Establishment Clause and Endorsements

Michael McConnell MICHAEL.MCCONNELL at LAW.UTAH.EDU
Tue Mar 18 08:27:11 PST 1997


I agree with Eugene Volokh's latest post about the endorsement test,
but wish to add one more objection to Alan Brownstein's
interpretation of the test. (I focus on his interpretation because it
has the virtue of being clear and coherent; most "endorsement" tests
are little more than constitutional Rohrsach.)

Brownstein suggests that we distinguish between "reasonable" and
"unreasonable" perceptions on the part of substantial minorities. But
doesn't this very inquiry pose a greater danger to Establishment
Clause values than the symbols themselves? Perceptions will depend
heavily on the experiences and theology of the observer. To declare
some of these "unreasonable" is to stigmatize the group; for this to
be the result of a supposedly dispassionate judicial process, in the
name of the Constitution, makes it all the worse.

I would have thought that, when religious convictions/perceptions are
at issue, the Establishment Clause stands for the proposition that we
take no official governmental position on which ones are reasonable
and which are not.

While not a fan of the endorsement test in any form, I am less
concerned about it if it focuses on the intentions and perceptions of
the government. It is less troubling to tell the government that its
intentions and perceptions are abusive or unreasonable than to impose
that judgment on a substantial group of our fellow citizens.

-- Michael McConnell (U of Utah)



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