Doe v. Tangipahoa Parish School Bd.
In Doe v. Tangipahoa Parish School Bd., 2007 U.S. App. LEXIS 17810 (July 25, 2007) (en banc), the Court of Appeals for the Fifth Circuit dismissed for lack of standing an Establishment Clause challenge brought by the ACLU of Louisiana against invocations given at Tangipahoa Parish (county) School Board meetings. The vote upholding the invocations in this case was exceedingly close, 8-7, and the opinion was written by Chief Judge Edith H. Jones.
She noted that standing, which here meant an actual or threatened injury to the plaintiff in hearing an invocation at a school board meeting, cannot be waived by the parties. In this case the parties stipulated to facts relating to standing in the court below, but Judge Jones noted that "the minimal record in this case affords no basis for drawing that inference" of plaintiffs' attendance at school board meetings where an invocation occurred. She added that is not permitted to base federal jurisdiction on such a mere inference anyway.
Opinions written by now-Justice Alito played a central role in this decision. Judge Jones relied heavily on an opinion written by Justice Alito when he was on the Third Circuit, in which he dismissed another ACLU lawsuit against a civic Christmas display for lack of proof that plaintiffs had been exposed and offended by the display.
Fifth Circuit Judge DeMoss, who provided the key 8th vote and wrote a separate concurrence in addition to joining Judge Jones' decision, relied heavily on Justice Alito's recent dismissal of another Establishment Clause lawsuit for lack of standing. Judge DeMoss noted that Justice Alito had cited "separation of powers" as an additional reason for dismissal based on lack of standing.