Justice Thomas and Justice Gorsuch in American Legion case

 First, consider Justice Thomas's opinion concurring in the judgment (p. 1808-1809):

 The text and history of [the Establishment] Clause suggest that it should not be incorporated against the States. Even if the Clause expresses an individual right enforceable against the States, it is limited by its text to “law[s]” enacted by a legislature, so it is unclear whether the Bladensburg Cross would implicate any incorporated right. And even if it did, this religious display does not involve the type of actual legal coercion that was a hallmark of historical establishments of religion. Therefore, the Cross is clearly constitutional.

 Thoughts?

Now look at Justice Gorsuch (joined by Justice Thomas) at p. 1809:

. . In my judgment, . . . it follows from the Court’s analysis that suits like this one
should be dismissed for lack of standing. Accordingly, while I concur in the judgment to
reverse and remand . . ., I would do so with additional instructions to dismiss the case.
*
. . . [T]he Association assures us . . . its members are offended enough—and with
sufficient frequency—that they may sue.
. . .
Offended observer standing cannot be squared with this Court’s longstanding
teachings about the limits of Article III. . . .
. . . Lower courts invented offended observer standing for Establishment Clause
cases in the 1970s in response to this Court’s decision in Lemon v. Kurtzman . . . . [They]
reasoned that, if the Establishment Clause forbids anything a reasonable observer
would view as an endorsement of religion, then such an observer must be able to sue. . . . 

 

What are your thoughts about whether an offended observer has a concrete injury in fact as required for Art. III  standing? Other than being offended, what harm does an offended observer suffer from a passive monument such as the Bladensburg Cross or a Nativity Display? If there is no concrete injury, how can there be standing under Art. III?