December 2005 Vol. 104 No. 3 THE REVIEW

Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test

B. Jessie Hill

The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a crèche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, but unacceptable if it is accompanied by poinsettias, a “peace tree,” or a wreath, a tree, and a plastic Santa Claus. A menorah may be displayed next to a Christmas tree, or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, but not next to a crèche and a Christmas tree. A number of commentators have suggested that this disarray can be blamed largely on the chaotic state of the Supreme Court’s Religion Clauses doctrine.

Since the 1980s the Supreme Court has recognized that the public display of religious symbols may, in some circumstances, violate the Establishment Clause. The Supreme Court’s guidance as to when such a display will violate the Establishment Clause has been vague, however; in applying what has come to be known as the “endorsement test,” the Court has essentially declared that public displays of religious symbols are impermissible if they convey a message of endorsement of religion. Yet, beyond stating that it is necessary to examine the context of the display, the Supreme Court has failed to provide a satisfactory way of determining what message a given religious symbol or set of symbols actually conveys. This failure has led to a widely recognized inconsistency, confusion, and apparent subjectivity in the Supreme Court and lower court cases dealing with public displays of religious symbolism.

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