City of Ocala v. Rojas

143 S.Ct. 764 (Mem)

215 L.Ed.2d 143 (Mem)

CITY OF OCALA, FLORIDA v. Art ROJAS, et al.

No. 22-278

Supreme Court of United States

Decided March 6, 2023

The petition for a writ of certiorari is denied.

Statement of Justice GORSUCH respecting the denial of certiorari.

Faced with tragedy, the city of Ocala, Florida, searched for ways to bring the community together. After a shooting spree left several children injured, police appealed to community leaders for help. A local NAACP official suggested to the chief of police that he contact religious leaders to facilitate conversations between residents and law enforcement. A local minister, in turn, proposed holding a prayer vigil for the victims. The chief agreed to organize the event and police chaplains participated in it.

But instead of unity, litigation followed. Several atheists who chose to attend the event sued the city, alleging that the event's religious themes violated the First Amendment's Establishment Clause. Eventually, the District Court granted summary judgment in their favor. 315 F.Supp.3d 1256, 1290 (M.D. Fla. 2018). The court reasoned that individuals enjoy Article III standing to contest religious speech they find offensive and that the vigil violated the Establishment Clause under the terms of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2125, 29 L.Ed.2d 745 (1971). 315 F.Supp.3d at 1274-1290.

On appeal, the Eleventh Circuit agreed that at least one of the plaintiffs had standing to sue, noting that she had "'direct contact'" with prayer she found "offensive." 40 F.4th 1347, 1350-1351 (C.A.11 2022). It didn't matter that the plaintiff went to the vigil knowing that she would be offended. Ibid. What mattered was that prayers reached her ears. Ibid. Still, the Eleventh Circuit vacated the District Court's decision on the merits, remanding the case for reconsideration in light of this Court's intervening decision in Kennedy v. Bremerton School Dist., 597 U. S. —, 142 S.Ct. 2407, 213 L.Ed.2d 755 (2022). 40 F.4th at 1351-1352.

I do not doubt that the District Court must reconsider the merits. As this Court explained in Kennedy, the Lemon test on which the District Court relied is no longer good law. 597 U. S., at —, 142 S.Ct., at 2427. But the question of standing must be reconsidered too. This Court has never endorsed the notion that an "offended observer" may bring an Establishment Clause claim. American Legion v. American Humanist Assn., 588 U. S. —, —, 139 S.Ct. 2067, 2101, 204 L.Ed.2d 452 (2019) (GORSUCH, J., concurring in judgment). Elsewhere in the law, we routinely say that Article III demands a more "'concrete and particularized'" injury. Id., at —, 139 S.Ct., at 2098. And the same rule, we have said, applies in the Establishment Clause context too. Id., at —, 139 S.Ct., at 2100 (discussing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).

Why, despite these teachings, have some lower courts indulged the fiction of "offended observer" standing? At least some of the fault "lies here." American Legion, 588 U. S., at —, 139 S.Ct., at 2101 (opinion of GORSUCH, J.). In Lemon, this Court suggested that "the Establishment Clause forbids anything a reasonable observer would view as an endorsement of religion." American Legion, 588 U. S., at — - —, 139 S.Ct., at 2101 (opinion of GORSUCH, J.). For this to be so, lower courts deduced, "such an observer must be able to sue." Id., at — - —, 139 S.Ct., at 2101 (citing lower court cases).

But if that logic ever made sense, it no longer does. In Kennedy, this Court put to rest any question about Lemon's vitality. We held that claims alleging an establishment of religion must be measured against the Constitution's original and historical meaning, not the sensitivities of a hypothetical reasonable observer. 597 U. S., at —, 142 S.Ct., at 2427. And with the demise of Lemon's reasonable observer test, "little excuse" now remains "for the anomaly of offended observer standing." American Legion, 588 U. S., at —, 139 S.Ct., at 2102 (opinion of GORSUCH, J.). "[T]he gaping hole it tore in standing doctrine in [the lower courts] should now begin to close." Ibid.

The city asks us to take this case to make just this point. It is an understandable request. But I see no need for the Court's intervention at this juncture. This case remains in an interlocutory posture—the Eleventh Circuit has remanded the case to the District Court to permit it to consider Kennedy's implications in the first instance. I would allow that process to unfold. Moving forward, I expect lower courts will recognize that offended observer standing has no more foundation in the law than the Lemon test that inspired it. If I am wrong, the city is free to seek relief here after final judgment. For by now it should be clear that, "[i]n a large and diverse country, offense can be easily found. Really, most every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an 'offended viewer' may 'avert his eyes' or pursue a political solution." American Legion, 588 U. S., at —, 139 S.Ct., at 2104 (opinion of GORSUCH, J.) (citation omitted).

Justice THOMAS, dissenting from denial of certiorari.

In 2014, a shooting spree in Ocala, Florida, left several children injured. In response, the city of Ocala's police department worked with community leaders to identify suspects and witnesses. Leaders of the religious community suggested holding a prayer vigil in the town square to bring the community together and encourage potential witnesses to cooperate. The chief of police agreed and posted a letter on the department's public Facebook page asking citizens to attend a prayer vigil for the victims. At the vigil, uniformed police chaplains appeared onstage alongside community religious leaders, all singing and praying for the injured children.

Respondents, several atheists who voluntarily attended the vigil with full knowledge of its religious content, sued the city and several officials under Rev. Stat. § 1979, 42 U.S.C. § 1983. They alleged that they felt uncomfortable and unable to participate at the vigil because of its Christian themes, and that the city had violated the Establishment Clause. The District Court granted summary judgment to respondents, holding that they had Article III standing and that the vigil violated the Establishment Clause under the Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2125, 29 L.Ed.2d 745 (1971). Applying Circuit precedent, the Eleventh Circuit agreed that at least one respondent had standing because she came into "'direct contact'" with the vigil, 40 F.4th 1347, 1350 (C.A.11 2022), but it remanded on the merits in light of our express abandonment of Lemon last Term in Kennedy v. Bremerton School Dist., 597 U. S. —, — - —, 142 S.Ct. 2407, 2427-2428, 213 L.Ed.2d 755 (2022).

Although the Eleventh Circuit was correct that Lemon is no longer good law, we should have granted certiorari to review whether respondents had standing to bring their claims. Standing is an antecedent jurisdictional requirement that must be established before a court reaches the merits. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). It thus makes no difference that the court below remanded based on Kennedy, and it may make no difference if the District Court holds for petitioner on the merits. Courts have no constitutional authority to pass on the merits of a case beyond their jurisdiction—"to do so is, by very definition, for a court to act ultra vires." 523 U.S. at 102, 118 S.Ct. 1003. "Much more than legal niceties are at stake here. The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." Id., at 101, 118 S.Ct. 1003. "This tenet is as solid as bedrock and almost as old." Cross-Sound Ferry Servs., Inc. v. ICC, 934 F.2d 327, 339 (C.A.D.C. 1991) (Thomas, J., concurring in part and concurring in denial of petition for review). Because standing based on mere offense is in significant tension with Article III and our precedents, I would have granted certiorari to determine whether the courts below lacked jurisdiction.

I have serious doubts about the legitimacy of the "offended observer" theory of standing applied below. See American Legion v. American Humanist Assn., 588 U. S. —, —, —, —, 139 S.Ct. 2067, 2098-2099, 2100, 2100-2101, 204 L.Ed.2d 452 (2019) (GORSUCH, J., concurring in judgment) (noting that the doctrine "has no basis in law," is "deeply inconsistent ... with many ... longstanding principles and precedents," and "cannot be squared with this Court's longstanding teachings about the limits of Article III"). For decades, members of the Judiciary have noted that offended observer standing appears to be flatly inconsistent with our opinion in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). In that case, we held "that 'the psychological consequence presumably produced by observation of religious conduct with which one disagrees' is 'not an injury sufficient to confer standing under Article III, even though the disagreement is phrased in constitutional terms.'" Kondrat'yev v. Pensacola, 949 F.3d 1319, 1335 (C.A.11 2020) (Newsom, J., concurring) (quoting 454 U.S. at 485-486, 102 S.Ct. 752; alterations omitted); see also American Legion, 588 U. S., at —, 139 S.Ct., at 2100 (opinion of GORSUCH, J.); Freedom From...