Lemon v. Kurtzman (1971)

Lemon v. Kurtzman was decided by the U.S. Supreme Court in 1971 and was heard concurrently with Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). At issue was the constitutionality of two separate but similar statutes enacted in Pennsylvania (1968) and Rhode Island (1969) that provided state aid to nonpublic schools in support of the instruction they provided in secular subjects. The legislation was intended as a way to address the rising costs of quality education and to balance support for secular forms of education in public and nonpublic school contexts. The Pennsylvania statute provided financial support to nonpublic schools for teacher salaries, textbooks, and instructional materials for secular subjects. The Rhode Island statute provided supplemental salary payments of 15% to teachers in nonpublic elementary schools who (a) taught subjects also offered in public schools, [Page 1377](b) used public school materials, and (c) did not teach any courses in religion. In both states, the vast majority of aid went to Roman Catholic schools.

The question before the Court was whether these statutes violated the First Amendment's Establishment Clause (“Congress shall make no law respecting an establishment of religion”) by making state financial aid available to church-related educational institutions. In Lemon v. Kurtzman proper, the Court ruled that the statutes were in violation of the Establishment Clause in an 8–0 vote. (Justice White concurred with Lemon v. Kurtzman but dissented in Earley v. DiCenso and Robinson v. DiCenso.) In his majority opinion, Chief Justice Burger articulated a three-part criterion, which became known as the “Lemon Test,” for evaluating whether a law violates the Establishment Clause. To be constitutional, a statute (1) must have a secular legislative purpose, (2) its primary or principal effect must neither advance nor inhibit religion, and (3) it must not foster an excessive government entanglement with religion. The Court found that the Pennsylvania and Rhode Island statutes were in compliance with the first and second prongs of the test but in violation of the third. In order to monitor whether aid was being used appropriately, the states would need to conduct surveillance of individual teachers, budget audits, and regular inspections of classroom materials in each school; the Court held that such action would constitute “excessive government entanglement” on the part of the states. The Court also noted the presence of an unhealthy “divisive political potential” as religious groups engaged in lobbying efforts to gain funding for their schools.

The significance of this case resides in the articulation of the Lemon Test, which has been highly influential in deciding disputes over the past 4 decades in cases involving the Establishment Clause. It is, however, coming under increasing scrutiny by Justices such as Antonin Scalia, who believe it is an imprecise tool that has been used inconsistently.