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14 Rutgers J. L. & Religion 1 (2012-2013)

handle is hein.journals/rjlr14 and id is 1 raw text is: THE ENDORSEMENT TEST AND EQUAL STATUS Ross Astoria' I. INTRODUCTION Since its inception, jurists and legal scholars have hotly con- tested the utility and fairness of the endorsement test. For its de- tractors, the endorsement test is unanchored in the constitutional text, devoid of limitations on the exercise of judicial power, and accordingly produces misguided outcomes.2 In contrast, its remain- ing adherents think the endorsement test expresses the basic democratic value of equality, and therefore find it worthy of preservation. As Justice O'Connor writes in Lynch v. Donnelly: The Establishment Clause prohibits government from making adher- ence to a religion relevant in any way to a person's standing in the po- litical community . . . . Endorsement sends 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, fa- vored members of the political community. Disapproval sends the op- posite message.3 This paper is an attempt to reinvigorate the endorsement test by more concisely articulating the relationship between endorsing and equality. As the endorsement test is presently conceived and employed, however, this relationship is oblique at best. In order to foreground equality, then, the endorsement test requires signifi- cant modification, which I propose in Section III. The primary purpose of these modifications is to assign to the norm of equal status the central role in Establishment Clause jurisprudence, particularly in those cases conventionally dubbed display cases. 1. Ross Astoria is an assistant professor in the Department of Politics, Phi- losophy, and Law at the University of Wisconsin, Parkside. He holds a JD and PhD in Jurisprudence and Social Policy from the University of Californian, Berk- ley. He teaches courses in Constitutional Law, Law and Society, Environmental Policy, and Political Theory. 2. See, e.g., Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pitts- burgh Chapter, 492 U.S. 573, 669 (1989) (Kennedy, J., dissenting) (the endorse- ment test is flawed in its fundamentals and unworkable in practice. The uncriti- cal adoption of this standard is every bit as troubling as the bizarre result it pro- duces in the cases before us). 3. Lynch v. Donnelly, 465 U.S. 668, 688 (1984). 1

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