Time’s Up for the Endorsement Test?

At the First Things site today, I have a post on The American Legion v. American Humanist Association, the Maryland Peace Cross case, in which the Court granted cert last month. I argue that the Court could use the opportunity to get rid of the endorsement test in Establishment Clause cases. Here’s an excerpt:

Last month, the Supreme Court agreed to consider an important Establishment Clause case from Maryland, The American Legion v. American Humanist Association. The case, which presents a challenge to a Maryland cemetery’s use of a 40-foot cross as a public war memorial, gives the Court a chance to clarify its views on the constitutionality of state-sponsored religious displays. In particular, the case provides an opportunity for the Court to do away with the so-called “endorsement test,” which holds that a display violates the Constitution if a hypothetical, reasonable observer would see it as an endorsement of religion. Conservatives have criticized the endorsement test for decades, and with a new majority on the Court, they may finally have the votes to discard it. American Legion could turn out to be one of the most significant Establishment Clause cases in a long time.

American Legion is also the subject of a recent “Legal Spirits” episode Marc and I recorded. But you have already listened to that. Right?

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