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The Endorsement Test
Research by Jim Allison.
In a concurring opinion in Lynch v. Donnelly (1984), Justice
O'Connor interpreted the "purpose" and "effect" prongs of the
Lemon test in such a way as to place primary emphasis on the
issue of government endorsement of religion. According to
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
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.
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