No Endorsement Test

The ‘‘no endorsement test’’ holds that government violates the Establishment Clause of the FirstAmendment if it speaks or acts in ways that endorse or disapprove of religion. First announced in 1984 in a concurring opinion by Justice Sandra Day O’Connor, the doctrine has achieved widespread (although far from unanimous) acceptance among judges and legal scholars. The doctrine has recently provoked controversy when applied by federal courts to invalidate the words ‘‘under God’’ in the Pledge of Allegiance and the placement of Ten Commandments monuments on public property.

Evolution of the Test

The ‘‘no endorsement’’ doctrine grew out of dissatisfaction with earlier Establishment Clause jurisprudence. In Everson v. Board of Education (1947), the Supreme Court’s first modern Establishment Clause case, the Court interpreted the First Amendment as erecting a ‘‘wall of separation’’ between church and state that prohibited the state from aiding religion, but the Court did not distill its conclusions into any formal doctrine. Everson did not focus on expressions or symbolic actions by the government; and indeed, five years later inZorach v. Clauson, theCourt itself famously declared that ‘‘[w]e are a religious people whose institutions presuppose a Supreme Being.’’ Later, in Lemon v. Kurtzman (1971), the Court announced a three-part test for assessing Establishment Clause challenges: a law needed to have (1) a secular purpose and (2) a primary effect that neither advanced nor inhibited religion, and also (3) has to avoid excessive entanglement between government and religion. Again, the Lemon doctrine did not explicitly address the validity of expressions or symbolic actions by government.

In ensuing years, application of the three-prong Lemon test produced what critics widely viewed as chaotic results. In Lynch v. Donnelly (1984), concurring in the decision upholding a city-sponsored Christmas display that included a creche, Justice O’Connor noted this dissatisfaction and proposed the ‘‘no endorsement’’ test as a ‘‘clarification’’ of existing doctrine. In essence, she proposed a shift from the earlier emphasis on a challenged law’s material consequences to its expressive or symbolic aspects—to the ‘‘message’’ it sends. Thus, a law perceived as endorsing religion would be unconstitutional even though it gives no material aid; conversely, a law that does not endorse religion might be upheld, O’Connor said, even though ‘‘it in fact causes, even as a primary effect, advancement or inhibition of religion.’’

In later cases, Justice O’Connor continued to advocate the ‘‘no endorsement’’ approach in concurring opinions, and in County of Allegheny v. American Civil Liberties Union (1989), a second nativity scene case, a majority of justices appeared to embrace it. Later cases both in the Supreme Court and in lower courts have viewed ‘‘endorsement of religion’’ as a factor that can invalidate a law, program, or symbol. However, the courts have not adopted O’Connor’s original suggestion that the Establishment Clause look to endorsement instead of more material consequences; rather, they have treated endorsement as an additional basis of invalidity.

Whose Perceptions Count?

Because perceptions of a law’s ‘‘message’’ can differ among observers, and because in a religiously diverse country almost anything that government does may be perceived by someone as endorsing or disapproving of religion, in applying the ‘‘no endorsement’’ test the Supreme Court has been forced to consider whose perceptions should control. Since the First Amendment is presumably supposed to protect the rights of individuals and minorities, it would seem perverse to say that a law is invalid only if a majority of citizens perceives an impermissible endorsement. But to say that any citizen’s perception of endorsement or disapproval is enough to invalidate a law would be a recipe for governmental paralysis: What law or action could survive that test?

Justice O’Connor sought to avoid this dilemma by suggesting that the controlling perceptions should be those of an ‘‘objective’’ or ‘‘reasonable’’ observer. Perhaps of necessity, other justices have likewise accepted some such hypothetical observer as the test of validity. Predictably, judges and citizens often disagree about whether a ‘‘reasonable observer’’ would perceive endorsement of religion.

The difficulty was already evident in the nativity scene cases in which the ‘‘no endorsement’’ test originated. In Lynch, Justice O’Connor concluded that a city’s Christmas display did not endorse religion, apparently because the creche was surrounded by other traditional Christmas figures, including reindeer, a Santa Claus sleigh, and a talking wishing well. But later, in Allegheny County, she found religious endorsement in a creche standing alone. The other justices who favored the test concurred. But in the same case they disagreed about the constitutionality of a separate display in which an eighteen-foot-tall Jewish menorah stood alongside a forty-five-foot-tall Christmas tree. Justice Blackmun thought that the tree was in itself a secular symbol, and that its comparatively larger size tended to neutralize the potentially religious message of the menorah. Justice Brennan drew the opposite conclusion, among other reasons because he believed that the menorah was unusually large for a menorah while the tree was of average size for a tree.

The interpretation of what a reasonable observer would perceive is thus a common and central question— and often a hotly disputed one—in ‘‘no endorsement’’ cases. The question bears directly on the often controversial debates about traditional and seemingly religious public expressions or symbolism, such as the national motto (‘‘In God We Trust’’) printed on currency or the words ‘‘under God’’ in the Pledge of Allegiance. Justices have said in dictum that these expressions are permissible because they have lost their religious significance through long usage and serve mainly to express confidence in the country or hope for the future. Critics often—and lower courts occasionally— find these saving explanations implausible.

The Pros and Cons of ‘‘No Endorsement’’

The ‘‘no endorsement’’ test has attractive features that appear to have generated acceptance by a majority of the judges and commentators who have considered it. In her Lynch concurrence, Justice O’Connor linked the doctrine to a constitutional commitment to inclusiveness and equal treatment of citizens. The fundamental meaning of the Establishment Clause, she suggested, was that religion should not affect a person’s ‘‘standing in the political community.’’ But if government endorses religion, it violates this principle by ‘‘send[ing] 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.’’

Other justices and commentators have frequently repeated this ‘‘inclusiveness’’ rationale, and they have sometimes supported the doctrine on other (perhaps overlapping) grounds as well. Government messages endorsing religious can be divisive, and the Establishment Clause is often thought to be designed to avoid such divisiveness. The clause has also repeatedly been said to mean that government must be ‘‘neutral’’ toward religion, and ‘‘no endorsement’’ seems to be a natural corollary of a commitment to neutrality. Finally, the ‘‘no endorsement’’ doctrine is said to be a logical implication of the assumption that government is incompetent, in both a legal and more ordinary sense of the term, to act or pronounce upon religious questions.

Critics have challenged the ‘‘no endorsement’’ doctrine on a variety of grounds. One common objection focuses on the ‘‘reasonable observer’’ device: this hypothetical observer, critics contend, is manipulable and incapable of providing clear guidance. In addition, the device arguably thwarts the purpose of doctrine. As noted, the ‘‘no endorsement’’ doctrine seeks to prevent exclusionary messages that will alienate some citizens. But the ‘‘reasonable observer’’ device means, in effect, that when courts reject claims of endorsement (as they do, and inevitably must, in some cases), they add insult to injury: The courts in effect tell litigants not only that they have lost but that the reason they have lost is that they are not ‘‘reasonable’’ observers.

Another common objection argues that the ‘‘no endorsement’’ doctrine departs from longstanding American traditions reflected not just in occasional expressions such as the Pledge of Allegiance and the national motto or in practices such as legislative prayer or Thanksgiving proclamations, but also in landmarks of our constitutional heritage. Lincoln’s revered Second Inaugural Address, engraved on the wall of the Lincoln Memorial, was a profoundly religious expression from beginning to end. The Declaration of Independence appeals to the ‘‘Creator’’ and ‘‘nature’s God,’’ and some scholars argue that these religious references are not cosmetic but are central to the Declaration’s argument. Indeed, Jefferson’s celebrated Virginia Statute for Religious Liberty began by declaring its essential premise—that ‘‘Almighty God hath created the mind free,’’ so that any infringement of that freedom would depart from ‘‘the plan of the Holy author of our religion.’’ The perverse consequence of the ‘‘no endorsement’’ test, critics contend, is that it would render unconstitutional—as a violation of religious freedom, ironically—the seminal enactment in this country’s achievement of religious freedom.

Prospects

Although relatively recent as a constitutional doctrine, the ‘‘no endorsement’’ test is by now well entrenched in the law. Recurring disputes over matters like the Pledge of Allegiance or the Ten Commandments probably ensure, however, that the test will remain controversial for the foreseeable future.

STEVEN D. SMITH

References and Further Reading

• Choper, Jesse H., The Endorsement Test: Its Status and Desirability, The Journal of Law & Politics 18 (2002): 499–536.
• Smith, Steven D., Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the ‘‘No Endorsement’’ Test, Michigan Law Review 86 (1987): 266–332.

Cases and Statutes Cited

• County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989)
• Everson v. Board of Education, 330 U.S. 1 (1947)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• Zorach v. Clauson, 343 U.S. 306 (1952)

See also Ceremonial Deism; Establishment Clause (I): History, Background, Framing; Establishment Clause Doctrine: Supreme Court Jurisprudence; Everson v. Board of Education, 330 U.S. 1 (1947); Lemon Test; Lynch v. Donnelly, 465 U.S. 668 (1984); O’Connor, Sandra Day; Pledge of Allegiance (‘‘Under God’’); Religion in ‘‘Public Square’’ Debate; Religious Symbols on Public Property; Secular Purpose; Ten Commandments on Display in Public Buildings; Zorach v. Clauson, 343 U.S. 306 (1952)