Religion & Law

...can be found in this new paper by Paula Abrams, in which the endorsement test's reasonable observer standard is criticized on the grounds that it is insufficiently attentive to the Establishment Clause value of "inclusiveness."  I've certainly seen critiques of the endorsement test, but only once in a while on the grounds that the reasonable observer standard needs really to be broadened to account for purely subjective experiences because it is in the nature of religious belief and non-belief that it "alters an individual's conception of the world," and so there is no single reasonable perspective on the subject of "inclusion."  The bottom line for Professor Abrams is that any religious display by the government ought to be presumptively unconstitutional (1555) and that we ought to return to the purpose and effect test inquiry of Lemon, but somehow subjectivized as to the latter in order to account for the impossibility of attaining any sort of standard of reason at all, given the subject matter.

For what it's worth, my guess is that there is a fairly good chance that the endorsement test is on its way out, and that the Court will pick a case soon enough to reject it, though perhaps not for Professor Abrams's reasons (though these things are difficult to predict).  But I'm not certain what I think about some of Professor Abrams' views about the reasons for the reasonable observer test's emergence.  For example, she says, at 1554, that the endorsement test gained ascendance just as the court was shifting from a separationist model to "[t]he prevailing theory," one which "emphasizes government accommodation of religion."  Lee v. Weisman is cited as evidence for the Court's new theory, and then the author says that "[t]he endorsement test embodies this metamorphosis."  A few things strike me as not quite right about this set of statements: (1) the government lost in Lee; (2) the endorsement test was not used in Justice Kennedy's majority opinion in Lee; (3) Justice O'Connor, the mother of endorsement and committed endorsement-ite to the end, joined the majority in Lee; (4) if anything, the endorsement test, as conceived and applied, has been deemed (I think?) more restrictive than many competing approaches, including that used by Justice Kennedy in Lee; and (5) perhaps most crucially, I'm not sure I can agree that the Court's present "theory" is one which "emphasizes government accommodation of religion," whether in the Free Exercise or Establishment contexts. 

For those interested in these issues, and with the time to read the paper, I'd be curious if you think I am misreading the claims.