Monday, May 20, 2013
Following up on Marc's post
, and also on the posts by Eugene Volokh
and Paul Horwitz
to which he linked, a few quick thoughts: First, I think it would be a good thing if the possibility Eugene raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass. I think the criticisms directed at that test in Steven Smith's 1987 article
had and have force. Next, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context. Yes, this context is an anomalous one and, yes, Marsh
was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea. For reasons I mention in this very short piece
, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try. Better to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.