In his concurrence in American Legion v. American Humanist Ass’n, 139 S. Ct. 2067 (2019), Justice Gorsuch argued that the respondents’ regular con-tact with a forty-foot cross at a traffic-heavy intersection did not sufficiently confer standing to sue for an Establishment Clause violation. Their status as “offended observers,” he wrote, did not satisfy the usual requirement of a concrete and particularized injury-in-fact. I argue in this note that the respondents did suffer an injury-in-fact, as the feeling of exclusion, though intangible, is nonetheless a real harm. I further argue that Congress has the power to define injuries sufficient to confer Article III standing and can do so by creating substantive rights. In this vein, the Framers arguably recognized a new kind of injury by ratifying the Establishment Clause, conferring standing on a class of plaintiffs that would otherwise have suffered no cognizable injury.

Keep Reading: Injury-in-Fact and the Establishment Clause