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«On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit AMICI CURIAE BRIEF OF THE AMERICAN CENTER FOR LAW AND JUSTICE AND ...»

-- [ Page 1 ] --

No. 08-472

IN THE

Supreme Court of the United States

______________

KEN L. SALAZAR, SECRETARY OF THE

INTERIOR, ET AL., Petitioners,

v.

FRANK BUONO, Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

AMICI CURIAE BRIEF OF THE AMERICAN

CENTER FOR LAW AND JUSTICE AND

FIFTEEN MEMBERS OF CONGRESS IN

SUPPORT OF PETITIONERS

JOHN P. TUSKEY JAY ALAN SEKULOW

LAURA B. HERNANDEZ Counsel of Record

AMERICAN CENTER FOR STUART J. ROTH

LAW & JUSTICE COLBY M. MAY 1000 Regent University Dr. JAMES M. HENDERSON, SR.

Virginia Beach, VA 23464 WALTER M. WEBER (757) 226-2489 AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Ave. NE Washington, DC 20002 (202) 546-8890 Attorneys for Amici Curiae i

TABLE OF CONTENTS

INTEREST OF AMICI

SUMMARY OF THE ARGUMENT

ARGUMENT

I. “Offended Observer” Standing is an Indefensible Anomaly in Article III Standing Doctrine

A. Offended Observer Standing Is Irreconcilable With This Court’s Long-Standing Refusal to Serve as a Forum for Generalized Grievances

B. The Lower Courts’ Adoption of Offended Observer Standing Is Based on a Misreading of Valley Forge and Abington v. Schempp........... 11 II. Offended Observer Standing Expands the Judicial Role At the Expense of Separation of Powers

III. Offended Observer Standing Also Conflates the Merits of an Establishment Clause Claim with the Standing Inquiry And Promotes Religious Divisiveness.

ii CONCLUSION

iii

TABLE OF AUTHORITIES

Cases ACLU Neb. Found. v. City of Plattsmouth, 358 F.3d 1020 (8th Cir. 2004)

ACLU of Ky. v. McCreary County, 354 F.3d 438 (6th Cir. 2003), aff'd, 125 S. Ct. 2722 (2005).............. 19 ACLU of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484 (6th Cir. 2004)

ACLU of Tenn. v. Hamilton County, 202 F. Supp. 2d 757 (E.D. Tenn. 2002)

ACLU of Tenn. v. Rutherford County, 209 F. Supp. 2d 799 (M.D. Tenn. 2002)

ACLU v. Rabun County Chamber of Commer, 698 F.2d 1098 (11th Cir. 1983)

ACLU-NJ ex rel. Miller v. Twp. of Wall, 246 F.3d 258 (3d Cir. 2001)

Adland v. Russ, 307 F.3d 471 (6th Cir. 2002)......... 19 Allen v. Wright, 468 U.S. 737 (1983)

Baker v. Adams County/Ohio Valley Sch. Bd., No. CU.S. Dist. LEXIS 26226 (S.D. Ohio 2002)

Bd. of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000)

Books v. City of Elkhart, 239 F.3d 826 (7th Cir. 2001)

Books v. Elkhart County, 401 F.3d 857 (7th Cir.

2005)

Bowen v. Roy, 476 U.S. 693 (1986)

iv Clinton v. City of New York, 524 U.S. 417 (1998)... 18 County of Allegheny v. ACLU, 492 U.S. 573 (1989)

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)

Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494 (5th Cir. 2007)

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 478Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)

FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994)

Foremaster v. City of St. George, 882 F.2d 1485 (10th Cir. 1989)

Freedom From Religion Found. v. Zielke, 845 F.2d 1463 (7th Cir. 1988)

Freethought Soc'y of Greater Phila. v. Chester County, 334 F.3d 247 (3d Cir. 2003)

Garcetti v. Ceballos, 547 U.S. 410 (2006)................ 18 Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003)

Harvey v. Cobb County, 811 F. Supp. 669 (N.D. Ga.

1993)

Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.

1985)

Hein v. Freedom from Religion Found., Inc., 127 S.

Ct., 2553 (2007)

v Ind. Civ. Liberties Union v. O'Bannon, 110 F. Supp.

2d 842 (S.D. Ind. 2000), aff'd, 259 F.3d 766 (7th Cir. 2001)

Johanns v. Livestock Marketing Assn., 544 U.S. 550 (2005)

Kimbley v. Lawrence County, 119 F. Supp. 2d 856 (S.D. Ind. 2000)

King v. Richmond County, 331 F.3d 1271 (11th Cir.

2003)

Lance v. Coffman, 549 U.S. 437 (2007)

Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2004)

Lewis v. Casey, 518 U.S. 343 (1996)

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Lynch v. Donnelly, 465 U.S. 668 (1984).................. 13 Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803)

Mercier v. City of La Crosse, 276 F. Supp. 2d 961 (W.D. Wis. 2003)

Mercier v. Fraternal Order of Eagles, 395 F.3d 693 (7th Cir. 2005)

Murray v. City of Austin, 947 F.2d 147 (5th Cir.

1991)

Nat'l Endowment for the Arts v. Finley, 524 U.S. 569 (1998)

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992)

Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)

vi Rust v. Sullivan, 500 U.S. 173 (1991)

Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir. 1987)

Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)

Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963)

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974)

Suhre v. Haywood County, 131 F.3d 1083 (4th Cir.





1997)

Summum v. Callaghan, 130 F.3d 906 (10th Cir.

1997)

Summum v. City of Ogden, 297 F.3d 995 (10th Cir.

2002)

Turner v. Habersham County, 290 F. Supp. 2d 1362 (N.D. Ga. 2003)

United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952)

United States v. Richardson, 418 U.S. 166 (1974)

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)

Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S.

464 (1982)

Van Orden v. Perry, 545 U.S. 677 (2005)........ 2, 5, 21 Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994)

vii Webster v. New Lenox School District, 917 F.2d 1004 (7th Cir. 1990)

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)... 21 Other Authorities Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115, 192 (1992)... 22 Philip E. Johnson, Concepts and Compromise in First Amendment Religious Doctrine, 72 Cal. L. Rev.

817, 830 (1984)

INTEREST OF AMICI*

The American Center for Law and Justice (ACLJ) is a public interest law firm committed to insuring the ongoing viability of constitutional freedoms in accordance with principles of justice. Counsel of record for amici has presented oral argument before this Court numerous times, including most recently in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).

ACLJ attorneys often defend various governmental entities against claims that the presence of a religious symbol on government property violates the Establishment Clause. See e.g., Books v. Elkhart County, 401 F.3d 857 (7th Cir.

2005); ACLU Neb. Found. v. City of Plattsmouth, 358 F.3d 1020 (8th Cir. 2004). The offended observer standing rule, which emerged after (and contrary to) this Court’s ruling in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982), allows the plaintiffs in these cases to plead merely that they had contact with and are offended at the alleged constitutional violation.

The parties in this case have consented to the filing of this*

brief. Copies of the consent letters are being filed herewith. No counsel for any party in this case authored in whole or in part this brief. No person or entity aside from the ACLJ, its members, or its counsel made a monetary contribution to the preparation or submission of this brief. The ACLJ has no parent corporation, and no publicly held company owns 10% or more of its stock.

A sui generis principle, offended observer standing is devoid of support in this Court’s Article III standing jurisprudence. The Court has never specifically addressed the offended observer standing doctrine although the Court has assumed jurisdiction in several of these cases. See, e.g., Van Orden v. Perry, 545 U.S. 677 ( 2005). The ACLJ strongly urges the Court to address the proper boundaries of Article III standing in Establishment Clause cases, and specifically to reaffirm Valley Forge’s holding that mere offense at government conduct is never enough to satisfy Article III’s requirement of a concrete and particularized injury.

This brief is also filed on behalf of Todd Akin, Michele Bachmann, Roy Blunt, John Boehner, Eric Cantor, Randy Forbes, Scott Garrett, Walter Jones, Jim Jordan, Doug Lamborn, Thaddeus McCotter, Jeff Miller, Mike Pence, Joseph Pitts, and Joe Wilson. These amici currently are members of the United States House of Representatives in the One Hundred Eleventh Congress and are concerned with the offended observer standing doctrine’s erosion of separation of powers.

–  –  –

Offended observer standing is irreconcilable with this Court’s decisions. See Valley Forge, 454 U.S.

464; Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974); United States v.

Richardson, 418 U.S. 166, 179-180 (1974). Valley Forge specifically held that the mere observation of a government violation of the Establishment Clause is not enough to constitute injury for purposes of Article III standing. Yet despite Valley Forge, mere observation is the standard proffered for standing in lower court religious display cases (as here). If Valley Forge is not to be eviscerated, it must mean that offended observer standing is an aberration with no support in this Court’s standing jurisprudence.

Offended observer standing is flawed for numerous other reasons as well. For example, it conflates the merits of the claim with the injury.

Although there are doubtless myriad ways in which government speech or displays might offend various citizens, only those who bring an Establishment Clause claim are allowed to make a federal case out of their offense.

Offended observer standing also encroaches upon the separation of powers. This Court repeatedly has said that lax standing requirements lead to judicial supremacy over the politically accountable branches of government. Offended observer standing sweeps sizable categories of otherwise politically accountable government action into judicially reviewable litigation.

–  –  –

Mr. Buono is offended by the display of a cross on Sunrise Rock in the Mojave National Preserve. His offense derives from the fact that Sunrise Rock is not open to other groups and individuals to erect other permanent displays. Of course, this term, the Court unanimously repudiated the notion that citizens have a constitutional right to erect permanent displays in public parks. Pleasant Grove, 129 S. Ct.

1125, 1138 (2009) (“The obvious truth of the matter is that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations.

And where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place.”).

Regardless of the underlying merits of Mr. Buono’s claim, his offense is essentially the “psychological consequence presumably produced by observation of conduct with which [he] disagrees.” Valley Forge, 454 U.S. at 485 (emphasis added).

This case is only the most extreme example of a phenomenon that has plagued the federal courts for the past three decades. Ideologically motivated citizens and public interest groups 1 search out alleged Establishment Clause violations, almost always in the form of a passive religious symbol or display of some sort, and make a federal case out of offense at the display. The basis for standing is Typically, if not universally, the plaintiffs are adherents of the view that there must be a high wall of separation between church and state. They, thus, “dislike any government reference to God.” Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 500 (5th Cir. 2007).

typically that the religious display offends the sensibilities of the plaintiffs. The offense may be characterized as an affront to religious values,2 or as one in which plaintiffs feel stigmatized as political or community outsiders.3 But the sum and substance of the injury is that the display bothers the plaintiffs.4 Offended observer standing is inconsistent with Article III. This Court should therefore reverse and remand with instructions to dismiss for want of standing.

E.g., ACLU-NJ ex rel. Miller v. Twp. of Wall, 246 F.3d 258, 266 (3d Cir. 2001); Suhre v. Haywood County, 131 F.3d 1083 (4th Cir. 1997); Freedom From Religion Found. v. Zielke, 845 F.2d 1463 (7th Cir. 1988); ACLU v. Rabun County Chamber of Commerce, 698 F.2d 1098, 1106-07 (11th Cir.

1983).

E.g., Saladin v. City of Milledgeville, 812 F.2d 687, 692-93 (11th Cir. 1987) (plaintiffs alleged that they were made to feel like “second class citizens”).

E.g., Van Orden v. Perry, 2002 U.S. Dist. LEXIS 26709 (W.D.

Tex 2002).

–  –  –

This Court has “‘consistently held that a plaintiff raising only a generally available grievance about government -- claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large -- does not state an Article III case or controversy.’” Lance v. Coffman, 549 U.S.

437, 439 (2007) (per curiam) (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 573-74 (1992)).

The requirement of a particularized and concrete injury serves “to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge, 454 U.S. at 472. Article III standing requirements are most important “when matters of great national significance are at stake” because they safeguard this Court’s duty to “guard jealously and exercise rarely [its] power to make constitutional pronouncements.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004).



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