Endorsing the Endorsement Test

7 Charleston L. Rev. 719, 2013

Northwestern Public Law Research Paper No. 13-41

8 Pages Posted: 3 Nov 2022 Last revised: 2 Dec 2022

Date Written: November 2, 2022

Abstract

Justice Sandra Day O’Connor’s most important contribution to the jurisprudence of the religion clauses is her so-called 'endorsement test', which holds that the Establishment Clause prohibits state action 'endorsing religion or a particular religious practice'. The test has been subject to familiar criticisms, of which the most powerful is that O’Connor has not adequately explained why endorsement ought to be so important in testing the constitutionality of state action. The criticisms are sound but not dispositive. Justice O’Connor’s defense of the test fails, but there are other reasons, reasons that she chose not to emphasize, why that test is an indispensible contribution to Establishment Clause jurisprudence.

Keywords: Religion, Sandra Day O’Connor, Endorsement Test

JEL Classification: K10, K19, K30, K39

Suggested Citation

Koppelman, Andrew M., Endorsing the Endorsement Test (November 2, 2022). 7 Charleston L. Rev. 719, 2013, Northwestern Public Law Research Paper No. 13-41, Available at SSRN: https://ssrn.com/abstract=4265992 or http://dx.doi.org/10.2139/ssrn.4265992

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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