Wexler on Religious Disapproval as Endorsement Test Obverse

Jay Wexler has posted an interesting piece on the endorsement test, Government Disapproval of Religion.  Jay is a supporter of the endorsement test (one can see this in some of his past work as well as in this piece), but here he argues that the test can be used to invalidate not only government endorsements but also government disapprovals.  The latter, he writes, have become more common as of roughly 2009.  The piece is insightful, loaded with interesting examples, and (as often happens with Jay) funny too (have a look at the transition between paragraphs 2 and 3 on page 7).

Jay argues for an "explicitly negative reference" approach to evaluating government disapprovals.  "[S]tatements, displays, symbols, and other messages that do explicitly refer to and condemn religion" can be invalidated by the obverse of the endorsement test. (4).  I find this approach to endorsement appealing, but if we are to have explicit negative references as the standard, why not restrict endorsement analysis to explicitly positive references?  At present, the endorsement test does not operate on these assumptions; that is, an explicit positive reference is not required for courts to find a violation of the endorsement test.  I think Jay may disagree with me, as he writes that "framing the test in this way creates a fair parallel with the Court's current endorsement analysis[.]" (10).  Alternatively, Jay might argue (he does at some points in the piece) that government cannot operate without some implicit disapproval of religion, but it can operate just fine without any explicit or implicit endorsement.

On the first point, I am doubtful that the endorsement test requires "explicit" positive expression.  I assume that in order for the endorsement to be "explicit," it likely will need to be express, and therefore (often) expressed, in some way.  This is the gist of many of the examples that Jay uses to illustrate disapproval, at least.  Yet in most of the cases I'm familiar with, that has not been the way the test has been applied.  On the second point, I wonder whether the debate is really about whether the government can operate at all, as compared with whether (and how best) it can operate well.

At all events, check out Jay's good piece.