In the Santa Fe case, did anyone ever pray or deliver an invocation at a football game? Which prayer? Which invocation? How did the Court know that an unspoken student statement, one that might have had secular content or might have had religious content, was somehow an establishment of religion?
We will never know what would have happened, will we? How did the Court know that some uncertain future expression, of unknown content, somehow constitutes an establishment of religion?
What was the move the Court used to strike down these laws without any record about what in fact might be said or left unsaid?
Notice that the Court's general rule about facial vs. as applied challenges is that facial attacks are disfavored if there is any possible application of a law that would be constitutional. Instead of invalidating a law root and branch, the Court will wait for unconstitutional applications of the law to come before it and will enjoin the unconstitutional applications, while permitting the constitutional applications to be given effect. See United States v. Salerno, 481 U.S. 739, 745 (1987) (a Pl bringing a facial challenge against a law "must establish that no set of circumstances exists under which the Act would be valid").
How does this rule apply in Santa Fe? Should the Court have waited to see how the policy would have been applied?
For more on the Lemon "purpose" prong, see here.
The web log for Prof. Duncan's Constitutional Law Classes at Nebraska Law-- "[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. In the eyes of government, we are just one race here. It is American. " -----Justice Antonin Scalia If you allow the government to take your liberty during times of crisis, it will create a crisis whenever it wishes to take your liberty.
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I. Tinker A student's right to speak (even on controversial subjects such as war) in the cafeteria, the playing field, or "on the...
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Monday August 28 : Handout on Moore v Harper (PDF has been emailed to you); Originalism vs. the "Living Constitution": Strau...
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Jack Phillips of Masterpiece Cakeshop (art by Joshua Duncan) "We may not shelter in place when the C...
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