14 Pages Posted: 12 May 2006
This paper, from a symposium at Washington University (St. Louis) Law School on the Rehnquist Court and the First Amendment, responds to a paper by Professor Jay Wexler on the Court's endorsement test for the Establishment Clause. The central section of my paper defends a limited version of the endorsement test. I argue that unless the endorsement test is properly understood and limited, it has the critical flaw of putting the Establishment Clause at war with the other religion guarantee of the First Amendment, the Free Exercise Clause. If the Establishment Clause forbade government endorsement of religion in all contexts, it would undermine the government's ability to give special accommodation to religious practice and thus would severely impair free exercise values. "No endorsement of religion" thus must operate, not as the general requirement of the Establishment Clause, but only as a rule for the particular class of establishment cases involving government-sponsored religious symbols and expression. The no-endorsement test is legitimate for that category of cases, I argue, but only because in those cases it serves the more fundamental goal of protecting a voluntary religious sector independent of government.
Keywords: First Amendment, Religion Clauses, Establishment Clause, Endorsement of Religion, Religious Liberty, Accommodation of Religion
Suggested Citation: Suggested Citation
Berg, Thomas C., What's Right and Wrong with the 'No Endorsement of Religion' Test. Washington University Journal of Law & Policy, Vol. 21, 2006; U of St. Thomas Legal Studies Research Paper No. 06-22. Available at SSRN: https://ssrn.com/abstract=901884