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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0835%3A52

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0835%3A52. Public record. Not legal advice.