News from the Vault: What the Judicial Appointment of Allison Jones Rushing Means for the First Amendment

Over at the RC, one mod offers an  interesting OP for conversation , and another  trash posts it and half her channels' audience. But the OP is correct in stating that

In her writings, she has rejected the separation of church and state while arguing that “village secularists” and other “offended observers” should not be allowed to challenge government actions that violate the Establishment Clause which guarantees the separation of church and state.

In fact, Allison Jones Rushing, nee Allison Jones, wrote in a 2005 paper published at Engage, a Federalist Society publication called  NOTHING TO STAND ON: “OFFENDED OBSERVERS” AND THE TEN COMMANDMENTS :

In Valley Forge Christian College v. Americans United for Separation of Church and State, the Court rejected the idea that the Establishment Clause confers to citizens a personal constitutional right to a government that does not establish religion.

In this she refers to the  Burger Court decision , written by Justice Rhenquist, that the plaintiffs represented by Americans United for Separation of Church and State lacked standing to sue the state for its gifting to Valley Forge Christian College of valuable public property. Justice Rhenquist denied standing on two grounds. The first is that as taxpayersthe plaintiffs cannot sue because the gifting was legally transacted via Article IV of the Constitution, which declares the state has the right to dispose of property, rather than by the authority to tax vested in Article I. The second is that the plaintiffs do not meet the requirements in Article III of the Constitution because they fail to meet any standards of "injury in fact":

Held: Respondents do not have standing, either in their capacity as taxpayers or as citizens, to challenge the conveyance in question. Pp. 454 U. S. 471-490.

(a) The exercise of judicial power under Art. III is restricted to litigants who can show "injury in fact" resulting from the action that they seek to have the court adjudicate. Pp. 454 U. S. 471-476.

(b) Respondents are without standing to sue as taxpayers, because the source of their complaint is not a congressional action but a decision by HEW to transfer a parcel of federal property, and because the conveyance in question was not an exercise of Congress' authority conferred by the Taxing and Spending Clause, but by the Property Clause. Cf. Flast v. Cohen, supra. Pp. 454 U. S. 476-482.

Indeed, it is on this basis - and solely on this basis as far as I can tell - that Jones Rushing based her view:

The Supreme Court could end many Establishment Clause disputes by enforcing Article III standing requirements on those bringing the lawsuits, who many times have no more stake in the issues than being “offended observers.”

Justice Rhenquist also rejected the concept of "offended observers" when he rejected the idea that the Constitution affords citizens personal constitutional rights on the grounds that

The plaintiffs in those cases plainly asserted a "personal right" to have the Government act in accordance with their views of the Constitution; indeed, we see no barrier to the assertion of such claims with respect to any constitutional provision. But assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.

Here Justice Rhenquist pushes back on the idea that the Constitution is open to the arbitrary interpretations of its citizens, and that therefore these citizens do not have standing to challenge laws they perceive as violating their Constitutional rights without having demonstrated some "injury in fact", which Rhenquist implies but does not argue is not met by claims of personal offense. Given so much rides on the Court's reading of Article III, I think it's worth quoting the relevant passage here, which is the first entry of Section 2:

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Here the Constitution states that all cases within these various categories have standing before the court - that the court has the authority to hear them. But Rhenquist goes further, arguing that

Article III...is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power...

So the logic of Rhenquist's decision rests on his personal description of the Constitution limiting standing to only those case delineated in Section 2.1 of Article III, where the language of the Constitution says only "all" these categories have standing, and in his view that granting "personal offense" as a basis for standing "drains Article III of its meaning". This can only be true if we grant Justice Rhenquist's interpretation of the language of "all" as meaning "only", and if the plaintiffs context does not meet any of those prescribed. That includes the context of "Controversies to which the United States shall be a Party", which Rhenquist specifically addresses:

Article III of the Constitution limits the "judicial power" of the United States to the resolution of "cases" and "controversies." The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity "to adjudge the legal rights of litigants in actual controversies." Liverpool S.S. Co. v. Commissioners of Emigration, 113 U. S. 33, 113 U. S. 39 (1885). The requirements of Art. III are not satisfied merely because a party requests a court of the United States to declare its legal rights...The power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy."

Thus for Rhenquist "controversies" with standing are distinguished from non-controversies without standing by dint of the former being "real, earnest, and vital", that Article III therefore has no meaning absent these characteristics, and that "assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently" cannot substantiate these characteristics, and that therefore citizens have no standing to sue the Federal government simply because they think their Constitutional rights are being denied them.

To be clear, as far as this writer can see, Rhenquist makes no attempt to justify his implication that "personal offense" does not rise to the standards of "real, earnest and vital controversy" either in law or in fact, but rather on his own particular jurisprudential view that

Implicit in the foregoing [ "offended observer" status ] is the philosophy that the business of the federal courts is correcting constitutional errors, and that "cases and controversies" are, at best, merely convenient vehicles for doing so, and, at worst, nuisances that may be dispensed with when they become obstacles to that transcendent endeavor. This philosophy has no place in our constitutional scheme.

Rhenquist is therefore arguing that violations of the Constitutional rights of citizens do not rise to "real, earnest and vital controversies" and that therefore suits brought against the government on this basis have no intrinsic merit, and thus no legal right to be heard. It is on this extralegal, non-Constitutional basis that Federal Judge Allison Jones Rushing had based her view of the Establishment clause, which is to say the she - and Rhenquist - believe the clause to have no intrinsic merit of its own, and hence to be functionally unenforceable.

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?