Questions and Answers About the Final Exam

Question 1: In connection with Essay Question A, could you clarify the relationship between arguments 2 and 4 applying the Lemon test and arguments 1 and 3 arguing the speech is either attributable to the government (argument 1) or is private speech (argument 3)?

Answer 1: Both argument 2 and argument 4 assume the speech is attributable to the government and is not private speech because there has to be government speech in order for there to be an Establishment Clause case in which the Lemon test is applied, which is what arguments 2 and 4 require. Otherwise, you never reach the Lemon test. In the case of argument 2, that’s based on argument 1 succeeding. In the case of 4, that's based on argument 3 failing and the court concluding the speech is attributable to the government. Argument 2 asks you to only apply the effect prong of the Lemon test and argument 4 asks you to apply all 3 prongs.

Question 2: For Essay Question B, my question concerns argument 3 on behalf of the Foster family. Does argument 3 assume the Foster family's beliefs are sincerely held religious beliefs or that the school uniform policy is neutral and generally applicable?

Answer 2: Argument 3 assumes both that (1) the Foster family's beliefs are sincerely held religious beliefs and that (2) the school uniform policy is neutral and generally applicable. The first argument, arguing that the family's beliefs are sincerely held religious beliefs, relates to some of the preliminary hurdles necessary for the challenger to satisfy in order to reach the application of a standard of review on the merits of the Free Exercise Clause challenge. As you know, under the Free Exercise Clause, there are 3 preliminary hurdles the challenger must satisfy - they must show the government has burdened their sincerely held religious beliefs. If the challenger can’t show those 3 things, the challenge fails without reaching the application of any standard of review. If the challenger satisfies the preliminary hurdles, you reach the question of what standard of review applies. There are several ways to elevate the standard to strict scrutiny. One is to show that the policy being challenged is not a neutral law of general applicability. If the court agrees, it will apply strict scrutiny. Argument 3 assumes that the Foster family has convinced the Court to apply strict scrutiny because the uniform policy is not neutral and generally applicable (argument 2).

In general, I would advise students to worry less about why you are being asked to make a particular argument and focus on making the argument requested. My effort to explain why you are making a particular argument was to narrow the scope of the requested argument and avoid students including in argument 3 the reasons why strict scrutiny is the relevant test and limit their arguments to applying that test.