Standing and Mootness in a Ten Commandments Monument Case

Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District, 832 F.3d 469 (3d Cir. 2016).  Federal standing law sometimes involves nuances inquiries comparable to the famous question of how many angels can dance on the head of a pin.  This opinion by Judge Shwartz involved a Civil Rights Act claim by plaintiffs (a mother and daughter, and the Freedom From Religion Foundation) who asserted that the Establishment Clause of the First Amendment to the United States Constitution was violated by the placement of a Ten Commandments monument on the grounds of a public high school.  They sought nominal damages and injunctive relief only.

The District Court granted summary judgment to defendant, finding that plaintiffs lacked standing and that their request for injunctive relief was moot.  Applying de novo review to the legal questions of standing and mootness, the Third Circuit reversed in part and remanded for further proceedings.

In cases involving similar Establishment Clause challenges, as Judge Shwartz stated, the test for standing is whether there is “direct and unwelcome personal contact” with the allegedly offending establishment of religion.  However, “frequent contact with a display is not a requirement for standing.”  Instead, a single encounter can suffice.  Nor is a person “required to avoid an unwelcome object or activity” in order to have standing.

It thus became important whether the individual plaintiffs had sufficient contact with the Ten Commandments monument.  The mother saw the monument, and that was enough to make her feel like an “outsider” because she does not “follow the particular religion or god that the monument endorses.”  That was sufficient for standing to claim nominal damages, even though she did not read the monument each time she saw it, or read it in full.

The daughter, on the other hand, who attended the school, lacked standing to seek damages.  She “explicitly stated that she did not understand the monument prior to the lawsuit because she was too young, ‘never read it or paid attention to it,’ and never told anyone that it bothered her.”

The mother had standing to pursue injunctive relief because she planned to drive her daughter to school and would thus come into contact with the monument.  Additionally, as a parent, “she has an interest in guiding her child’s religious upbringing and has standing to challenge actions that seek to establish a religious preference affecting her child.”  She decided not to send her child to that high school, but that did not strip her of standing to seek injunctive relief.  Her daughter could return to the school if the monument were removed, and in any event, a plaintiff need not “remain in a hostile environment in order to enforce [her] constitutional rights.

Judge Smith concurred dubitante, a relatively rare posture last seen on this blog when Justice Hoens invoked it during a titanic struggle among Supreme Court of New Jersey Justices about the constitutionality of temporarily elevating Appellate Division judges to fill vacancies on the Supreme Court.  Judge Smith found it “doubtful that a claim for nominal damages alone suffices to create standing to seek backward-looking relief,” though he noted that that issue had “little practical importance to this case.”  He cited cases from other Circuits on the issue, and offered a detailed discussion of standing and mootness as well.  All in all, both opinions show that standing, which sometimes ought to be more readily identifiable, can often be maddeningly complex and fact-dependent.