Lemon v. Kurtzman, 403 U.S. 602; 91 S. Ct. 2105; 29 L. Ed. 2d 745 (1971)

Lemon v. Kurtzman, 403 U.S. 602; 91 S. Ct. 2105; 29 L. Ed. 2d 745 (1971)

Facts—Rhode Island and Pennsylvania established programs designed to provide state aid to parochial elementary and secondary schools. Pennsylvania reimbursed schools for the cost of teachers’ salaries, texts, and materials used in teaching secular subjects. Rhode Island paid teachers of such subjects a supplement of up to 15 percent of their salaries. In both cases, the states attempted to see that money was given only for instruction related to secular subjects. A three-judge U.S. District Court had held that the Rhode Island law violated the establishment clause whereas a similar court had upheld the Pennsylvania law.

Questions—(a) Do the state programs in question violate the establishment clause of the First Amendment as applied to the states by the Fourteenth?

(b) What is the appropriate test to be applied in such cases?

Decisions—(a) Yes; (b) The Court will examine establishment clause cases under a three-pronged test (that came to be known as the Lemon Test) under which it will examine whether a law has a secular purpose, whether the primary effect of the law is to advance or inhibit religion, and whether the law fosters excessive entanglement between church and state.

ReasonsC.J. Burger (7–1). Reviewing cases since Everson v. Board of Education (1947), involving reimbursement of bus transportation for parents of children attending parochial schools, the Court cited Walz v. Tax Commission (1970), the case upholding tax exemptions of religious property, to argue that the establishment clause was designed to avoid the evils of “sponsorship, financial support, and active involvement of the sovereign in religious activity.” The Court believed these goals could in turn be translated into three tests. They required that a statute “must have a secular legislative purpose . . . its principal or primary effect must be one that neither advances nor inhibits religion . . . [and] the statute must not foster ‘an excessive government entanglement with religion.’” The laws at issue have a clear secular purpose, but the regulations imposed to guarantee that teachers do not foster religion foster excessive entanglement between church and state. The religious atmosphere of parochial schools in both states is pervasive. Although the state can ascertain the content of secular textbooks relatively easily, teachers cannot be so easily overseen. Even when teachers act in good faith, there is the possibility that they will impermissibly foster religion. Moreover, continuing questions about state aid to parochial schools were likely to lead to undesirable political divisiveness.

J. Douglas’s concurrence also focused on the entanglement raised by “the surveillance or supervision of the States.” J. Brennan agreed with the Court’s decision in these cases but disagreed with the aid that the Court sanctioned in a companion case, Tilton v. Richardson, 403 U.S. 672 (1971) for construction of buildings at religious colleges and universities. He also focused on the danger of any state subsidies to parochial schools. J. White, who agreed with the decision in Tilton, but not the decision in Lemon, pointed to the dual roles of parochial schools in performing “religious and secular functions.” White argued that the Court’s finding of entanglement was contrary to the testimony of the teachers and to its treatment of college and university professors in Tilton. He found that the decision presented “an insoluble paradox: The State cannot finance secular instruction it if permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught—a promise the school and its teachers are quite willing and on this record able to give—and enforces it, it is then entangled in the ‘no entanglement’ aspect of the Court’s Establishment Clause jurisprudence.”

Note—The three-pronged Lemon Test continues to be highly controversial. The Court does not apply the test to all establishment clause cases.

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