Lemon v. Kurtzman

Lemon v. Kurtzman, 403 U.S. 602 (1971), argued 3 Mar. 1971, decided 28 June 1971 by vote of 7 to 0; Burger for the Court, Brennan and White concurring in part and dissenting in part, Marshall not participating. In this case, the Court considered the constitutionality of the Rhode Island Salary Supplement Act of 1969 and Pennsylvania's Non‐Public Elementary and Secondary Education Act of 1968. Both laws allowed the state to support directly the salaries of teachers of secular subjects in parochial and other nonpublic schools.

The issue was whether these laws violate the First Amendment religion clauses, which prohibit laws that “respect” the establishment of religion or limit its free exercise. In this case the Court established what has come to be known as the Lemon Test, which Chief Justice Warren Burger called “cumulative criteria developed by the Court over many years” (p. 642), to consider the constitutionality of statutes under the Establishment Clause. The Lemon Test added a new “excessive entanglement” prong to the existing requirements that such laws be for a secular legislative purpose (Abington School District v. Schempp, 1963) and that their primary effect neither advance nor inhibit religion (Board of Education v. Allen, 1968).

The Court held that both statutes violated the excessive entanglement strand of the new test. The Court was particularly concerned that teachers in a parochial school setting, unlike the mere provision of secular books, may improperly involve faith and morals in the teaching of secular subjects; further, continuing surveillance by states to avoid this situation would nonetheless involve “excessive and enduring entanglement between state and church” (p. 619). Alluding to Thomas Jefferson's famous metaphor of a “wall of separation between church and state,” which the Court had previously employed to define the meaning of the Establishment Clause, Burger observed that “far from being a wall,” it is a “blurred, indistinct, and a variable barrier depending on all the circumstances of a particular relationship” (p. 614).

To ensure the separation of church and state, the state would have to undertake a comprehensive, discriminating, and continuing surveillance of religious schools, including state audits and on‐school visits. The Court also found that these laws foster a broader, yet different type of entanglement—the potential for divisive politics among those who support and those who oppose state aid to religious education. Although the Court has viewed political division along religious lines as one of the principal evils that the First Amendment was designed to prevent, it chose not to make fear of political divisiveness a separate and fourth tier of the test.

Attempts have been made to replace the Lemon Test with the Coercion Test, which would emphasize limiting government from coercing individuals in their free exercise of religion, and denude the Lemon Test of its “excessive entanglement” prong. These have failed as demonstrated in landmark school prayer cases such as Lee v. Weisman (1992), which outlawed school prayer at a middle school graduation, and Santa Fe Independent School District v. Doe (2000), which prohibited high school students from voting whether to have “invocations” at football games and choosing the person to deliver them. In Zelman v. Simmons‐Harris (2002), a case in which the Supreme Court permitted school voucher programs, all prongs of the Lemon Test continued to be important to a majority of justices.

See also Lemon Test; Religion.

Ronald Kahn