Endorsement Retires: From Religious Symbols to Anti-Sorting Principles

Abstract

As last Term's Ten Commandments cases illustrated, the Supreme Court sometimes polices government use of religious symbols. This is partly attributable to the preferences of Justice O'Connor; she authored the "endorsement test" for establishment clause violations. With her departure from the Court, there is a good chance that the test will retire along with her. In this article, I explain two overlapping principles that could underwrite continuing judicial concern about government-backed religious messages: anti-proselytism and anti-sorting. The first principle was inspired by the school prayer cases and it is the conventional grounding for the endorsement test. But it is often a weak basis for attacking public religious displays, as other commentators have noted. The second option - an anti-sorting principle - has not yet been explored. It is inspired by the Tiebout model of inter-local competition for citizen-voters. As applied to religious symbols, the principle would be attuned to their strategic use as signals to outsiders (and as reminders to insiders) regarding religion and political power within the community. More generally, the principle would target any state action that encourages citizens to sort themselves into religiously homogenous political jurisdictions. That principle obviously reaches beyond official use of religious messages. It can reorient thinking on an enormous range of questions. For example, attention to religious sorting deepens our understanding of founding era establishments, it might slant free exercise doctrine toward liberty norms and away from equality norms, and it even suggests a constitutional definition for religion. On the other hand, there are significant uncertainties in this field - normative, empirical, and sociological. Only a modest form of the anti-sorting principle should be enforced for now. In any event, religious sorting is a live social dynamic in America that deserves far more attention from the academy.

Keywords: religion, symbols, sorting, Tiebout, establishment clause, endorsement test, ten commandments