Endorsement as ‘Adoptive Action’: A Suggested Definition of, and an Argument for, Justice O'Connor's Establishment Clause Test

January 1994

Endorsement as ‘Adoptive Action’: A Suggested Definition of, and an Argument for, Justice O'Connor's Establishment Clause Test
ITEM DETAILS
Type: Law review article
Author: Joel S. Jacobs
Source: Hastings Const. L.Q.
Citation: 22 Hastings Const. L.Q. 29 (1994)

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Article Text

(Excerpt, Automatically generated)

Endorsement as "Adoptive Action:"

A Suggested Definition of, and

an Argument for, Justice O'Connor's Establishment Clause Test

By JOEL S. JACOBS*

Table of Contents

Introduction 30

Justice O'Connor's Endorsement Test and the Coercion Test. 32

Justice O'Connor's Endorsement Test 32

Endorsement as a Clarification of Lemon 35

The Coercion Test 37

Problems with O'Connor's Formulation of

Endorsement 38

Problems with Focusing on Real People 38

Problems with Using the Objective Observer

Standard 40

Response to the Criticism 41

Endorsement as "Adoptive Action" 42

The Actor: Who Cannot Endorse? 43

The Subject-Matter of the Action: What Cannot Be Endorsed? 43

Relationship Between Actor and Subject-Matter:

What Is Endorsement? 48

Explicit Endorsement: Primarily Communicative

Acts 48

Acts That Are Not Primarily Communicative 51

Purpose Defined 52

Problems with the Purpose Prong 52

  • Law Clerk, Honorable D. Lowell Jensen, United States District Court for the Northern District of California. J.D., Boalt Hall, 1993; B.A. Wesleyan University, 1989. Professor Jesse Choper was enormously helpful to me while I was writing this article. Rob ert Holland, Howard Shelanski, Professor Mervin Verbitt, Danny Cloherty, and the mem bers of the 1991 Boalt Hall Church and State Seminar also provided useful input.

[29]

The Relevance of the Purpose Prong 55

Determining Whether Primarily Uncommunicative Action is Adoptive 56

The Individual, Religion, and the State

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