Government Disapproval of Religion
Wexler, Jay, Brigham Young University Law Review
The Supreme Court's "endorsement test" for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government "endorsement" of religion, however, the test also prohibits the government from sending a message of "disapproval" of religion. The disapproval side of the endorsement test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a variety of social and cultural phenomena, several cases alleging disapproval have made it to the federal courts. This, then, is a good time to begin consideration of what the disapproval portion of the endorsement test should prohibit. In this Article, I defend the idea that courts should apply an "explicit negative reference" test to determine if the government has unconstitutionally disapproved of religion. After explaining and defending that test, the Article applies the test to the cases of alleged disapproval that courts have been asked to consider. The Article concludes by suggesting that the increasing importance of the disapproval portion of the endorsement test weighs strongly in favor of courts keeping the endorsement test despite the departure of its aeator, Justice O'Connor, and the continued criticism leveled at it from courts and commentators.
From its inception, the Supreme Court's so-called "endorsement test" for determining the constitutional validity of government symbols, displays, and other messages that allegedly support religion has engendered extensive commentary and controversy.1 The test requires courts to consider whether a reasonable observer would believe that the government has sent "a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."2 Justice O'Connor first fashioned the test in her concurrence in the crèche plus reindeer and elephant case oí Lynch v. Donnelly in 1984/ and five members of the Court subsequently subscribed to the test five years later in the giant Christmas tree next to a medium-sized menorah case of County of Allegheny v. ACLU.4 Critics of the test have been vociferous in their condemnation of the doctrine, arguing that it is hopelessly indeterminate, inconsistent with the original meaning of the Constitution, and biased toward majority faiths.5 Opponents also contend that the test wrongly elevates mere offense to a constitutionally cognizable injury and makes the federal courts look foolish.6 Defenders of the endorsement test occasionally concede the silly-seemingness of the doctrine7 but generally argue that its flaws are outweighed by its strengths, most notably its furtherance of the primary goals of the Establishment Clause: keeping civil peace, respecting individual conscience, and protecting religion from the dangerous effects of state support.8 Although the Supreme Court continues to apply the endorsement test in relevant situations, there is no doubt that Justice O'Connor's retirement in 2004 has left the test in a highly precarious position.9
In all of the hubbub about endorsement, it can be easy to forget that the endorsement test is actually the endorsement/disapprova/ test. The Court has always maintained that government may send neither a message of endorsement nor a message of disapproval of anyone's religion or of religion in general. As Justice O'Connor wrote in Lynch: "What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community. …