The Endorsement Test Is Alive and Well: A Cause for Celebraion and Sorrow

Posted: 10 Feb 2013

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

Date Written: February 8, 2013


The endorsement test, first explained by Justice O’Connor, provides one way to determine whether state action violates Establishment Clause guarantees. Now that Justice O’Connor has retired, there is some question whether the endorsement test will survive. Commentators’ claims to the contrary notwithstanding, however, there is no reason to think that the endorsement test retired along with Justice O’Connor, although a separate issue is whether those on the Court using the test will do more than give occasional lip service to the interests and perspectives of minority religious groups. At this point, the most likely scenario is that the Court will sometimes use the test, but will be unlikely to use it to strike down a particular practice. The article concludes that the test is likely to remain one of the tests used by the Court to determine whether Establishment Clause guarantees have been violated — the test will retain its potential to assure that individuals will not be treated as second-class citizens because of their religious beliefs but will in reality do little or nothing to take account of religious minorities’ sincere reactions to a variety of practices privileging some religions over others and privileging religion over non-religion.

Keywords: endorsement, establishment clause, second-class citizen, reasonable observer

JEL Classification: K10

Suggested Citation

Strasser, Mark, The Endorsement Test Is Alive and Well: A Cause for Celebraion and Sorrow (February 8, 2013). 39 Pepperdine Law Review 1273-1315 (2013), Available at SSRN:

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics