Law Commons^™

Establishing An End To Lemon In The Eleventh Circuit, Amanda Harmon Cooley

University of Miami Law Review

Over half a century ago, the Supreme Court decided Lemon v. Kurtzman, the most controversial Establishment Clause case in judicial history. And despite the Lemon test’s constant criticism, the Court has never expressly overruled the decision in its entirety. This continues to be the case even after Kennedy v. Bremerton School District, in which the Court noted Lemon’s abandonment rather than its complete abrogation. As a result, lower federal district courts have been left in limbo regarding whether Lemon is fair game for any of their Establishment Clause determinations and have been inconsistent in using it as …

The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin

Articles

Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school’s football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school’s proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at public-school events, government-sponsored Christian prayers and Christian symbols remain plentiful in the United States. This proliferation of government-sponsored Christianity around the country both reflects and …

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.

Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin

Articles

This Article argues that the Supreme Court's use of originalism is opportunistic because sometimes the Court relies on it, and sometimes it does not. This inconsistency is evident in two recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014) and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government's policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a …

Intentional Discrimination In Establishment Clause Jurisprudence, Caroline Mala Corbin

Articles

In Town of Greece, New York v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement-that a religiously disparate impact must be intentional before it amounts to an establishment violation-is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional …

Commentary: Exploiting Mixed Speech, Caroline Mala Corbin

Articles

The Supreme Court has been taking advantage of mixed speech—that is, speech that is both private and governmental—to characterize challenged speech in a way that ultimately permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms monument, the Court held that privately donated monuments displayed in public parks were government speech as opposed to private speech and therefore not subject to free speech limits on viewpoint discrimination. In Town of Greece v. Galloway, an establishment case …

The Irony Of Hosanna-Tabor Evangelical Lutheran Church And School V Eeoc, Caroline Mala Corbin

Articles

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial …

Nonbelievers And Government Speech, Caroline Mala Corbin

Articles

In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination.

This Article argues that government religious speech such as "In God We Trust" or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the …