Rethinking Government Neutrality Towards Religion Under the Establishment Clause: The Untapped Potential of Justice O’Connor’s Insight

Traditional establishment clause analysis forbids any government actions whose purpose or effect is to advance or inhibit religion. In Lynch v. Donnelly, Justice O'Connor recast the ‘advance or inhibit’ test to focus on government ‘endorsement or disapproval.’ Professor Loewy emphasizes that this refined test prohibits the government from sending a message of either inferiority or superiority to those who adhere to particular religious beliefs. In light of Justice O'Connor's newly formulated test, Professor Loewy re-evaluates past United States Supreme Court decisions and current common practices in our society: the Supreme Court's opening invocation, school prayer, the inclusion of the phrase ‘under God’ in the flag salute, and the convening of student religious groups in public schools. Professor Loewy concludes that government neutrality towards religion, which the establishment clause mandates, can be achieved best by a serious application of the endorsement/disapproval test.