Ross Astoria (U. of Wisconsin, Parkside) has posted The Endorsement Test and Equal Status. The abstract follows.
Since its inception, jurists and legal scholars have hotly contested the utility and fairness of the endorsement test. For its detractors, the endorsement test is unanchored in the constitutional text, devoid of limitations on the exercise of judicial power, and accordingly produces misguided outcomes. In contrast, its remaining adherents think the endorsement test expresses the basic democratic value of equality, and therefore find it worthy of preservation.
This paper is an attempt to reinvigorate the endorsement test
by more concisely articulating the relationship between endorsing and equality. As the endorsement test is presently conceived and employed, however, this relationship is oblique at best. In order to foreground equality, then, the endorsement test requires significant modification, which I propose in Section III. The primary purpose of these modifications is to assign to the norm of equal status the central role in Establishment Clause jurisprudence, particularly in those cases conventionally dubbed “display cases.” As far as I can tell, this is a new approach to religion clause jurisprudence. To test the modified endorsement test, I tease out its implications by applying it to several cases and scenarios.
In what follows, I first introduce the norm of equal status by
comparing it with other norms which religion clause theorists often take as salient (Sec. II). I then introduce the modification to the endorsement test, showing in the process how the endorsement test, as presently conceived, fails to foreground the norm of equal status (Sec. III). Finally, I apply the modified endorsement test to several common display case scenarios (Sec. IV). In the conclusion, I say a few things about the superiority of the modified endorsement test (Sec. V).