Two-Minute MBE Question: Constitutional Law (Establishment Clause)

Here, we discuss how to approach the following Constitutional Law MBE question in two minutes. Read the question below then check out the YouYube video below for an answer explanation in less than two minutes!

Constitutional Law MBE Question:

A man was driving home from work one cold December day and noticed a large, heavily decorated Christmas tree sitting outside of the city hall. The Christmas tree stood alone, was brightly lit with Christmas lights, and had several red and green ornaments decorating it. There were no other holiday or religious symbols on the city grounds. The man, who practices Judaism and who is a taxpayer in the city, was offended. He sued the city, arguing that the city exceeded its constitutional limits in erecting the Christmas tree.

Assuming the man has standing, will the man prevail in his lawsuit?

(A) Yes, because the city’s display violates the Free Exercise Clause of the First Amendment.
(B) Yes, because the city’s display violates the Establishment Clause of the First Amendment.
(C) No, because the city may engage in free speech and spread whatever message it desires to so long as it does not prohibit private citizens from engaging in the same free speech.
(D) No, because the city’s display does not violate the First Amendment.

Constitutional Law Video Answer Explanation:

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SHOW ANSWER

(D) is the correct answer. The city’s public display of a Christmas tree does not violate the First Amendment. The Supreme Court has held that a Christmas tree is not a religious symbol. It has stated that although a Christmas tree once carried religious connotations, today Christmas trees are secular. They are ubiquitous among Christians and non-Christians. (It would be different if the city had a sole menorah or nativity scene without further decorations as this would violate the First Amendment, but a Christmas tree standing alone does not.)

(A) is incorrect because the Free Exercise Clause is not at issue. The Free Exercise Clause is at issue when a state tries to regulate someone’s religious beliefs or conduct. Here, the city is not aiming to regulate or control the beliefs or conduct of anyone.

(B) is incorrect. This answer properly recognizes that the Establishment Clause is at issue, but it answers the question incorrectly. So long as the government does not favor one religion over another or favor religion over non-religion, the Establishment Clause is not violated. Erecting a Christmas tree, a secular symbol, does not favor Christianity over other religions, according to the Supreme Court, as Christmas trees are widespread among all Americans, regardless of faith.

(C) is incorrect because while the city may generally engage in free speech, there is sometimes a collision between the right to speak and the Establishment Clause. Thus, while the city may “speak” it may not do so if its speech favors one religion over another or favors religion over non-religion.

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Two-Minute MBE Question: Constitutional Law (Establishment Clause)