Establishment Clause and Endorsements

[Michael McConnell]

In response to Alan Brownstein's most recent response:

The reason the "endorsement" test is especially inscrutable is that
it is about perspectives and subjective reactions, not about analysis
of effects, intentions, or any of the other things constitutional law
is usually about. My experience is that to ask someone whether a
particular act "endorses religion" is simply to ask whether it
violates their sense of the proper relation between church and state.
A strict separationist thinks that allowing Bible clubs to meet on
high school campuses is an endorsement; a neutrality buff thinks the
opposite. A formal neutrality buff thinks exempting Quakers from the
draft is an endorsement; an accommodationist does not. "Endorsement"
is just a label; it is not an analytical method. "Endorsement" is the
establishment clause equivalent of "I know it when I see it."

The point of doctrinal theorizing is to try to define and decide
among the various possible meanings of "establishment." I do not think
the endorsement "test" advances the ball; it just serves as a
substitute for stating a principle. (The real function of the
"endorsement" test is actually simply to negate the theory that
coercion is a necessary element of an establishment. That may be
right and it may be wrong, but it does not supply a "test" for
determining when, if ever, noncoercive government action is an
establishment.)

If the principle of law that AB
advocates is that "anything that both makes reference to religion and
offends a substantial segment of the community is unconstitutional,"
I cannot go along with that. Unless the "substantial segment of the
community" is offended for *good reason*--that is, because of a
constitutional violation--I do not think their "offense" is of
constitutional moment. That requires us to ask not just whether they
were offended but why.

If we must have an endorsement test, I suggest that the proper focus
is not on the audience, who are multifarious, but on the government.
The question should be whether the sole purpose of government action
is to communicate a preference for one religious view over another.
The point is whether government is abusing its power, not whether
people are offended.

As to the Baal hypothetical, I do not understand why it is a problem.
I assume the hypo is desiged as a case where the intention of
the officials who posted the sign speaks for itself. That the
officials may deny the obvious is no more problematic
for the theory than that the murderer denies that he "intended" to
kill his wife when he shot her in the head.

-- Michael McConnell (U of Utah)