The Lemon test to judge whether violations of the Establishment Clause had occurred is not always easy to apply in concrete cases and some justices of the US Supreme Court have often expressed its unhappiness but others have opposed outright rejecting it. This is especially true of the second ‘effect’ prong which is hard to evaluate. Furthermore, the test was formulated in a case that involved legislative actions. What about situations involving government actions such as prayer and Bible readings and religious instruction in public schools, the display of religious artifacts such as the Ten Commandments on government property, ceremonial opening prayers at government functions, etc.?
It was to overcome some of these problems that judge Sandra Day O’Connor proposed what has come to be known as the ‘endorsement test’. It arose in the 1984 case of Lynch v Donnelly involving the display of a nativity scene by a municipality. O’Connor emphasized Black’s requirement of strict neutrality between religion and non-religion and said that the idea of ‘endorsement’ or ‘disapproval’ could be used to measure neutrality, saying:
The second and more direct infringement [of the establishment clause] is government 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. Disapproval sends the opposite message.
But who judges whether there is governmental endorsement or disapproval or neither? O’Connor clarified this in the 2004 case Elk Grove v. Newdow involving the Pledge of Allegiance that such a judgment could not and should not be purely subjective since you could always find someone who would claim that an act implies endorsement or disapproval and thus all actions would become victims of the ‘heckler’s veto’. So she proposed the idea of a ‘reasonable and informed observer’, someone who is a hypothetical creation but assumed to be familiar with the history and context of the action under dispute. The court had to put itself in the shoes of such a person and judge whether the action under dispute would be viewed as an endorsement or religion or not. The endorsement test has sometimes been used as a replacement for the purpose and effect prongs of Lemon.
Asking the government not to engage in any act that looks like it is endorsing religion is a pretty strong statement and on the face of it would seem to require the banning of any action such as prayer at government functions, the use of ‘under God’ in the Pledge of Allegiance, the motto ‘In God We Trust’ on currency, and the removal of all religious symbolism and images on government property because they are all, on their face, clearly endorsements of religion.
The courts have been wary of going that far and of striking down all these things and have found ways to not make changes in many of these practices. In many religion cases they have skirted applying any tests at all and have found ways to justify some religious accommodation, especially if the practice has been long-standing, widely practiced, and seems relatively innocuous in its effects
Some judges have taken the tack of making a de minimis argument (short for de minimis non curat lex or ‘the law takes no account of trifles’) to suggest that things like the motto are too trivial for the court to bother with. Others have argued that the phrases ‘under God’ or ‘In God We Trust” have over time been drained of any deep religious significance and now would be seen, by a reasonable and informed observer, as not government endorsement of religion but merely a rote expression reflecting aspects of its history and not a current driving force. So they are deemed to not be violations of the Establishment Clause because their religious significance has been hollowed out.
Another way in which some tricky issues have been sidestepped is to argue that a different and higher standard needs to be applied to overturning a long-standing practice than if that same practice were to be introduced as something new today. So, for example, demanding their removal now of religious quotes or images on existing government buildings and monuments such as the religious sentiments that are inscribed on the Lincoln Monument would require a higher burden of argument than opposing the putting up a new building or monument with the same wording or image. After all, requiring that all government buildings eradicate all images and words that have religious intent would create enormous problems and so the courts have sought to find ways to get around that problem.
But while ordering the erasure of existing building inscriptions or eliminating tax exemptions would cause major disruptions, this is not the case with legislative or ceremonial prayer which can be ruled to be unconstitutional without much trouble, just like prayer was eliminated earlier in the context of schools. Furthermore, prayer cannot be argued to be a passive form of religion that is drained of meaning and as such does not seek to advance religion. As act of prayer is undoubtedly an active endorsement of a religious point of view, so a prayer in a government setting seems to unavoidably convey a message of endorsement of not only religion in general but the particular religion of the prayer giver.
Furthermore, there is little cost to banning prayer. Opening prayer at government meetings is more like school prayer, Bible readings, or religious instruction which the courts have ruled earlier unconstitutional. All that is requires is to demand that people stop the practice. There is no need to go back and retroactively correct things. So it would seem that not allowing ceremonial prayer at government functions would be the logical conclusion.
It is this context that the 1983 Marsh precedent setting case allowing such prayer must be viewed, which will be done in the next post in the series.