An interesting split-decision [pdf] found that an anonymous plaintiff, represented by the ACLU, lacked standing to sue a school board for their opening invocations.

While the ADF called this a “blow” to the ACLU’s practice of suing with “offended observers,” it is worth noting that the court did not rule on the merits of the case.

[The “offended observer” refers loosely to accusations of “planting” people in public meetings who are suddenly offended.  Those who accused groups of using that tactic claimed they were unable to find a “real” offended person and thus had to create their own.  This supposedly led to lawsuits where plaintiffs were virtually unknown to the community that was in support of the challenged activity.]

A concurring opinion noted: 

[T]he critical issue is whether…[the plaintiffs proved they]…sustained an injury…as a result of the school board’s practice of permitting citizens…to freely exercise their own rights of religion and free speech under the First Amendment by offering a prayer or invocation at the beginning of school board meetings. (emphasis added)

The court seems to have noted that there may be opposing but equally legitimate rights on the parts of those who make the school board invocations.

Though the Supreme Court has upheld Chaplains and invocations in the US Congress, activist organizations continue to sue municipalities, local governments, and school boards over the practice.  Sometimes, merely the threat of a lawsuit is sufficient.  Litigation itself can be costly, and under current Civil Rights laws the plaintiffs can exact six-figure legal fees from the defendants if they lose.  Congress has attempted to remove this “economic incentive” to sue almost every session for the past several years, but while it has passed the House it has failed to be debated in the Senate.