Endorsement as ‘Adoptive Action’: A Suggested Definition of, and an Argument for, Justice O'Connor's Establishment Clause Test
January 1994
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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