Ending the Epicycles of the Establishment Clause
In the run-up to Dobbs, I identified many areas of the law that abortion had distorted. Among these epicycles were stare decisis, freedom of speech, facial challenges, the tiers of scrutiny, third-party standing, and so on. Dobbs, thankfully, ended these epicycles. (Alas, some litigants are trying to drag religious liberty into the fray.)
Like abortion, the Supreme Court’s doctrine concerning the Establishment Clause has distorted other areas of the law. As a threshold matter, I’m not even certain the Establishment Clause can be incorporated. I think the better answer, as Akhil Amar has written, is that this federalism provision prevents the federal government from interfering with state established churches. But that ship has probably sailed. Perhaps the most obvious category of distortion is standing. Flast v. Cohen allowed a taxpayer to contest government spending that may run afoul of the Establishment Clause. Flast is an anomalous outlier to Article III that permits taxpayer standing.
A related distortion of standing doctrine concerns the “offended observer” standard. In short, if a person sees or hears some government-related religious content that offends him, he has Article III standing. For example, Thomas Van Orden was an atheist who walked past the Ten Commandment monuments by the Texas Capitol. Boom, standing! I have long questioned standing in cases like Van Orden v. Perry. And more recently, Justice Gorsuch cast doubt on this doctrine in American Legion and Kennedy v. Bremerton.
Today Justice Gorsuch continued that theme on the *gasp* shadow docket. The Supreme Court denied cert in City of Ocala, Florida v. Rojas. In this case, a police chief organized a prayer vigil after a shooting spree. A resident of the City went to the vigil, knowing that she would be offended by the prayer. And that offense triggered standing. A cynic could argue the plaintiff attended the vigil for the sole purpose of generating standing. If the vigil truly bothered her, she could have stayed home.
Justice Gorsuch concurred in the denial of certiorari. He explained that the Court has never actually endorsed the “offender observer” standard. True enough, the Lemon test considered how a “reasonable observer” would view an endorsement of religion. But it is tough to square this doctrine with Valley Forge. And going forward, Kennedy has interred Lemon.
But if that logic ever made sense, it no longer does. In Kennedy, this Court put to rest any question about Lemon‘s vitality. We held that claims alleging an establishment of religion must be measured against the Constitu
Article from Reason.com
