I asked not long ago in my conversation about the appointment of Allison Jones Rushing if her view of "offended observer" standing would be consistently applied:
I wonder, however, what the consequences of such a view would have had on cases like Masterpiece Cakeshop v. the Colorado Civil Rights Commission. At a first approximation, it seems to me that Rushing's logic commits her to the view that the Roberts Court is in error. Has anyone seen any commentary or writing by her on this decision? Should I hold my breath in anticipation of logical consistency, and her forceful admonition of that decision? Or will I asphyxiate on hope?
The decision in The American Legion v. American Humanist Association case offers some insight into its use in future cases.
The central argument running throughout the majority decision is this: do time and ambiguous motives relieve religious symbols of their religious character? Justice Alito affirms that they do. He argues that the passage of time obscures the motivation for the establishment of such monuments, and that it can alter citizens' perspective of the monument, obscuring religious sentiment and promoting a secular understanding of the context in which the monument appears. His criteria are twofold: on one hand there is the question of motive, and on the other of the point of view its audience has of the symbol. Alito will declare that the Bradensburg Cross is constitutional precisely because of the effects of time on these two criteria, but before he can do so must address the traditional test for such questions. He describes this test:
Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion,” 403 U. S., at 612–613
Now it's clear immediately that officially associating the memory of those who died in the First World War with the central and most important symbol in Christianity advances the religion by conferring on it the solemn reverence of the memory of fallen soldiers. It is to say that while these soldiers might have died in promoting our interests, their selfless sacrifice will be rewarded in heaven just as Christ's sacrifice on the cross has redeemed us all. This isn't merely a primary effect, it is the purpose of the symbol, which is only associated with Christianity. Thus the purpose of using crosses as a memorial is decidedly not secular, and the message here clearly demonstrates the dominance of Christian sacrifice over that of the only other symbol used, which was the Star of David. Justice Alito's decision clearly violates the Lemon test, as have many decisions by this and other courts, and so the test is simply repudiated as being unworkable. The Lemon test is no longer a precedent to guide future decisions by. Absent this contradiction, Alito's rationale based on the effects of time on understanding the motive for the monument and the audience's reception of it carries the decision, winning over seven of the nine judges.
Among the several supplementary opinions added in support of the decision, it is Gorsuch, joined by Thomas, who addresses "offended observer" status directly. In their view, dismissing the precedent of the Lemon test eliminates any confusion on the subject, and while they agree with the majority decision throughout, they add that this case has no standing to be heard in the first place:
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.”
As the American Humanist Association has argued that the cross implies the endorsement of the government to drivers passing by, they have no standing in the view of Gorsuch and Thomas. As the Lemon test is hopelessly ambiguous and subjective, it must dispensed with, and that being so "offended observers" have no standing to sue. Standing is explained by Alito as “'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.'”
Note that Gorsuch rightly points out that the "'offended observer' theory of standing has no basis in law." He fails to note, however, that the "injury-in-fact" theory has precisely the same problem. The question of legal standing is addressed by Section 2 of Article III of the Constitution, which nowhere makes any mention of injury at all, much less a distinction between "injury-in-fact" and psychological offense. Gorsuch simultaneously argues that "injury-in-fact" is legitimate by precedent, but that "offended observer" status precedent is not. The reason for the latter is that this precedent was established by the Lemon test's criterion of a "reasonable observer's" understanding of the state's endorsement of religion, and that in dispensing with the Lemon test the Court also dispenses with its precedent.
In place of the Lemon test the Court offers a new criteria, drawn from Alito's decision:
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.”
So where the Lemon test was a "misadventure" which failed because of its reliance on the subjective nature of the "reasonable observer's" understanding of the issue, the new and improved American Legion test relies on subjective interpretations of historical practices and understandings. This view of the Establishment clause, first articulated in the recent Town of Greece decision, is further clarified to mean:
The practice [ of opening Congress with a prayer ] begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.
Thus the Court seems to be arguing that the Lemon test is unworkable because it relies on subjective interpretation of the facts to determine if the context meets its criteria, and should therefore no longer offer precedent. Instead, courts should rely on The American Legion test which consists of interpreting historical facts to determine if the present case meets this subjective view of the historical record, which is itself impossible since the passage of time renders any knowledge of motive or contemporary interpretation of the issue at hand. Therefore the Court argues that where a given practice satisfies the conditions of having a "longstanding history" in "the tradition of honest endeavor to achieve inclusivity and nondiscrimination", then said practice is constitutional.
Justice Gorsuch is quick to point out the problem with this final criteria, however. He asks rhetorically how long ago should a practice have started to be considered historical? He points out that there is no definition, nor any basis to support such a claim from the Constitution itself. He concludes by offering a new standard in which all such practices are considered constitutional, and that "offended observers" having no standing to bring suit ought either pursue political solutions or "avert their eyes", an expediency which drivers passing by the Brandenburg Cross might well find results in "injury-in-fact".
Now if all this seems poorly reasoned, constitutionally unmoored, and for a case hinging on the Establishment clause fairly uninterested in the historicity of the First Amendment itself, I will warn you: it only gets worse from here. Not only is the logic of the majority decision incoherent, but its pertinent claims of fact happen to be untrue, as clearly and painstakingly revealed by Justice Ginsburg, and joined by Justice Sotomayor. Remember that Alito claimed the motivation in the creation of the monument was lost to history; Ginsburg shows us otherwise:
At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Calvary,” App. 449, where Jesus was crucified. Local reporters variously described the monument as “[a] mammoth cross, a likeness of the Cross of Calvary, as described in the Bible,” id., at 428; “a monster [C]alvary cross,” id., at 431; and “a huge sacrifice cross,” id., at 439. The character of the monument has not changed with the passage of time.
Now it isn't entirely clear if Ginsburg is referring to the original dedication, or the more recent rededication in 1985, though from the language quoted I suspect the former. Still, that there had been a recent, explicitly religious dedication is mentioned nowhere in Alito's decision, though this fact would clearly put it in a modern context open to the establishment of motives. More than that is the fact that Alito's claim of motivational ambiguousness is simply false, and one ought remember here that newspapers are as old as the Republic.
Ginsburg goes on to debunk the idea that these crosses were understood in any secular sense at the time, noting significant controversy about the distribution of crosses and Stars of David, and how the government initially intended to deal with the problem of unknown graves by distributing Stars of David in proportion to the death rate of Jews in the war, but eventually scrapped this plan out of concern that dead Christians might accidentally be labelled Jewish. She debunks the idea that crosses are prevalent symbols in memorializing the dead from WW1, pointing out that memorials with crosses represent only about 4% of the total number. Ginsburg refers directly to the founding fathers, Jefferson and Madison and Washington among them, to point out that the Establishment clause was explicitly intended to maintain the "wall of separation" Jefferson wrote about.
So the majority decision is logically incoherent and factually false. It's perspective, enjoining courts to consider historical perspectives while pointedly ignoring salient historical facts is itself ahistorical, a deception by omission. I am reminded of the Heller decision. In that case Scalia wrote the majority opinion which was in fact based in proper historical context, and logically and well argued. The dissent in that case was a meander through historical misrepresentation and a variety of non-sequiturs. In this case, however, the tables have turned. It is the poorly argued case which has won the court - and overwhelmingly so. As with the Trinity case, only Ginsburg and Sotomayor seemed to offer any real understanding of what the First Amendment actually means. Justice Thomas in his opinion actually suggested the Fourteenth Amendment did not apply to the First! And now the court has dispensed with the Lemon test and has opened the door for future rulings drawing on Rhenquist's precedent for refusing "offended observers" standing.
What can one say of such a poor attempt at justifying prior political ideology at the expense of constitutional law, history, and logic? It smacks of the same contempt for the public that the Trump cult revels in. The Supreme Court was designed to guard against populism, but today it explicitly serves the populist interests of the President - something which should damage Justice Kennedy's legacy quite seriously. It's lifetime appointments were designed to ensure the appointments wouldn't be political litmus tests, but today it ensures the political ideology of the appointments lasts for generations. It's time to end lifetime appointments, and to seriously consider impeaching sitting Justices like Thomas and Kavanaugh. I realize how unrealistic all this is, of course, which only points out the most important need of all, which is to end the supine coverage of the Court Americans get basically everywhere, to end the false belief that the Justice's decisions are consonant with what the Constitution actually means. The Constitution belongs to us, belongs to citizens, not the state. We should remind the Court and the court jester in the White House of that fact, soon.
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