Document Type

Article

Publication Title

Lewis & Clark Law Review

Abstract

The reasonable observer standard, used in Establishment Clause cases to determine whether government action endorses religion, marks a retreat by the Court from vigorous scrutiny of government purpose and effect. The standard, which examines whether a reasonable observer, familiar with First Amendment values and with the history and context of government action, perceives endorsement, embodies a shift toward formalism in Establishment Clause doctrine. This Essay argues that the reasonable observer standard, which bypasses the role of faith in perception, undermines the protection of a core Establishment Clause value - inclusion. The reasonable observer standard, representing the abstracted perspectives of a "community" of indeterminate faith, decreases the significance of the effect of government action, particularly on the nonadherent. Application of the standard thus tends to validate the perspective of the majority. The value of inclusion is best served by an inquiry into purpose and effect that considers the perceptions of both adherents and nonadherents.

First Page

1537

Last Page

1556

Publication Date

2010

Comments

Lewis & Clark Law School Legal Studies Research Paper No. 2011-1

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