In American Legion, Justice Gorsuch wrote a concurring opinion, joined by Justice Thomas. Gorsuch challenged the entire basis of Article III standing for Establishment Clause cases. In Gorsuch's view, merely taking "offense" at some public display of religion was insufficient to establish an Article III injury. (I too have long questioned standing in cases like Van Orden v. Perry.) Gorsuch wrote:
In 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," Erznoznik v. Jacksonville (1975), or pursue a political solution. Today's decision represents a welcome step toward restoring this Court's recognition of these truths, and I respectfully concur in the judgment.
If this passage is correct, then why would someone suffering "offense" from a public display have a constitutional injury? Van Orden could have just have averted his eyes at the Ten Commandments display. (And don't get me started on Flast v. Cohen.)
