The End of the Endorsement Test?

Because there are no arguments at the Supreme Court today and because I was too busy to post last week, I want to take this opportunity to offer some thoughts about Wednesday’s argument in Town of Greece v. Galloway, the case involving legislative prayer before a municipal body.

Most accounts of the argument suggest that the Court is likely to uphold the town’s practice of opening its meetings with a prayer in spite of the fact that the prayers have been overwhelmingly sectarian in nature.  I agree with this prediction.  Although Justice Kennedy seemed uncomfortable with the idea of relying exclusively on history to support legislative prayer, it seems doubtful that he would join the four liberal members of the Court to strike down the practice.  Even some of the liberal justices expressed concern at the prospect of embroiling the Court in the difficult question of what makes a prayer sectarian.  As Justice Kagan stated near the end of the argument, “it’s hard because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways.”

But what interests me more than the likely outcome of the case is the test the Court will use to analyze the town’s practice.  The Second Circuit struck down the prayer under the endorsement test, which holds that governmental action violates the Establishment Clause when it sends a message of endorsement or disapproval of religion.  The endorsement test was introduced by Justice O’Connor in the mid-1980s and has been embraced by a majority of the Court in several cases over the years.

During Wednesday’s argument, however, the endorsement test was barely mentioned.  Part of this was due to the strategy of the plaintiff’s lawyer, Professor Douglas Laycock, who focused his argument entirely on the issue of coercion.  The town’s practice of sectarian prayer amounts to coercion, Laycock argued, because citizens who bring petitions before the town council will feel pressured into participating in the prayer so as to avoid offending the council members they are petitioning.

Laycock’s strategy was likely influenced by the Court’s 1983 decision in Marsh v. Chambers, which upheld the Nebraska legislature’s practice of opening each session with a prayer from a paid chaplain.  If the Nebraska practice didn’t amount to endorsement, Laycock may have reasoned, it would be hard to argue that the Town of Greece had endorsed religion with its prayers.

But the absence of the endorsement test from the discussion also suggests that the Court may be distancing itself from this approach to the Establishment Clause.  This should hardly be surprising.  The chief supporters of the endorsement test, Justices O’Connor, Stevens, and Souter, have all retired in recent years.  And the conservatives on the Court have never concealed their belief that coercion is the primary, if not exclusive, test of whether governmental action violates the Constitution.  In fact, since Justice O’Connor’s retirement in 2006, the Court has not relied on the endorsement test to decide a single case under the Establishment Clause.

The endorsement test is not without its flaws.  Despite O’Connor’s insistence that it be applied from the perspective of an objective observer, it is a highly subjective standard that can result in seemingly arbitrary judgments (e.g. a nativity scene in a county courthouse is unconstitutional, while a menorah, Christmas tree, and sign reading “Salute to Liberty” in a municipal building a block away is okay).  But the justification for the test is sound:  it is designed to prohibit governmental action that “sends a message to non-adherents 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.”

More importantly, if coercion becomes the exclusive measure of constitutionality, it is hard to see what independent force the Establishment Clause will have, since presumably the Free Exercise Clause already prohibits governmental coercion.  Interestingly, Justice Scalia made this very point during oral argument on Wednesday.  Laycock responded that sectarian endorsements are also prohibited by the Establishment Clause, but that was his only reference to the endorsement test, and none of the justices, including Scalia, followed up on the matter.

If the Court is moving away from the endorsement test, it could do so explicitly by disavowing it as a legitimate measure of governmental action under Establishment Clause.  This would at least provide some clarity to lower courts, which currently feel compelled to analyze Establishment Clause cases under three separate frameworks – endorsement, coercion, and the Lemon test – without any guidance as to which framework should prevail when they lead to different results.

The more likely scenario is that the Court will simply ignore the endorsement test without officially disavowing it, as it has increasingly done with the beleaguered Lemon test.  The result will be more lawyers, like Laycock, who decide that the best strategy is to make a strong case for coercion without wasting their time on the issue of endorsement.

You may also like...

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).