More on Wexler on Endorsement

Regarding Jay Wexler's piece that I blogged yesterday, Marc DiGirolami writes:

Jay argues for an "explicitly negative reference" approach to evaluating government disapprovals.  "[S]tatements, displays, symbols, and other messages that do explicitly refer to and condemn religion" can be invalidated by the obverse of the endorsement test. (4).  I find this approach to endorsement appealing, but if we are to have explicit negative references as the standard, why not restrict endorsement analysis to explicitly positive references?  At present, the endorsement test does not operate on these assumptions; that is, an explicit positive reference is not required for courts to find a violation of the endorsement test.

He notes that "Jay might argue (he does at some points in the piece) that government cannot operate without some implicit disapproval of religion, but it can operate just fine without any explicit or implicit endorsement." 

It all depends what you mean by "religion."  I've argued that when religion is defined broadly, it is impossible for the government to act without (at least indirectly) implicating religious concepts or motivations in its actions.
Read the rest of DiGirolami's post here.