Lemon v. Kurtzman 1971

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Lemon v. Kurtzman 1971

Appellant: Alton J. Lemon, et al.

Appellee: David H. Kurtzman, Superintendent of Public Instruction of Pennsylvania, et al.

Appellant's Claim: That Rhode Island and Pennsylvania violated the First Amendment by paying the salaries of teachers of secular (non-religious) subjects in private, religious schools.

Chief Lawyer for Appellant: Henry W. Sawyer III

Chief Lawyer for Appellee: J. Shane Cramer

Justices for the Court: Hugo Lafayette Black, Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger (writing for the Court), William O. Douglas, John Marshall Harlan II, Thurgood Marshall (Rhode Island cases only), Potter Stewart, Byron R. White (Pennsylvania case only)

Justices Dissenting: Byron R. White (Rhode Island cases only)

Date of Decision: June 28, 1971

Decision: State laws allowing such payments violate the First Amendment separation of church and state.

Significance: The decision announced the "Lemon Test," a three-part test for determining whether a law violates the Establishment Clause in the First Amendment.

I n 1925, the U.S. Supreme Court decided that Americans have a constitutional right to send their children to private schools. Many private schools in America are religious. The question arose whether states can give money to private, religious schools to help them operate

Answering this question depends on the Establishment Clause of the First Amendment. The clause says, "Congress shall make no law respecting an establishment of religion." Although the First Amendment refers to the federal government, state and local governments must obey it under the Due Process Clause of the Fourteenth Amendment. The Due Process Clause prevents states and local governments from violating a person's right to life, liberty (or freedom), and property.

According to the Supreme Court, the Establishment Clause means government may not pass laws which "aid one religion, aid all religions, or prefer one religion over another." Some people think that this means states cannot give any help to religious schools, because that would be aiding religion. Over the years, however, the Supreme Court decided that states could give general help to religious schools if they give the same help to all schools, public and private. For example, states may help religious schools with bus transportation, school lunches, health services, and secular (non-religious) textbooks. The Supreme Court drew the line, however, in Lemon v. Kurtzman.

Tough times

The Lemon case involved two different laws, one in Rhode Island and the other in Pennsylvania. The laws allowed Rhode Island and Pennsylvania to help pay the salaries of teachers of secular (non-religious) subjects in religious schools. Both states passed the laws because it was becoming more expensive to operate private schools, and the states wanted to help such schools with their costs.

Alton J. Lemon was a resident and taxpayer in Pennsylvania. He and others filed lawsuits in federal court to challenge the two laws. They said that the laws violated the First Amendment Establishment Clause by aiding the religions that operated the private schools, most of which were Roman Catholic. The federal court dismissed Lemon's case, or threw it out of court, because it did not think Lemon had a valid complaint. Lemon appealed to the U.S. Supreme Court.

The Lemon Test

The Supreme Court ruled in Lemon's favor, deciding that both laws violated the First Amendment Establishment Clause. Writing for the Court, Chief Justice Warren E. Burger admitted that the Establishment Clause does not require a total separation of church and state. Some interaction is allowed, which explains why the states may give general help to religious schools, such as bus transportation and school lunches.

Justice Burger said, however, that there must be a limit to the amount of interaction between government and religion. Justice Burger announced a three-part test for determining if a law is valid under the Establishment Clause. First, the state must have a secular (non-religious) reason for passing the law. Second, the law's main effect must neither help nor hurt religion. Third, the law must not require excessive entanglement, or interaction, between government and religion.

The Court decided that both laws failed under the third part of the Lemon test. The laws allowed the states to help pay the salaries of teachers of secular subjects. To make sure those teachers taught only secular subjects and not religion, the state would have to supervise the schools and the teachers. Justice Burger said that state supervision of religious schools would involve too much interaction between government and religion.

Justice Burger finished his opinion by emphasizing that the Court's decision was not meant to be hostile toward religion or religious schools. Instead, it was meant to protect religion from becoming controlled by government. He said that under the First Amendment, "religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn."


W arren E. Burger served as the chief justice of the U.S. Supreme Court from 1969 to 1986. Born in St. Paul, Minnesota, Burger attended the University of Minnesota and then graduated in 1931 from the St. Paul College of Law (now Mitchell College of Law). After practicing law for twenty-two years, Burger served as assistant U.S. attorney general under President Dwight D. Eisenhower from 1953 to 1956. He then served on the United States Court of Appeals for the District of Columbia Circuit from 1956 to 1969. President Richard M. Nixon selected Burger to be chief justice in 1969.

On the Supreme Court, Burger was a conservative justice, meaning his decisions usually favored the politics of Republicans instead of Democrats. For example, Justice Burger frequently voted in favor of limiting the power of the Supreme Court and giving more power to state courts. Justice Burger generally supported police and prosecutors instead of people charged with crimes. He also voted in favor of individual property rights and individual freedoms. As in Lemon v. Kurtzman, he favored a strong separation of church and state. In one of the Court's most famous decisions, Roe v. Wade (1973), Justice Burger voted in favor of a woman's constitutional right to have an abortion.

Where's the freedom of religion?

Justice Byron R. White wrote a dissenting opinion, disagreeing with part of the Court's decision. Justice White said that paying teachers of secular subjects was the same as giving religious schools secular textbooks and other benefits that public schools receive. To deny such help to religious schools was a form of discrimination against religion, which Justice White suggested is not allowed under the First Amendment.

The battle continues

As of 1999, states still struggle with the separation of church and state. Some states that want to improve education choices for poor children have created voucher systems. Poor children may use the vouchers to attend private schools instead of public schools. These programs sometimes allow children to use the vouchers to attend religious schools. Some people think this violates the separation of church and state by aiding religion. The issue may be the subject of another Supreme Court case.

Suggestions for further reading

Evans, J. Edward. Freedom of Religion. Minneapolis: Lerner Publications Company, 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

Gay, Kathlyn. Church and State: Government and Religion in the United States. Brookfield, CT: Millbrook Press, 1992.

Hirst, Mike. Freedom of Belie.f New York: Franklin Watts, 1997.

Kleeberg, Irene Cumming. Separation of Church and State. New York: Franklin Watts, 1986.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Sherrow, Victoria. Freedom of Worship. Brookfield, CT: Millbrook Press, 1997.

The Supreme Court: Selections from the Four-Volume Encyclopedia of the American Constitution and Supplement. New York: Macmillan Library Reference USA, 1999.

World Book Encyclopedia, 1997 ed., entry on "Burger, Warren Earl." Chicago: World Book, 1997.

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