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