Establishment Clause
This page includes a writing template for analyzing this topic and usage notes to guide its application. In general, the template is designed to serve as a starting point for your analysis. It should be adapted to fit the specific facts of your case and your professor’s preferences.
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Writing Template
Issue
I: The issue is whether the state action violated the Establishment Clause.
Analysis
R: The government can make no law respecting the establishment of religion. Thus, no law may discriminate against religious speech or conduct or among religions. The standard of review to determine whether a government action violates the Establishment Clause depends on (1) whether the law includes a preference for a particular religious sect.
1. Does the government action prefer a religious sect?
R: Government action prefers a religious sect if it is (1) not neutral and (2) not generally applicable. Neutrality is violated when the law’s object is to favor or burden religious practices because of their religious nature. General applicability is violated if the law exempts some groups while burdening others, particularly when those distinctions align with religious sects. Courts assess this by analyzing a law’s (1) language, (2) intent (evidenced through legislative history, policymaker statements, and context), and (3) practical impact.
A: Here, [apply rules to facts].
C: Therefore, the government action [favors a religious sect and, thus, should be strictly scrutinized/does not favor a religious sect and, thus, should be assessed through the Lemon Test.
2a. Lemon Test
R: If the government action involving religion does not favor a religious sect, it is analyzed under the Lemon Test. Under this test, the action is valid if (1) it has a secular purpose; (2) its primary effect neither advances nor inhibits religion; and (3) it does not produce excessive government entanglement with religion. In recent decisions, the Supreme Court has also considered (4) historical practices and understandings, which may limit the application of the Lemon Test. For instance, legislative prayer, rooted in longstanding tradition, does not violate the Establishment Clause.
A: Here, [apply rules to facts].
2b. Strict Scrutiny
R: Under this standard, the action is unconstitutional unless it is (1) narrowly tailored to achieve a (2) compelling government interest. A government action is (1) narrowly tailored if it cannot achieve the government’s interest by less restrictive or less discriminatory means. A (2) compelling government interest is one that is necessary to protect critical public policies or goals, such as national security, public health, or fundamental rights. (Because strict scrutiny is intentionally stringent, few government actions satisfy this standard.)
A: Here, [apply rules to facts].
Conclusion
C: Therefore, the state action [violated/did not violate] the Establishment Clause.
Usage Notes
JurisJotter templates synthesize legal principles into a practical format that supports the development of well-structured, point-rich analyses in a timed exam.
The template features (1) headers identifying the overall issue, analysis, and conclusion. If the analysis begins with an umbrella rule that identifies elements, factors, or steps of the analysis, it will be followed by subheaders that signpost the analysis of each component.
The template also features (2) IRAC labels at the beginning of each paragraph. These headers and labels are included for educational purposes, offering guidance on structuring your analysis. Your usage of the headers is optional but can be helpful to readers. We advise against including the IRAC labels in submitted work.
The templates serve as a general guide for writing and should be adapted to align with (1) your specific factual circumstances and (2) your professor’s preferences, particularly if your professor provides explicit formulations of rules or analyses. For example, you may add or subtract an element or modify its language. Regardless of whether your professor provides explicit formulations, (3) this template will assist you in crafting point-rich analyses.
Please note that these templates are writing aids and not finished products. They are efficiently designed for exam essays to demonstrate conceptual understanding; thus, they are not comprehensive outlines with historical context or dicta.
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