USD Professor of Law Steven Smith’s Expertise Featured in Economist Article “Endorsing the endorsement test”

Warren Distinguished Professor of Law Steven D. Smith

New York (October 8, 2013) – Comments from University of San Diego (USD) School of Law Professor of Steven Smith were featured in an Economist article on one consequential case to be heard by the Supreme Court this term, Town of Greece v Galloway, a clash over the meaning of the first-amendment rule that “Congress shall make no law respecting an establishment of religion.”

The article states that some believe the court should take this opportunity to reject the “no endorsement” interpretation of this provision first articulated in 1984 by Justice Sandra Day O’Connor. In her concurring opinion in Lynch v Donnelly, Justice O’Connor agreed with four of her colleagues that the inclusion of a nativity scene in a public Christmas display does not violate the constitution, but her reasoning grew out of a novel approach to the provision.

“The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community,” wrote O’Connor. “Government can run afoul of that prohibition...[by] endorsement or disapproval of religion. Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

In the article, Smith notes the enduring flaws of the endorsement test and concludes that it is “inassimilable in the American constitutional tradition.” It is not the case, he argues, that government endorsements of religion actually “lower some citizens’ standing” in the political community.

“[G]overnments routinely assert things that contradict some citizens’ core beliefs: governments endorse free market economics over socialism, war in the Middle East over pacifism or non-intervention, religious freedom over either theocracy or Soviet-style secularism,” said Smith. “So then suppose someone complains, “The government is rejecting my core beliefs, thereby making me feel like an ‘outsider,’ and thus lowering my standing in the political community.” We know how to respond: “You may in fact be an ‘outsider’ in the practical sense of holding a minority or out-of-favor view, but you have the same rights to speak, vote, run for office, be tried by a jury, etc., etc., as everybody else. In that decisive sense, you are an equal citizen; you have equal ‘standing in the political community.’”

Read the full article on

About Professor Smith

Steven D. Smith is a Warren Distinguished Professor of Law at the University of San Diego School of Law, where he teaches and writes in the areas law and religion, constitutional law, and torts. Smith is also the co-executive director of the USD’s Institute for Law & Religion and Institute for Law & Philosophy.

About the University of San Diego School of Law

Recognized for the excellence of its faculty, curriculum and clinical programs, the University of San Diego (USD) School of Law enrolls approximately 900 Juris Doctor and graduate law students from throughout the United States and around the world. The law school is best known for its offerings in the areas of business and corporate law, constitutional law, intellectual property, international and comparative law, public interest law, and taxation.

USD School of Law is one of the 81 law schools elected to the Order of the Coif, a national honor society for law school graduates. The law school’s faculty is a strong group of outstanding scholars and teachers with national and international reputations and currently ranks 23rd worldwide in all-time faculty downloads on the Social Sciences Research Network (SSRN). The school is accredited by the American Bar Association and is a member of the Association of American Law Schools. Founded in 1954, the law school is part of the University of San Diego, a private, nonprofit, independent, Roman Catholic university chartered in 1949.


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