法律英语：22 The Establishment Clause

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.
Today I release a special two-part episode on challenges brought under the Establishment Clause of the Constitution to religious displays on public property. In this episode, I will discuss the basic principles, and in the second episode, I will discuss how these principles apply to government holiday displays.

The First Amendment³ to the United States Constitution provides in relevant part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

The first part of the First Amendment is known as the Establishment Clause, the history of which is a little muddy. The First Amendment, and the entire Bill of Rights, was passed in 1789, following the Revolutionary War. We had just won our independence from the United Kingdom, a country that had, and still maintains, the Anglican Church as a state religion.

Some scholars argue that the First Amendment was only passed as a means to prevent Congress from creating one national religion, and that the States could still create State religions in their discretion⁴. Indeed, at the time the First Amendment was passed, several states actually had official religions. These scholars further urge that the Establishment Clause was intended to prohibit Congress from preferring religion over irreligion.

Other scholars argue that the First Amendment was passed as a means to prevent Congress from interfering⁵ with or endorsing⁶ religion in any way. These scholars rely on the fact that Congress rejected several versions of the First Amendment, which referred to “a national religion,” “one religious sect,” and specific “articles of faith.” So, the Establishment Clause was originally intended not only to prevent Congress from preferring a single religion, but also to prevent Congress from preferring religion in any capacity.

Today, religious symbols and words appear in the public sphere. Our currency contains the phrase “In God We Trust.” The Ten Commandments appear on the Supreme⁷ Court itself. Congress opens each term with a prayer. The Supreme Court has held that each is constitutionally permissible⁸ and has decided⁹ many cases over the years whose basic question is whether the government’s display of religious words or symbols impermissibly “establishes” religion.

The Court has never adopted a single test to answer this question, which has allowed lower courts to use a variety of tests. Courts often use the “Lemon test,” which is a three-part test derived¹⁰ from a Supreme Court case, Lemon v. Kurtzman. The Lemon test provides that, in order to withstand a challenge under the Establishment Clause, the religious display must have a secular¹¹ purpose; its primary effect must neither advance nor inhibit¹² religion; and it must not foster an excessive entanglement¹³ with religion. In Lemon, the Court struck down Pennsylvania and Rhode Island statutes¹⁴ that provided state funding directly to private religious schools.

Other courts have used a simpler and more permissive “endorsement¹⁵ test,” under which a display of religious symbols on public property could successfully be challenged under the Establishment Clause only if a reasonable observer of the display in its particular context would perceive a message of governmental endorsement or sponsorship of religion.

Still other courts have adopted a broad policy of religious accommodation and applied¹⁶ an even more permissive “coercion test,” which only finds a violation¹⁷ of the Establishment Clause if the effect of the governmental action can be said to have the effect of coercing¹⁸ anyone to support, or participate in, any religion, or give a direct benefit to religion in such a degree that it tends to establish religion or religious faith. In Lee v. Weisman, the Court enjoined¹⁹ the Providence²⁰, Rhode Island public school system from offering a benediction²¹ to God at commencement ceremonies.

These tests, and shifting majorities on the Court, have led to some seemingly inconsistent results. For example, the Supreme Court decided two cases in 2005, both involving displays of the Ten Commandments. In one case, the Court in a plurality opinion upheld a display of the Ten Commandments, which was among 17 monuments and 21 historical markers located on the grounds of the Texas State Capitol. It was located between the Capitol and Texas Supreme Court building, and was six feet high. Its primary content was the text of the Ten Commandments, but it also contained various symbols, and text noting that the monument had been donated by the Fraternal Order of Eagles. On the same day, the Court struck down a display of the Ten Commandments in Kentucky courthouses, despite the fact that they were displayed alongside the Magna Charta and the Declaration of Independence. The Court noted²² that the Ten Commandments were originally displayed on their own, and so the purpose of the display could only have been religious; the addition of the non-religious displays did not cure the display of its religious endorsement.

As you can see, Establishment Clause jurisprudence is a little fuzzy. Tune²³ in to the next episode, which will specifically cover holiday displays on public property.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful²⁴ Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

You can send questions and comments to.......or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

Legal Lad's theme music is "No Good Layabout" by Kevin MacLeod.

 

1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

4 discretion   

n.谨慎；随意处理

参考例句：

• You must show discretion in choosing your friend.你择友时必须慎重。
• Please use your best discretion to handle the matter.请慎重处理此事。

5 interfering   

adj. 妨碍的 动词interfere的现在分词

参考例句：

• He's an interfering old busybody! 他老爱管闲事！
• I wish my mother would stop interfering and let me make my own decisions. 我希望我母亲不再干预，让我自己拿主意。

6 endorsing   

v.赞同( endorse的现在分词 )；在（尤指支票的）背面签字；在（文件的）背面写评论；在广告上说本人使用并赞同某产品

参考例句：

• Yet Communist leaders are also publicly endorsing religion in an unprecedented way. 不过，共产党领导层对宗教信仰的公开认可也是以前不曾有过的。 来自互联网
• Connecticut Independent Senator Joseph Lieberman is endorsing Republican Senator John McCain. 康涅狄格州独立派参议员约瑟夫。列波曼将会票选共和议员约翰。麦凯恩。 来自互联网

7 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

8 permissible   

adj.可允许的，许可的

参考例句：

• Is smoking permissible in the theatre?在剧院里允许吸烟吗？
• Delay is not permissible,even for a single day.不得延误，即使一日亦不可。

9 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

10 derived   

vi.起源；由来；衍生；导出v.得到( derive的过去式和过去分词 )；（从…中）得到获得；源于；（从…中）提取

参考例句：

• Many English words are derived from Latin and Greek. 英语很多词源出于拉丁文和希腊文。 来自《简明英汉词典》
• He derived his enthusiasm for literature from his father. 他对文学的爱好是受他父亲的影响。 来自《简明英汉词典》

11 secular   

n.牧师，凡人；adj.世俗的，现世的，不朽的

参考例句：

• We live in an increasingly secular society.我们生活在一个日益非宗教的社会。
• Britain is a plural society in which the secular predominates.英国是个世俗主导的多元社会。

12 inhibit   

vt.阻止，妨碍，抑制

参考例句：

• Don't let ego and greed inhibit clear thinking and hard work.不要让自我和贪婪妨碍清晰的思维和刻苦的工作。
• They passed a law to inhibit people from parking in the street.他们通过一项法令以阻止人们在街上停车。

13 entanglement   

n.纠缠，牵累

参考例句：

• This entanglement made Carrie anxious for a change of some sort.这种纠葛弄得嘉莉急于改变一下。
• There is some uncertainty about this entanglement with the city treasurer which you say exists.对于你所说的与市财政局长之间的纠葛,大家有些疑惑。

14 statutes   

成文法( statute的名词复数 )； 法令； 法规； 章程

参考例句：

• The numerous existing statutes are complicated and poorly coordinated. 目前繁多的法令既十分复杂又缺乏快调。 来自英汉非文学 - 环境法 - 环境法
• Each agency is also restricted by the particular statutes governing its activities. 各个机构的行为也受具体法令限制。 来自英汉非文学 - 环境法 - 环境法

15 endorsement   

n.背书；赞成，认可，担保；签(注)，批注

参考例句：

• We are happy to give the product our full endorsement.我们很高兴给予该产品完全的认可。
• His presidential campaign won endorsement from several celebrities.他参加总统竞选得到一些社会名流的支持。

16 applied   

adj.应用的；v.应用，适用

参考例句：

• She plans to take a course in applied linguistics.她打算学习应用语言学课程。
• This cream is best applied to the face at night.这种乳霜最好晚上擦脸用。

17 violation   

n.违反(行为)，违背(行为)，侵犯

参考例句：

• He roared that was a violation of the rules.他大声说，那是违反规则的。
• He was fined 200 dollars for violation of traffic regulation.他因违反交通规则被罚款200美元。

18 coercing   

v.迫使做( coerce的现在分词 )；强迫；（以武力、惩罚、威胁等手段）控制；支配

参考例句：

• All of the children had atopic dermatis coercing at least 20% of their body surface area. 所有的患儿体表有超过20%的遗传性过敏症皮炎感染。 来自互联网
• I assured him that we had no intention of coercing Israel in response a Soviet threat. 我向他保证，我们无意强迫以色列对苏联的威胁做出反映。 来自互联网

19 enjoined   

v.命令( enjoin的过去式和过去分词 )

参考例句：

• The embezzler was severely punished and enjoined to kick back a portion of the stolen money each month. 贪污犯受到了严厉惩罚，并被责令每月退还部分赃款。 来自《简明英汉词典》
• She enjoined me strictly not to tell anyone else. 她严令我不准告诉其他任何人。 来自辞典例句

20 providence   

n.深谋远虑，天道，天意；远见；节约；上帝

参考例句：

• It is tempting Providence to go in that old boat.乘那艘旧船前往是冒大险。
• To act as you have done is to fly in the face of Providence.照你的所作所为那样去行事，是违背上帝的意志的。

21 benediction   

n.祝福；恩赐

参考例句：

• The priest pronounced a benediction over the couple at the end of the marriage ceremony.牧师在婚礼结束时为新婚夫妇祈求上帝赐福。
• He went abroad with his parents' benediction.他带着父母的祝福出国去了。

22 noted   

adj.著名的，知名的

参考例句：

• The local hotel is noted for its good table.当地的那家酒店以餐食精美而著称。
• Jim is noted for arriving late for work.吉姆上班迟到出了名。

23 tune   

n.调子；和谐，协调；v.调音，调节，调整

参考例句：

• He'd written a tune,and played it to us on the piano.他写了一段曲子，并在钢琴上弹给我们听。
• The boy beat out a tune on a tin can.那男孩在易拉罐上敲出一首曲子。

24 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。