1ST AMENDMENT- ESTABLISHMENT Flashcards
Lemon v. Kurtzman - facts
state funding religious schools with tax payer dollars. parents sought an injunction against the statute as it violated the establishment clause.
rule: direct state funding of religious school teachers’ salaries and instrumental materials is unconstitutional bc they reuslt in an excessive govt entagelemt in religion.
Lemon- Analysis
LEMON TEST IS CREATED!!!
LEMON TEST … also what case overruled it?
3 prongs must be met for govt action to be const:
1. must not have the primary intent of advancing or inhibiting religion.
2. must have a secular legislative purpose .
3. must not result in excessive govt entaglement with religion.
Town of Greece- facts and rule
facts- prayer before board meetings, was open to all religions but it was mainly christans.
rule- the court must interpret the 1st amendment according to historical practices and understandings of legislative prayer.
Town of Greece- analysis
CJR, Alito, Thomas (kennedy and scalia too)
* marsh- held that there was no 1st amendment violation for opening legislative sessions with prayer delivered through state- paid funds.
* requiring non sectarian prayers to generid gods woul violate free speech as it would be too restrictive over religious messages
* its ok here bc it was at the opneing of the session and no one was forced.
Town of greece- alito concurrence
they tried their best to be inclusive and would even call places to find someone
town of greece- concurrence thomas and scalia
the establishment clause is not incorporated
* there was no coercive state establishment here (threats by force of law or threat of penalty)
town of greece- breyer dissent
the town is not exclusively chirstian, they could have tried harder to find more people and be inclusive.
town of greece- kagan, rbg, breyer, sotomayor dissent
- this violates the norm of religious equality
- does not need to be a religious free zone, but it cannot align itself with any particular creed remember they are not separationists.
Kennedy v. Bremerton
facts: kennedy loses his high school football coach job bc he would pray midfield after games.
rule- a public school may not prohibit a football coach from praying privately on the school foorball field immediately following a game.
Bremerton- rationale + majority
Gorsuch, CJR, Thomas, Alito, ACB, Kavanaugh
- free speech and free exercise protect his conduct.
- Establishment case does not require govt to single out private religiou speech.
- The district’s policies were neither neutral nor generally applicable
- Teachers not students shed their constitutional rights at the schoolhouse gate
- The speech was private speech and not govt speech.
- ABANDONS LEMON- replaces with the historical practices and understandings of the establishment clause- focus is on coercion.
o Here, this was not coerced. Caren u remember the stupid arguments.
Bremerton- alito concurrence
religious expression by public employees engaged in private activities is fine.
Bremerton- sotomayor, kagan, and breyer dissent
school officials leading prayer is imperssible, the coach invited those players.
* there is a coercive nature to this and the court improeprly overruled lemon.
American Legion (2019) - facts and rule
facts- secular crossa t the wwii memorial violates establishment clause.
rule- the maintenance of the cross by tax payers is not unconst.
American legion- rationale and majority
Alito, CJR, Kavanaugh, Kagan, Breyer
- the cross is assocuated with teh memoral and has secular connotations.
removoal would be seen as hostile towards religion.
american legion- breyer and kagan concurrence
establishment claise analysis should be distinguished between a real threat and a shadow, no real threat here.
American legion- kavanaugh concurrence
lemon is bad. he proposed a new coercion test.
american legion- kagan solo concurrence
gotta focus on purpose and effect.
american legion- thomas concurrence
- should be incorporated
- only deals with legislative action, does not involve actual legal coercion
- majoirty does not actually law out a test, but we need to get rid of lemon
*
american legion- gorsuch + thomas concurrence
OFFENSE IS NOT AN INJURY THAT CREATES STANDING.
American legion- rbg and sotomayor dissent
using the cross at a war memorial does not make it secular.
Espinoza v. Montana (2020) facts and tile
facts- Montana strikes down a program providing tuition assistance for parents who send their kids to private school and gave tax credits for donations.
rule- A state program subsidizing private school tuition may not exclude otherwise qualified religious schools.
Espinoza- majority + rationale
CJR, Thomas, Alito, Gorsuch, Kavanaugh
- They compare this case to Trinity Lutheran where the court held that not giving a public benefit solely on the grounds they are religious is discrimination in violation of free exercise and subject to strict scrutiny.
o The state had an interest in stringently separating church and state, but the court said it was not compelling bc it infringed free exercise. The state also said that they were promoting religious freedom by preventing govt entanglement in religion and the court said nahh this is not convincing bc taking away a religious schools ability to receive funding doesn’t add to their freedom.
- They compare this case to Trinity Lutheran where the court held that not giving a public benefit solely on the grounds they are religious is discrimination in violation of free exercise and subject to strict scrutiny.
espinoza- thomas and gorsuch concurrence
- The court’s interpretation of the Establishment Clause hampers free exercise.
- There is no prohibition against favoring religion.
