Law Commons^™

Symbols, Perceptions, And Doctrinal Illusions: Establishment Neutrality And The "No Endorsement" Test, Steven D. Smith

Michigan Law Review

Section I of this article briefly describes the emergence and development of the "no endorsement" test. Section II then seeks to show that the test is deficient as doctrine, and thus incapable of providing the clarity and coherence that current doctrine so sorely lacks. Section III considers various likely theoretical justifications for the "no endorsement" proposal, including the justification advanced by Justice O'Connor, and concludes that these justifications, like the test itself, are seriously flawed. This conclusion provokes a question: If the "no endorsement" test is doctrinally deficient and without theoretical justification, why has it elicited such widespread enthusiasm? Section …