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The Reasonable Believer: Faith, Formalism, and Endorsement of Religion


Paula L. Abrams


Lewis & Clark Law School

January 10, 2011

Lewis & Clark Law Review, Vol. 14, No. 4, p. 1537, 2010
Lewis & Clark Law School Legal Studies Research Paper No. 2011-1

Abstract:     
The reasonable observer standard, used in Establishment Clause cases to determine whether government action endorses religion, marks a retreat by the Court from vigorous scrutiny of government purpose and effect. The standard, which examines whether a reasonable observer, familiar with First Amendment values and with the history and context of government action, perceives endorsement, embodies a shift toward formalism in Establishment Clause doctrine.

This Essay argues that the reasonable observer standard, which bypasses the role of faith in perception, undermines the protection of a core Establishment Clause value - inclusion. The reasonable observer standard, representing the abstracted perspectives of a "community" of indeterminate faith, decreases the significance of the effect of government action, particularly on the nonadherent. Application of the standard thus tends to validate the perspective of the majority. The value of inclusion is best served by an inquiry into purpose and effect that considers the perceptions of both adherents and nonadherents.

Number of Pages in PDF File: 21

Keywords: establishment clause, endorsement, endorsement of religion, reasonable person, constitutional law, reasonable observer

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Date posted: January 11, 2011 ; Last revised: January 25, 2011

Suggested Citation

Abrams, Paula L., The Reasonable Believer: Faith, Formalism, and Endorsement of Religion (January 10, 2011). Lewis & Clark Law Review, Vol. 14, No. 4, p. 1537, 2010; Lewis & Clark Law School Legal Studies Research Paper No. 2011-1. Available at SSRN: http://ssrn.com/abstract=1737939 or http://dx.doi.org/10.2139/ssrn.1737939

Contact Information

Paula L. Abrams (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6632 (Phone)
503-768-6716 (Fax)
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