About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

29 Hamline L. Rev. 7 (2006)
In Praise of Contextuality - Justice O'Connor and the Establishment Clause

handle is hein.journals/hamlrv29 and id is 15 raw text is: IN PRAISE OF CONTEXTUALITY IN PRAISE OF CONTEXTUALITY - JUSTICE O'CONNOR AND THE ESTABLISHMENT CLAUSE Marie A. Failinger* Among Justice Sandra Day O'Connor's lasting contributions to Supreme Court jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government action in assessing its constitutionality. Her two decades of work in Establishment Clause law, in particular, is book ended by Lynch v. Donnelly, in which she introduced the non-endorsement test' and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union,2 where it was most recently employed.3 The non-endorsement test, officially adopted by the Court as a doctrine in County of Allegheny vs. American Civil Liberties Union,4 has served as one of the two commonly competing tests in Establishment Clause cases not involving financial aid' ever since. It requires that a reviewing court examine government action to determine whether it demonstrates a purpose to endorse or disapprove of a particular religion, or to promote religion over non-religion. Next, the Court must determine whether, regardless of its intent, the effect of the government's action endorses or approves of religion in the eyes of a reasonable, well-informed or * Professor of Law, Hamline University School of Law. Lynch v. Donnelly, 465 U.S. 668, 687-88, 690-91 (1984) (O'Connor, J., concurring) McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, U.S. , 125 S.Ct. 2722 (2005). Id. at 2733. The McCreary County case only considered the purpose prong of Justice O'Connor's non-endorsement test, holding that the Kentucky display violated that prong of the test. By contrast, Van Orden v. Perry, U.S. _, 125 S.Ct. 2854, which upheld the Texas Ten Commandments monument, bypassed both the non-endorsement test and the Lemon test, Lemon v. Kurtzman, 403 U.S. 602 (1972), for a review of the monument in light of the nature of the monument and the Nation's history. Id. at 2860-61. 4 County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592-594 (1989) 5 See Santa Fe Independent School Dist. v. Doe, 530 U.S., 290, 301-309 (2000) (utilizing the non-endorsement test as well as the non-coercion test of Lee v. Weisman, 505 U.S. 577 (1997)). The Lemon test is often modified with Justice O'Connor's non- endorsement gloss, see, e.g., Wallace v. Jaffree, 472 U.S. 38, 55-56 (1985). By contrast, in cases involving financial aid (particularly indirect aid) to religious schools, the Court has instead modified the Lemon effects prong to inquire first, whether the program administers aid in a neutral fashion, without differentiation based on the religious status of beneficiaries or providers of services; second, and more importantly, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid. Zelman v. Simmons-Harris, 536 U.S. 639, 669 (2002).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most