Law Review: Endorsement Test in Salazar v. Buono

Endorsement Test
124 Harv. L. Rev. 219

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For the last two decades, the endorsement test has been the touchstone inquiry in Establishment Clause challenges. This highly contextual test considers whether a reasonable observer would deem a government action or display to have the purpose or effect of endorsing religion. The Supreme Court has long resisted bright-line rules that would limit this contextual analysis only to those messages that are government owned or controlled. Last Term, in Salazar v. Buono, the Supreme Court overturned an injunction that barred Congress from transferring a Latin cross to private ownership. Congress sought to transfer the cross, which stood on federal land, in order to cure an Establishment Clause violation. Although the Buono Court technically declined to consider whether the transfer itself constituted impermissible endorsement, a majority of the Court indicated that it would not apply the endorsement test to a now privately owned display. The Court thus appears to be moving toward a circumscribed version of its endorsement test, applying the test only to publicly owned or controlled messages.