1. Describe how you understand the “Establishment Clause” and the related “Lemon Test”.
The Establishment Clause protects the religious freedom of Americans by prohibiting Congress from creating or promoting a state-sponsored religion. This further means that the government is not permitted to favor one set of beliefs over another, nor is it allowed to favor religion over non-religion. What this means is that the people are permitted to follow whatever religion or lack of religion they desire without concern about discrimination or exclusion due to their personal beliefs, as there is no “true” American religion and the government cannot create one. This is ultimately meant to be the separation of church and state.
The Lemon Test was established after a Supreme Court case in 1971 known as Lemon v. Kurtzman. It is meant to determine whether a law or government action that may promote a religious practice is allowed to exist. There are three criteria that a law or government action must pass as part of this test. The first is that the action or law cannot lead to excessive government entanglement, meaning there should be a clear separation between the government and religion. The second is that the law or action must be neutral, neither limiting or advancing its effect on religious practice. Finally, the action or law must have a secular, meaning non-religious, justification. This means that laws or government action must have a non-religious purpose, a clear separation of church and state entanglement and that the law or action must be religiously neutral to be allowed to stand by the criteria of the Lemon Test.
2. Is burning the US flag protected by the First Amendment? Explain by referring to the relevant court case discussed in the reading.
According to Texas v. Johnson in 1989, burning the US flag is protected by the First Amendment. The case declared the act of burning the US flag as an example of symbolic speech, which was determined to be protected by the First Amendment’s freedom of expression in the same way as written or spoken communication. Therefore, according to the Supreme Court, burning the US flag is protected by the First Amendment and laws to criminalize the act are unconstitutional.
3. What does it mean when someone says “I’m taking the Fifth”?
Someone saying “I’m taking the Fifth” means that they are exercising their right to remain silent. The Fifth Amendment includes protection against self-incrimination, where people have the right to not give evidence in court or to law enforcement that might mean an admission of guilt or responsibility for a crime. Therefore “taking the Fifth” means that someone is using their right to not speak to avoid self-incrimination. This is not allowed to be taken as an admission of guilt or played to a jury or other law enforcement as something that a guilty person would do, as it is a right for all Americans to protect themselves.
