Answers to Questions Asked During the Study Period Will be Posted Here.


Question One

I've been going over the use of the Lemon Test and the Endorsement Test in several fact situations and it seems to me that the Endorsement Test is the same thing except with a different name. I was wondering, did we go over any cases that used the Lemon Test that, in your opinion, would have come out differently if the Endorsement Test had been used (or vice versa). Or, can you give an example of a case where certain facts that didn't matter all that much under the Lemon Test would have mattered more under the Endorsement Test (or vice versa)?

Answer

I share your suspicion that the two tests are very similar when applied. My instinct is that the cases come out the same under the two tests, but that may be in part because both tests can be manipulated to reach any desired result. One interesting example is found in Lynch v. Donnelly (page 438), the case in which Justice O'Connor first announced the endorsement test in a concurring opinion. In that opinion, she voted to upheld the display using the endorsement test, while 4 members of the Court writing in dissent found the display unconstitutional applying the Lemon test. The problem, however, is that 4 members in the majority also used Lemon, but to uphold rather than strike down the display. That means that 8 judges used the Lemon test, but they split 4-4 in the result they reached in the case. That split result makes it seem as though it isn't the test that matters as much as the attitude of the judge applying the test. Of the two prongs of the endorsement test (purpose to endorse religion and effect of endorsing religion), I used to think that the endorsement inquiry narrowed the purpose prong more than it narrowed the effect prong because having a secular purpose seemed harder to satisfy than not having a purpose of endorsing religion.  More recently, it has seemed more likely to make a difference with the effect prong, but only because of all the knowledge imputed to the knowledgeable observer. All of that same knowledge wouldn't be considered under the effect prong so it might be harder to satisfy. That may explain the disagreement among the Justices who use the endorsement test over how much specific knowledge the reasonable observer has. My bottom line is that it probably doesn't matter which test is used, but that hasn't stopped lower courts from applying both tests just to cover all their bases. On the exam, of course, it make sense to apply both tests alternatively even if the analysis under both is similar.