Two U.S. Supreme Court Justices Monday criticized a Florida lawsuit brought on “offended observer” standing for an establishment clause challenge.
While the court didn’t agree to take up an appeal on the case, Justices Neil Gorsuch and Clarence Thomas wrote separately in the court’s March 6 list of orders to condemn the idea plaintiffs can sue as an offended observer.
The appeal, City of Ocala Florida v. Art Rojas et. al., came to the court out of the 11th Circuit Court of Appeals after two plaintiffs sued the City of Ocala after it helped organize and encouraged citizens to join a prayer vigil following a local shooting. The plaintiffs, who are both atheists, learned of the vigil and its religious connections prior to attending but attended anyway.
The plaintiffs sued the city arguing the vigil violated the First Amendment’s establishment clause. While the plaintiffs’ claims were eventually remanded to the district court by the 11th Circuit after the Supreme Court’s ruling last year in Kennedy v. Bremerton School District, both the appeals court and a federal district court held that at least one of the plaintiffs had standing to bring the challenge as an offended observer. On appeal to the U.S. Supreme Court, Ocala asked the court to find that neither of the parties had standing to bring an establishment clause claim.
In Kennedy, the U.S. Supreme Court overturned the three-part test created by its 1971 ruling in Lemon v. Kurtzman that guided courts in deciding if the establishment clause was violated.
Based in part on the court’s ruling in Lemon, a number of federal courts have allowed plaintiffs to bring offended observer claims. While the Supreme Court conventionally requires someone to sustain particularized injury to have standing, a number of courts have held someone could have standing to bring establishment clause violations if they had unwelcome contact with religious displays while engaging with legal obligations or participating in the government.
On Monday, the U.S. Supreme Court denied certiorari review to the appeal but two justices wrote separately to condemn the offended observer standing.
While Gorsuch agreed the court should not hear the appeal, he argued the district court should review both the merits of the case and the plaintiffs standing to bring the claim.
“Why, despite these teachings, have some lower courts indulged the fiction of ‘offended observer’ standing?” wrote Gorsuch in a statement respecting the denial of certiorari. “Moving forward, I expect lower courts will recognize that offended observer standing has no more foundation in the law than the Lemon test that inspired it.”
Additionally, Thomas wrote separately in dissent of the denial of certiorari to say he would have granted review to the appeal and has “serious doubts” about the legitimacy of the standing.
“Offended observer standing appears to warp the very essence of the judicial power vested by the Constitution. Under Article III, federal courts are authorized ‘to adjudge the legal rights of litigants in actual controversies,’ not hurt feelings,” wrote Thomas. Thomas argued the court should revisit the standing now, writing the need to do so “has become increasingly necessary.”