In Praise of Contextuality - Justice O'Connor and the Establishment Clause

Abstract

Among Justice Sandra Day O’Connor’s lasting contributions to Supreme Court Jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government in assessing its constitutionality. Typical of this contributor has been her two decades of work in Establishment Clause law, in particular, ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, in which it was most recently employed. The non-endorsement test has served as one of the two commonly competing tests in establishment cases not involving financial aid. This article argues that her attempt to push the Court towards contextualism, in Establishment Clause cases in particular, has been an important correction to the Court's approach.

Keywords: Justice Sandra Day O’Connor, Religion Clause, Establishment Clause, non-endorsement test, contextualism, Lynch v. Donnelly, McCreary County, Kentucky v. American Civil Liberties Union