- Describe how you understand the “Establishment Clause” and the related “Lemon Test”.
- Is burning the US flag protected by the First Amendment? Explain by referring to the relevant court case discussed in the reading.
- What does it mean when someone says “I’m taking the Fifth”?
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The Establishment Clause of the First Amendment forbids the government from establishing a religion, which seeks to prevent the government from favoring a religion or a particular religion over non-religion. The “Lemon Test” was once applied to see if a law violated the Establishment Clause, which required that the law have a secular purpose, have a neutral effect on religion, and not foster excessive government entanglement. Since that test was abandoned by the Supreme Court, they now consider the historical analysis of practices and understandings despite applying the “Lemon Test” at the time of the case. When it comes to flag-burning, the Supreme Court ruled in Texas v. Johnson that flag burning is *expressive conduct* which is protected by the First Amendment within its guarantee of freedom of speech, even when the action is widely deemed offensive. Finally, “taking the Fifth” means to invoke the protection against self-incrimination under the Fifth amendment, allowing the person to refuse to answer questions in a court of law that might later be used against them.