1. Describe how you understand the “Establishment Clause” and the related “Lemon Test”.
Part of the First Amendment in the United States Constitution is that it protects religious freedom. One of the freedoms it protects is that the government is not allowed to force religious beliefs on its citizens. This is known as the establishment clause. This clause states that the country, as well as each state, is prohibited from having a universally sponsored religion. Initially the United States as well as several other countries, had a collective religion and belief system. However, many people who traveled to the United States were escaping religious persecution and were searching for a place to practice their religion in peace. Therefore, because of the religious diversity in the United States it was impossible to stick to one national religion.
In America, most people practiced some type of Christianity with many of them being Protestant Christians. This didn’t bother the average citizen because the government vowed to keep away from their personal lives. However, there were some accounts of religious restrictions on Jewish people wanting to run for political office, and even some regarding their citizenship. In the nineteenth century, many people began to worry about a nationwide religion being established in the United States. Several Irish and Southern European immigrants moved in, and they were predominantly Catholic. Concerned that the new immigrants would be unable to adjust the United States passed laws that made sure that the government wouldn’t assist with religious schools. People who followed newer religions began to move to the United States including Mormons, Jehovah’s Witnesses, and Seventh-day Adventists whose practices conflicted with that of the Protestant church. Additionally, because the public school system was beginning to become popular, they incorporated Protestant teachings in the school curriculum. This would clash with the children who believed in different sects of Christianity.
The establishment clause is different for us today because it not only prevents the country or state from having one set religion, but it outlaws the government from supporting one religion over another. For example, they cannot approve of Christianity but disprove of Catholicism, or disapprove of atheism because they prefer the teachings of God.
In the year 1971 there was a case called Lemon v. Kurtzman, where the Supreme Court created the Lemon test to interpret if a law or other government practice had endorsed one religion over another. If it did, they would eventually determine if that law were to remain or if it should be removed and declared unconstitutional. The Lemon test has three conditions that must be met in order for the law to remain operational. The first condition is that the law cannot lead government and religion intertwining. There should be a noticeably clear and specific boundary between government and religion, and it should not require a lot of effort on behalf of the government. The second condition is that each law or practice can in no way hinder or promote any religious practices. It should always remain neutral when it comes to religion or its customs. Lastly, each law cannot have any connection with a religion. It must have a secular purpose and with no religious justifications involved. For example, a school or its staff cannot require a student to pray or study the bible in school because it’s an illegal display of religion and doesn’t separate church and state.
2. Is burning the US flag protected by the First Amendment? Explain by referring to the relevant court case discussed in the reading.
Flag burning is essentially symbolic speech that is preserved and protected by the First Amendment of the constitution. This is a controversial topic because many people in America see the flag as something to be respected because it symbolizes the unification of our country. For this very reason there were several laws in the past that prevented the damaging, defacing, and disrespect of the American flag. However, many people discovered that burning the flag was the perfect way to illustrate their opposition on particular U.S. policies while collectively bringing attention to their cause.
One person who decided to bring awareness to his cause by burning the flag was a man named Gregory Lee Johnson. He was a notable member of many anti-war and pro-communist groups in the early 1980s. In the year 1884, Johnson attended a protest near the Republican National Convention which was located in Dallas Texas. At this protest Johnson was spotted setting fire to an American flag that another protester had ripped down from a flagpole. He was subsequently arrested and charged with “desecration of a venerated object” and was later convicted of that crime. Nevertheless, in 1989, the Supreme Court ruled that burning the flag was equated to freedom of speech and therefore protected by the First Amendment. They found the law that convicted Johnson for desecrating the flag to be unconstitutional. People who were upset with this ruling tried to pass a law called the Flag Protection Act, which was their attempt to overrule this case. However, in 1990 the Supreme Court had also ruled this law unconstitutional. There have been several attempts since then to render flag burning illegal in both state and federal governments. All these attempts have failed.
3. What does it mean when someone says, “I’m taking the Fifth”?
One of the most widely known stipulations of the Fifth Amendment is the defense against self-incrimination, or in other words “the right to remain silent.” People used the phrase “taking the Fifth” which usually means the refusal to answer questions, particularly in court, on the grounds that you may say things that will cause you to look guilty. For example, people have the right not to supply the court or law enforcement with evidence that may lay the blame on you for a crime. Furthermore, if that person refuses to testify in their own defense, the opposing side can’t use their statement as evidence of guilt or innocence. This stipulation in the Fifth Amendment became popular during the Miranda v. Arizona Supreme Court case in 1966. The suspects in this case believed they were obligated to be informed of their rights, including the right to remain silent, before a police interrogation. However, the law doesn’t necessarily state that law enforcement must inform suspects of their Miranda Rights before questioned in situations where they may come and go as they please.
