Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test

Section I of this article briefly describes the emergence and development of the “no endorsement” test. Section II then seeks to show that the test is deficient as doctrine, and thus incapable of providing the clarity and coherence that current doctrine so sorely lacks. Section III considers various likely theoretical justifications for the “no endorsement” proposal, including the justification advanced by Justice O’Connor, and concludes that these justifications, like the test itself, are seriously flawed. This conclusion provokes a question: If the “no endorsement” test is doctrinally deficient and without theoretical justification, why has it elicited such widespread enthusiasm? Section IV attempts to answer this question by depicting the “no endorsement” test as an expression of the long-standing yearning to achieve governmental “neutrality” in matters of religion, and in particular of recent proposals which seek to avoid past failures by focusing upon “symbolic” rather than actual or “substantive” neutrality.

To explain its appeal, however, is not to justify the test. Section V of this article shows the futility of attempting to avoid contradiction and incoherence by seeking neutrality in symbolism and perceptions. The article concludes that the defects of the “no endorsement” test, and of the jurisprudence of symbolism, manifest the emptiness of neutrality as a guide to church-state relations. The problem is not that the concept of neutrality is false, meaningless, or inapplicable to establishment doctrine, but rather that the concept is purely formal and parasitic – and thus incapable of generating substantive solutions to establishment problems. If the “no endorsement” test ultimately offers cause for hope, therefore, the hope is that the test’s deficiencies, once perceived, will prompt jurists and scholars to leave behind what has proven to be a doctrinal dead end and tum their attention to exploring more promising avenues that may lead toward an adequate establishment doctrine.