Boston University School of Law

 

Government Disapproval of Religion

Jay Wexler
Boston University School of Law

Abstract:     
The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention.  In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion.  The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion.  In the last few years, however, due to a variety of social and cultural phenomena, several cases alleging disapproval have made it to the federal courts.  This, then, is a good time to begin consideration of what the disapproval portion of the Endorsement Test should prohibit.  In this Article, I defend the idea that courts apply an “explicit negative reference” test to determine if the government has unconstitutionally disapproved of religion.  After explaining and defending that test, the Article applies the test to the cases of alleged disapproval that courts have been asked to consider.  The Article concludes by suggesting that the increasing importance of the disapproval portion of the Endorsement Test weighs strongly in favor of courts keeping the Endorsement Test despite the departure of its creator, Justice O’Connor, and the continued criticism leveled at it from courts and commentators.

Size: 216 KB

Adobe Acrobat Reader v3.01 or greater is required to view this paper.
To obtain a free copy, click the button below

 

Suggested Citation:

Jay Wexler, "Government Disapproval of Religion ," B.U. Law Working Paper No. 11-31 (July 11, 2011); SSRN Paper No. 1883597.

Contact Information

Jay Wexler
Professor of Law

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

jaywex@bu.edu

SOCIAL SCIENCE RESEARCH NETWORK