Not a Prayer in Protecting the Reasonable Observer: Borden shows the Endorsement Test is Just Not Working

Genevieve Deppe, Chicago-Kent College of Law

Abstract

This Article examines how Supreme Court Establishment Clause jurisprudence has evolved from a wall of separation to the endorsement test. As the Court adopted the endorsement test over a series of decisions, their opinions focused on neutrality and protecting minority interests. However, as this Article demonstrates using recent decisions, the endorsement test fails to protect these interests in cases involving prayer in public schools. Assuming the Establishment Clause should indeed protect neutrality and minority interests, as the Court has repeatedly stressed, this Article proposes a new test to analyze Establishment Clause cases in public schools that will better protect minority interests and maintain neutrality. The Article explains the proposed presumption of unconstitutionality test and applies the test to fact patterns to highlight where the new test would produce similar and dissimilar holdings to existing Establishment Clause decisions.