Abstract
It is a pleasure to be able to comment on Professor Jay Wexler's interesting and thought-provoking paper. 1 I must confess that when I read the title, The Endorsement Court, I expected a familiar thesis such as: "The Rehnquist Court on church-state relations has been defined by its embrace of the "endorsement' test, and therefore it should be called "the endorsement court.'" Then I began reading the paper and realized that Professor Wexler was actually proposing to create something called the "Endorsement Court" to hear cases involving challenges that government-sponsored symbols with religious content violate the Establishment Clause by endorsing religion. Having such a tribunal court replace the federal district and appellate courts, subject only to U.S. Supreme Court review, is an unusual idea that, like many such ideas, has the virtue of making one think outside the box. In the following Comment, I will briefly suggest why, unfortunately, the proposal seems to face crippling separation of powers objections. The major subject of my comments, however, is not the Endorsement Court, but the underlying endorsement test for assessing symbolic government actions concerning religion. Contrary to Professor Wexler, I argue that unless the endorsement test is properly understood and limited, it has the critical flaw of putting the Establishment Clause at war with the other religion guarantee of the First Amendment, the Free Exercise Clause. If the Establishment Clause forbade government endorsement of religion in all contexts, it would undermine the government's ability to give special ...