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Licensing Facially Religious Government Speech: Summum's Impact On The Free Speech And Establishment Clauses, Scott W. Gaylord

Scott W. Gaylord

LICENSING FACIALLY RELIGIOUS GOVERNMENT SPEECH: SUMMUM’S IMPACT ON THE FREE SPEECH AND ESTABLISHMENT CLAUSES

Abstract

Scott W. Gaylord

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment—that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause—the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision …

Not A Prayer In Protecting The Reasonable Observer: Borden Shows The Endorsement Test Is Just Not Working, Genevieve Deppe

Genevieve Deppe

This Article examines how Supreme Court Establishment Clause jurisprudence has evolved from a wall of separation to the endorsement test. As the Court adopted the endorsement test over a series of decisions, their opinions focused on neutrality and protecting minority interests. However, as this Article demonstrates using recent decisions, the endorsement test fails to protect these interests in cases involving prayer in public schools. Assuming the Establishment Clause should indeed protect neutrality and minority interests, as the Court has repeatedly stressed, this Article proposes a new test to analyze Establishment Clause cases in public schools that will better protect minority …

Of Christmas Trees And Corpus Christi: Ceremonial Deism And Change In Meaning Over Time, Jessie Hill

Jessie Hill

Although the Supreme Court turned away an Establishment Clause challenge to the words “under God” in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case are not going away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence – and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which is likely to result in resolution by the Supreme Court. That resolution will depend on an understanding of the social meaning of the practice …

Selman And Kitzmiller And The Imposition Of Darwinian Orthodoxy In The Classroom, Robert J. D'Agostino

Robert J D'Agostino

No abstract provided.

Divided We Fall: Religion, Politics, And The Lemon Entanglements Prong, Stephen M. Feldman

Stephen M. Feldman

The 2008 campaign for the presidency should remind Americans that mixing religion and politics can be dangerous. Polls show that more than half of American voters would hesitate to support a Mormon candidate. In terms of Establishment Clause doctrine, the entanglements prong of the Lemon test provides a mechanism for protecting political equality by ensuring against religiously-inspired political divisiveness. Yet, in recent years, numerous scholars and Supreme Court Justices have attacked the entanglements prong. Indeed, the Court has poked so many holes in the entanglements inquiry that it may no longer exist. This Article defends the political-divisiveness component of the …