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Summary

An examination of Justice O'Connor's opinions interpreting the Establishment Clause reveals that she employed different tests depending on the type of government activity at issue. She often and rather consistently applied the so-called "endorsement test" in cases involving government speech on religious topics, but tended to use hybrid approaches incorporating both the test set forth in Lemon and a neutrality test in cases involving government aid programs. The decisions show that O'Connor believed that these cases should all be examined carefully with particular attention given to the facts of each, and that the Court should refrain from tying itself to a single test for evaluating Establishment Clause cases. Justice O'Connor noted in one of her concurring opinions that "[e]xperience proves that the Establishment Clause . . . cannot easily be reduced to a single test," and that different cases "may call for different approaches."1 In cases involving "government actions targeted at particular individuals or groups, imposing special duties or giving benefits," O'Connor seemed to indicate that the neutrality test should be used, while the endorsement test would more appropriate in cases involving government speech on religious topics.2 However, she cautioned the Court against using a single unified test for evaluating all Establishment Clause claims, stating that such a test could "do more harm than good" and that a single test "risks being so vague as to be useless."3 An examination of her opinions reveals that she viewed all of the cases as very fact-specific and required careful consideration by the Court to determine whether an improper relationship existed between the government and religion. The two types of cases discussed below provide an overview of the evolution of O'Connor's reasoning in cases involving government and religion and is specifically focused on those interpreting the Establishment Clause.4 This

Related Legislation:
• S.2

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