The End of the Endorsement Test?

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2 Responses

  1. Joe says:

    The endorsement test seems to only come up in display cases. Other than something blatant — like a permanent gigantic cross on the top of City Hall — w/o the test, the justices probably would not find anything problematic.

    It is useful, perhaps, to determine where it would restrain the government. Consider the usual 1A cases here. Lee v. Weisman treats minor school children differently. Kiryas Joel is an interesting case too — Kennedy concurred separately and noted: “I agree that a religious accommodation demands careful scrutiny to ensure that it does not so burden nonadherents or discriminate against other religions as to become an establishment.”

    There tends to be few cases that reach the USSC not involving schools or displays that raise Establishment Clause arguments. A few might violate Kennedy’s rule by providing special favors to religious groups, such as giving only them a total option to take a day off or a veto on liquor permits (to allude to two cases). This might not “coerce” religious behavior as such.

    Still, Justice Souter noted that Oregon v. Smith was decided w/o full briefing on the change of the rule. And, just what the Free Exercise Clause specifically guarantees given its rule is an interesting question. Like “cruel and unusual” being a term of art, not just an attempt to show how such and such is both “cruel” and “unusual,” the Court might see one “religion clause” with rules that seem to overlap like the coercion test overlaps into free exercise.

  2. Joe says:

    ETA: As to the likely result, the Prof. Healy is likely correct — the controlling opinion will not overrule past cases, just suggest the lower court applied them too strictly. It might show a bit of distaste for the rule in the process (see, e.g., Salazar v. Buono).