3rd Circuit: Some Plaintiffs Have Standing In Ten Commandments Challenge

In Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District, (3d Cir., Aug. 9, 2016), the U.S. 3rd Circuit Court of Appeals issued a complicated opinion on standing in a suit in which a student, her mother and an advocacy organization are challenging a 6-foot tall Ten Commandments monument on the lawn of a Pennsylvania high school. The district court had dismissed, finding that all the plaintiffs lacked standing because they had not been injured by the presence of the monument. (See prior posting.) The 3rd Circuit reversed in part, looking separately at each of the plaintiffs as well as considering the claim for an injunction separately from the claim for nominal damages. The 3rd Circuit held that the mother had standing to sue for nominal damages because

[her] allegations that the monument “signals that [she is] an outsider because [she] do[es] not follow the particular religion or god that the monument endorses,” ... and that her “stomach turned” when she encountered it, ... are sufficient to demonstrate that her contact with the monument was unwelcome.

On the other hand, the daughter did not because when she encountered the monument she was too young to understand it. The court went on to hold that both the mother and daughter have standing to sue for injunctive relief, even though the mother had sent her daughter to a different school because of the monument.  Its removal could lead to the daughter's return.  Finally the court said that the advocacy group's standing depends on whether the mother was a member at the time the suit was filed.

Judge Smith filed a lengthy opinion "concurring dubitante," saying:

I am doubtful that a claim for nominal damages alone suffices to create standing to seek backward-looking relief. While this issue has little practical importance to this case, it does have broad consequences for our standing and mootness inquiries in other scenarios.

Pittsburgh Tribune-Review reports on the decision. [Thanks to several readers for the lead.]