Formally at least, there were no establishment clause cases on the docket of the last court. But in three cases involving free exercise and free speech claims, the court revolutionized the jurisprudence of the establishment clause. The facts of the cases vary widely, but they all involve a common thread.
First, in Schutloff v.Boston, the city refused to fly the flag with the cross in order to avoid a possible violation of the establishment clause.Second, in Carson v. Makin, Maine excluded religious schools from its tuition policy to avoid potential establishment clause violations.Third, in Kennedy v. Bremerton School District, coaches are disciplined to avoid potential establishment clause violations. In each case, the government restricted the right to free exercise and/or free speech to prevent entanglement between church and state.call it lemon defense.
In all three cases, the Supreme Court firmly rejected lemon defense.exist Schutlev, raising the flag will not violate the terms of establishment.exist Carson, funding religious schools does not violate the terms of establishment.exist Kennedy, allowing coaches to pray at the 50-yard line would not violate the establishment clause. Therefore, the fear of entanglement does not justify violations of speech and exercise of rights.
Going forward, the government can no longer say,”lemon forced me to do it. “Or, as Judge Gorsuch put it, the fear of a “phantom unconstitutional” isn’t enough.
In fact, there is no conflict between the constitutional mandates before us. Only the “shadow” of the conflict, a wrong choice, presupposes a misunderstanding of the establishment clause. Sump (Goldberg, J., agree).Under no circumstances will government entities be concerned fictitious unconstitutional act Demonstrate actual violation of an individual’s First Amendment rights
Justice Breyer’s dissent Carson Sorry to eliminate the so-called “joint game” framework.
I’ve also explained before why I think a “rigorous, explicit” approach to religious clauses — an approach that leaves no room for manoeuvre or “plays in the joints” — tends to defeat the basic purpose of these clauses.
Sotomayor laments that little remains of the doctrine:
Second, the consequences of a court quickly changing the religious clause cannot be underestimated. From a doctrinal standpoint, the Court’s failure to apply the “joint game” doctrine here leaves one wondering what, if any, remains of it.
when i read Schutlev, Carsonand KennedyCourts have struck down the “joint game” doctrine. Locke v. Davey was repealed.and, combined with quasi overthrow lemon, the government can no longer use the establishment clause as a precaution. The state will have to err by allowing more religions into public squares to avoid violations of speech and exercise of rights.
Four years ago, the court could not American Legion. But Red Flag June brought a revolution to establishment clause jurisprudence, in three cases where no establishment clause was actually asserted.