10th Cir. Takes on Standing as Travel Ban Looms at SCOTUS

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By Kimberly Strawbridge Robinson

The U.S. Court of Appeals for the Tenth Circuit took an expansive view June 21 of who can sue under the establishment clause ( Am. Humanist Ass’n v. Roe , 2017 BL 210186, 10th Cir., No. 16-1049, 6/20/17 ).

Establishment clause standing is also an issue in the challenge to President Donald Trump’s travel ban, which temporarily halted travel from certain majority-Muslim countries. The Supreme Court is expected to announce soon whether it will take up the challenge or let it continue to be fought out in the lower federal courts.

Here, the court revived a elementary school student’s claims against his school district, filed after he and his mom were asked by his teacher to contribute to a religious “mission trip.”

The district court originally dismissed his claims because the one-time request wasn’t “conspicuous or constant.”

That standard is too exacting, the Tenth Circuit said, in an opinion by Judge Carlos F. Lucero. “An ‘identifiable trifle is enough for standing to fight out a question of principle,’” the court said, quoting a 1973 high court opinion.

The case now returns to the district court to determine if the one-time solicitation for funds unconstitutionally promoted the Christian religion in contravention of the First Amendment’s prohibition against governments favoring or disfavoring any particular religion.

Judges Harris L. Hartz and Carolyn B. McHugh joined the opinon.

American Humanist Association, Washington, argued for themselves and the other plaintiffs.

Lewis Roca Rothgerber Christie, LLP, Denver, argued for the defendants.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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