The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a crèche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, but unacceptable if it is accompanied by poinsettias, a "peace tree," or a wreath, a tree, and a plastic Santa Claus. A menorah may be displayed next to a Christmas tree, or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, but not next to a crèche and a Christmas tree. A number of commentators have suggested that this disarray can be blamed largely on the chaotic state of the Supreme Court's Religion Clauses doctrine. Since the 1980s the Supreme Court has recognized that the public display of religious symbols may, in some circumstances, violate the Establishment Clause. The Supreme Court's guidance as to when such a display will violate the Establishment Clause has been vague, however; in applying what has come to be known as the "endorsement test," the Court has essentially declared that public displays of religious symbols are impermissible if they convey a message of endorsement of religion. Yet, beyond stating that it is necessary to examine the context of the display, the Supreme Court has failed to provide a satisfactory way of determining what message a given religious symbol or set of symbols actually conveys. This failure has led to a widely recognized inconsistency, confusion, and apparent subjectivity in the Supreme Court and lower court cases dealing with public displays of religious symbolism. This Article draws upon linguistic theory to explain why the task of discerning the meaning of a display of religious symbolism has proven so unmanageable. In particular, it draws on the branch of linguistic theory known as "speech act theory," as well as some postmodern critiques of, and elaborations on, speech act theory. The defining feature of speech act theory, as I use the term here, is that it emphasizes the effects of linguistic utterances and the contextual features that give rise to those effects, rather than the intent behind the utterances. These features of speech act theory make this branch of linguistic theory particularly relevant to the analysis of meaning in religious symbol cases, because the endorsement test is similarly concerned primarily with the (endorsing) effect of religious symbolism and with the contextual features that may create or negate an endorsement effect.
B. J. Hill,
Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol104/iss3/3