Academic

Abrams on the Reasonable Observer Standard in Establishment Clause Cases

By Lawrence Solum

Paula L. Abrams (Lewis & Clark Law School) has posted The Reasonable Believer: Faith, Formalism, and Endorsement of Religion on SSRN. Here is the abstract:

The reasonable observer standard, used in Establishment Clause cases to determine whether government action endorses religion, marks a retreat by the Court from vigorous scrutiny of government purpose and effect. The standard, which examines whether a reasonable observer, familiar with First Amendment values and with the history and context of government action, perceives endorsement, embodies a shift toward formalism in Establishment Clause doctrine.

This Essay argues that the reasonable observer standard, which bypasses the role of faith in perception, undermines the protection of a core Establishment Clause value - inclusion. The reasonable observer standard, representing the abstracted perspectives of a "community" of indeterminate faith, decreases the significance of the effect of government action, particularly on the nonadherent. Application of the standard thus tends to validate the perspective of the majority. The value of inclusion is best served by an inquiry into purpose and effect that considers the perceptions of both adherents and nonadherents.

Full post as published by Legal Theory Blog on January 13, 2011 (boomark / email).