Justice O’Connor’s “perception of endorsement” standard governs the analysis of religious displays on public property for purposes of the Establishment Clause. The test rests on the perceptions of an “objective observer,” endowed with essentially perfect factual information, who assesses whether the display of religious imagery reasonably implies official endorsement of its message. Applying this standard, a well-developed jurisprudence unambiguously proscribes the permanent placement of religious symbols on public land. The remediation of these violations, however, is an ad hoc and often superficial exercise. This Article proposes a framework to realign the remedial inquiry with the rigorous assessment of the proscription itself. The proposal rests on the premise that O’Connor’s observer not only discerns the violation but must also arbitrate its remedy. Framing the analysis from the vantage of an essentially omniscient observer yields important insights. Most generally, the analysis so framed requires that a proposed remedy withstand exacting review to assure that it does not subtly perpetuate religious preference. To survive such scrutiny, a remedy must accomplish two interrelated objectives – it must create evident and substantial physical separation between government and the display, and it must do so through means that are strictly neutral with respect to the religious expression at issue. Application of this analysis to the remedies proposed and enforced in recent litigation highlights significant deficiencies in existing law as well as a continuing effort by defendants to dilute the consequences of the constitutional proscription. The most troubling of the proposals – and the handful of decisions sanctioning them – trivialize rather than vindicate the endorsement prohibition.
Denver University Law Review
Jordan Budd, "Cross Purposes: Remedying the Endorsement of Symbolic Religious Speech," 82 DENV. U. L. REV. 183 (2005).