Lemon v. Kurtzman

Lemon v. Kurtzman (1971), or “Lemon I,” is best known for its three-part test, which the Supreme Court created to be used in evaluating whether government action violates the Establishment Clause; this provision prohibits the government from making laws “respecting an establishment of religion.” The three parts of the “Lemon test” are that (1) a statute or program must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster an excessive government entanglement with religion (Lemon, pp. 612–613). This entry examines the background of that decision and succeeding rulings.

The Original Cases

Lemon I involved jointure of two separate cases interpreting statutes in Rhode Island and Pennsylvania that provided funds and materials for religious schools. The case from Rhode Island addressed the constitutionality of a Salary Supplement Act enacted in 1969 that provided for a 15% salary supplement to be paid to teachers in nonpublic (including religious) schools at which the average per-pupil expenditure on secular education was below the average in public schools. For teachers in nonpublic schools to be eligible for the supplement, they had to teach only courses offered in the public schools, use only materials that were used in the public schools, and agree not to teach courses in religion.

The case from Pennsylvania involved a constitutional challenge to the state’s Nonpublic Elementary and Secondary Education Act, passed in 1968, which authorized reimbursement for specific secular subjects and for textbooks and materials used in those courses by nonpublic schools and approved by the superintendent. The law did not allow for any payment for teachers’ salaries, textbooks, and instructional materials for any courses containing subject matter expressing religious teaching or the morals or forms of worship of any sect.

Approximately 25% of all elementary students in Rhode Island and 20% in Pennsylvania attended religious schools, virtually all of which were operated by the Roman Catholic Church. Three-judge federal trial courts in Rhode Island and Pennsylvania reached opposite conclusions about the constitutionality of the state statutes, with the court in Rhode Island finding the state’s statute a violation of the Establishment Clause. Conversely, the court in Pennsylvania did not think that there was any such violation. On direct appeal to the Supreme Court in Lemon I, it struck down both statutes as violating the Establishment Clause.

The Supreme Court held that both statutes violated the third part of the so-called Lemon test, namely, that supervision of the nonpublic school support programs authorized by the statutes would excessively entangle the states with the religious schools being served. In both cases, the Court decided that the law violated the Establishment Clause because of the restrictions and surveillance that were necessary to ensure that teachers played a strictly nonideological role and by creating state supervision of nonpublic school accounting procedures to establish the cost of secular as distinguished from religious education.

The Court also determined that political divisiveness along religious lines would likely result, as religious groups benefiting from the successive and probably annual state legislative appropriations would intensify their lobbying efforts for more funding.

Two years after Lemon I, the Supreme Court, in Lemon II (1973), revisited the case from Pennsylvania after a federal trial court refused to permit reimbursements to be made for the 1970–1971 school year, even though Lemon I had not occurred until June 28, 1971. A bare majority of the Supreme Court maintained that the payment of the allocated funds for the 1970–1971 school year would not have substantially undermined the constitutional interest at stake and that the denial of the payment would have serious financial consequences on private schools that relied on the agreement.

Worth noting is that the attorney successfully representing the interests of the religious schools in Lemon II was William Ball, the same attorney who, in another U.S. Supreme Court case during the previous year, defended two Amish fathers from a truancy charge in Wisconsin v. Yoder (1972).

The Lemon Test

The Lemon three-part test became a prominent feature in the 1970s, as the Supreme Court and lower courts used it in a variety of cases to invalidate state efforts to assist religious schools (see Committee for Public Education & Religious Liberty v. Nyquist, 1973; Meek v. Pittenger, 1975; and Wolman v. Walter, 1977). However, beginning with Mueller v. Allen, in 1983, the Court began relaxing Lemon I’s stranglehold on public assistance of religious schools by relying on a neutrality test. In addition, Justice O’Connor, in her concurring opinion in Lynch v. Donnelly (1976), suggested a new two-part endorsement test that became a staple in Establishment Clause analysis. The two parts of the endorsement test are a secular government purpose (virtually unchanged from the first part of the Lemon I test) and a reasonable objective observer test as to whether state involvement with religion would be perceived as endorsing or sponsoring religion.

In addition to Lemon I, neutrality, and endorsement tests, the Supreme Court had over the years referenced three other tests: divisiveness (Meek v. Pittenger, 1975, p. 375), coercion (Lee v. Weisman, 1992, p. 588), and historical intent (McCreary County v. American Civil Liberties Union, 2005, pp. 2748–2749). Even so, the use of these other tests has not eliminated judicial reliance on the Lemon I test, much to the chagrin of some justices. In his memorable, concurring opinion in Lamb’s Chapel v. Center Moriches Union Free School District (1993), Justice Scalia lamented the resiliency of the Lemon test:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under. (p. 398)

New Standards

As Justice Scalia so eloquently expressed, the Lemon test is not dead, but it has survived with a somewhat subdued vitality, as reflected in two recent Supreme Court cases, McCreary County v. American Civil Liberties Union (2005) and Van Orden v. Perry (2005). While both of these disputes concerned the display of the Ten Commandments on public property and were handed down on the same day, the Court reached opposite results. In McCreary, a bare majority of the Court relied on the “purpose” part of the Lemon test to invalidate the display of the Ten Commandments in two county courthouses. Despite the presence of other historical documents, the display was arranged in such a manner that juxtaposed the Commandments with other documents, with highlighted references to God as their sole common element. The Court observed that “the display’s unstinting focus was on religious passages, showing that the Counties were posting the Commandments precisely because of their sectarian content” (McCreary, p. 2739).

Another bare Supreme Court majority in Van Orden held that a monument inscribed with the Ten Commandments located on the Texas State Capitol grounds did not violate the Establishment Clause. The Court observed that “whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds” (Van Orden, p. 2861). Instead, the Court created an historical intent test, noting that in terms of the nation’s history, “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789” (Van Orden, p. 2861, quoting from Lynch, p. 674).

The Court refused to find that the mere presence of the Ten Commandments on government property was sufficient to violate the Establishment Clause, with the Court candidly observing that “since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze [of the Supreme Court Building]” (Van Orden, p. 2862). Thus, even though the monument on the grounds of the Texas capitol building had “religious significance . . . the Ten Commandments [also] have an undeniable historical meaning” (p. 2863).

McCreary and Van Orden suggest that while the Lemon test is a useful instrument for analyzing the relationship between government and religion, it is by no means the only test. The Court’s position in Van Orden that the Lemon test was inappropriate suggests that courts can be more selective when choosing which of the Establishment Clause tests are most appropriate for particular sets of facts.

Ralph D. Mawdsley

See also Committee for Public Education & Religious Liberty v. Nyquist; Lamb’s Chapel v. Center Moriches Union Free School District; Lee v. Weisman; Meek v. Pittenger; Mueller v. Allen; State Aid and the Establishment Clause; Wisconsin v. Yoder; Wolman v. Walter

Legal Citations

  • Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973). 
  • Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). 
  • Lee v. Weisman, 505 U.S. 577 (1992). 
  • Lemon v. Kurtzman I, 403 U.S. 602 (1971). 
  • Lemon v. Kurtzman II, 411 U.S. 192 (1973). 
  • Lynch v. Donnelly, 465 U.S. 668 (1984). 
  • McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005). 
  • Meek v. Pittenger, 421 U.S. 349 (1975). 
  • Mueller v. Allen, 463 U.S. 388 (1983). 
  • Van Orden v. Perry, 545 U.S. 677 (2005). 
  • Wisconsin v. Yoder, 406 U.S. 205 (1972). 
  • Wolman v. Walter, 433 U.S. 229 (1977).