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Still Standing: Who’s allowed to defend the separation between church and state?

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church and state

Two children ages 4 and 8 were injured during a spate of drive-by shootings in Ocala, Fla. in September 2014. The boys were watching TV when several shots were fired into their home. Three other children were uninjured, but no doubt traumatized from the experience. These shootings left the Ocala community understandably shaken. It’s not surprising that local religious leaders turned to prayer. While prayer won’t actually do anything to end gun violence or make anyone safer, it’s what religious people often turn to in trying times.

In the wake of the shootings, then-Ocala Police Chief Greg Graham met with spiritual leaders and pastors, and they all agreed to hold a prayer vigil, which was attended by both the mayor and the chief of police. The chief of police even penned a letter encouraging members of the community to attend, sent on Department letterhead and signed as chief of police:

We are facing a crisis in the City of Ocala and Marion County that requires fervent prayer and your presence to show unity and help in this senseless crime spree that is affecting our communities…

I am urging you all to please support a very important “Community Prayer Vigil” that will be held this coming Wednesday, September 24, 2014 at 6:30 pm to be held at our Downtown Square located in the heart of the City.

At the event, police department representatives preached Christianity in a revivalist, evangelical style that encouraged a call-and-response from the audience. Speakers from the police department also prayed, sang religious songs and delivered Christian sermons. Any notion that this event would unite the community in a common cause was undercut by the fact that it was clearly intended to be for Christians. This wasn’t a religious event that representatives of the city and police department attended in their private capacities. It was an event organized by the city calling for Christianity to somehow solve the very real gun problems facing our country.

In order to protect everyone’s religious freedom rights, our Constitution enacts a separation between church and state through the Establishment Clause of the First Amendment in our Bill of Rights. This ensures that every citizen is entitled to follow their own beliefs and practices without influence from the government.

Shortly after the event, the American Humanist Association sued on behalf of several Ocala residents, who had voiced their concerns about this city-sponsored religious event before it even took place. These residents were rightly concerned that local government officials had violated the separation between state and church by affiliating the city with Christianity.

Last week, on March 6, nearly a decade after the case began, the U.S. Supreme Court declined to hear the case. The City’s attorneys had asked the Supreme Court to strip citizens of their right to challenge governmental actions that violate the Establishment Clause and thereby infringe on the religious liberty rights of all citizens.

While the Supreme Court struck a huge blow to the Establishment Clause last term in its Kennedy v. Bremerton and Carson v. Makin decisions, some members of the Court are not content with just stripping the Establishment Clause for parts; they want to kill it entirely by removing the ability of citizens to lodge Establishment Clause challenges at all.

In order to challenge something in court, you have to have standing, which basically means that you have been injured by someone else’s action and that a court can redress the harm you suffered. Under current law, the only injury necessary to establish standing in an Establishment Clause case is “unwelcome direct contact” with an event or action affiliating the government with religion. But the City argued that the clients represented by AHA didn’t have standing to bring the case at all, therefore the whole case should be tossed out. The City asked the Court to clarify whether “psychic or emotional offense allegedly caused by observation of religious messages” was sufficient to grant citizens standing to sue, arguing that it is not.

Thankfully, the Supreme Court denied the petition. But Justices Neil Gorsuch and Clarence Thomas signaled that at least two if not more justices are willing to prevent citizens from being able to challenge Establishment Clause violations in the future. This is very concerning because previous comments and dissenting opinions have often laid the groundwork for disastrous majority opinions down the road.

Thomas, Gorsuch endanger standing

Both Thomas and Gorsuch were concerned with the so-called “offended observer” status, which is their derogatory term for the current “unwelcome direct contact” injury requirement. They don’t believe that exposure to a government entity violating the Establishment Clause is a real injury. Gorsuch wrote that giving standing to an “offended observer” was no longer the law. He implied that the Court didn’t need to take up the case right now because it was so obvious that “offended observer” status died when the Court killed the Lemon test last term:

… The city asks us to take this case to make just this point. It is an understandable request. But I see no need for the Court’s intervention at this juncture. This case remains in an interlocutory posture — the Eleventh Circuit has remanded the case to the District Court to permit it to consider Kennedy’s implications in the first instance. I would allow that process to unfold. 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. If I am wrong, the city is free to seek relief here after final judgment.

Thomas, who doesn’t believe that the Establishment Clause even applies to the states at all, wasn’t so sure that “offended observer” status has been killed and wanted the opportunity to do so:

… we have muddied the waters by repeatedly reaching the merits of Establishment Clause cases premised upon offended observer standing in the courts below…

… I continue to urge the Court to review the legitimacy of this form of standing. If the Courts of Appeals are unwilling to reconsider their offended observer precedents en banc, we should intervene…

Thomas and Gorsuch, as well as others on the uber conservative court, have evinced a clear hostility towards the Establishment Clause and the idea that Christianity is not a preferred religion in our country. Time and again they have gone above and beyond to give Christians undeserving access to the courts to impose their personal religious beliefs on everyone, while denying the same access to other religions or those seeking to limit Christianity’s privileged status.

When it comes to the Establishment Clause, Gorsuch contended, “Most every governmental action probably offends somebody… But recourse for disagreement and offense does not lie in federal litigation.” Thomas similarly noted in his dissent that courts are empowered to judge the legal rights of litigants in actual controversies, “not hurt feelings.” Gorsuch and Thomas are chagrined that people who are merely “offended” or with “hurt feelings” will end up in court. But if it’s a Christian who is offended or whose feelings are hurt, they seem more than willing to throw out the rules in order to ensure their “hurt feelings” will be addressed.

The Freedom From Religion Foundation pointed out this dangerous hypocrisy in our amicus brief in the Kennedy v. Bremerton case, in which we discussed the recent line of cases the Court has ruled on despite very serious standing or mootness concerns. First, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court determined, in a footnote, that the case had not become moot despite the Missouri governor providing the relief sought by the church. The new Missouri governor had directed the Department of Natural Resources to allow religious organizations to receive grants from the state. Then, in an unsigned decision, the Court ordered injunctive relief in Roman Catholic Diocese of Brooklyn v. Cuomo, despite the fact that the religious organizations seeking an injunction were no longer subject to restrictions implicating the Free Exercise Clause. In Carson v. Makin, Maine argued that the parents who appealed lacked standing because they failed to present evidence that their desired Christian schools were even willing to participate in the program. Nevertheless, the Court accepted the case.

Clear pattern of Christian favoritism

Most recently, and perhaps most reflective of the current bias on the Court, in 303 Creative LLC v. Elenis, which was recently argued before the Court with a decision expected in June, a “business” sought the Court’s review of whether a public accommodation law violates both the Free Exercise and Free Speech Clause of the First Amendment. Before the case was accepted by the Court, Colorado civil rights officials and the Colorado Attorney General argued that the claims are not justiciable. The “business” at issue in the case had not entered the market, had no customers, had not even created a product, nor had it shown any credible threat of enforcement under the challenged law. And yet, the Court granted certiorari presumably so that it could vindicate the rights of a Christian who might, potentially, theoretically, at some point, be required to sell their services to gay people. So much for looking out for the legal rights of litigants in actual controversies, “not hurt feelings.”

Unfortunately, despite this clear pattern of Christian favoritism, Gorsuch isn’t wrong that the Establishment Clause standing jurisprudence has strong ties to Lemon, the case resulting in the “Lemon Test” that was overthrown in the Bremerton decision last summer involving praying coach Kennedy. When the Court crafted its Lemon analysis, lower courts recognized, and the Supreme Court allowed, the need for different standing requirements to enforce the Establishment Clause. At least 10 circuits held that those who had direct contact with a religious display or government-sponsored religious activity had suffered a sufficient injury-in-fact to meet the requirements for standing.

But this historical precedent is under attack. The Supreme Court first targeted Establishment Clause standing in a concurrence in American Legion v. American Humanist Association (2019). Gorsuch, joined by Thomas, opined: “[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.” More recently the Fifth Circuit joined in the attack in Freedom from Religion Found., Inc. v. Mack (2022), in which it claimed that “the Establishment Clause has repeatedly gotten special treatment when it comes to standing” but noted, that it would take an “unequivocal, intervening change in the law” for the courts to cease this well established practice and stop hearing Establishment Clause cases altogether.

This attack, and the potential demise of “unwelcome direct contact” injury requirement, is more than worrisome because the current principles of standing regarding Establishment Clause violations are so important. Unlike many areas of law, violations of the Establishment Clause don’t typically inflict specific and directed injuries onto individuals and our standing doctrine has evolved to reflect this reality. Let’s say that tomorrow, Congress passed a law establishing Christianity as the official religion of the United States. This would be the literal embodiment of what the Establishment Clause (“Congress shall make no law respecting an establishment of religion…”) forbids. Under the pro-Christian theory advanced by Gorsuch and Thomas, no one would have standing to challenge this direct violation of the law. Whether it be a city holding Christian events or Congress declaring the United States a Christian nation, Establishment Clause violations often do not impart a particularized injury onto anyone. That’s because constitutional violations hurt us all.

For now, the Supreme Court won’t be weighing in on the Ocala case and it will go back to the lower court, where the plaintiffs can continue fighting to defend their rights and the rights of everyone that supports the separation of church and state. We hope that it won’t be back before this Supreme Court anytime soon. But eventually the Court will get another bite at the apple and it could go very badly. While we know that the Court should act as an impartial arbiter when it comes to justiciability determinations, certain justices have made clear that they are not only willing to bend the rules to advance Christianity, but to shut the door on those trying to uphold the separation between church and state altogether. There is still the right of standing to challenge Establishment Clause violations for now, but our uber-conservative Supreme Court has signaled it could do away with it at any time. We must fight back now before it is too late.

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