The Supreme Court declined to hear a Florida city’s appeal to lawsuit filed by a group of atheists after their the city’s police chief encouraged citizens to attend a community prayer vigil in the wake of a shooting spree.

In 2014, the Ocala Chief of Police posted information for the prayer vigil on the department Facebook page, prompting atheists to attend and later file a lawsuit, claiming the vigil’s Christian themes violated the First Amendment’s Establishment Clause. The city appealed the case, City of Ocala v. Rojas, to the Supreme Court to consider whether harm the plaintiffs sustained by being “offended observers” gave them standing to sue.

The District Court sided with the plaintiffs in 2018, agreeing both that the city’s actions violated the Constitution and that they had standing to sue. When considering the appeal, the Eleventh Circuit agreed at least one plaintiff could sue as an “offended observer” because she was in “direct contact” with the prayer.

But on the merits, the Eleventh Circuit returned the case to the District Court for reconsideration, citing the Supreme Court’s decision last summer in Kennedy v. Bremerton School District, which overturned the three-part “Lemon Test” courts have used for the past fifty years to determine whether a government action violates the Establishment Clause.

In his statement denying certiorari, Justice Gorsuch emphasized that the Kennedy decision should prevent any court from indulging in the “fiction” of “offended observer” standing.

In Kennedy, “[we] held that claims alleging an establishment of religion must be measured against the Constitution’s original and historical meaning, not the sensitivities of a hypothetical reasonable observer,” Gorsuch wrote.

He expressed confidence the issue would be resolved in the lower courts.

“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,” he wrote. ” If I am wrong, the city is free to seek relief here after final judgment.”

Justice Thomas filed a dissent from the denial, agreeing that “offended observer” theory of standing is flawed but arguing that the lower court’s prior decisions on the matter warranted taking up the case.

“Offended observer standing appears to warp the very essence of the judicial power vested by the Constitution,” Justice Thomas wrote. “Under Article III, federal courts are authorized ‘to adjudge the legal rights of litigants in actual controversies,’ not hurt feelings.”

“This Court’s intervention has become increasingly necessary, as time has demonstrated that this problem is not going away by itself,” he continued. “Even those Courts of Appeals that recognize the apparent illegitimacy of offended observer standing now find themselves bound by Circuit precedent to apply it.”

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