- The opening phrase of the First Amendment is the Establishment Clause, which forbids Congress from enacting a law “respecting an establishment of religion. This is essentially what the government is not allowed to do in practice: promote, fund, and acknowledge any religion. Lemon v. Kurtzman (1971) provided a three-part test for courts to follow when deciding if a government action infringes upon this clause. The law or action must: (1) not be intended to promote or inhibit religion, (2) have a secular purpose, and (3) neither have a primary nor an excessive effect on religion or excessive government entanglement with religion. If any prong is failed, the action is unconstitutional.
2. Yes, free symbolic speech under First Amendment covers burning the flag of the United States. Texas v. Johnson (1989) is the landmark case, in which Gregory Lee Johnson burned a flag outside the 1984 Republican National Convention as a protest. He was convicted under Texas state law that banned flag desecration, but the Supreme Court 5–4 held that Johnson’s action was “expressive conduct” protected by the First Amendment. The Court has ruled that “the government may not prohibit expression merely because it offends or disagrees with society,” and that “political dissent, even in the form of provocation, is at the heart of the First Amendment.
3. Someone who says he/she is “taking the Fifth” is asserting their Fifth Amendment right to avoid incriminating questions. The portion of the clause reads: “no man shall be a witness against himself. This right is for use in court rooms, congressional hearings, police interrogations, and in any other official proceeding. It prevents anyone from being required to give evidence or a statement that could be used against them in court.
