Lemon v Kurtzman Test for Establishment Clause Violations

In Lemon v Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court held that state statutes that provided funding for non-public, non-secular schools violated the Establishment Clause of the First Amendment. In deciding the case, the Court established a three-prong test, which is now commonly referred to as the “Lemon test.” To avoid running afoul of the Establishment Clause, a statute must have a secular legislative purpose, its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster “excessive government entanglement with religion.”

Facts of Lemon v Kurtzman

The case sprung from legal challenges involving Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. The plaintiffs in each case alleged that the statutes violated the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

Rhode Island’s 1969 Salary Supplement Act provided for a 15 percent salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education was below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion. The lower court found that the parochial school system was “an integral part of the religious mission of the Catholic Church,” and held that the Act fostered “excessive entanglement” between government and religion, thus violating the Establishment Clause.

Pennsylvania’s Nonpublic Elementary and Secondary Education Act, passed in 1968, authorized the state Superintendent of Public Instruction to “purchase” certain “secular educational services” from nonpublic schools, directly reimbursing those schools solely for teachers’ salaries, textbooks, and instructional materials. Reimbursement was restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment could be made for any course containing “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.”

The complaint challenging the constitutionality of the Act alleged that the church-affiliated schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. The court granted the Pennsylvania’s motion to dismiss the complaint about failure to state a claim for relief, finding no violation of the Establishment or Free Exercise Clause.

Supreme Court’s Decision in Lemon v Kurtzman

The Supreme Court struck down both statutes. “Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion,” the Court held. Chief Justice Warren E. Burger wrote on behalf of the Court.

In reaching its decision, the Court established a test for determining whether the statutes violated the Establishment Clause. To pass must, “[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘excessive entanglement with religion,'” the Chief Justice explained.

Applying the test to the two statutes, the Court determined that the intent of the Pennsylvania and Rhode Island laws was to improve education, rather than advance religion. However, the justices concluded that both statutes failed to satisfy the third prong, which made it unnecessary to consider the second one.

With regard to the Rhode Island law, the Court held:

The entanglement in the Rhode Island program arises because of the religious activity and purpose of the church-affiliated schools, especially with respect to children of impressionable age in the primary grades, and the dangers that a teacher under religious control and discipline poses to the separation of religious from purely secular aspects of elementary education in such schools. These factors require continuing state surveillance to ensure that the statutory restrictions are obeyed and the First Amendment otherwise respected. Furthermore, under the Act, the government must inspect school records to determine what part of the expenditures is attributable to secular education, as opposed to religious activity, in the event a nonpublic school’s expenditures per pupil exceed the comparable figures for public schools.

As for the Pennsylvania law, the Court concluded:

The entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role and the state supervision of nonpublic school accounting procedures required to establish the cost of secular, as distinguished from religious, education. In addition, the Pennsylvania statute has the further defect of providing continuing financial aid directly to the church-related schools. Historically, governmental control and surveillance measures tend to follow cash grant programs, and here the government’s post-audit power to inspect the financial records of church-related schools creates an intimate and continuing relationship between church and state.

As highlighted by the Court, this type of entanglement between religion and the government was exactly what the framers sought to avoid. “Political division along religious lines was one of the evils at which the First Amendment aimed, and in these programs, where successive and probably permanent annual appropriations that benefit relatively few religious groups are involved, political fragmentation and divisiveness on religious lines are likely to be intensified,” the Chief Justice wrote.