]o avoid a spurious First Amendment problem, Boston wound up inviting a real one. Call it a Lemon trade.”
Lower courts are only just beginning to grapple with the implications in the offended-observer standing context of this full upheaval of Lemon. In Napper v. Hankison (W.D. Ky. 2022), the district court rejected an offended-observer standing claim on as-applied grounds when the plaintiffs were not themselves exposed during a police training to the Bible verse alleged to be an endorsement of religion. Importantly, the court in a footnote flagged that the entire doctrine could be in danger after Kennedy’s rejection of Lemon, but it noted that the Supreme Court was not completely clear about the implications. In a similar manner, in Freedom from Religion Found., Inc. v. Mack (5th Cir. 2022) the Fifth Circuit admitted that “the Establishment Clause has repeatedly gotten special treatment when it comes to standing” and “[t]hat treatment may have been unwarranted.” However, because Fifth Circuit precedent still endorsed offended-observer standing, the court begrudgingly held that the plaintiff had standing. Therefore, the court noted, it would take an “unequivocal, ‘intervening change in the law’” to fully tackle this issue.
III. Some Offended-Observer Claims Also Lack Standing on Redressability Grounds Because of Limitations on the Power of Judicial Review
Beyond being the natural consequence of Lemon’s demise, rejecting offended-observer standing is also consistent with another recent development affecting Article III standing jurisprudence. In 2018, Jonathan Mitchell published an Article in the Virginia Law Review challenging the popularly held assumption that courts “strike down” laws when they find that a legislative enactment conflicts with the Constitution. Among multiple reasons provided in his piece, Mitchell argued that debates at the time of the Founding about the nature of the judicial power made it clear that courts do not have the power to annul a statute—rather, they may only decline to enforce the law or enjoin the executive from enforcing it. As such, courts and commentators commit the “writ-of-erasure fallacy” when they contend that exercising judicial review has a veto-like effect that completely invalidates a law. Thus, Mitchell maintained that the only way to remove a statute from the books is via legislative repeal.
Federal courts have begun to take notice of the writ-of-erasure fallacy and its implications for the power of judicial review. Three chief judges in different United States Circuit Courts of Appeals have led the charge to apply this thinking. In Arizona v. Biden (6th Cir. 2022), Chief Judge Jeffrey Sutton concurred separately in a Sixth Circuit case to argue that nationwide injunctions are premised on the writ-of-erasure fallacy since courts cannot provide remedies beyond refusing to enforce an unconstitutional enactment against the parties to a case. In Driftless Area Land Conservancy v. Valcq (7th Cir. 2021), Chief Judge Diane Sykes discussed the writ-of-erasure fallacy in a Seventh Circuit panel opinion, emphasizing that laws remain on the books even when certain officials are barred from enforcing them due to an injunction. Finally, in Jacobson v. Florida Secretary of State (11th Cir. 2020), Chief Judge William H. Pryor Jr. wrote a panel opinion for the Eleventh Circuit criticizing the district judge for relying “on the flawed notion that by declaring the ballot statute unconstitutional, it eliminated the legal effect of the statute in all contexts.”
Additionally, Justice Thomas has invoked the doctrine at the Supreme Court. In his concurrence-in-part in Seila Law LLC v. Consumer Financial Protection Bureau (2020), Justice Thomas cited the writ-of-erasure fallacy to argue that, since Article III did not give courts the power to revise statutes, the severability doctrine must be based on statutory interpretation principles. He also cited the writ-of-erasure fallacy in his concurrence in Borden v. United States (2021) to call for overturning a prior case that had held that a statute was unconstitutionally vague in all of its applications. Justice Thomas suggested that since courts cannot strike down statutory text, declaring a statute to be facially vague would impermissibly “decide theoretical cases for theoretical parties not before the Court.” Altogether, these examples of jurists applying the writ-of-erasure fallacy highlight the increased acceptance of Mitchell’s arguments.
The idea that courts cannot annul laws has important implications for Article III standing, especially in the Establishment Clause context. Many claimants have argued that the government violates the Establishment Clause when it endorses religion through declared or statutory support. However, claims that government declarations in statutes like “‘In God we trust’ is the national motto” or conscience-protection laws that specifically mention coverage for those with “religious beliefs or moral convictions” in favor of traditional marriage infringe on the Establishment Clause are destined for failure because no judge can remedy the alleged injury. As Mitchell posited, “[e]ven if [a claimant] could have shown an injury from a statute’s supposed endorsement of theism, the courts have no ability to redress that injury because they cannot revoke or erase a duly enacted statute.” Since the “offensive” words would remain on the books, the alleged injury would remain. A challenge that one is offended by references to religion in a statute, statement, or declaration from a government entity or official would therefore fail under this logic.
Claimants might push back that the Court’s recent decision in Uzuegbunam v. Preczewski (2021), which held that suing for nominal damages alone is sufficient to satisfy standing’s redressability requirement, signaled that the threshold for meeting this prong is very low. However, Uzuegbunam involved a situation where there was a “completed injury” and “the first two elements of standing (injury and traceability)” were already “establish[ed].” Neither of these conditions is likely met when one claims to be offended by a statute’s reference to religion. There is probably no constitutional violation given Kennedy’s declaration that the Establishment Clause does not “‘compel the government to purge from the public sphere’ anything an objective observer could reasonably infer endorses or ‘partakes of the religious,’” and, as already covered in the previous section, offended observers do not satisfy standing’s injury-in-fact requirement. Overall, the case for rejecting offended-observer standing after the overturning of Lemon is only enhanced by this judicial redressability obstacle.
With these fatal blows to how offended observers attempt to meet both the injury-in-fact and judicial redressability standards for Article III standing, courts should not fear correcting a half-century of jurisprudential errors in the Establishment Clause context. Given early returns, it seems probable that many circuits will do just that, and accordingly, that objectors to religious displays will have to show concrete and particularized injuries to bring their claims in federal court—just like all of their counterparts who object to laws they do not like merely because they find them offensive.
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Stephen Vukovits is a J.D. Candidate at the University of Chicago Law School, Class of 2024. He thanks Matthew Makowski, Anson Fung, Virginia Robinson, and the University of Chicago Law Review Online team.