Lemon v. Kurtzman

Summary

By the late 1960s Catholic parochial schools educated a large share of children in states such as Pennsylvania and Rhode Island, and rising lay-teacher salaries strained their budgets. Pennsylvania's Nonpublic Elementary and Secondary Education Act of 1968 authorized the state to purchase secular educational services from private schools, reimbursing teachers' salaries, textbooks and materials for courses in mathematics, modern foreign languages, physical science and physical education, with state approval of materials and audited accounts. Rhode Island's Salary Supplement Act of 1969 paid teachers of secular subjects in qualifying nonpublic schools up to 15 percent of their salaries, on condition that they used only public-school materials and taught no religion. Alton Lemon and other Pennsylvania taxpayers sued David Kurtzman, the state superintendent; in Rhode Island, Earley v. DiCenso and Robinson v. DiCenso came from taxpayers who had won in a three-judge court. The question was whether these programs violated the Establishment Clause. Opponents argued that money flowing to schools whose purpose included religious formation advanced religion and required the state to police church schools. The states and the schools answered that they were buying only secular instruction the state would otherwise have to provide, that safeguards kept the aid out of religious teaching, and that parents who chose religious schools were relieving the public treasury. Chief Justice Burger, for the Court, gathered three tests from earlier cases: a statute must have a secular legislative purpose, a principal or primary effect that neither advances nor inhibits religion, and no excessive government entanglement with religion. He accepted the legislatures' secular purposes and did not decide the effect question, resting instead on entanglement. Because a teacher, unlike a textbook, cannot be inspected once, the states would need continuing surveillance of parochial classrooms and school finances; annual appropriations would also invite political division along religious lines. Both programs were held invalid. The vote was 8–0 in the Pennsylvania case, in which Justice Marshall took no part, and 8–1 in the Rhode Island case, with Justice White dissenting. Justice Douglas, joined by Justice Black, concurred, describing the history of conflict over religious instruction and public funds. White argued that the states were financing a separable secular function of great importance and that the Court had relied on an untested assumption that religious teachers would mix faith into secular lessons. The library text contains Burger's opinion with excerpts from the Douglas concurrence and White's opinion; Brennan's separate opinion is not included, and the notes have been omitted. For three decades the Lemon test governed most Establishment Clause cases, though several justices criticized it. In Kennedy v. Bremerton School District (2022) the Court stated that it had long ago abandoned Lemon and directed courts to historical practices and understandings instead.

Plot or Argument

• Two programs of aid

  Burger describes Rhode Island's 15 percent salary supplement and Pennsylvania's purchase of secular services, the conditions each imposed, and the contrary rulings of the two three-judge district courts.

• Three tests gathered from precedent

  Calling the religion clauses opaque, Burger identifies sponsorship, financial support and active involvement as the evils the Establishment Clause guards against, and states the secular-purpose, primary-effect and entanglement tests drawn from Allen and Walz.

• Secular purposes accepted

  The Court finds no basis to doubt that the legislatures meant to improve secular education, and it does not decide whether the primary effect advances religion.

• Entanglement in Rhode Island

  Relying on district-court findings about diocesan supervision, the school handbook and the role of teachers in religious formation, Burger concludes that keeping subsidized teaching secular would require comprehensive and continuing state surveillance.

• Entanglement in Pennsylvania

  The Pennsylvania program shares the teacher problem and adds direct payments to the schools with state audits of their accounts, a relationship the Court calls pregnant with involvement.

• Political division along religious lines

  Annual appropriations would make aid to church schools a recurring subject of elections, and Burger treats such division as one of the principal dangers the First Amendment was meant to prevent.

• Douglas and White

  Douglas recounts the history of Protestant and Catholic conflict over schooling and warns of a public investigator in every classroom; White replies that financing secular instruction is legitimate and that the majority's reasoning places the states in a paradox.

Characters

• Alton J. Lemon, appellant

  Pennsylvania taxpayer and parent of a public-school student who brought the challenge to the 1968 Act.

• David H. Kurtzman, appellee

  Pennsylvania Superintendent of Public Instruction, responsible for the purchase-of-services contracts.

• Chief Justice Warren E. Burger, author of the opinion of the Court

  Wrote that both programs fostered excessive entanglement between government and religion.

• Justice William O. Douglas, concurring

  Joined by Justice Black, argued that policing the grants would put the state inside parochial classrooms.

• Justice Byron R. White, concurring in part and dissenting in part

  Would have upheld the Rhode Island program and allowed the Pennsylvania case to proceed to trial.

Lessons

• Building a test from earlier cases

  Burger did not invent his three questions; he collected purpose and effect from Schempp and Allen and entanglement from Walz. The resulting formula promised predictability, and for decades lawyers and judges began every Establishment Clause case by applying it.

  • What are the three parts of the test Burger states, and where does each come from?
  • Why might a court prefer a stated test to case-by-case judgment?
  • Does combining several precedents into one formula change what they meant?

• The teacher is not a textbook

  In Board of Education v. Allen (1968) the Court had upheld lending secular textbooks to parochial-school pupils. Burger distinguished Allen on the ground that a book's content can be checked once, while a teacher's influence must be watched continually. The more safeguards a state added to keep aid secular, the more entangled it became.

  • How does Burger distinguish salary aid from the textbook loans upheld in Allen?
  • Why does White call the majority's position a paradox for the states?
  • Can a person of deep religious conviction teach mathematics or science without reference to faith?

• Religion and political division

  Burger argued that recurring appropriations for church schools would divide voters along religious lines, a danger he traced to the purposes of the First Amendment. Critics have replied that citizens of faith regularly take part in political debate and that division alone should not decide a constitutional question.

  • Why does Burger think political debate over school aid is different from other political debates?
  • Is the possibility of political disagreement a proper reason to strike down a law?

• Appreciation and limits

  Burger closed by praising the enormous contribution of church schools and acknowledging their economic difficulties, while holding that the merits of the schools were not the question. White answered that the states were entitled to support the secular education those schools provide. The exchange shows how a court may esteem an institution yet deny it a particular kind of aid.

  • What does Burger say about the value of church-related schools?
  • Why does White think the state's interest in education justifies the programs?
  • Should taxpayers who send children to religious schools receive some share of public education funds?

Context

Catholic parochial schools expanded through the nineteenth and twentieth centuries, partly in response to Protestant religious instruction in public schools, and by the 1960s enrolled several million pupils. Everson (1947) upheld bus-fare reimbursement for parochial pupils, Schempp (1963) supplied the purpose-and-effect test, Allen (1968) upheld textbook loans, and Walz v. Tax Commission (1970) upheld property-tax exemptions for churches while introducing the language of excessive entanglement. Several states responded to parochial-school financial difficulties with new aid programs.

Composition

The Pennsylvania suit was dismissed by a divided three-judge court in 1969, while the Rhode Island court struck down the salary supplement the same year. The Court heard the cases together with Tilton v. Richardson on 2-3 March 1971. Brennan filed a long separate opinion covering all three cases; Douglas's concurrence, joined by Black, was also long. The Pennsylvania case returned to the Court in 1973 on whether the state could pay for services already rendered.

Reception

The three-part test was applied in many later cases, including Committee for Public Education v. Nyquist (1973), Aguilar v. Felton (1985) and Wallace v. Jaffree (1985). Justices including Rehnquist, Scalia and Thomas criticized it as unpredictable, and Agostini v. Felton (1997) folded entanglement into the effect inquiry. In Kennedy v. Bremerton School District (2022) the Court said it had abandoned Lemon. Supporters regarded the test as a principled safeguard for both church and state; critics regarded it as hostile to religious schools and detached from history.

Comparisons

• everson-v-board-of-education

  Burger cited Everson's bus-fare program as permissible aid to pupils rather than to schools, a line the Pennsylvania program crossed by paying the schools directly.

• abington-school-district-v-schempp

  Clark's 1963 purpose-and-effect inquiry supplied the first two prongs of the Lemon test.

• zelman-v-simmons-harris

  Thirty-one years later the Court upheld Cleveland's tuition vouchers because aid reached religious schools only through parents' independent choices, a structure quite different from the direct salary and service payments in Lemon.

• pierce-v-society-of-sisters

  Douglas noted that Pierce secured the right to choose parochial schools; Lemon addressed whether states may help pay for them.

• the-federalist-papers

  Madison's warnings about faction in Federalist No. 10 bear on Burger's concern that school-aid appropriations would divide voters along religious lines.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• The conditions Rhode Island and Pennsylvania attached to their aid to keep it secular.
• Burger's statement that the language of the religion clauses is at best opaque.
• The three tests at the end of Part II.
• The comparison between a teacher and a textbook.
• White's objection that the majority relies on an untested assumption.

Key terms and names

Excessive entanglement

A relationship between government and religious institutions so continuing and detailed that it compromises the independence of each.

Parochial school

A school operated by a church, often a parish, that combines academic and religious instruction.

Purchase of services

Pennsylvania's method of paying private schools for secular instruction as though buying it under contract.

Salary supplement

Rhode Island's direct payment to teachers of secular subjects in nonpublic schools, up to 15 percent of salary.

Three-judge court

A specially convened federal trial court, used at the time for constitutional challenges to state statutes, whose decisions could be appealed directly to the Court.

Seminar Questions

1. Comprehension What did the Rhode Island and Pennsylvania statutes each provide, and what restrictions did they impose?
2. Comprehension What three evils does Burger say the Establishment Clause was meant to prevent?
3. Comprehension Which prong of his test does Burger rely on to decide the case?
4. Interpretation Why does Burger reject the metaphor of a wall of separation while still striking down the programs?
5. Interpretation How do Douglas's historical account and White's account of the states' duty to educate lead them to opposite conclusions?
6. Big Question If the state requires every child to be educated, does it owe anything to the families who choose religious schools?

Faith Connections

• Matthew 22:21 (Scripture)

  Jesus' answer to render to Caesar the things that are Caesar's and to God the things that are God's is a classic text for thinking about distinct spheres of church and civil authority.

• Proverbs 22:6 (Scripture)

  The charge to train up a child in the way he should go underlies the commitment of many families to religious schooling.

Logic and Rhetoric

Central argument: Burger reasons that a law touching religion must have a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement; because subsidized teachers in religious schools would need continuing state surveillance and annual appropriations would divide citizens by faith, both programs entangle church and state excessively; White replies that funding a separable secular function is permissible whatever incidental benefit religion receives.

Rhetorical device: analogy. Burger contrasts a teacher with a book that can be inspected once (quote 2), and elsewhere dismisses the idea that the Court is engaged in a legalistic minuet of mere form.

Debate: Resolved: that a state may pay the salaries of teachers of secular subjects in religious schools.

Memory Work

Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the statute must not foster "an excessive government entanglement with religion."

Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.

Writing Prompts

Essay: Explain why Chief Justice Burger rested the decision on entanglement rather than on purpose or effect, and evaluate Justice White's claim that this choice traps the states in a paradox.

Comparison with Zelman v. Simmons-Harris: Compare the direct aid struck down in Lemon with the voucher program upheld in Zelman, and explain how the path by which money reaches a religious school affected each outcome.

Medical Lens

The case concerns state payments for secular instruction in church-related schools and has no medical content.

Creative Prompts

• Classroom

  Divide the class into the Pennsylvania taxpayers, the state superintendent's lawyers and the bench, and argue whether paying for a parochial-school mathematics teacher advances religion.

• Essay

  Apply each prong of the Lemon test to a hypothetical state program that lends laptops to all students, public and private, and explain where the hardest question lies.

• Dialogue

  Write a 1971 conversation between a Rhode Island parochial-school teacher who received the salary supplement and a state auditor sent to verify that her classes are secular.

• Essay

  Write a short opinion in the voice of Justice White responding to Burger's argument that aid to church schools would cause political division.

Further Reading

• Separation of Church and State, Philip Hamburger

  Historical study of the separation idea and its use in twentieth-century school-aid disputes.

• Religious Freedom and the Constitution, Christopher L. Eisgruber and Lawrence G. Sager

  Two legal scholars propose an equal-liberty approach to the religion clauses as an alternative to the Lemon framework.