City of Ocala v. Rojas

1 Cite as: 598 U. S. ____ (2023)
Statement of G
ORSUCH, J.
SUPREME COURT OF THE UNITED STATES
CITY OF OCALA, FLORIDA v. ART ROJAS, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 22–278. Decided March 6, 2023
The petition for a writ of certiorari is denied.
Statement of J
USTICE 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 com-
munity leaders for help. A local NAACP official suggested
to the chief of police that he contact religious leaders to fa-
cilitate conversations between residents and law enforce-
ment. 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 Amend-
ment’s Establishment Clause. Eventually, the District
Court granted summary judgment in their favor. 315
F. Supp. 3d 1256, 1290 (MD Fla. 2018). The court reasoned
that individuals enjoy Article III standing to contest reli-
gious speech they find offensive and that the vigil violated
the Establishment Clause under the terms of Lemon v.
Kurtzman, 403 U. S. 602 (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 (2022). It didn’t matter that the

2 CITY OF OCALA v. ROJAS
Statement of G
ORSUCH, J.
plaintiff went to the vigil knowing that she would be of-
fended. 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 re-
consideration in light of this Court’s intervening decision in
Kennedy v. Bremerton School Dist., 597 U. S. ___ (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 ___ (slip op., at 22). But the question of standing
must be reconsidered too. This Court has never endorsed
the notion that an “offended observer” may bring an Estab-
lishment Clause claim. American Legion v. American Hu-
manist Assn., 588 U. S. ___, ___ (2019) (G
ORSUCH, J., con-
curring in judgment) (slip op., at 6). Elsewhere in the law,
we routinely say that Article III demands a more “‘concrete
and particularized’” injury. Id., at ___ (slip op., at 2). And
the same rule, we have said, applies in the Establishment
Clause context too. Id., at ___ (slip op., at 5) (discussing
Valley Forge Christian College v. Americans United for Sep-
aration of Church and State, Inc., 454 U. S. 464 (1982)).
Why, despite these teachings, have some lower courts in-
dulged the fiction of “offended observer” standing? At least
some of the fault “lies here.” American Legion, 588 U. S., at
___ (opinion of G
ORSUCH, J.) (slip op., at 6). In Lemon, this
Court suggested that “the Establishment Clause forbids an-
ything a reasonable observer would view as an endorse-
ment of religion.” American Legion, 588 U. S., at ___–___
(opinion of G
ORSUCH, J.) (slip op., at 6–7). For this to be so,
lower courts deduced, “such an observer must be able to
sue.” Id., at ___–___ (slip op., at 7–8) (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

3 Cite as: 598 U. S. ____ (2023)
Statement of G
ORSUCH, J.
religion must be measured against the Constitution’s origi-
nal and historical meaning, not the sensitivities of a hypo-
thetical reasonable observer. 597 U. S., at ___ (slip op., at
22). And with the demise of Lemon’s reasonable observer
test, “little excuse” now remains “for the anomaly of of-
fended observer standing.” American Legion, 588 U. S., at
___ (opinion of G
ORSUCH, J.) (slip op., at 9). “[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 re-
manded the case to the District Court to permit it to con-
sider 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 of-
fends somebody. No doubt, too, that offense can be sincere,
sometimes well taken, even wise. But recourse for disagree-
ment 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 respon-
sibility, an ‘offended viewer’ may ‘avert his eyes’ or pursue
a political solution.” American Legion, 588 U. S., at ___ (slip
op., at 11) (opinion of G
ORSUCH, J.) (citation omitted).

1 Cite as: 598 U. S. ____ (2023)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
CITY OF OCALA, FLORIDA v. ART ROJAS, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 22–278. Decided March 6, 2023
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 de-
partment worked with community leaders to identify sus-
pects 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, uni-
formed police chaplains appeared onstage alongside com-
munity religious leaders, all singing and praying for the in-
jured 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 Chris-
tian themes, and that the city had violated the Establish-
ment Clause. The District Court granted summary judg-
ment 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 (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 (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. ___, ___–___

2 CITY OF OCALA v. ROJAS
T
HOMAS, J., dissenting
(2022) (slip op., at 22–23).
Although the Eleventh Circuit was correct that Lemon is
no longer good law, we should have granted certiorari to re-
view whether respondents had standing to bring their
claims. Standing is an antecedent jurisdictional require-
ment that must be established before a court reaches the
merits. Steel Co. v. Citizens for Better Environment, 523
U. S. 83, 94–95 (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. “Much more than legal niceties are at stake here.
The statutory and (especially) constitutional elements of ju-
risdiction 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. “This
tenet is as solid as bedrock and almost as old.” Cross-Sound
Ferry Servs., Inc. v. ICC, 934 F. 2d 327, 339 (CADC 1991)
(Thomas, J., concurring in part and concurring in denial of
petition for review). Because standing based on mere of-
fense is in significant tension with Article III and our prec-
edents, I would have granted certiorari to determine
whether the courts below lacked jurisdiction.
I have serious doubts about the legitimacy of the “of-
fended observer” theory of standing applied below. See
American Legion v. American Humanist Assn., 588 U. S.
___, ___, ___, ___ (2019) (G
ORSUCH, J., concurring in judg-
ment) (slip op., at 2, 5, 6) (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 Judici-
ary have noted that offended observer standing appears to

3 Cite as: 598 U. S. ____ (2023)
T
HOMAS, J., dissenting
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 (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 un-
der Article III, even though the disagreement is phrased in
constitutional terms.’” Kondrat’yev v. Pensacola, 949 F. 3d
1319, 1335 (CA11 2020) (Newsom, J., concurring) (quoting
454 U. S., at 485–486; alterations omitted); see also Ameri-
can Legion, 588 U. S., at ___ (opinion of G
ORSUCH, J.) (slip
op., at 5); Freedom From Religion Foundation, Inc. v. Mack,
49 F. 4th 941, 949 (CA5 2022) (Smith, J.) (“[T]he law of Es-
tablishment Clause standing is hard to reconcile with the
general principle that standing is absent where a plaintiff
has only a generalized grievance shared in substantially
equal measure by all or most citizens” (internal quotation
marks omitted)); Freedom From Religion Foundation, Inc.
v. Obama, 641 F. 3d 803, 807 (CA7 2011) (Easterbrook,
C. J.) (“[H]urt feelings differ from legal injury”); Barnes-
Wallace v. San Diego, 530 F. 3d 776, 795 (CA9 2008) (Klein-
feld, J., dissenting) (“[B]eing there and seeing the offending
conduct does not confer standing”); Doe v. Tangipahoa Par-
ish School Bd., 494 F. 3d 494, 500 (CA5 2007) (DeMoss, J.,
specially concurring) (explaining that offended observer
standing “opens the courts’ doors to a group of plaintiffs
who have no complaint other than they dislike any govern-
ment reference to God”); American Civil Liberties Union of
Ohio Foundation, Inc. v. Ashbrook, 375 F. 3d 484, 497 (CA6
2004) (Batchelder, J., dissenting) (explaining that standing
based on “unwelcome contact” with governmental religious
displays is “inconsistent with . . . Valley Forge”); Washegesic
v. Bloomingdale Public Schools, 33 F. 3d 679, 684–685
(CA6 1994) (Guy, J., concurring) (explaining that offended
observer standing “establishe[s] . . . a class of ‘eggshell’

4 CITY OF OCALA v. ROJAS
T
HOMAS, J., dissenting
plaintiffs of a delicacy never before known to the law”); Pen-
koski v. Bowser, 486 F. Supp. 3d 219, 231 (DC 2020)
(McFadden, J.) (explaining that offended observer standing
“cannot be squared with” Valley Forge).
Offended observer standing appears to warp the very es-
sence of the judicial power vested by the Constitution. Un-
der Article III, federal courts are authorized “to adjudge the
legal rights of litigants in actual controversies,” not hurt
feelings. Valley Forge, 454 U. S., at 471 (internal quotation
marks omitted); see also In re Navy Chaplaincy, 534 F. 3d
756, 763 (CADC 2008) (“[M]ere personal offense to govern-
ment action does not give rise to standing to sue” (citing
Allen v. Wright, 468 U. S. 737, 752–754 (1984)); J. Davis &
N. Reaves, Fruit of the Poisonous Lemon Tree: How the Su-
preme Court Created Offended-Observer Standing, and
Why It’s Time for It To Go, 96 Notre Dame L. Rev. Reflec-
tion 25, 35–36 (2020) (“Under a historical understanding of
Article III,” “psychological offense resulting merely from
seeing [challenged government] action does not qualify” as
“concrete harm”). In every other area, we have been clear
that “offense alone [is] insufficient to convey standing.”
American Legion, 588 U. S., at ___ (opinion of G
ORSUCH, J.)
(slip op., at 3); see also Kondrat’yev, 949 F. 3d, at 1337
(Newsom, J., concurring) (“[T]he Supreme Court has long
rejected allegations of offense, fear, and stigma as sufficient
to establish standing”). And, we admonished in Valley
Forge that there is “no principled basis on which to create a
hierarchy of constitutional values or a complementary ‘slid-
ing scale’ of standing.” 454 U. S., at 484. Yet offended ob-
server standing seems to do just that by “carv[ing] out [a]
special exceptio[n] to the rules governing standing for Es-
tablishment Clause claims.” Ashbrook, 375 F. 3d, at 496
(Batchelder, J., dissenting); see also Penkoski, 486
F. Supp. 3d, at 233–234.
Valley Forge could not have been clearer that a relaxed
standing doctrine “does not become more palatable when

5 Cite as: 598 U. S. ____ (2023)
T
HOMAS, J., dissenting
the underlying merits concern the Establishment Clause.”
454 U. S., at 489. Nonetheless, we have muddied the wa-
ters by repeatedly reaching the merits of Establishment
Clause cases premised upon offended observer standing in
the courts below. American Legion, 588 U. S., at ___ (opin-
ion of G
ORSUCH, J.) (slip op., at 5). Fortunately, “‘drive-by
jurisdictional rulings of this sort’ carry ‘no precedential ef-
fect.’” Ibid. (quoting Steel Co., 523 U. S., at 91; alteration
omitted). But we should not “continue to hold expressly
that the injury in fact requirement is no different for Estab-
lishment Clause cases, while . . . implicitly assum[ing]
standing in” those cases based on an injury that, “in a non-
Establishment Clause case, would not get the plaintiff into
the courthouse.” Doe, 494 F. 3d, at 500 (DeMoss, J., spe-
cially concurring). Nor should we continue to countenance
the undermining of our well-reasoned Valley Forge prece-
dent by the Courts of Appeals.
This Court’s intervention has become increasingly neces-
sary, as time has demonstrated that this problem is not go-
ing away by itself. Even those Courts of Appeals that rec-
ognize the apparent illegitimacy of offended observer
standing now find themselves bound by Circuit precedent
to apply it. See Kondrat’yev, 949 F. 3d, at 1337 (Newsom,
J., concurring) (“[W]e should . . . convene en banc in order
to bring our own Establishment Clause standing precedent
into line with the Supreme Court’s”); Mack, 49 F. 4th, at
949 (“[C]orrect or not, our [offended observer] precedents
bind us”); Freedom From Religion Foundation, Inc. v.
County of Lehigh, 933 F. 3d 275, 280 (CA3 2019) (Har-
diman, J.) (“We . . . leave it to the Supreme Court—or this
Court sitting en banc—to determine whether to discard” of-
fended observer standing). And, anomalous exceptions that
expand an institution’s power have a tendency to swallow
rules that limit it. The same is true here: Far from natu-
rally receding, offended observer standing threatens to di-

6 CITY OF OCALA v. ROJAS
T
HOMAS, J., dissenting
lute Article III requirements in other areas. See, e.g., Ger-
ber v. Herskovitz, 14 F. 4th 500, 506 (CA6 2021) (employing
a direct analogy to offended observer cases to hold that in-
dividuals had standing to bring various federal statutory,
due process, and free exercise claims solely because they
suffered psychological harm from alleged legal violations).
We should reconsider this seeming aberration before it fur-
ther erodes bedrock Article III restrictions on the judicial
power.
Decades ago, I joined Chief Justice Rehnquist in a dissent
from denial of certiorari that recognized the tension be-
tween standing based on religious offense and Valley Forge.
City of Edmond v. Robinson, 517 U. S. 1201, 1202–1203
(1996). At the time, Chief Justice Rehnquist lamented the
Court’s failure to confront this undeniably important ques-
tion that “determines the reach of federal courts’ power of
judicial review of state actions.” Id., at 1203. Time has vin-
dicated this exhortation, and I continue to urge the Court
to review the legitimacy of this form of standing. If the
Courts of Appeals are unwilling to reconsider their offended
observer precedents en banc, we should intervene to vindi-
cate our holding in Valley Forge.