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Larry J. Obhof

Abstract

This Article looks at the anomaly of “offended observer” standing in Establishment Clause challenges. It calls for greater consistency in the courts’ application of constitutional standing requirements.

Under Article III, Plaintiffs seeking to raise claims in federal court must allege a concrete and particularized injury in fact in order to support federal jurisdiction. Likewise, plaintiffs seeking to challenge a government policy must allege a unique injury that is separate from the interests of the public at large. The notable exception is where plaintiffs claim personal offense at alleged government entanglement in religion. These “offended observers” are frequently given access to federal courts without alleging the type of injury that would be necessary for plaintiffs in nearly every other context.

What explains this anomaly? This Article examines the development of offended observer standing. It also discusses the tension between the Supreme Court’s standing precedents and the lower courts’ common practice of reaching the merits in offended observer cases. The Supreme Court held more than forty years ago that mere offense is not a sufficient injury to confer Article III standing. Notwithstanding this precedent, the lower courts regularly find standing for such claims, or otherwise address the merits without undertaking a standing analysis at all. The Supreme Court itself has added to the confusion by reaching the merits in a number of these challenges without addressing standing. Yet the Court has also held that when standing is assumed without discussion, such rulings have no precedential effect on the jurisdictional question.

This Article calls for the Supreme Court to address this issue head-on. It argues that the Court should bring clarity and consistency to the law by requiring offended observers to meet the same standards for Article III standing that apply to other types of plaintiffs. Finally, the Article concludes that the lower courts should also reconsider their own standing precedents in light of recent Supreme Court decisions involving the Establishment Clause.

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