ESSAYS

RETHINKING GOVERNMENT NEUTRALITY TOWARDS RELIGION UNDER THE ESTABLISHMENT CLAUSE: THE UNTAPPED POTENTIAL OF JUSTICE O'CONNOR'S INSIGHT

ARNOLD H. LOEWYt

Traditional establishment clause analysis forbids any government actions whose purpose or effect is to advance or inhibit religion. In Lynch v. Donnelly Justice O'Connor recast the "advance or inhibit" test to focus on government "endorsement or disapproval" Professor Loewy emphasizes that this refined test prohibits the government from sending a message of either inferiority or superiority to those who adhere to par ticular religious beliefs. In light of Justice O'Connor's newly formulated test, Professor Loewy re-evaluates past United States Supreme Court de cisions and current common practices in our society: the Supreme Court's opening invocation, school prayer, the inclusion of the phrase "under God" in the flag salute, and the convening of student religious groups in public schools. Professor Loewy concludes that government neutrality towards religion, which the establishment clause mandates, can be achieved best by a serious application of the endorsement/disap proval test.

If ever a series of decisions needed rethinking, it is those in which govern ment has arguably breached its obligation of neutrality by sponsoring or de meaning religion.1 Although current establishment clause doctrine forbids any government actions whose purpose or effect is to advance or inhibit religion,2 it

t Professor of Law, The University