Endorsement Test

Justice O’Connor suggested the Endorsement Test as a refinement (or clarification) of the Lemon test (see Justice O'Connor's opinion concurring in the judgment in Wallace v. Jaffree). Under her approach, both the purpose and effect prongs of Lemon are examined through the lens of endorsement. Under this clarification, the issue is whether (1) the government has a purpose to endorse religion and (2) whether the effect of the challenged practice is to endorse religion so as to “send a message to nonadherents that they are outsiders, not full members of the political community” and a “message to adherents that they are insiders, favored members of the political community.”

The Endorsement Test was designed to somewhat narrow the reach of government action that violates the Establishment Clause. Instead of prohibiting the government from acting to further all religious purposes, it only outlaws purposes designed to endorse religion. Similarly, all effects that advance religion are not prohibited, but only those that have the effect of endorsing religion. This leaves the government free to acknowledge religion so long as that acknowledgement does not come in the form of endorsement.

Under Justice O’Connor’s version of the test, whether the effect is to endorse religion or not must be viewed from the vantage point of “a reasonable observer who evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” In her view, “the reasonable observer is knowledgeable and aware of the history and context of the community and the situation in which the religious practice occurs.”

Even though Justice O’Connor offered her endorsement test as a gloss on Lemon rather than as a separate test, the endorsement test is often used by lower courts as an alternative to the Lemon test. Typically such courts alternatively analyze the case under Lemon and the endorsement alternative. The endorsement test has been criticized, much as the Lemon test has, by some members of the Supreme Court including Justice Kennedy. However, it is sometimes used in opinions of the Court either as a description of the challenged government practice, as a gloss on Lemon or as alternative to Lemon and has been used by the Court to evaluate the constitutionality of public school practices such as school prayer.