The Most Reasonable Standard: Why Justice O'Connor's Endorsement Test Applying the Reasonable Observer Should Be the Preferred Test for Evaluating Establishment Clause Violations
24 Pages Posted: 28 Feb 2014
Date Written: February 7, 2014
Currently, the Supreme Court has yet to state a preferred test for Establishment Clause claims thus resulting in chaos in the lower courts. It is the author’s position that Justice O’Connor’s reasonable observer test results in the most just outcome for Establishment Clause claims. Specifically, by considering the unique circumstances of each monument or memorial, the conclusions it reaches are far more accurate than other tests.
Her endorsement test asks the question whether it is the government’s purpose to endorse or disapprove a religion, and irrespective of its purpose whether that message is actually conveyed. The evaluations become very case specific and depend upon the conclusions a reasonable observer would make. This person is equipped with heightened knowledge and is aware of the general history and context of the display. By weighing all of the context and history factors, similar to the reasonable prudent person of tort law, the reasonable observer reaches a far more informed conclusion. An application to Am. Atheists, Inc. v. Port Auth. of N.Y. and N.J. illustrates the effectiveness of the test. This case, arguably filed for political purposes, involves the cross that was erected at the World Trade Center, post September 11th terrorist attacks. The potential Establishment Clause violation arises by placing the cross in a governmentally funded museum. Considering the context factors of the history of the cross and September 11th, the surrounding content of the memorial, the primary goal not being Christianity, and the size of the cross not being for the purpose to dominate all other objects, a reasonable observer would conclude there is no government endorsement present. Thus, Am. Atheists, Inc. v. Port Auth. of N.Y. and N.J. poses no substantial question of law and leads to the strong presumption that it is merely an effort to generate public awareness of American Atheist’s, Inc.’s cause through the legal process.
Keywords: First Amendment, Establishment Clause
Suggested Citation: Suggested Citation