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110 West Virginia Law Review 315 (2007)


In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on legal judgment, an approach informed by doctrinal and policy considerations but not controlled by any formal test. In this Essay, I suggest that Justice Breyer may have been right in Van Orden-if not in his result, then at least in approaching the question as he did. More generally, I suggest that the search for a clear-cut doctrinal test or rule for religious expression in governmental settings, complete with yes-or-no check-off points, may be a mistaken or futile venture. There simply are too many constitutional values at work, and too many relevant variables. In lieu of a categorical test or rule, I explore the possibility of a multivariable standard for resolving Establishment Clause questions in this context. Under this approach, the Supreme Court would consider four constitutional variables, which I link to a range of relevant and intersecting constitutional values. The variables address such factors as governmental coercion or aggressiveness, the nature and specificity of the religious expression, tradition, and the extent to which the expression is governmentally-as opposed to privately-crafted or sponsored. I explain and elaborate by applying the multivariable standard to easy cases, not-so-easy cases, and hard cases, including not only Van Orden but also the unresolved controversy over the under God language in the Pledge of Allegiance.