"County of Allegheny v. American Civil Liberties Union": Embracing the Endorsement Test

Abstract

In County Of Allegheny v. American Civil Liberties Union, the United States Supreme Court held that the establishment clause of the first amendment of the Constitution did not permit Allegheny County, Pennsylvania to allow a local Catholic group to display a nativity scene inside the county courthouse. At the same time, however, the Court permitted a city display of a Chanukah menorah next to a Christmas tree on the steps of the Pittsburgh City Hall. The Court divided 5-to-4 in invalidating the creche and 6-to-3 in upholding the menorah, with no single opinion commanding a majority of the Court on the question of the Chanukah symbol. More importantly, the majority opinion officially adopted the Endorsement test, a new analytical tool which uses a case-by-case balancing approach in which constitutional judgments concerning religious symbols are dependent upon the physical setting of the particular practice.The Endorsement test originates from a 1984 case, Lynch v. Donnelly, in which the Court upheld a city-sponsored nativity scene that was surrounded by Santa's reindeer, a wishing well and candy canes. Justice O'Connor's concurring opinion stressed that the result in each case should turn on the “unique circumstances” and “particular physical setting” involved. Her opinion specifically focused on whether the practice at issue would be perceived as a government endorsement of a religious belief. By incorporating the use of “perspectives” during the decision-making process, the Endorsement test reflects the contribution of neutrality as a theoretical standard which recognizes that individuals perceive the world differently, and that one individual's neutrality may be another's bias.