Lynch v. Donnelly: The Momemt of Creation

And on the First day, Justice O'Connor created the Endorsement Test from the rib of the Lemon test. And it was good.

Check out the Duke Law video on this case

Lynch v. Donnelly is the case in which the Endorsement Test first took shape, in a concurring opinion written by Justice O'Connor.

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

 The purpose prong of the Lemon test requires that a government activity have a secular purpose. That requirement is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes. In Stone v. Graham, 449 U.S. 39 (1980), for example, the Court held that posting copies of the Ten Commandments in schools violated the purpose prong of the Lemon test, yet the State plainly had some secular objectives, such as instilling most of the values of the Ten Commandments and illustrating their connection to our legal system. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

 Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion. The laws upheld in Walz v. Tax Comm'n (1970) (tax exemption for religious, educational, and charitable organizations), in McGowan v. Maryland (1961) (mandatory Sunday closing law), and in Zorach v. Clauson (1952) (released time from school for off-campus religious instruction), had such effects, but they did not violate the Establishment Clause. What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community.

So why was the Nativity scene in Lynch okay, but the one in Allegehny not okay?