Endorsement as Adoptive Action: A Suggested Definition of, and an Argument for, Justice O'Connor's Establishment Clause Test

Authors

Joel S. Jacobs

Abstract

In recent years, the line between acceptable and unacceptable government activity in the religious sphere has been blurred. Three separate tests-the Lemon v. Kurtzman Test, the Endorsement Test, and the Coercion Test-all are currently vying for adoption by a majority of the Supreme Court. This Article examines the Court's Establishment Clause jurisprudence in an attempt to formulate a workable standard which best represents the value of the Clause.

The Endorsement Test, as currently applied, shows the most promise. However, the focus on "real people" and the use of the "objective observer" standard pose severe logistical problems. This article redefines endorsement as "adoptive action"- action which expresses approval or disapproval of religion in general, a particular religion, or a "distinctively religious" element of a religion. If the approval or disapproval is not explicit, any special benefit or burden assigned to religion may also be improper adoption unless the action was motivated by purely secular concerns.

Recommended Citation

Joel S. Jacobs, Endorsement as Adoptive Action: A Suggested Definition of, and an Argument for, Justice O'Connor's Establishment Clause Test, 22 Hastings Const. L.Q. 29 (1994).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol22/iss1/2