ACLJ Files Appeal Requesting Supreme Court Review in Major Prayer Case

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Jay Sekulow and Jordan Sekulow

|
September 22

7 min read

Religious Liberty

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Today, the American Center for Law and Justice (ACLJ) filed a petition for writ of certiorari asking the U.S. Supreme Court to hear a prayer case out of Florida that could lead to a landmark ruling on church-state lawsuits. The case, City of Ocala v. Rojas, has a lengthy history, and has taken many twists and turns before now arriving at the doorstep of the Supreme Court.

It all started with a tragic shooting spree in Ocala, FL. Community leaders proposed a prayer vigil in response, and the local Chief of Police, in keeping with a long history of public officials calling for prayer in response to crises, encouraged citizens to attend the prayer vigil. Some local atheists got wind of it and didn’t like the idea. But the event went forward, and a group of atheists attended to “observe” what they expected to be, in their opinion, a violation of the “separation of church and state.” After the vigil, the American Humanist Association and four atheists filed suit in federal district court, claiming a violation of the Establishment Clause and asserting the right to sue as “offended observers.” The ACLJ stepped in to defend the city.

Well, the federal district court dismissed the American Humanist Association and some of the defendants, paring the case down to a suit for “nominal damages” against the city and its mayor and chief of police. After further litigation, the district court entered judgment against the city and the chief of police for $1 for each of the atheist plaintiffs. We then took the case up on appeal.

While our appeal was pending, the Supreme Court ruled – as we had urged them to do – that the notorious and aptly named “Lemon” test was no longer to be used in Establishment Clause cases. So the U.S. Court of Appeals for the Eleventh Circuit, after hearing our appeal in the Ocala case, vacated the district court ruling and sent the case back for reconsideration in a post-Lemon world.

Now, throughout this case, we argued that the atheist plaintiffs did not have “standing” to sue in federal court. That is, they had not alleged any genuine “injury” required to make a “case or controversy” within the meaning of the federal Constitution. All they really alleged was disagreement with the vigil and personal upset over the fact that the vigil went forward. But disagreement, even when combined with emotional or ideological offense, is not enough to warrant the exercise of federal court jurisdiction.

Despite a Supreme Court ruling in the early 1980’s denouncing offended observer standing,  lower courts, especially in the wake of the Lemon decision, have embraced the notion that being offended at seeing an alleged constitutional violation is enough to get an Establishment Clause case into federal court. And so the district court and the court of appeals both ruled that at least one of the atheists had standing to bring this case. We decided it was time to go upstairs to the Supreme Court.

Our petition for review tackles offended observer standing head-on. Here is the opening of our introduction:

In the Establishment Clause case of Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982), this Court held that the “psychological consequence presumably produced by observation of conduct with which one disagrees” is insufficient to confer standing under Article III. Id. at 485. Despite this clear and unequivocal holding, federal circuit courts, including the court below, have repeatedly found “offended observer” standing to suffice in Establishment Clause cases.

We note that some Justices and commentators had opined that the Supreme Court’s disavowal of Lemon would solve the problem by bringing about the end of “offended observer” standing. But, we point out:

[T]hat has not happened. The demise of the Lemon/endorsement standard has not put a stop to the lower courts’ acceptance of offended observer standing, as this case from the Eleventh Circuit, and other very recent cases from the Third and Seventh Circuits, starkly illustrate. The lower courts therefore remain in dire need of a reminder of what this Court held in Valley Forge.

We continue:

The present case features an especially egregious invocation of offended observer standing, since [the atheist] plaintiffs-respondents deliberately sought out the very exposure which they then cited as providing them a right to have federal courts adjudicate the merits of their Establishment Clause claims. Moreover, respondents’ testimony makes clear that the essence of their supposed injury is ideological disagreement. Respondents’ theory of standing is, in essence, “I came, I saw, I was offended, just as I expected to be!” . . . This Court should grant review to determine whether to repudiate respondents’ offended observer claim to standing.

We explain how the evidence shows that the atheists (only two of which remain in the case at this point) really had a legal disagreement, not a legal case.

[Art] Rojas objected, not to the event itself, but to the involvement of city officials. Dkt. 54-12, at 31:4-6, 11-13, 18-20, 32:3-14, 46:21-25. Lucinda Hale likewise had “no problem” with a prayer vigil so long as there was no “involvement of any government employees,” Dkt. 54-15, at 18:10-16. Id. at 31:6-15 (“prayer vigil” in the park “would have been fine. It’s when you get government involved that I have a problem”).

In other words, both Rojas and Hale were offended, not by the praying, but by what they regarded as too much city official involvement. That means their injury was essentially ideological, and that’s not enough to open the federal courtroom door. As the Supreme Court itself recently said in Carney v. Adams (2020) (which we quote in our petition):

longstanding legal doctrine prevent[s] this Court from providing advisory opinions at the request of one who, without other concrete injury, believes that the government is not following the law.

Or as the Supreme Court phrased it in Valley Forge:

It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.

We are careful to note that this case does not involve anyone being forced to be subjected to anything.

A different rule may well apply . . . where the offended observer is coerced, in the legal sense, to view or hear the objectionable matter. A program of mandatory “indoctrination” – brainwashing – of youths in public schools or state colleges, of government employees, of prisoners or others in government custody, or of citizens generally as a precondition of access to services or benefits, could give rise to an injury in fact, not because of the objection to the exposure but because of the coercion involved. . . . Here, however, the city required no exposure to speech at all. Attendance at the vigil was purely voluntary, and there is no indication attendance was a precondition for access to public benefits.

We hope the Supreme Court will agree that “offended observer” standing is a bad idea that needs to be corrected. We expect to hear sometime this fall or winter whether the Supreme Court will hear City of Ocala v. Rojas.