Lemon v. Kurtzman (1971)
No other provision of the Bill of Rights proved more perplexing for the Court, both conceptually and in practical application, than the Establishment Clause of the First Amendment. When Chief Justice Burger outlined a standard for resolving church-state questions in Lemon v. Kurtzman (1971), the hope was that it would provide much needed constitutional clarity in the area of public aid to religious schools. Instead, the “Lemon test” would almost immediately come under attack, even from some members of the Court that rendered it. The much-maligned standard became inextricably linked with a church-state jurisprudence that lower court judges, practitioners and parties often found mystifying and obtuse. Only with the gradual abandonment of the test has the Court settled on a more coherent frame for considering religion questions under the First Amendment.
The Jurisprudential Context: The Establishment Clause Unleashed
The Court’s 1947 incorporation of the Establishment Clause in Everson launched it into a hotly contested area of the law that would generate dozens of cases for its docket over the next several decades. I have previously argued that Justice Black’s perfunctory reasoning behind incorporation of the Establishment Clause failed as a matter of textual fidelity and original purpose, that both the language and the history behind it strongly supported a view of church-state relations as primarily a matter for the states. Given the array of church-state questions that would eventually arise, the practical consequences of a top-down uniform law of church-state relations across all levels of government made the confusion and doctrinal hair splitting that characterized Establishment Clause jurisprudence in the latter 20th century inevitable.
The contradictions in Everson likewise proved problematic for navigating the host of church-state issues that would gradually emerge. Reviewing whether the state could subsidize the transportation costs to families sending their kids to parochial schools, Justice Black and the Court employed the decidedly separationist rhetoric of a “high and impregnable” wall of separation between church and state, then proceeded to affirm the state aid program. From the outset, an element of ambiguity plagued the Court’s consideration of aid to religious schools.
The Court would avoid taking on another case involving public funding of religious instruction for more than two decades after Everson. That changed in the 1960s, when the exit of middle-class Catholic families to the suburbs put the financial squeeze on Catholic schools serving urban populations. As parochial schools in the city faced declining revenues and increasing costs, state legislatures responded with a variety of aid packages, which in turn sparked legal challenges from those who favored strict church-state separation. The first of these to reach the High Court involved a New York program that directed local school boards to lend textbooks at no cost to students of both private and public schools. In Board of Education v. Allen (1968), the Court upheld the program, reasoning that, since the benefit went to all students, it did not advance religion. A rash of cases involving public aid to religious schools came quickly on the heels of Allen.
At the same time, the Court was adopting a much more separationist posture in other Establishment Clause areas, as exemplified by the pair of cases striking down public school practices of Bible reading and prayer (Engel v. Vitale, 1962; Abington Township v. Schempp, 1963). Given the unpopularity of the Engel and Schempp cases, many expected Chief Justice Burger’s assumption of the leadership of the Court in 1969 to push it in a more uniformly accommodationist direction. Moreover, Burger had a particular interest in the religion clauses. (He would go on to author the majority opinion in 18 of the 26 religion cases that the Court decided during his seventeen years on the Court.) When the states of Pennsylvania and Rhode Island enacted legislation that helped to pay for instruction in parochial schools, Burger had his opportunity to leave his imprimatur on Establishment Clause jurisprudence.
Lemon v. Kurtzman and Earley v. DiCenso: Challenging Aid to Religious Schools
In 1971, the Court granted review to a pair of cases arising from programs authorizing public school administrators to furnish private religious schools with secular educational services. Pennsylvania’s Non-Public Elementary and Secondary Education Act of 1968 was the first of its kind in the country, subsidizing the cost of secular textbooks and teachers’ salaries for courses taught in parochial schools that were identical to those taught in public schools. Rhode Island followed suit shortly thereafter; its Salary Supplement Act provided a benefit in the form of a state-paid subsidy covering up to fifteen percent of the salaries for teachers in private schools who taught non-religious subjects. Both cases grew out of the tensions between the public schools and the parallel educational system of Catholic parochial schools. In Pennsylvania, the vast majority of the schools who benefitted from the program were Roman Catholic; similarly every participating teacher under the Rhode Island law was employed at a Catholic parochial school. When legal challenges to the two laws landed on the Court’s doorstep, it accepted both cases, and consolidated them for hearing. At issue was whether state laws that provided tax-funded support in the form of salary subsidies for teaching secular subjects in private religious schools, namely secular textbooks and salary subsidies for teachers, violated the Establishment Clause of the 1st amendment. By an 8-0 vote, the Court decided they did.
The Burger Opinion – the Lemon Test is Born.
Chief Justice Burger wrote for the Court in striking down the programs. Burger attempted to synthesize the Court’s holdings from previous religion cases, while adding an important consideration of his own. In what became known as the “Lemon test,” Burger laid down a three-pronged standard for determining the constitutionality of aid to parochial schools. The first prong, drawn from Schempp, required that any aid to a religious school must be in service of a secular legislative purpose. The second prong, established in Allen, stated that the principal or primary effect of the policy in question could neither advance nor inhibit religion. Burger then added a third criterion of his own, finding that a program would be constitutionally suspect if it led to excessive government entanglement with religion.
In applying his test to the cases at hand, Burger saw little problem with the first criterion. There was a clear secular purpose underpinning the pair of programs, to enhance the quality of secular education. This would typically to be the case going forward, with the “secular purpose” requirement an easy bar to clear. Glossing over the second prong, Burger focused on the third, that of excessive entanglement. In so doing, he examined the cumulative impact that public subsidies might have on education within a religious school. He worried that teachers in a parochial school setting presented a peculiar threat to advance faith and morals even in the teaching of secular topics. Catholic schools were “pervasively sectarian” institutions, where “religious authority [so] necessarily pervade[d] the school system” that only “strict and pervasive controls” could guard against the advancement of religion. As a result, a “comprehensive, discriminating, and continuing state surveillance” would inevitably be required” to ensure compliance with the dictates of the First Amendment. The level of scrutiny through audits, classroom visits and the like needed to guard against the advancement of religion by the state constituted an “excessive and enduring entanglement between state and church.”
Burger observed that programs for bus transportation, school lunches, and secular textbooks had previously been approved by the Court, and insisted that the three-pronged standard was not an unqualified acceptance of Jefferson’s famous metaphor of an impenetrable “wall of separation” between church and state. Burger thought a more accurate description to be a “blurred, indistinct, and a variable barrier depending on all the circumstances of a particular relationship.” Nevertheless, Burger fell back on separationist language: “Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction . . .”
Several other facets of the opinion would give rise to significant church-state principles in the future. Burger cited the potential danger of divisive politics between the opposing sides on the policy of public aid to religious education, a threat of sectarian strife that later justices would cite for a more separationist stance. Second, Burger objected to the Pennsylvania program’s provision of financial aid directly to the religious school, a concern that would lead to a “no direct aid” rule that stood for several decades.
The Checkered Life of the Lemon Test.
The Lemon test had the distinction of becoming a highly influential doctrinal standard while just as quickly becoming the object of derision from voices on the Court and off. Though it never found universal acceptance on the Court, it gained enough adherents to became the definitive rule for church-state conflicts. Though it grew out of the parochial school aid cases, it quickly moved beyond that context, as it was applied to establishment clause disputes across the board, from public religious displays and public prayers to bible reading and teaching of religious matters in schools.
A frequent critique of the Lemon test was its tendency to unduly constrain what its critics thought to be reasonable interaction between the state and religious institutions. This stemmed from the “catch-22” between its second and third prongs. To ensure that a program’s primary effect was not to advance religion often meant intrusive governmental scrutiny that then caused the program to run afoul of the proscription on excessive entanglement. Hence the standard led the Court to curtail tax-funded benefits to religious education in a string of cases that followed Lemon. The high point of this separationist phase came in a pair of 1985 cases (Aguilar v Felton, Grand Rapids School District v. Ball) in which the Court struck down programs of support for struggling private schools. In Ball, the Court disallowed a policy of shared time in which public school teachers offered classes in math, reading and the arts in private schools. In Aguilar, the Court rejected a New York state policy of allowing public school teachers to offer remedial instruction private students living in low-income neighborhoods.
Yet the seeds of the demise of the Lemon test were evident even in the Aguilar and Ball cases, with four justices dissenting in each instance. In the same year, Justice Rehnquist bolstered the critique of the test with a lengthy dissent in Wallace v. Jaffree (1985), in which he questioned the historical basis for the test. In short, cracks were beginning to appear in the Lemon test’s wall of separation. Those cracks widened, with justices either giving lip service to or simply disregarding Lemon in other contexts. Tellingly, Chief Justice Burger himself gave the test nary a mention in a 1983 case involving the propriety of paid chaplains to open legislative sessions in prayer. (Marsh v. Chambers 1983) Instead he dwelt on longstanding historical practices of legislative prayer and chaplaincies. (It seems likely a Lemon analysis would have gone the other way, with a chaplaincy falling short both of the secular purpose and effects criteria.
As the Court’s composition underwent considerable change in the years after Aguilar and Ball, there soon was a majority of the Court that tilted against the test. Lest there was any doubt about the Court move away from the separationist approach of Lemon, it become clear in the 1997 decision in Agostini v. Felton, in which the Court explicitly overruled Aguilar. In Agostini, the Court revisited the policy it had rejected via a straightforward application of the Lemon test in Aguilar. But now the Court reversed course, holding that it did not violate the Establishment Clause for public school teachers to instruct at religious schools, so long as the subject was secular and there was no apparent evidence of “excessive entanglement.” Agostini was a clear marker of evolving judicial standards that minimized or reinterpreted the Lemon test.
Step by step, principles derived from Lemon fell away. In Mitchell v. Helms (2000), the dilution of the Lemon test continued, as the Court upheld a federal law that loaned computers and other instructional materials to schools that included those religious in nature. With Mitchell, the Court cast aside the Lemon principle that barred any aid to “pervasively sectarian” institutions. Several years later, the Court in Zelman v. Simmons-Harris (2002) rejected a challenge to a voucher program, despite virtually all the funds ending up in the coffers of religious schools. Because the vouchers went directly to families whose “genuine and independent choices” determined where they would be spent, there was no threat of excessive entanglement. The Lemon test was, if not dead, at least on life support. Increasingly the Supreme Court simply bypassed a Lemon analysis. Even decisions which found policies violative of the Establishment Clause were as likely to rely on some other principle as to invoke Lemon. Decisions striking down public prayers in graduation ceremonies (Lee v. Weisman 1992) or at high school football games (Santa Fe Independent School District v. Doe 2000) relied on the threat of coercion rather than resort to the Lemon test. When the Court turned its attention to public displays of religious signs, symbols or imagery, Lemon was replaced by considerations of history and tradition. When the Court allowed the display of the Ten Commandments on state grounds in Van Orden v. Perry (2005) and subsequently okayed Maryland’s maintenance of a 40-foot cross in American Legion v. American Humanist Association (2019), it was on the basis of the historical significance and traditions around such symbols. The tri-partite Lemon test was a framework either to be ignored, worked around, or manipulated to reach the justices’ preferred results.
A Postscript: The Lemon Test as Zombie Apcolypse
Like or loathe Justice Antonin Scalia’s jurisprudence, his standing as one of the most creative and colorful writers the Court has known is well earned, particularly when in concurrence or dissent. His frustration with the Lemon test and the Court’s refusal to jettison it despite widespread criticism even among his fellow justices provoked him to pen one the most indelible passages in Supreme Court history. Scalia joined in a unanimous decision in Lamb's Chapel v. Center Moriches Union Free School District (1993), in which the Court found no problem with an evangelical church’s use of a school building after hours to show a film on family values. The Court applied the endorsement rule in the school’s decision to allow the church group’s use of the building, but it embedded that rule within the Lemon framework. The Court’s refusal to lay Lemon to rest was more than Scalia could abide, and produced one of his most memorable opinions:
As to the Court's invocation 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: Our decision in Lee v. Weisman . . . conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.
Castigating the Court for its “inconsistent, utterly instrumental reliance” on the Lemon test, Scalia joined with the “long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced.” Despite Scalia’s best efforts, the zombie Lemon test would continue to haunt for another three decades, before being officially interred in Kennedy v Bremerton School District (2022), a case in which a high school football coach contested his dismissal for leading on-field prayers following games. Siding with Coach Kennedy on speech grounds, the Court explicitly confirmed its abandonment of the Lemon test, confirming in text what virtually every Court watcher had full well known for some time.
