Amicus Curiae Brief — Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 451 (2018) (No. 17-1717)

No. 17-1717, No. 18-18

In the

Supreme Court of the Anited States

THE AMERICAN LEGION, ET AL., Petitioners,

Vv.

AMERICAN HUMANIST ASSOCIATION, ET AL.,

Respondents.

MAR’ LAND-NATIONAL CAPITAL PARK AND PLANNING

COMMISSION, Petitioner,

Vv.

AMERICAN HUMANIST ASSOCIATION, ET AL.,

Respondents.

On Writs of Certiorari to the United States Court of

Appeals for the Fourth Circuit

BRIEF OF LAW PROFESSORS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

CHRISTOPHER C. LUND

Counsel of Record

471 W. Palmer St.

Detroit, MI 48202

(313) 577-4046

lund@wayne.edu

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..............00ccccsseseccceserereesseeeeeees i

TABLE OF AUTHORITIEG..................00..ccccccseserseeees ii

INTEREST OF AMICI CURIAE .000000.00....0..c0cccccceeeeees l

SUMMARY OF ARGUMENT oon. 2

ARGUMENT ....................... iniDieashinpdtabtadendateenitadastal 3

I. THE ARGUMENTS AGAINST STANDING HAVE

FAR-REACHING IMPLICATIONS. ..... ..........00..00000. 3

Il. THE ARGUMENTS AGAINST STANDING ARE

I itn ininndactninnninntidnaidiiidininantiditdbaaeded 9

Ill. THE ARGUMENTS AGAINST STANDING ARE

Nor REALLY ARGUMENTS ABOUT STANDING

TABLE OF AUTHORITIES

Page(s)

CASES

Bond v. United States, 564 U.S. 211 (2011) ............. 14

Catholic League for Religious & Civil Rights v.

City and Cnty. of San Francisco,

624 F.3d 1043 (9th Cir. 2010).............00..00000.... 9,11

County of Allegheny v. ACLU,

A etre 4, 6-7

Crawford v. United States Dep't of Treasury,

868 F.3d 438 (Gth Cir. 3017)................................ 12

Engel v. Vitale, 370 U.S. 421 (1962) ....................... 8-9

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc..,

ne a onpaneeuuaennas 13

Lee v. Weisman, 505 U.S. 577 (1992).................. 4-5, 8

Leibovitz v. N.Y.C. Transit Auth.,

ee cee Te I i BD cecccceccencccorscecccscececncees 12

Lujan v. Defenders of Wildlife,

AEST eee ae 12-13

Lynch v. Donnelly, 465 U.S. 668 (1984).................. 4,7

McCreary Cty. v. ACLU of Ky.,

ELE eee ee 4,6

Salazar v. Buono, 559 U.S. 700 (2010).........0000...... 6-7

Schlesinger v. Reservists Comm. to Stop the

I, SU CN CI I nc cccreudipnntonndccsdertesscs 10

Sch. Dist. of Abington Twp. v. Schempp,

es I iicitinccespuicstciecinteiibutddbeeenthientinn’ 5, 8-9

Sierra Club v. Morton, 405 U.S. 727 (1972)............. 13

Sinochem Intl Co. v. Malaysia Intl Shipping

Corp., 549 U.S. 422 (2007). ................0.00+0000+.---. 3-4

Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016).......... 12

Stone v. Graham, 449 U.S. 39 (1980) ................. 4, 7-8

Town of Greece, N.Y. v. Galloway,

I I isisementinbe 7

Trump v. Hawaii, 138 S.Ct. 2392 (2018).................. 14

United States v. Hays, 515 U.S. 737 (1995)................ 4

United States v. L.A. Trucker Lines, Inc.,

I ns a cussemannusporeien A

Valley Forge Christian Coll. v. Americans

United for Separation of Church & State,

eS Se rs i inticnticiistticnnileientasene 10-12

Van Orden v. Perry, 545 U.S. 677 (2005). .......... 4, 6-7

OTHER AUTHORITIES

Carl H. Esbeck, Unwanted Exposure to

Religious Expression by Government:

Standing and the Establishment Clause,

7 CHARLESTON L. REV. 607 (2013). .................... 5-6

INTEREST OF AMICI CURIAE

Amici are scholars who teach and write in the

field of constitutional law, and who have particular

expertise in the area of religious liberty.' Carl H.

Esbeck is the R.B. Price Professor Emeritus and

Isabelle Wade & Paul C. Lyda Professor of Law

Emeritus at the University of Missouri School of

Law. Andrew M. Koppelman is the John Paul

Stevens Professor of Law at Northwestern

University School of Law. William P. Marshall is the

William Rand Kenan, Jr. Distinguished Professor of

Law at the University of North Carolina School of

Law. Jonathan Weinberg is Professor of Law at

Wayne State University Law School.?

' Counsel for amici certifies that this brief was not authored

in whole or in part by counsel for any party, and that no person

or entity other than the amici or their counsel has made a

monetary contribution to the preparation or submission of this

brief Blanket consents from all parties are on file with the

Clerk.

2 Amici file this brief in our personal capacities as scholars.

None of our respective universities takes any position on the

issues in this case.

2

SUMMARY OF ARGUMENT

Petitioners do not attack standing in this case.

But a number of petitioners’ amici do. Though their

arguments differ, these amici all make categorical

claims that no one has standing to challenge state-

sponsored religious displays.

These arguments should be rejected. They are

inconsistent with this Court’s precedents regarding

both the Establishment Clause and Article III's

standing requirements. They also have far-reaching

implications; they would work a sea change in the

adjudication of Establishment Clause _ claims.

Finally, they conflate merits issues and standing

issues, abandoning the traditional distinctions

between the two and the logic underlying those

distinctions.

3

ARGUMENT

I. THE ARGUMENTS AGAINST STANDING HAVE

FAR-REACHING IMPLICATIONS.

Petitioners do not address standing in their

briefs. But a number of amici on the petitioners’ side

do. And their attacks are far-reaching. Petitioners’

amici do not simply attack the standing of the

particular respondents before the Court. They do not

simply attack the standing of parties to challenge

this particular cross. Instead they claim, as a

general and categorical matter, that there is no

standing to challenge mere religious displays or

prayers. “Offended-observer standing is an

anomaly,” as one amicus puts it. See Brief Amicus

Curiae of the Becket Fund for Religious Liberty in

Support of Petitioners (hereinafter Becket Fund Br.),

at 32; see also Brief Amicus Curiae of the American

Civil Rights Union in Support of Petitioners, at 7-15;

Brief of Amici Curiae American Center for Law and

Justice and Lt. Gen. Robert R. Blackman, USMC

(Ret.) in Support of Petitioners, at 27-34; Brief of

National Association of Counties et al. in support of

Petitioners, at 5-14; Brief of Major General Patrick

Brady and Veterans Groups Erecting and

Maintaining War Memorials as Amici Curiae in

Support of Petitioners, at 5-8 (hereinafter,

collectively, “amici”).

This is a striking claim. For one thing, it

necessarily implies that this Court has been getting

these cases wrong for generations. Standing, of

course, is jurisdictional, so this Court is obligated to

consider it before addressing the merits. See

Sinochem Intl Co. v. Malaysia Int'l Shipping Corp.,

549 U.S. 422, 431 (2007) (courts “may not assume

jurisdiction for the purpose of deciding the merits of

4

the case”). And this Court is obligated to address it

“even if the courts below have not passed on it, and

even if the parties fail to raise the issue before us.”

United States v. Hays, 515 U.S. 737, 742 (1995).

But this Court has been deciding religious-

display cases on their merits for decades. The Court

addressed the constitutionality of state-sponsored

Ten Commandments displays in McCreary County v.

ACLU of Kentucky, 545 U.S. 844 (2005), Van Orden

v. Perry, 545 U.S. 677 (2005), and Stone v. Graham,

449 US. 39 (1980). It addressed’ the

constitutionality of state-sponsored holiday displays

in County of Allegheny v. ACLU, 492 U.S. 573 (1989)

and Lynch v. Donnelly, 465 U.S. 668 (1984). None of

these cases was decided on standing grounds. All of

them were decided on their merits. Of course, we

well understand that this Court “is not bound by a

prior exercise of jurisdiction in a case where it was

not questioned and it was passed sub silentio.”

United States v. L.A. Trucker Lines, Inc., 344 U.S. 33,

38 (1952). Even so, if amici are right about their

standing arguments, this Court has been acting ultra

vires consistently for generations. It is hard to

believe so many have been so foolish for so long.

And there is, in fact, a Supreme Court holding

here on the issue of standing that some amici seem

to forget. In Lee v. Weisman, 505 U.S. 577 (1992),

the Court addressed the constitutionality of

government-sponsored prayers at public school

graduations. But the Court also addressed

justiciability:

We find it unnecessary to address Daniel

Weisman’s taxpayer standing, for a live and

5

justiciable controversy is before us. Deborah

Weisman is enrolled as a student at Classical

High School in Providence and from the record

it appears likely, if not certain, that an

invocation and benediction will be conducted

at her high school graduation.

Id. at 584. This passage is short and simple.

Deborah Weisman is a public-school student; prayers

will be conducted at her graduation; she will come

into contact with those prayers, so she has standing

to challenge them. Nowhere does the Court suggest

that Deborah Weisman’s standing arises out of her

being forced to pray. Instead what gives her

standing is the mere fact that she is subject to

hearing the prayers. And all nine Justices seem in

agreement on this point—including the four

dissenters, who in fact emphasized that Weisman

would not be forced to pray but still did not question

her standing to sue.

The Court’s analysis here may be brief, but its

logic is clear and its holding plain. And, as will be

discussed later, the doctrine of lower courts in

religious-display cases as regards standing is

strikingly continuous with this Court’s analysis in

Lee}

% The Court also explicitly found standing in School of

Abington Township v. Schempp, 374 U.S. 203 (1963). “It goes

without saying,” the Court said, “that the laws and practices

involved here can be challenged only by persons having

standing to complain .. . . The parties here are school children

and their parents, who are directly affected by the laws and

practices against which their complaints are directed. These

interests surely suffice to give the parties standing to

complain.” Id. at 224 n.9. See also Carl H. Esbeck, Unwanted

6

Amici’s standing arguments are all-or-nothing,

by their nature. If exposure to a government-

sponsored religious display is categorically

insufficient to confer standing, then what is being

displayed does not matter. There would be no

standing in any religious-display case, however

egregious its facts. “There are, of course, limits to

the display of religious messages or symbols.” Van

Orden v. Perry, 545 U.S. 677, 690 (2005) (plurality

opinion). But amici would render those limits

judicially unenforceable. So much for the claim of

some Justices that “the Establishment Clause

forbids a city to permit the permanent erection of a

large Latin cross on the roof of city hall.” Salazar v.

Buono, 559 U.S. 700, 715 (2010) (Kennedy, J., joined

by Roberts, C.J. and Alito, J.) (quoting County of

Allegheny v. ACLU, 492 U.S. 573, 661, (1989)

(Kennedy, J., concurring in judgment in part and

dissenting in part). And so much for the claim that

religious displays cannot endorse “a particular

religious viewpoint,” like the government

deliberately putting up Protestant versions of the

Ten Commandments to side against Catholicism.

See McCreary Cty. v. ACLU, 545 U.S. 844, 894 & n.4

(2005) (Scalia, J., dissenting, joined by Rehnquist,

C.J., and Thomas, J.).

Merits analysis can draw distinctions. It can

differentiate between old displays and new ones, see

Van Orden v. Perry, 545 U.S. 677, 702 (2005)

Exposure to Religious Expression by Government: Standing and

the Establishment Clause, 7 CHARLESTON L. REV. 607, 619-632

(2013) (examining, in comprehensive fashion, sixteen Supreme

Court cases involving state-sponsored religious messages, with

particular attention paid to how the Court addresses the issue

of standing in each of them).

7

(Breyer, J., concurring), or between more ecumenical

displays and less ecumenical ones, see County of

Allegheny v. ACLU, 492 U.S. 573 (1989), or between

displays that commemorate religious events and

those that commemorate events with both religious

and secular elements, see Lynch v. Donnelly, 465

U.S. 668 (1984). But standing analysis cannot draw

any of these distinctions. It would render all

religious displays equally immune to constitutional

challenge.

And inevitably, this would spread back to the

public schools. After all, the root religious-display

case is Stone v. Graham, 449 U.S. 39 (1980), which

involved Ten Commandments displays in public

school classrooms. Forget the “permanent erection of

a large Latin cross on the roof of [a] city hall.”

Salazar v. Buono, 559 US. 700, 715 (2010)

(Kennedy, J., concurring) (citations and quotations

omitted). These standing arguments would insulate

from judicial review the same cross on the wall of

kindergarten public-school classrooms.

Nor can amici’s theory be confined to religious

displays. There is no standing to challenge

governmental symbols, as one amicus puts it,

because “the Establishment Clause doesn’t protect

individuals from feeling offended.” Becket Fund Br.

at 29. But if that is true, there should be no

standing to challenge governmental prayers either.

After all, offense is just offense. Whether the source

of that offense is visual or auditory has no bearing.

Some Justices have been concerned about legislative

prayers that “denigrate nonbelievers or religious

minorities, threaten damnation, or _ preach

conversion,” Town of Greece, N.Y. v. Galloway, 572

U.S. 565, 583 (2014), or school prayers that take a

8

position on “the divinity of Christ,” Lee v. Weisman,

505 U.S. 577, 641 (1992) (Scalia, J., dissenting).

Some amici do attempt to distinguish the

schoo!-prayer cases. One amici, for example, does so

by arguing that those cases involve “a captive

audience” that is “coercively subjected to a

government-sponsored religious exercises.” Becket

Fund Br. at 37. Yet this logic runs into difficulty.

For one thing, it would still tend to undo Stone v.

Graham, 449 U.S. 39 (1980), which involved neither

coercion nor a captive audience—“of course there was

no compelled reading [of the Ten Commandments],”

id. at 45 n.1 (Rehnquist, J., dissenting) (emphasis

added).

And it would also still threaten to undo

Schempp and Engel as well. After all, the students

in both Schempp and Engel could be excused from

the religious exercises without penalty. See Sch.

Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 207

(1963) (The students and parents are advised that

the student may absent himself from the classroom

or, should he elect to remain, not participate in the

exercises.”); Engel v. Vitale, 370 U.S. 421, 423 n.2

(1962) (‘Non-participation may take the form either

of remaining silent during the exercise, or if the

parent or child so desires, of being excused entirely

from the exercise.”). That was the whole doctrinal

point of Schempp and Engel—that the prayers at

issue there were unconstitutional regardless of any

coercion. See Schempp, 374 U.S. at 223 (“[A]

violation of the Free Exercise Clause is predicated on

coercion while the Establishment Clause violation

need not be so attended.”); Engel, 370 U.S. at 430

(‘The Establishment Clause, unlike the Free

Exercise Clause, does not depend upon any showing

9

of direct governmental compulsion.”). Amici hesitate

to say that the students in Schempp and Engel were

simply offended observers, whose claims should have

been rejected on standing grounds. But that is the

direction their arguments lead.

This Court’s Establishment Clause

jurisprudence has been grounded in sensitivity and

nuance. But these standing arguments are capable

of neither. They would sweep aside generations of

Establishment Clause doctrine and all the sensitivity

and nuance embedded therein. These arguments are

ones the Court should resist.

Il. THE ARGUMENTS AGAINST STANDING ARE NOT

PERSUASIVE

Amici’s standing arguments go against

numerous Supreme Court decisions. But they also

go against a body of lower-court decisions that have

crafted sensible—and remarkably uniform—standing

rules for religious-display cases. We do not claim

that the circuits have adopted exactly the same test.

But the variance between them is strikingly small.

As Judge Graber has explained: “The courts

consistently have applied the same general legal

rules,” typically requiring “some level of frequent or

regular contact with the display during the course of

the plaintiffs regular routine.” Catholic League for

Religious & Civil Rights v. City and Cnty. of San

Francisco, 624 F.3d 1043, 1073 (9th Cir. 2010)

(Graber, J., dissenting on the issue of jurisdiction but

concurring in the judgment).

This implies, of course, that in some cases no

one will have standing to challenge a religious

display. Say a government makes a religious

10

statement on a website that no one naturally visits.

Or it puts up a religious display where no one

naturally goes. In those cases, no one might ever

have standing to bring an Establishment Clause

challenge. But that conclusion is not distressing——or

even remarkable. It flows, in fact, from tlie Court's

general principles about standing. See Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208, 227

(1974) (‘The assumption that if respondents have no

standing to sue, no one would have standing, is not a

reason to find standing.”).

Moreover, all of this fits neatly with the

Court’s decision in Valley Forge Christian College v.

Americans United for Separation of Church and

State, 454 U.S. 464 (1982). Valley Forge involved a

transfer of property from the federal government to a

religious college. The plaintiffs were a church-state

group and four of its employees. After dismissing

their claims of taxpayer standing, this Court then

turned to the question of whether any of the

plaintiffs could claim a “distinct and palpable injury”

to themselves. Valley Forge, 454 U.S. at 489. The

Court thought not:

Respondents complain of a transfer of property

located in’ [Pennsylvania]. The named

plaintiffs reside in Maryland and Virginia;

their organizational headquarters are located

in Washington, D.C. They learned of the

transfer through a news release.

Id. at 486-87.

This logic makes sense in itself, and it accords

with everything lower courts have been doing in

religious-display cases. There is an undeniable fact

at the bottom of Valley Forge’s analysis: If the

plaintiffs there had standing, then anyone in the

country would have had standing. A simple

newspaper subscription would’ give anyone

interested “a special license to roam the country in

search of governmental wrongdoing and to reveal

their discoveries in federal court.” /d. at 487. This

would convert the standing requirements of Article

ILI into a mere pleading exercise.

We have neither trouble nor quarrel with

Valley Forge; it is entirely consistent with what

lower courts have been doing in religious-display

cases and with what we propose here. Take, for

example, the Ninth Circuit’s decision in Catholic

League, supra. There San Francisco had passed a

nonbinding advisory resolution, accessible chiefly

through the city’s website, singling out Catholicism

for disapproval because of Catholic Charities’ refusal

to place children for adoption with gay households.

Judge Kleinfeld concluded that the plaintiffs, who

were Catholics from San _ Francisco, could

legitimately claim a personal and individualized

injury—San Francisco had communicated an anti-

Catholic message not just in general, but to them in

particular. This was what distinguished Valley

Forge. The plaintiffs bringing suit in Valley Forge,

Judge Kleinfeld reasoned, were the equivalents of

“Protestants in Pasadena suing San Francisco.”

Catholic League, 624 F.3d at 1051-52.

Whatever the proper resolution of Catholic

League, we submit that Judge Kleinfeld got Valley

Forge exactly right. The plaintiffs there really did

“fail to identify any personal injury suffered by them

as a consequence of the alleged constitutional error,

12

other than the _ psychological consequence

presumably produced by observation of conduct with

which one disagrees.” Valley Forge, 454 U.S. at 485.

They had no personalized connection to the dispute;

no message was communicated to them that was not

equally communicated to hundreds of millions of

other Americans.

Some amici put great weight on the Valley

Forges use of the phrase “psychological

consequence.” They argue it shows’ that

psychological harm is categorically insufficient for

standing purposes. But this is not so. The harm in a

defamation case, for example, is often psychological.

See Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1549

(2016) (“intangible injuries can nevertheless be

concrete”); Crawford v. United States Dep't of

Treasury, 868 F.3d 438, 453 (6th Cir. 2017)

(‘concrete is not synonymous with tangible:

intangible harms such as those produced by

defamation . . . may certainly be concrete enough to

constitute an injury in fact”); see also Leibovitz v.

N.Y.C. Transit Auth., 252 F.3d 179, 184 (2d Cir.

2001) (“Leibovitz has alleged an actual injury to

herself: the emotional trauma she suffered as a

result of an allegedly hostile work environment.”);

Valley Forge, 454 U.S. at 486 (“[W]e do not retreat

from our earlier holdings that standing may be

predicated on noneconomic injury.”).

And this Court has recognized observational

standing before. In Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992), this Court said that observing

changes in the environment was sufficient for

standing: “Of course, the desire to use or observe an

animal species, even for purely esthetic purposes, is

undeniably a cognizable interest for purpose of

13

standing.” Jd. at 562-63 (emphasis added). While

the plaintiffs in Lujan were ultimately held to lack

standing, it was because they had only “some day’

intentions” (as opposed to “concrete plans”) to travel

to the relevant countries to observe the endangered

animals. /d. at 565. The Court returned to this

point in Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S. 167

(2000): “We have held that environmental plaintiffs

adequately allege injury in fact when they aver that

they use the affected area and are persons ‘for whom

the aesthetic and recreational values of the area will

be lessened’ by the challenged activity.” /d. at 183

(quoting Sierra Club v. Morton, 405 U.S. 727, 735

(1972)).

These holdings alone seem enough to resolve

the issue of standing in religious-display cases.

Government-sponsored religious displays have value

and meaning well beyond aesthetics. If viewing

changes in the environment that “lessen{]” its

“aesthetic value” counts as sufficient injury for

Article I[] purposes, the injury alleged here should

be thought sufficient as well.

Ill. THE ARGUMENTS AGAINST STANDING ARE

Not REALLY ARGUMENTS ABOUT STANDING

AT ALL

These last points get at the deep problem with

these standing arguments, which is that is they are

not really arguments about standing at all. Amici’s

theory, at bottom, is about the Establishment

Clause—not about standing. Amici believe that the

Establishment Clause does not forbid’ the

government from putting up religious displays or

14

sending religious messages. We may see it

differently. But regardless of who is right, that

dispute is over the merits—over what the

tstablishment Clause does or does not forbid. It is

not a dispute about standing.

As this Court has made clear many times,

merits and standing questions are conceptually

distinct—-whether the plaintiff has suffered the

requisite injury to confer standing is separate from

the question of whether the plaintiff should succeed

on the merits. See, e.g., Trump v. Hawaii, i138 S.Ct.

2392, 2416 (2018) (rejecting the claim that “plaintiffs'

Establishment Clause claims are not justiciable”

because “that argument—which depends upon the

scope of plaintiffs’ Establishment Clause rights—

concerns the merits rather than the justiciability of

plaintiffs’ claims”); Bond v. United States, 564 U.S.

211, 219 (2011) (‘[T]he question whether a plaintiff

states a claim for relief goes to the merits in the

typical case, not the justiciability of a dispute and

conflation of the two concepts can cause confusion.”).

Amici’s attempt to repackage their substantive

theory of the Establishment Clause into a conclusion

that the plaintiff in this case lacks standing

therefore should be rejected.

15

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should either be affirmed or

reversed on grounds other than standing.

Respectfully submitted,

CHRISTOPHER C. LUND

Counsel of Record

471 W. Palmer St.

Detroit, MI 48202

(313) 577-4046

lund@wayne.edu

Counsel for Amici Curiae

Law Professors

January 30, 2019