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Government Disapproval of Religion

29 Pages Posted: 11 Jul 2011  

Jay Wexler

Boston University School of Law

Date Written: July 11, 2011

Abstract

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a variety of social and cultural phenomena, several cases alleging disapproval have made it to the federal courts. This, then, is a good time to begin consideration of what the disapproval portion of the Endorsement Test should prohibit. In this Article, I defend the idea that courts apply an “explicit negative reference” test to determine if the government has unconstitutionally disapproved of religion. After explaining and defending that test, the Article applies the test to the cases of alleged disapproval that courts have been asked to consider. The Article concludes by suggesting that the increasing importance of the disapproval portion of the Endorsement Test weighs strongly in favor of courts keeping the Endorsement Test despite the departure of its creator, Justice O’Connor, and the continued criticism leveled at it from courts and commentators.

Keywords: Endorsement Test, Establishment Clause, Sharia Law, New Athism

JEL Classification: K19, K39

Suggested Citation

Wexler, Jay, Government Disapproval of Religion (July 11, 2011). Boston Univ. School of Law, Public Law Research Paper No. 11-32. Available at SSRN: https://ssrn.com/abstract=1883597 or http://dx.doi.org/10.2139/ssrn.1883597

Jay Wexler (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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