In evaluating the constitutionality of religious displays, Justice Kennedy adheres to the coercion test. A crèche on the courthouse steps is acceptable because it does not coerce anyone to support or participate in a religious exercise. He rejects the endorsement test, which asks whether the display makes reasonable nonadherents feel like outsiders, finding it to be “flawed in its fundamentals and unworkable in practice.” Yet in the free exercise context, Kennedy has focused on whether a community shows hostility to minority faiths, and his opinions in Romer and Lawrence stress that legislatures acted unconstitutionally in showing animus to gays. Suppose a passive religious display conveyed a message of animus. Imagine, for example, a plaque on the courthouse wall that quoted Leviticus: “Thou shalt not lie with mankind, as with womankind: it is abomination.” I believe Kennedy would strike down the display on the ground that it makes a reasonable gay observer feel like a pariah in the community, an approach similar to the endorsement test.
8 U. Pa. J. Const. L. 801-807 (2006)
Scholarly Commons Citation
Goldberg, Steven, "Beyond Coercion: Justice Kennedy's Aversion to Animus" (2006). Georgetown Law Faculty Publications and Other Works. Paper 447.