The following style of argument has on occasion found favor with courts. The state has an interest in appearing not to violate the Establishment Clause, even if it actually is not violating the Establishment Clause. And it appears to violate the Establishment Clause when it accommodates a religious group or organization — whether on equal terms with non-religious groups or not. For example, in the Second Circuit’s Bronx Household of Faith case (whose fate is still working itself out in the Southern District of New York), the Court said this: “In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause.” Not only endorsement, but a “strong basis” for “concern” that there is endorsement — that is, the appearance of an endorsement — is constitutionally relevant. I have not been able to locate the phrase, “appearance of endorsement” in Justice O’Connor’s statements of her test, though I did find that precise language in Justice Souter’s concurrence in Capitol Square Review and Advisory Bd. v. Pinette.
I think the argument is utterly bogus. But I feel that way about many Establishment Clause standards and arguments. What makes this one particularly — uniquely — wrongheaded is its backhanded puffing up of the reach of the Establishment Clause without actually bothering so to rule.