Fruit of the Poisonous Lemon Tree: How the Supreme Court Created Offended-Observer Standing, and Why It's Time for it to Go

Abstract

Can individuals who observe what they consider to be offensive government speech or conduct sue to stop it? Typically not — absent additional evidence of a direct and particularized injury. Yet in one area of the law, the fundamental requirements of Article III (limiting federal standing to actual “cases” or “controversies”) are relaxed: The Establishment Clause. At least ten circuits have held that the mere observation of a display containing religious content (the Ten Commandments, a cross, a menorah, and the like) on public property suffices to create an injury-in-fact that opens the doors to federal court. This Essay addresses the continued viability of offended-observer standing after the Supreme Court’s decision last Term in American Legion v. American Humanist Association. It picks up on arguments made by Justice Gorsuch — and by the Becket Fund for Religious Liberty’s amicus brief, which we helped author — explaining why, with the much-criticized Lemon test now “shelved,” it is time for courts to similarly abandon the anomalous offended-observer standing doctrine and bring Establishment Clause standing back into line with both the bedrock requirements of Article III and binding Supreme Court precedent. We first explore the history of offended-observer standing and show how offended-observer standing grew out of over-eager efforts by the courts of appeals to find an Article III injury that would allow plaintiffs to vindicate — in the religious-display context — the substantive Establishment Clause rights created by Lemon. We then argue that it makes no sense to keep applying this relic in a post-Lemon world and explain why offended-observer standing is inconsistent with Supreme Court precedent, the historical meaning of Article III, and good judicial policy.