The Endorsement Test Is Alive and Well: A Cause for Celebration and Sorrow

Abstract

The endorsement test, first explained by Justice O’Connor in her Lynch v. Donnelly concurrence and adopted by the Court in County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 2 provides one way to determine whether state action violates Establishment Clause guarantees. Now that Justice O’Connor has retired, there is some question whether the endorsement test will survive. Despite commentators’ claims to the contrary, however, there is no reason to think that the endorsement test retired along with Justice O’Connor, although a separate issue is whether those on the Court using the test will do more than give occasional lip service to the interests and perspectives of minority religious groups. At this point, the most likely scenario is that the Court will sometimes use the test, but will be unlikely to use it to strike down a particular practice. 

Part II of this Article discusses the development of the endorsement test during the period that Justice O’Connor was on the Court, noting some of the ambiguities in the test’s formulation and application. Part III of this Article discusses how the test has been used in two cases since Justice O’Connor’s retirement, noting that the way that the test has been used after Justice O’Connor’s retirement mirrors the way that it was used while she was still on the Court. The Article concludes that the test is likely to remain one of the tests used by the Court to determine whether Establishment Clause guarantees have been violated—the test will retain its potential to assure that individuals will not be treated as second-class citizens because of their religious beliefs but will in reality pay mere lip service to religious minorities’ sincere reactions to a variety of practices privileging some religions over others and privileging religion over non-religion.