Wexler on Endorsement Test and Government Disapproval of Religion

Jay Wexler (Boston University School of Law) has posted "Government Disapproval of Religion" on SSRN.  Wexler writes, "In all this hubbub about endorsement, it can be easy to forget that the endorsement test is actually the endorsement slash disapproval test. The Court has always maintained that government may send neither a message of endorsement nor a message of disapproval of anyone’s religion or of religion in general. . . . With the rise of post 9/11 anti-Islamic sentiment, the growth of the so-called “New Atheism” movement, and the growing willingness of government units in predominantly liberal locales to stand up for gay rights in the presence of conservative religious opposition, it has recently become more socially and politically acceptable in certain
contexts for government to actively criticize religious faiths. For this reason, it is now a good time to begin a scholarly conversation about what constitutes an unconstitutional disapproval of religion and what role the anti-disapproval norm should play in overall Religion Clause jurisprudence."

Here is the 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.