Just curious - is Lemon still the general framework for establishment clause and schools in the US ?
Lemon has been criticized by individual justices but has never been overruled. The Travel Ban case essentially seems to hold that the plenary power of the political branches over immigration overrides conventional Establishment Clause doctrine, so I think it’s fair to say that Lemon is not good law in the immigration context. As to schools, however, I see no basis for arguing that Lemon is not governing law.
Thanks!
And is that the case where the idea of “excessive entanglement” with churches comes from?
(My First Amendment classes were a long time ago. 
)
Yes it is.
The Lemon test includes an “entanglement prong” (which perhaps helps to understand why it is often referred to as “tortured” ;)). Whenever anyone refers to “excessive entanglement” today, they are invoking Lemon.
The concept and the term itself did not originate with that case, however. The lower court in Lemon had ruled against the state based on a finding of “excessive entanglement,” citing a prior Supreme Court case called Walz. What the Supreme Court in Lemon did was to incorporate that element into a three-step analysis.
Just curious, Northern, how much training do Canadian law students get on US law, and what is the rationale? On the one hand, I can see it being important to know the wider context of legal systems, on the other hand, I can see it being a little knowledge is a dangerous thing!
Thanks, Tom and Silenus.
D18, i can’t really answer that question since I was in law school “mumblety-mumble” years ago. Don’t know what the kid these days are getting in their classes.
However, Canada has a much stronger tradition than in the US of being open to comparative law. Flows from the fact that we were part of the Empire, and there was a common final appellate court for the Empire, the Judicial Committee of the Privy Council (essentially the Law Lords sitting in mufti, without their wigs).
That meant that generations of law students and lawyers studied and relied on cases from throughout the Empire. I remember reading cases, or reading about cases, from England, Scotland, Pakistan, Sri Lanka, Australia, India, New Zealand, the Bahamas, Cyprus, as well as some US stuff. And of course the Quebec courts and the Supreme Court will look at French cases when appropriate.
Just as a for instance, one of the foundational cases for the confessions rule in Canada was a JCPC decision from Hong King in 1914, Ibrahim v The King.
And the modern law of torts of course depends on the Scottish case of the snail in the bottle of ginger beer. 
Even now, we will look at other Commonwealth cases, even if technically no longer binding, because of the joint legal heritage and interest in how other legal systems have dealt with the same issue. The Canadian courts will also look at international human rights cases, international cases that interpret treaties, cases from
domestic courts of other countries to see how they’ve interpreted international treaties that Canada has signed, and so on.
There was some interest in US constitutional rights cases when the Charter first came in, but by and large the US cases don’t get cited much more than cases from other countries with entrenched constitutional rights.
As for why? Because there are a lot of smart lawyers and judges out there in the world, who may have already had to face the same issue. The decisions of other courts aren’t binding on Canadian courts, but we don’t have a monopoly on legal skills and it can be helpful to see how those other folks have dealt with the issue.
ETA: the 1st Amendment classes I mentioned were grad school in the US.
ETA2: when I’ve taught at law school, I’ve sometime done a class on habeas corpus in the US, because it’s a really good entry point to think of federalism and the court system. The Canadian court system is organised quite differently from te US, and studying the US system helps to reveal the details off your own system that you’ve always just accepted. Canadians don’t normally think of the courts as raising federalism issues, but that’s a big part of US court system teachings. That in turn helps to ask students to think about why our courts are so différent from the US system.
Interesting overview! Thank you.
A minor nit pick, but I’m not sure why people keep referring to the travel ban as an immigration issue. Some folks affected by the ban are undoubtedly seeking to immigrate, but many (most?) just want to travel here for whatever reason and are not intending to immigrate. Depending on your country of origin, it’s not that easy to immigrate to the US anyway. But generally, it’s been pretty easy to travel here.
The usage of the term in legal shorthand is broader than the strict definition. The court was construing the Immigration and Nationality Act, people who practice in this area call themselves immigration lawyers, etc. Title 8 of the US Code refers to “Aliens,” but few people use that word in common parlance.
The POTUS’ authority to exclude aliens comes from the constitutional grant of power over immigration to the political branches. And, as Tom noted, immigration law governs both long-term and temporary entrants.
For what it’s worth, US law students get virtually no training on Canadian law,* but we do get trained on English common law which forms much of the basis of the legal system in both countries, and occasionally a Canadian case comes up which addresses a rule that is still part of American law (e.g., fundamental things like the elements of negligence).
*I got quite a lot of training on Canadian law pertaining to the property rights of the First Nations, because my property law professor had a hard-on for aboriginal title issues.