I'm from Missouri

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Saturday, July 28, 2007

Peter Irons misuses "insider" and "outsider" terms

In an article in USA Today, Peter Irons completely misinterpreted the usage of the terms "insider" and "outsider" by Justice Sandra O'Connor in her definition of her "endorsement test" for establishment clause cases. He said,

Every town and city has "insiders" and "outsiders." Insiders tend to have deep family roots in the community, belong to its dominant religious group and political party, and play active roles in civic affairs. Particularly in small towns, insiders get upset when outsiders challenge the symbols that reflect the majority's beliefs and values. (emphasis added)

However, here is how O'Connor used those terms in defining the endorsement test in her Lynch v. Donnelly (1984) concurring opinion:
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The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions . . . . The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents 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. Disapproval sends the opposite message.

In O'Connor's usages of the terms "insider" and "outsider" above, these terms have nothing to do with whether or not one "tends to have deep family roots in the community, belong to its dominant religious group and political party, [or] play active roles in civic affairs." "Insider" here just means that one feels that one "belongs" in the community and "outsider" here just means that one feels that one does not belong in the community -- it is not necessary to tend to be or do any or all of those things (i.e., deep family roots locally, membership in dominant religious group and political party, and activity in civic affairs) in order to feel that one belongs. Also, O'Connor's use of "insider" and "outsider" refers to how people see their relationship to specific actions of the government (including specific actions of the courts), not to how people see their general relationship to their neighbors and their communities. Irons cited O'Connor's above definition of the endorsement test and so was aware of how she used the terms "insider" and "outsider." He should have at least noted that he used the terms in a completely different way than she did.

Irons also wrote:

. . .O'Connor retired in 2005, and her replacement by Justice Samuel Alito most likely presages the demise of her "endorsement" test.

On the contrary, I have seen no other suggestion anywhere that the endorsement test is in trouble. The establishment clause test that is in deep trouble -- and has been for many years -- is the Lemon test.
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