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Maryland Law Review




[In Measured Endorsement] Shari Seidman Diamond and Andrew Koppelman argue that courts should rely on the techniques and methodologies of public opinion polling to survey the public and determine whether such displays endorse religion and therefore violate the Establishment Clause.' The authors support the point by developing an analogy to litigation under the Lanham Act, where courts regularly use evidence from public opinion poll results to determine whether there is legally salient 'consumer confusion' in a trademark dispute. The theoretical problem with this analogy is that the issue at stake under the Lanham Act is whether there is a likelihood of actual consumer confusion being generated by the use of a particular name brand or logo. But the issue at stake under an Establishment Clause endorsement analysis is not whether citizens will actually perceive there to be an endorsement of religion, but whether there is an endorsement of religion.This legal finding ultimately turns, I will argue, not on the subjective perceptions of either a majority or minority faction within the population, but on the Court's objective understanding of the purpose and function of the government's conduct. The purpose of the Establishment Clause is to require government to act within the dictates and realm of reason rather than superstition and metaphysics. The Establishment Clause's purpose-based inquiry has little, formally, to do with future public opinion or perception, but everything to do with the objective purpose and function of the government's display, as determined through an inquiry that should focus on answering the following question: given everything we know about the historical and social context, what is the most plausible reason for the government placing particular religious elements in a public holiday display? Contra Diamond and Koppelman, neither a majority nor a minority's actual perception of secularness or religiosity should be, or can be, controlling of whether or not illicit endorsement has taken place. And if the public's actual perceptions are not controlling-that is, if the court itself must determine the constitutional meaning of the semiotics of a government-erected display, as I will insist-then it is hard to see how the actual perceptions of a certain randomly assembled group of citizens are even relevant to the endorsement analysis. It is more likely to be distracting and misleading. Nonetheless, the authors have offered us a creative and useful thought experiment that concentrates the mind and advances our understanding of what Establishment Clause jurisprudence-and also, importantly, as we shall see, Equal Protection jurisprudence-should really concern.



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