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.

Top 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.

• 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.

• 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.

• 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.

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Medical Lens

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