American Legion v. American Humanist Assn.

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the judgment.¶

The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memorial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing. Accordingly, while I concur in the judgment to reverse and remand the court of appeals’ decision, I would do so with additional instructions to dismiss the case.¶

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The Association claims that its members “regularly” come into “unwelcome direct contact” with a World War I memorial cross in Bladensburg, Maryland “while driving in the area.” 874 F. 3d 195, 203 (CA4 2017). And this, the¶

Association suggests, is enough to allow it to insist on a federal judicial decree ordering the memorial’s removal. Maybe, the Association concedes, others who are less offended lack standing to sue. Maybe others still who are equally affected but who come into contact with the memorial too infrequently lack standing as well. See Tr. of Oral Arg. 48–49. But, the Association assures us, its members are offended enough—and with sufficient frequency—that they may sue.¶

This “offended observer” theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear. And to establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. The injury-in-fact test requires a plaintiff to prove “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife , 504 U. S. 555, 560 (1992) (internal quotation marks omitted).¶

Unsurprisingly, this Court has already rejected the notion that offense alone qualifies as a “concrete and particularized” injury sufficient to confer standing. We could hardly have been clearer: “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” Diamond v. Charles , 476 U. S. 54, 62 (1986). Imagine if a bystander disturbed by a police stop tried to sue under the Fourth Amendment. Suppose an advocacy organization whose members were distressed by a State’s decision to deny someone else a civil jury trial sought to complain under the Seventh Amendment. Or envision a religious group upset about the application of the death penalty trying to sue to stop it. Does anyone doubt those cases would be rapidly dispatched for lack of standing? Cf. Whitmore v. Arkansas , 495 U. S. 149, 151 (1990) (holding that a third party does not have “standing to challenge the validity of a death sentence imposed on a capital defendant who has elected to forgo his right of appeal”).¶

It’s not hard to see why this Court has refused suits like these. If 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. Courts would start to look more like legislatures, responding to social pressures rather than remedying concrete harms, in the process supplanting the right of the people and their elected representatives to govern themselves. See, e.g. , Clapper v. Amnesty Int’l USA , 568 U. S. 398, 408 (2013) (“The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches”); Warth v. Seldin , 422 U. S. 490, 500 (1975) (without standing requirements “courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions”); Hein v. Freedom From Religion Foundation, Inc. , 551 U. S. 587, 635–636 (2007) (Scalia, J., concurring in judgment) (“ ‘To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing “government by injunction” ’ ”).¶

Proceeding on these principles, this Court has held offense alone insufficient to convey standing in analogous—and arguably more sympathetic—circumstances. Take Allen v. Wright , 468 U. S. 737 (1984), where the parents of African-American schoolchildren sued to compel the Internal Revenue Service to deny tax-exempt status to schools that discriminated on the basis of race. The parents claimed that their children suffered a “stigmatic injury, or denigration” when the government supported racially discriminatory institutions. Id. , at 754. But this Court refused to entertain the case, reasoning that standing extends “only to those persons who are personally denied equal treatment by the challenged discriminatory conduct.” Id. , at 755 (internal quotation marks omitted). Now put the teachings there alongside the Association’s standing theory here and you get this utterly unjustifiable result: An African-American offended by a Confederate flag atop a state capitol would lack standing to sue under the Equal Protection Clause, but an atheist who is offended by the cross on the same flag could sue under the Establishment Clause. Who really thinks that could be the law? See Brief for Becket Fund for Religious Liberty as Amicus Curiae 34–35.¶

Consider, as well, the Free Exercise Clause. In Harris v. McRae , 448 U. S. 297 (1980), this Court denied standing to a religious group that raised a free exercise challenge to federal restrictions on abortion funding because “the plaintiffs had ‘not contended that the [statute in question] in any way coerce[d] them as individuals in the practice of their religion.’ ” Id. , at 321, n. 24. Instead, the Court has held, a free exercise plaintiff generally must “show that his good-faith religious beliefs are hampered before he acquires standing to attack a statute under the FreeExercise Clause.” Braunfeld v. Brown , 366 U. S. 599, 615 (1961) (Brennan, J., concurring and dissenting). And if standing doctrine has such bite under the Free Exercise Clause, it’s difficult to see how it could be as toothless as plaintiffs suppose under the neighboring Establishment Clause.¶

In fact, this Court has already expressly rejected “offended observer” standing under the Establishment Clause itself. In Valley Forge Christian College v. Americans United for Separation of Church and State , Inc. , 454 U. S. 464 (1982), the plaintiffs objected to a transfer of property from the federal government to a religious college, an action they had learned about through a news release. This Court had little trouble concluding that the plaintiffs lacked standing to challenge the transfer, explaining that “the psychological consequence presumably produced by observation of conduct with which one disagrees” is not an injury-in-fact “sufficient to confer standing under Art. III.” Id. , at 485. To be sure, this Court has sometimes resolved Establishment Clause challenges to religious displays on the merits without first addressing standing. But as this Court has held, its own failure to consider standing cannot be mistaken as an endorsement of it: “[D]rive-by jurisdictional rulings of this sort” carry “no precedential effect.” Steel Co. v. Citizens for Better Environment , 523 U. S. 83, 91 (1998).¶

Offended observer standing is deeply inconsistent, too, with many other longstanding principles and precedents. For example, this Court has consistently ruled that “ ‘generalized grievances’ about the conduct of Government” are insufficient to confer standing to sue. Schlesinger v. Reservists Comm. to Stop the War , 418 U. S. 208, 217 (1974). But if offended observers could bring suit, this rule would be rendered meaningless: Who, after all, would have trouble recasting a generalized grievance about governmental action into an “I-take-offense” argument for standing? Similarly, this Court has long “adhered to the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ ” Kowalski v. Tesmer , 543 U. S. 125, 129 (2004). We depart from this rule only where the party seeking to invoke the judicial power “has a ‘close’ relationship with the person who possesses the right” and “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Id. , at 130. Applying these principles in Kowalski , this Court held that attorneys lacked standing to assert the rights of indigent defendants. Id. , at 127. And in Whitmore , we rejected a third party’s effort to appeal another person’s death sentence. 495 U. S., at 151. But if offended observers could sue, the attorneys in Kowalski might have simply claimed they were “offended” by Michigan’s procedure for appointing appellate counsel, and the third party in Whitmore could have just said he was offended (as he surely was) by the impending execution. None of this Court’s limits on third-party standing would really matter.¶

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Offended observer standing cannot be squared with this Court’s longstanding teachings about the limits of Article III. Not even today’s dissent seriously attempts to defend it. So at this point you might wonder: How did the lower courts in this case indulge the plaintiffs’ “offended observer” theory of standing? And why have other lower courts done similarly in other cases?¶

The truth is, the fault lies here. Lower courts invented offended observer standing for Establishment Clause cases in the 1970s in response to this Court’s decision in Lemon v. Kurtzman , 403 U. S. 602 (1971). Lemon held that whether governmental action violates the Establishment Clause depends on its (1) purpose, (2) effect, and (3) potential to “ ‘excessive[ly] . . . entangl[e]’ ” church and state, id. , at 613, a standard this Court came to understand as prohibiting the government from doing anything that a “ ‘reasonable observer’ ” might perceive as “endorsing” religion, County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U. S. 573, 620–621 (1989) (opinion of Blackmun, J.); id. , at 631 (O’Connor, J., concurring in part and concurring in judgment). And lower courts reasoned that, if the Establishment Clause forbids anything a reasonable observer would view as an endorsement of religion, then such an observer must be able to sue. Moore v. Bryant , 853 F. 3d 245, 250 (CA5 2017). Here alone, lower courts concluded, though never with this Court’s approval, an observer’s offense must “suffice to make an Establishment Clause claim justiciable.” Suhre v. Haywood Cty. , 131 F. 3d 1083, 1086 (CA4 1997).¶

As today’s plurality rightly indicates in Part II–A, however, Lemon was a misadventure. It sought a “grand unified theory” of the Establishment Clause but left us only a mess. See ante , at 24 (plurality opinion). How much “purpose” to promote religion is too much (are Sunday closing laws that bear multiple purposes, religious and secular, problematic)? How much “effect” of advancing religion is tolerable (are even incidental effects disallowed)? What does the “entanglement” test add to these inquiries? Even beyond all that, how “reasonable” must our “reasonable observer” be, and what exactly qualifies as impermissible “endorsement” of religion in a country where “In God We Trust” appears on the coinage, the eye of God appears in its Great Seal, and we celebrate Thanksgiving as a national holiday (“to Whom are thanks being given”)? Harris v . Zion , 927 F. 2d 1401, 1423 (CA7 1991) (Easterbrook, J., dissenting). Nearly half a century after Lemon and, the truth is, no one has any idea about the answers to these questions. As the plurality documents, our “doctrine [is] in such chaos” that lower courts have been “free to reach almost any result in almost any case.” McConnell, Religious Participation in Public Programs: Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 119 (1992). Scores of judges have pleaded with us to retire Lemon , scholars of all stripes have criticized the doctrine, and a majority of this Court has long done the same. Ante , at 14–15 (plurality opinion). Today, not a single Member of the Court even tries to defend¶

Lemon against these criticisms—and they don’t because they can’t. As Justice Kennedy explained, Lemon is “flawed in its fundamentals,” has proved “unworkable in practice,” and is “inconsistent with our history and our precedents.” County of Allegheny , 492 U. S., at 655, 669 (opinion concurring in judgment in part and dissenting in part).¶

In place of Lemon , Part II–D of the plurality opinion relies on a more modest, historically sensitive approach, recognizing that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” Ante , at 25 (quoting Town of Greece v. Galloway , 572 U. S. 565, 576 (2014) (internal quotation marks omitted); see also ante , at 1–4 (KAVANAUGH, J., concurring). So, by way of example, the plurality explains that a state legislature may permissibly begin each session with a prayer by an official chaplain because “Congress for more than 200 years had opened its sessions with a prayer and . . . many state legislatures had followed suit.” Ante , at 25 (discussing Marsh v. Chambers , 463 U. S. 783 (1983), and Town of Greece , 572 U. S. 565). The constitutionality of a practice doesn’t depend on some artificial and indeterminate three-part test; what matters, the plurality reminds us, is whether the challenged practice fits “ ‘within the tradition’ ” of this country. Ante , at 27 (citing Town of Greece , 572 U. S., at 577).¶

I agree with all this and don’t doubt that the monument before us is constitutional in light of the nation’s traditions. But then the plurality continues on to suggest that “longstanding monuments, symbols, and practices” are “presumpt[ively]” constitutional. Ante , at 16. And about that, it’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption? It seems 94 years is enough, but what about the Star of David monument erected in South Carolina in 2001 to commemorate victims of the Holocaust, or the cross that marines in California placed in 2004 to honor their comrades who fell during the War on Terror? And where exactly in the Constitution does this presumption come from? The plurality does not say, nor does it even explain what work its presumption does. To the contrary, the plurality proceeds to analyze the “presumptively” constitutional memorial in this case for its consistency with “ ‘historical practices and understandings’ ” under Marsh and Town of Greece —exactly the same approach that the plurality, quoting Town of Greece , recognizes “ ‘must be’ ” used whenever we interpret the Establishment Clause. Ante , at 25; see also ante , at 2–4 (KAVANAUGH, J., concurring). Though the plurality does not say so in as many words, the message for our lower court colleagues seems unmistakable: Whether a monument, symbol, or practice is old or new, apply Town of Greece , not Lemon . Indeed, some of our colleagues recognize this implication and blanch at its prospect. See ante , at 2–3 (BREYER, J., concurring); ante , at 1–2 (KAGAN, J., concurring in part) (declining to join Parts II–A & II–D); post , at 2, n. 2 (GINSBURG, J., dissenting). But if that’s the real message of the plurality’s opinion, it seems to me exactly rightbecause what matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles. The Constitution’s meaning is fixed, not some good-for-this-day-only coupon, and a practice consistent with our nation’s traditions is just as permissible whether undertaken today or 94 years ago.¶

*¶

With Lemon now shelved, little excuse will remain for the anomaly of offended observer standing, and the gaping hole it tore in standing doctrine in the courts of appeals should now begin to close. Nor does this development mean colorable Establishment Clause violations will lack for proper plaintiffs. By way of example only, a public school student compelled to recite a prayer will still have standing to sue. See School Dist. of Abington Township v . Schempp , 374 U. S. 203, 224, n. 9 (1963). So will persons denied public office because of their religious affiliations or lack of them. And so will those who are denied government benefits because they do not practice a favored religion or any at all. Texas Monthly, Inc. v . Bullock , 489 U. S. 1, 7–8 (1989) (plurality opinion). On top of all that, States remain free to supply other forms of relief consistent with their own laws and constitutions.¶

Abandoning offended observer standing will mean only a return to the usual demands of Article III, requiring a real controversy with real impact on real persons to make a federal case out of it. Along the way, this will bring with it the welcome side effect of rescuing the federal judiciary from the sordid business of having to pass aesthetic judgment, one by one, on every public display in this country for its perceived capacity to give offense. It’s a business that has consumed volumes of the federal reports, invited erratic results, frustrated generations of judges, and fomented “the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.” Van Orden v. Perry , 545 U. S. 677, 704 (2005) (BREYER, J., concurring in judgment). Courts applying Lemon ’s test have upheld Ten Commandment displays and demanded their removal; they have allowed memorial crosses and insisted that they be razed; they have permitted Christmas displays and pulled the plug on them; and they have pondered seemingly endlessly the inclusion of “In God We Trust” on currency or similar language in our Pledge of Allegiance. No one can predict the rulings—but one thing is certain: Between the challenged practices and the judicial decisions, just about everyone will wind up offended.¶

Nor have we yet come close to exhausting the potential sources of offense and federal litigation Lemon invited, for what about the display of the Ten Commandments on the frieze in our own courtroom or on the doors leading into it? Or the statues of Moses and the Apostle Paul next door in the Library of Congress? Or the depictions of the Ten Commandments found in the Justice Department and the National Archives? Or the crosses that can be found in the U. S. Capitol building? And all that just takes us mere steps from where we sit. In light of today’s decision, we should be done with this business, and our lower court colleagues may dispose of cases like these on a motion to dismiss rather than enmeshing themselves for years in intractable disputes sure to generate more heat than light.¶

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In a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody . No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an “offended viewer” may “avert his eyes,” Erznoznik v. Jacksonville , 422 U. S. 205, 212 (1975), or pursue a political solution. Today’s decision represents a welcome step toward restoring this Court’s recognition of these truths, and I respectfully concur in the judgment.¶