Answers to Questions Asked During the Study Period Will be Posted Here.

Question One

I've been going over the use of the Lemon Test and the Endorsement Test in several fact situations and it seems to me that the Endorsement Test is the same thing except with a different name. I was wondering, did we go over any cases that used the Lemon Test that, in your opinion, would have come out differently if the Endorsement Test had been used (or vice versa). Or, can you give an example of a case where certain facts that didn't matter all that much under the Lemon Test would have mattered more under the Endorsement Test (or vice versa)?


I share your suspicion that the two tests are very similar when applied. My instinct is that the cases come out the same under the two tests, but that may be in part because both tests can be manipulated to reach any desired result. One interesting example is found in Lynch v. Donnelly (page 438), the case in which Justice O'Connor first announced the endorsement test in a concurring opinion. In that opinion, she voted to uphold the display using the endorsement test, while 4 members of the Court writing in dissent found the display unconstitutional applying the Lemon test. The problem, however, is that 4 members in the majority also used Lemon, but to uphold rather than strike down the display. That means that 8 judges used the Lemon test, but they split 4-4 in the result they reached in the case. That split result makes it seem as though it isn't the test that matters as much as the attitude of the judge applying the test. Of the two prongs of the endorsement test (purpose to endorse religion and effect of endorsing religion), I used to think that the endorsement inquiry narrowed the purpose prong more than it narrowed the effect prong because having a secular purpose seemed harder to satisfy than not having a purpose of endorsing religion.  More recently, it has seemed more likely to make a difference with the effect prong, but only because of all the knowledge imputed to the knowledgeable observer. All of that same knowledge wouldn't be considered under the Lemon effect prong so it might be harder to satisfy. That may explain the disagreement among the Justices who use the endorsement test over how much specific knowledge the reasonable observer has. My bottom line is that it probably doesn't matter which test is used, but that hasn't stopped lower courts from applying both tests just to cover all their bases. On the exam, of course, it make sense to apply both tests alternatively even if the analysis under both is similar.

Question Two

I'm going over my notes in preparation for the exam and had a question on one of the three Effect Prong criteria used in Agostini. What exactly does "defines recipients by religion" mean?


While the Court has stated this prong, it has never had a case where the recipients were defined by religion. In the school aid cases, they are usually defined by things like income, educational disadvantage, disability, or pro rata distributions. It's easy to imagine a clear case of defined by religion. For example, if a program gave aid to students attending Christian schools. However, this kind of program is very unlikely and anyway would involve discrimination based on religion (no benefits to non-Christians), probably meriting a strict scrutiny standard rather than Agostini. Since it's not a case of permissible accommodation, it wouldn't get upheld on that theory.

There could also be cases where a particular religion isn't named, but the Court still determines that the recipients are defined by religion. It would be similar to Larson where the Unification Church wasn't named but the religious organizations the law applied to were defined in a way that singled out the members of particular kinds of religions (ones that raised funds from non-members). I could imagine something similar occurring in the school aid context. In that case, the gov't would argue that the recipients aren't defined by religion, and the challengers would argue that they are.

Question Three

What are the criteria used to determine if a municipal taxpayer has standing in federal court to challenge government action as violative of the Establishment Clause?


For federal court standing to challenge government action as violative of the Establishment Clause, a municipal taxpayer must show that (1) they are a municipal taxpayer and (2) that the municipality has spent funds to engage in the challenged action.

These requirements satisfy the Flast v. Cohen exception for taxpayer standing in the context of a municipal taxpayer. The other Flast requirements are rooted in the exercise of power by Congress (the specific enumerated powers available to Congress and the separation of powers between legislative and executive action under the U.S. Constitution) and are inapplicable when a state or municipality acts.

In Freedom From Religion Foundation, Inc. v. Zielke (page 107), the municipality argued that it had not spent any money on the challenged monument since it was donated to the city and had not required any upkeep so that the municipality had not spent any funds. It also argued the plaintiff was not a taxpayer since she had not alleged that she paid municipal taxes. The court ignored this argument since it agreed with the first point, which was dispositive. The plaintiff argued unsuccessfully that the city spent money to acquire the parkland on which the monument was erected. However, that acquisition was in 1899, long before the monument was donated and the case wasn't a challenge to the city creating a park. It was a challenge to the city placing the Ten Commandments monument in the park and there was no evidence the city spent any money in doing so.

Question Four (added July 14)

Smith distinguishes Sherbert, Frazee and Thomas because they are cases concerning unemployment compensation with an individual review process for exemptions. I have two questions:

1. Is it likely a non-unemployment compensation case that has an individual review process would also be considered not a law of general applicability and analyzed using strict scrutiny?  (Meaning the germane issue in cases like Sherbert, etc. is the individual review process and not the subject matter).

2. How does the Smith court distinguish United States v. Lee from Smith?


1. Yes it is likely that a case not involving unemployment compensation, but providing an individual review process would be analyzed using strict scrutiny. Congress clearly thought so in RLUIPA since the land use provisions of that statute are justified in that way since zoning decisions usually have a process for individual review as a mechanism by which exceptions are granted. There could be other situations of individualized review as well. I believe the individualized review process is the crucial factor and not the unemployment issue. The individualized review means that the law isn't a law of general applicability and it means that exceptions don't make it impossible for the government to administer the program. That fact raises the issue of why the government can't also exempt people whose religion is burdened and shifts the presumption in favor of an exemption (which is what the strict scrutiny test does).

2. Lee isn't either an individualized review case or a hybrid case. Justice Scalia's opinion in Smith only explains Lee by saying that it is a case in which the challenger lost so the strict scrutiny test didn't result in a victory for the challenger. On page 697, in talking about Lee, he says, "Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied, see United States v. Lee." He seems to be saying we don't have to worry about Lee because the test used didn't change the outcome. Note the "purported to apply" language, which is snarky in a typical Scalia manner. Justice O'Connor's opinion criticizes this aspect of Justice Scalia's opinion as based on faulty reasoning - see 3rd full paragraph on page 700 immediately before Section B.

Question Five (added July 14)

Will the public forum doctrine as elaborated on in the link from your website be on the exam (meaning will we have to argue for or against?) or is this material for general reference?


The public forum doctrine will be relevant to the exam to the extent that it is discussed and relied on in a variety of cases that we read including Widmar, Lamb's Chapel, Good News Club, Rosenberger, and Pinette. The purpose of the link to info about the doctrine on the website is to give you some context for understanding what the Court is basing its reasoning on in that line of cases. In the course review, the public forum concept is mentioned in III.B.2. and III.C.