Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 27 (1995)

Page:   Index   Previous  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  Next

Cite as: 515 U. S. 753 (1995)

Opinion of O'Connor, J.

evaluates whether a challenged governmental practice conveys a message of endorsement of religion." Id., at 630 (O'Connor, J., concurring in part and concurring in judgment). In my view, proper application of the endorsement test requires that the reasonable observer be deemed more informed than the casual passerby postulated by Justice Stevens.

Because an Establishment Clause violation must be moored in government action of some sort, and because our concern is with the political community writ large, see Allegheny, supra, at 627 (O'Connor, J., concurring in part and concurring in judgment); Lynch, supra, at 690, the endorsement inquiry is not about the perceptions of particular individuals or saving isolated nonadherents from the discomfort of viewing symbols of a faith to which they do not subscribe. Indeed, to avoid "entirely sweep[ing] away all government recognition and acknowledgment of the role of religion in the lives of our citizens," Allegheny, supra, at 623 (O'Connor, J., concurring in part and concurring in judgment), our Establishment Clause jurisprudence must seek to identify the point at which the government becomes responsible, whether due to favoritism toward or disregard for the evident effect of religious speech, for the injection of religion into the political life of the citizenry.

I therefore disagree that the endorsement test should focus on the actual perception of individual observers, who naturally have differing degrees of knowledge. Under such an approach, a religious display is necessarily precluded so long as some passersby would perceive a governmental endorsement thereof. In my view, however, the endorsement test creates a more collective standard to gauge "the 'objective' meaning of the [government's] statement in the community," Lynch, supra, at 690 (O'Connor, J., concurring). In this respect, the applicable observer is similar to the "reasonable person" in tort law, who "is not to be identified with any ordinary individual, who might occasionally do unreasonable

779

Page:   Index   Previous  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  Next

Last modified: October 4, 2007