The O’Connor Test

Farewell to her religion jurisprudence? Original Article

Original Article

After a tough beginning, last week may turn out to be a good one for the Ten Commandments, or at least for Ten Commandment displays on state property. Sandra Day O’Connor’s retirement likely will swing the Court’s balance of power toward those who would allow the government to acknowledge and endorse religion.

O’Connor announced her resignation last Friday, four days after the Court’s narrow split decisions on government-sponsored Ten Commandment displays. The Court struck down two Kentucky-county courthouse exhibits that included the Commandments, but upheld a monument on the grounds of the Texas state capital that prominently depicted them. Both cases were decided five to four.

O’Connor voted to find both displays unconstitutional — which, arguably, is consistent with her position that the government may not “endorse” religion in ways that make non-believers or adherents of minority faiths feel like “outsiders” in the political community. Despite its lack of textual support (the First Amendment prohibits laws “respecting an establishment” of religion; it says nothing about “endorsement” or the feelings of certain citizens), O’Connor’s endorsement test has effectively become the law of the land because she frequently holds the Court’s tie-breaking vote in Establishment Clause cases.

O’Connor’s attentiveness to the emotional well-being of all citizens may be well intentioned, but her approach to church-state disputes has lent itself to decisions that are hostile to religion. When the ninth circuit ruled “under God” in the Pledge of Allegiance unconstitutional, it relied on O’Connor’s endorsement test. The approach also can lead to silly results, like the “two Rudolphs and a Frosty Rule”: Government-sponsored Christmas and Hanukah displays are constitutional only if they contain enough secular or pagan symbolism to nullify their religious appearance.

Most problematic, the endorsement test lacks the consistency and predictability necessary for the rule of law. What constitutes an “endorsement” of religion is inherently indeterminate. The approach necessarily elevates judicial will over rule-based judgment.

It also has the unintended side effect of empowering well-funded, anti-religion special-interest groups. Because every accommodation or acknowledgement of religion might be considered an unconstitutional endorsement, such groups as the ACLU can use the threat of lawsuits to intimidate city council members and public school officials. Several high-school principals, for example, have found it easier to capitulate to demands that student graduation speakers not mention religion than be sued and drawn into expensive and protracted litigation. Armed with the ambiguity of the endorsement test, anti-religious activists are emboldened in their battle to purge every remnant of religion from the public square.

Even though Justice Breyer cast the swing vote in last week’s Ten Commandments cases, O’Connor’s retirement will be decisive. Without her, Justices Stevens, Souter, and Ginsburg, who also found the Ten Commandments unconstitutional, lack a potential fifth vote for their strict “wall of separation” interpretation of the First Amendment. The Court now has only four members, at most, who think that the Constitution prohibits government endorsement of religion.

With O’Connor off the bench, Justice Kennedy will likely control religious-display cases, and he has proven much less hostile to religion than O’Connor. In the 1989 Allegheny County v. Greater Pittsburgh ACLU, Kennedy dissented when O’Connor and the Court stuck down the city of Pittsburgh’s holiday display, which contained a crèche and a menorah. Kennedy wrote, “Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage.”

Three years later in the school-prayer case Lee v. Weisman, Kennedy set forth his “coercion” analysis of the Establishment Clause. His standard prohibits the government from compelling or psychologically coercing an individual to participate in or attend a religious activity. This means there can be no official prayer at public-school graduations or football games, but non-coercive passive displays with religious content are permissible. One can argue, as Justices Scalia and Thomas have, that “psychological coercion” is not really coercion in the legal sense of the term. But whatever its flaws, Kennedy’s doctrine is an improvement over O’Connor’s inherently subjective approach.

Of course, Justice Kennedy’s coercion analysis will control the Court only if President Bush nominates an individual who eschews the Left’s “strict separationism” or O’Connor’s no-endorsement approach to the Establishment Clause. Those in the White House and Senate who lament the judiciary’s hostility toward religion ought to ask every nominee to explain his opinion of O’Connor’s religion jurisprudence. If the nominee indicates support for O’Connor’s endorsement test, the nominee should not be endorsed.

Discovery Institute Adjunct Fellow Vincent Phillip Muñoz is an assistant professor of political science at Tufts University and an adjunct fellow at the American Enterprise Institute.