Endorsement Test

Under Justice O'Connor's endorsement test, proposed as a refinement or clarification of the Lemon test, both the purpose and effect prongs of the Lemon test are examined through the lens of endorsement. Under this clarification, the Establishment Clause test is:

(1) whether the government has a purpose to endorse or disapprove of religion; and
(2) whether the effect of the challenged practice is to endorse or disapprove of religion.

In almost all cases where the test has been used the focus is on government endorsement rather than disapproval. Endorsement means that the challenged practice “send[s] a message to nonadherents that they are outsiders, not full members of the political community” and a “message to adherents that they are insiders, favored members of the political community.” Under Justice O’Connor’s version of the test, whether the effect is to endorse religion or not must be viewed from the vantage point of “a reasonable observer who evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” In her view, “the reasonable observer is knowledgeable and aware of the history and context of the community and the situation in which the religious practice occurs.”

Even though Justice O’Connor offered her endorsement test as a clarification or gloss on the Lemon test rather than as a separate test, the endorsement test has often been used by lower courts as a separate test, an alternative analysis to the Lemon test rather than just a slight modification or gloss on the Lemon test. Typically such courts alternatively analyze the case before them under both the original Lemon test and the endorsement test variation.