The Endorsement Test

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition...[by] endorsement or disapproval of religion. 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, favored members of the political community.

The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

Similarly, O'Connor stresses the issue of endorsement under the effect prong of Lemon:

Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion...What is crucial is that the government practice not have the effect of communicating a message of government endorsement or disapproval of religion.

It is important to understand that the endorsement test does not replace the purpose and effects prongs of the Lemon test; it is merely O'Connor's interpretation of these prongs. Nevertheless, O'Connor's argument has been influential, and the Court has made reference to the test in several recent decisions. Additionally, there is some confusion about the relationship between the endorsement and Lemon tests. Some scholars understand the endorsement test as an addition to standards outlined in Lemon, while others view it as a minimal formulation of Lemon, i.e., that while endorsement may not be the only thing that violates the purpose and effects prongs of the Lemon test, it is the first and most important evidence that such a violation has occurred.