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Copyright 2013 Charleston School of Law. All Rights Reserved.
Charleston Law Review


Summer, 2013

Charleston Law Review

7 Charleston L. Rev. 719


Andrew Koppelman*


Justice Sandra Day O'Connor's most important contribution to the jurisprudence of the Religion Clauses is her so-called "endorsement test," which holds that the Establishment Clause prohibits state action "endorsing religion or a particular religious practice." 1 Justice O'Connor has left the Court. The endorsement test has not. It continues to be cited and relied upon in majority opinions. 2

The test has been subject to familiar criticisms, of which the most powerful is that Justice O'Connor has not adequately explained why endorsement ought to be so important in testing the constitutionality of state action. 3 The criticisms are sound but not dispositive. Justice O'Connor's defense of the test fails, but there are other reasons - reasons that she chose not to emphasize 4 - why that test is an indispensable contribution to Establishment Clause jurisprudence.

Justice O'Connor thinks that "the Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." 5 One way that government may run afoul of that prohibition is 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. Disapproval sends the opposite message." 6 This criterion, Justice O'Connor argues, is better able than any rival conception to "adequately protect the religious liberty [and] respect the ...
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