Forum Replies Created

  • Nate Walker

    September 5, 2023 at 2:29 PM in reply to: The Lemon Test, post-Kennedy v. Bremerton

    Hi Michael, Thanks for that thoughtful question. Here’s a summary of the tests I use in my First Amendment classes. I frame the Free Exercise and No Establishment clauses as two constitutional principles for the one right commonly/politically known as religious freedom. In this context, I show how judicial tests gain different prominence with different configurations of the Courts. Said another way, I use the history of law to teach about judicial interpretations so students can evaluate trends and weigh their applicability. Here’s a summary of some of the tests I share with my students, if helpful. Cheers, Nate

    The Religion Clauses of the First Amendment to the United States Constitution, ratified by the states in 1791, declare that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment and Free Exercise clauses of the First Amendment are referred to as the “religion clauses,” which are distinct from the No Religious Test for Office clause of the original constitution, written in 1787.

    The Incorporation of Religion Clauses to the States through the Fourteenth Amendment. The U.S. Supreme Court applied the First Amendment’s religion clauses to all states in two landmark decisions in 1940 and 1947. The incorporation of federal and state laws was made possible by the Fourteenth Amendment, which proclaims that “No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These are considered the Due Process and Equal Protection clauses of the Fourteenth Amendment.

    The Sherbert Standard is a three-part judicial test that courts use to apply the strict scrutiny standard to Free Exercise cases. Judges first turn to the plaintiffs to determine whether (1) their constitutional right to free exercise of religion was substantially burdened, regardless of whether that burden is incidental or fundamental, indirect or direct. If so, the Court turns to the state to examine whether lawmakers had a (2) compelling government interest to justify the burden and then examines whether the legislature (3) narrowly tailored the law to achieve that interest through the least restrictive means possible. This study refers to this three-part test as the Sherbert standard because of the U.S. Supreme Court’s application of these steps in the landmark case Sherbert v. Verner (1963).

    The Yoder Exemption originated from the landmark case Yoder v. Wisconsin (1972), in which the U.S. Supreme Court applied the first two steps of the Sherbert test. The court held that (1) Wisconsin’s compulsory education law “unduly burdened” the free exercise of religion of Amish and Mennonite families and threatened their way of life; and (2) the state’s interest in school attendance until the age of sixteen was not compelling, given the vocational and peaceful nature of the religions and the families’ willingness to enroll their children in all but two of the required years—implying the Court’s recognition of a least restrictive alternative. Having failed the second question of the Sherbert test, the Court did not explicitly determine whether the state narrowly tailored the law. Yoder reaffirmed the application of the Sherbert test, which is why “the period from 1963 to 1990 is often labeled the Sherbert/Yoder era of Free Exercise Clause law.”* This ended with the controversial Smith decision.

    The Smith Standard, also called the general applicability test, requires that government regulations must be “neutral and generally applicable” and cannot “target religious conduct for distinctive treatment.” This study refers to this Establishment Clause test as the Smith standard because of its prominent use in the highly disputed case, Employment Division v. Smith (1990), in which the Court held that Native Americans who used peyote for sacramental purposes could not receive an exemption from general laws banning the use of narcotics. The Smith court limited the previously uncontroversial Sherbert standard to laws that are not neutral and generally applicable.

    The Lemon Test is another judicial standard the Court used from 1972 until Kennedy v. Bremerton (2002) to determine a violation of the Establishment Clause. Its three prongs—purpose, primary effect, and entanglement—would validate the constitutionality of a law if it had a secular purpose; its primary effect was neither to advance nor inhibit religion; and it did not foster an excessive entanglement between government and religious institutions. A variation of the primary eect prong is the Endorsement Test that prevents the government from “convey[ing] a message that religion or a particular religious belief is favored or preferred.”

    A related legal development is the Religious Animosity Principle. If a government official or a law shows contempt toward religion, singling out religion for negative treatment, then the state violates the First Amendment. In Church of Lukumi Babalu Aye v. City of Hialeah (1993), the Court unanimously held that “A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. It follows from what we have already said that these ordinances cannot withstand this scrutiny.” Lukumi illustrates how the Free Exercise standard of strict scrutiny (Sherbert 1963) is interconnected with the guarantee of No Establishment of religion under the neutral and general applicability standard (Smith 1990) and the primary effect prong of the Lemon test (1971). The religious animosity principle can be applied across causes of action: judges can apply it in cases filed under the No Establishment and Free Exercise clauses of the First Amendment, or under a federal or state religious freedom protection act, or the federal Religious Land Use and Institutional Persons Act. On February 14, 2018, the Fourth Circuit Court of Appeals— the most conservative circuit court in the country—ruled that President Trump’s third proposed travel ban was unconstitutional because of his well-documented religious animosity toward Muslims (IRAP v. Trump, 2018; see also the Ninth Circuit court’s unanimous rejection of the ban in Hawaii v. Trump (2017). On June 4, 2018, the U.S. Supreme Court found that one member of the Colorado Civil Rights Commission showed elements of a clear and impermissible hostility toward the sincere religious beliefs of a white evangelical Christian cake-baker who objected to creating a wedding cake for a same-sex couple (Masterpiece, 2018). Sixteen days later, the U.S. Supreme Court did not apply the religious animosity principle and overturned the Fourth Circuit Court’s decision. The Court held that President Trump’s travel ban was neutral on its face, addressing a national security matter within the core of executive responsivity (Trump v. Hawaii, 2018).

    Overall, I discuss these trends in judicial standards and their inconsistent applicability with research that shows that religious minorities have high rates of filing legal cases with a low number of victories, as compared to Protestant Christians who have a low number of court cases with a high number of cases ruling in their favor (Wybraniec & Finke, 2004).

    Discussion Post Citations:

    Nathan C. Walker, The First Amendment and State Bans on Teachers’ Religious Garb. New York: Routledge, xx-xxi (2019).

    Nathan C. Walker, “Political Contempt and Religion” in Paul Djupe, ed., The Oxford Encyclopedia of Politics and Religion. New York: Oxford University Press, 2019.

    Additional Citations:

    * Eugene Volokh, “Some Background on Religious Exemption Law,” The Volokh Conspiracy. June 12, 2010.

    Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 US 573 (1989) (opinion of O’Connor, J.) (quoting Wallace [1985] [O’Connor, J., concurring in judgment]).

    Cantwell v. Connecticut, 310 U.S. 296 (1940)

    Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)

    Employment Division v. Smith, 494 U.S. 872 (1990)

    Everson v. Board of Education, 330 U.S. 1 (1947)

    Hawaii v. Trump, No. 17–15589 (9th Cir., 2017).

    International Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir., 2018), see Brief Amici Curiae of IRAP, et al. filed, March 30, 2018 (No. 17-965).

    Kennedy v. Bremerton School District, 597 U.S. ___ (2022)

    Lemon v. Kurtzman, 403 U.S. 602 (1971)

    Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)

    Sherbert v. Verner, 374 U.S. 398 (1963)

    Trump v. Hawaii, 585 U.S. ___ (2018).

    U.S. Const. art. VI §3 (1789)

    U.S. Const. amend. I. (1791)

    U.S. Const. amend. XIV (1868)

    Wisconsin v. Yoder, 406 U.S. 205 (1972)

    Wybraniec, J., & Finke, R.. “Religious Regulation and the Courts: The Judiciary’s Changing Role in Protecting Minority Religions from Majoritarian Rule,” in James T. Richardson (Ed.), Regulating Religion: Case Studies from Around the Globe (pp. 535–553). New York: Kluwer Academic/Plenum Publishers, 2004.

  • Nate Walker

    August 5, 2023 at 9:09 AM in reply to: Artificial Intelligence and Class Assignments

    Hi David!

    Thank you for your thoughtful engagement. In addition to my role here at ELA, teach First Amendment and human rights law at Rutgers Honors College and for undergraduates in the department of religious studies. In this context, I’ve been thinking about ChatGPT in these various ways.

    1. Honest Studies
    2. Timeline of AI
    3. AI Platforms
    4. Resources
    5. Pedagogical Strategies

    I’ll explore each of these in a sub-thread and include sources and links.

    I’m looking forward to learning with and from you all on this important topic.



    • Nate Walker

      August 5, 2023 at 9:57 AM in reply to: Artificial Intelligence and Class Assignments

      5. Pedagogical Strategies. Ultimately, I’ve come to interpret these technological developments and related resources as invitations for us to be better educators. We have a renewed opportunity to think through how the content of what we teach can be enriched by how we teach it. For me, it comes down to finding varied ways to engage and assess learners.

      • Making Explicit How I Learn. I have three learning disabilities. I make this explicit in my classes to emphasize that I don’t like and I’m not good at many classroom exercises. For instance, I don’t like and I’m not good at writing but I write because I have something to say. I’m about to publish my sixth book. I want them to know that struggling with learning does not pre-determine success.
      • Attendance and Participation. Of course, showing up is the highest priority. It’s the best way to ensure the authenticity of the learners voice, to get to know them, and be in a genuine collegial relationship with them in one of the most formative times in their lives.
      • Outlining Essays in Person. I invite my students to draft outlines while we are in class together. In small groups, their peers and I can see how they are making sense of the arguments and structuring their thoughts.
      • Structured Analytical Essays. Whether it’s teaching the IRAC briefing method (issue, rule, analysis, conclusion), or a five-point analytical essay (intro/thesis, point 1, 2, 3, and conclusion), I find that much of my time is spent teaching learners how to structure their communication. Structure gives them freedom and self-confidence.
      • In-Class Pre-Tests, Post-Tests, Quizzes. As a First Amendment educators, all I do is teach about freedom. For me, the content of this subject must match the form. As a result, I don’t feel good about using tests to perpetuate “gotcha teaching,” where we expect students to mirror our spoken or unspoken assumptions on the topic. For this reason, I don’t use tests or quizzes to measure learning. Instead, I use a dialogic approach.
      • Socratic Seminars. I’m finding myself most often inviting a few students into the middle of a room to each take one the role of one or more characters in the case we are studying, while the rest of the class watches. For me, this is a more organic, relational, playful, and entertaining way to engage learners. As an educators, I can see in real-time the growth students are making by embodying what would otherwise be theoretical, disembodied knowledge. It’s a great way for them to verbally demonstrate mastery of subject matter, giving me a receipt on my teaching.
      • Rubric-Based Grading. I’m drawn to providing students with rubrics for them to measure their self-learning.
      • Self-Assessments. I try to change the power dynamics in the course by inviting learners to set their own goals and reflect on their progress. More often than not, learners are harder on themselves than I would be on them.
      • Capstone Projects & Praxis Pedagogy. In field-education seminars, I coach students through doing work in the community and then reflecting on the impact they had with their self-crafted project.
      • Gamified Assessment. I love to find ways to introduce play as the primary pedagogy. Turning learning into games transforms the mood in the room and motivates students (and me) to return. If I’m not having fun, how can they?
      • Mixing Social Learning with Verified Engagement. During the pandemic, I built the social learning community We have forty certifying organizations and over two hundred content creators. We’ve found that online learning is best done when introducing social comments. We use the technology to measure basic things like whether they viewed the entire videos, completed the pop-up questions, and other games.
      • Teaching Assistants. Some of my most successful students involved inviting honors college students to serve as my teaching assistants. We have weekly discussions about what is working and not working and plan for future lessons. We take turns following-up with the students, demonstrating care for their well-being, which motivates them to succeed. Overall, I find this kind of team teaching to generate the most authentic learning community.
      • Discussion Boards. Like this activity here, I appreciate having the opportunity to engage one another with discussion boards. On our own time, we can come in and out of conversations. There’s something meaningful about having the chance to self-reflect while being in dialogue with others (as compared to only writing papers for the single-audience of a professor).
      • Emphasizing self-worth, self-efficacy, self-confidence. Overall, I see myself as not as a keeper of knowledge that students have to access and return back to me in it’s most purest form. I see myself as a guide, a coach to invite them to transforming their thoughts of self-doubt into a script based on hard-earned self-confidence. For me, how the learner leaves the course feeling about themselves is the highest pedagogical priority.

      I hope this five-part reflection is helpful to our new Section on Teaching Education Law.


    • Nate Walker

      August 5, 2023 at 9:28 AM in reply to: Artificial Intelligence and Class Assignments

      4. Resources for Educators. What resources are you all using to help you make sense of these technological advancements and how might these resources inspire us to help make comparable advances in human relations, starting in our classrooms?

      1. A Guide to Generative AI Tools Use In Higher Education. This is one of the most comprehensive resources that I’ve discovered to date. It’s a living document worthy of following over time.

      2. The Sentient Syllabus: Charting a course for the academy in an era of synthesized thought. Principles: Quality, Truth, Collaboration. Syllabus Resources. Understanding AI Issues. Course Activities.

      3. GPTZero Educators Facebook Group. This is an excellent way to learn of the most up-todate developments.

      4. Plagiarism Software. In addition to GPTZerod, here are some other counter-AI tools: Turnitin, Quetext,, Unicheck, ProWritingAid, Noplag,, Crossplay, Copyleaks Plagiarism Checker, and CopySaf

      What resources are you all using to enrich your classroom?



    • Nate Walker

      August 5, 2023 at 9:23 AM in reply to: Artificial Intelligence and Class Assignments

      3. Sampling of Artificial Intelligence Platforms. In the context of these historic developments, I’m curious about the impact any of these new technical platforms will have on humanity.

      1. OpenAI’s GPT-3.5 and GPT-4
      2. DALL-E 2
      3. Google BERT
      4. Pathways Language Model (PaLM)

      5. Meta’s OPT-175B

      6. BLOOM BigScience Initiative

      7. LaMDA, Google technology

      8. AI Tools compiled by Audio and Video: VoicePen AI audio to blog post; Krisp AI speaking assistant, background voice, noise, echo cancellation; generate royalty-free custom music. Design AI: Flair, brand products; Illustroke, create images from text prompts; and Copy and Content: Puzzle Labs, import glossary to highlight text on website.

      These are some of the platforms that have caught my attention. I’m curious about what other resources folks are following.

      In the next post, I’ll share some resources that have inspired me in exploring these developments.



    • Nate Walker

      August 5, 2023 at 9:17 AM in reply to: Artificial Intelligence and Class Assignments

      2. Timeline. Huston Smith wrote in his best selling textbook on the world’s religions, “The century’s technological advances must be matched by comparable advances in human relations.” — Huston Smith

      How might we consider the following technical advancements as the means by which we can cultivate humanity? How might these developments enrich education and better support the complex ways that people make meaning of our lives.

      • 1991 World Wide Web introduced to the public
      • 1994-5 Launch of Amazon, Netscape, Yahoo, AOL, Internet Explorer
      • 1995 ALICE chatbot born
      • 1998 Google launches search engine
      • 2001 Wikipedia launches. Napster closes after losing a copyright case.
      • 2002 LinkedIn and Moodle launch
      • 2003 WordPress blog publishing launches
      • 2004 Facebook and Mozilla launch. Blackboard goes public.
      • SCORM learning technology introduced to public.
      • 2005 YouTube launches. Amazon Prime launches.
      • 2006 Twitter launches
      • 2007 Apple introduces iPhone
      • 2009 Grammarly launches.
      • 2010 Instagram launches. Kindle books outsell hardcover books.
      • 2011 Zoom founded. Apple introduces Siri. Canvas launches. IBM’s Watson, natural language computer competes on Jeopardy
      • 2014 Amazon introduces Alexa, virtual assistant technology
      • 2016 3.6 billion Smartphones worldwide. Microsoft acquires LinkedIn.
      • Google DeepMind’s AlphaGo beats Go champion Lee Sedol
      • 2017 TickTok launches and the age of Artificial Intelligence begins.
      • Amazon acquires Whole Foods.
      • 2018 Google’s open course BERT
      • Christie’s sells artificial intelligence created portrait for $432K
      • 2020 Private release of OpenAI’s GPT-3
      • 2020-2021 COVID-19 global lockdowns
      • 2022 Elon Musk acquires Twitter.
      • 6.6 billion Smartphone users worldwide.
      • 4.7 social media users worldwide.
      • November 2022 OpenAI’s GPT-3 gains global prominence with Microsoft’s $1B investment.
      • GPTZero was founded by Yale student to detect AI-generated text.
      • 2023 GPTZero and K16 Solutions to bring GPTZero to Canvas, Blackboard, Moodle, D2L, and Schoology.

      Sources: WikiPedia, Speechify

      In the next thread, I’ll provide links to new artificial intelligence platforms.



    • Nate Walker

      August 5, 2023 at 9:12 AM in reply to: Artificial Intelligence and Class Assignments

      1. Honesty Studies. I’m curious whether educators’ initial assumptions about artificial intelligence would benefit from evidence-based examinations of why people lie and cheat. The evidence reveals that no one type of person (gender, race, nationality, age) lies more than another but its the social and organizational conditions that permit certain kinds of behavior.

      In this context, I start many of my courses having students watch clip 1:11 to 1:19 of the following documentary, (Dis)Honesty: The Truth About Lies (2015).

      Overall, behavioral economist Dan Ariely at MIT classify lies in five ways:

      1. Self-deception

      2. Social norms

      3. Distance from money

      4. Lying for the benefit of others

      5. Conflicts of interest

      These may be helpful for educators to think through the assumptions we have about students motivations and identities (e.g., the false ideas that some people lie more than others) and focus more on creating the conditions for ethical behavior that is socially rewarded.

      I’ll next explore a timeline of AI to put the recent developments of ChatGPT into context.