CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #47

[Chapter 17.  RELIGION AND THE CONSTITUTION
    [1.  The Establishment Clause
        [B.  Government Religious Exercises, Ceremonies, Displays and Practices]
            [2. Religious Speech and Displays on Public Property

  • CAPITOL SQUARE REVIEW AND ADVISORY BD.V. PINETTE, p. 1760 (1995).
    • What regulation or action is being challenged, and what is it purpose?
    • What is the basis for the challenge?
    • Is the challenged action distinguishable from that in Lamb's Chapel? If so, is the distinction favorable or unfavorable to the action?
    • Is the challenged action distinguishable from that in Allegheny County? If so, does it help or hurt the Board's case?
    • Is it significant that the challenged action occurred in December 1993, on advice of counsel, less than a year after Lamb's Chapel was handed down? Could counsel have learned anything from that case, that would dictate the challenged decision?
    • Why wouldn't it constitute an "endorsement" of the KKK's religious views, to allow it to display its cross in close proximity to the Capitol Building? What kind of "endorsement" does the CSRAB suggest is involved?
    • What is the nature of the "exception to the endorsement test", which Justice O'Connor believes Justice Scalia (for the plurality) would "carve out"? Why does she object to it? Does she correctly read his opinion?
    • What about the option for the state of posting a disclaimer on or near the KKK's cross, denying any endorsement? Would that be problematic?
  • GOOD NEWS CLUB V. MILFORD CENTRAL SCHOOL,  p. 1768 (2001).
    • How does this situation differ, if at all, from Lamb’s Chapel?
      • Is there a greater risk of implicit school endorsement of an activity directed to elementary school children, than of one directed to adults?
      • are Milford’s rules substantially different from those of Center Moriches Union, or were both acting on a generalized prohibition against use for religious purposes?
    • Suppose a church asks Milford for use of its building for Sunday services and Sunday School.  Can the school properly refuse, assuming no prior commitments of the space?