Anatomy of the Reasonable Observer

Abstract

The “reasonable observer” heuristic — the fictional person from whose perspective we are to judge whether a governmental symbol or display or practice violates the Establishment Clause — has been under fire for decades. Primarily, critics argue that the reasonable observer, as conceived by the Supreme Court, is incapable of representing a community perspective because he does not sufficiently resemble a real, breathing, flesh-and-blood person. This criticism can be further articulated as two specific complaints: first, that too much knowledge is imputed to the reasonable observer, making him more omniscient than the average passerby; and second, that the reasonable observer, like the average judge, is biased toward a majoritarian viewpoint. For this reason, judges and scholars have urged replacements for the reasonable observer, such as the reasonable victim and the reasonable nonadherent. This essay argues, however, that the reasonable observer is not all bad — he’s just misunderstood. The criticisms of the reasonable observer are misplaced, and they distract us from the real task at hand — grappling with the process of interpreting social meaning. This essay urges a return to legal and procedural devices as a means of controlling the social meaning inquiry. This essay’s recommendations assume particular salience, moreover, in light of the growing recognition of the constitutional implications of expressive government conduct in domains reaching beyond the Establishment Clause.

Keywords: Reasonable Observer, Establishment Clause, Knowledge, Bias, Majoritarian Viewpoint, Social Meaning, Government Speech, First Amendment, Empathy, Town of Greece v. Galoway

JEL Classification: K19