First the very “goal” of the endorsement test, according to Justice O’Connor, is to identify a principle that is “'not only grounded in the history and language of the first amendment, but one that is also capable of consistent application to the relevant problems.'” Yet this goal of consistency is the test’s greatest failing. There is no generally-accepted conception of what “endorsement” is, and there cannot be. Whether a particular governmental action appears to endorse or disapprove religion depends on the presuppositions of the observer, and there is no “neutral” position, outside the culture, from which to make this assessment. The bare concept of “endorsement” therefore provides no guidance to legislatures or lower courts about what is an establishment of religion. It is nothing more than an application to the Religion Clauses of the principle: “I know it when I see it.”
For example, does a Nativity display in a public park “endorse” the Christian belief in Jesus? Or does it merely recognize that one part of the community is celebrating a religious holiday? Or does excluding religious displays and memorials from public parks open to all sorts of secular displays and memorials send a message of disapproval of religion?
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