Lemon v. Kurtzman,
403 U.S. 602 (1971)

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U.S. Supreme Court

Lemon v. Kurtzman, 403 U.S. 602 (1971)

Lemon v. Kurtzman

No. 89

Argued March 3, 1971

Decided June 28, 1971*

403 U.S. 602


Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion. A three-judge court found that about 25% of the State's elementary students attended nonpublic schools, about 95% of whom attended Roman Catholic affiliated schools, and that to date about 250 teachers at Roman Catholic schools are the sole beneficiaries under the Act. The court found that the parochial school system was "an integral part of the religious mission of the Catholic Church," and held that the Act fostered "excessive entanglement" between government and religion, thus violating the Establishment Clause. Pennsylvania's Nonpublic Elementary and Secondary Education Act, passed in 1968, authorizes the state Superintendent of Public Instruction to "purchase" certain "secular educational services" from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." Contracts were made with schools that have more than 20% of all the students in the State, most of which were affiliated with the Roman Catholic Church. The complaint challenging the constitutionality of

Page 403 U. S. 603

the Act alleged that the church-affiliated schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. A three-judge court granted the State's motion to dismiss the complaint for failure to state a claim for relief, finding no violation of the Establishment or Free Exercise Clause.

Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion. Pp. 403 U. S. 611-625.

(a) The entanglement in the Rhode Island program arises because of the religious activity and purpose of the church-affiliated schools, especially with respect to children of impressionable age in the primary grades, and the dangers that a teacher under religious control and discipline poses to the separation of religious from purely secular aspects of elementary education in such schools. These factors require continuing state surveillance to ensure that the statutory restrictions are obeyed and the First Amendment otherwise respected. Furthermore, under the Act, the government must inspect school records to determine what part of the expenditures is attributable to secular education, as opposed to religious activity, in the event a nonpublic school's expenditures per pupil exceed the comparable figures for public schools. Pp. 403 U. S. 615-620.

(b) The entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role and the state supervision of nonpublic school accounting procedures required to establish the cost of secular, as distinguished from religious, education. In addition, the Pennsylvania statute has the further defect of providing continuing financial aid directly to the church-related schools. Historically, governmental control and surveillance measures tend to follow cash grant programs, and here the government's post-audit power to inspect the financial records of church-related schools creates an intimate and continuing relationship between church and state. Pp. 403 U. S. 620-622.

(c) Political division along religious lines was one of the evils at which the First Amendment aimed, and in these programs, where successive and probably permanent annual appropriations that benefit relatively few religious groups are involved, political

Page 403 U. S. 604

fragmentation and divisiveness on religious lines are likely to be intensified. Pp. 403 U. S. 622-624.

(d) Unlike the tax exemption for places of religious worship, upheld in Walz v. Tax Commission, 397 U. S. 664, which was based on a practice of 200 years, these innovative programs have self-perpetuating and self-expanding propensities which provide a warning signal against entanglement between government and religion. Pp. 624-625.

No. 89, 310 F.Supp. 35, reversed and remanded; Nos. 569 and 570, 316 F.Supp. 112, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which BLACK, DOUGLAS, HARLAN, STEWART, MARSHALL (as to Nos. 569 and 570), and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 403 U. S. 625, in which BLACK, J., joined, and in which MARSHALL, J. (as to Nos. 569 and 570), joined, filing a separate statement, post, p. 403 U. S. 642. BRENNAN, J., filed a concurring opinion, post, p. 403 U. S. 642. WHITE, J., filed an opinion concurring in the judgment in No. 89 and dissenting in Nos. 569 and 570, post, p. 403 U. S. 661. MARSHALL, J., took no part in the consideration or decision of No. 89.

Page 403 U. S. 606

Primary Holding

The test for determining whether a law meets the requirements of the Establishment Clause is whether it has a legitimate secular purpose, does not have the primary effect of either advancing or inhibiting religion, and does not result in an excessive entanglement of government and religion.


Under the Nonpublic Elementary and Secondary Education Act, Pennsylvania gave the Superintendent of Public Schools the authority to allocate state funds for textbooks, educational materials, and teacher salaries in private schools. Most of these private schools happened to be Catholic institutions. However, the law was carefully written to require that the salaries of teachers could be augmented only if they taught the same courses as those offered in public schools, used the same materials, and refrained from teaching courses in religion. In reality, the only beneficiaries of the extra funding were teachers at Catholic schools, which constituted 95 percent of the state's total private schools, which in turn comprised 25 percent of all elementary schools in the state.

In Rhode Island, a similar law known as the Salary Supplement Act designated government money to provide salary supplements of 15 percent for teachers at private schools. Most of these institutions also were Catholic. The First Circuit had ruled against the Rhode Island law under the First Amendment.



  • Warren Earl Burger (Author)
  • Hugo Lafayette Black
  • William Orville Douglas
  • John Marshall Harlan II
  • Potter Stewart
  • Thurgood Marshall
  • Harry Andrew Blackmun

Describing the prong of the Lemon test that concerns excessive government entanglement with religion, Burger recommended that courts consider factors such as the nature of the government assistance, the character and purpose of the institution receiving the assistance, and the relationship that resulted between the government and the religious authority. All three of the prongs in the test, which are listed in the Primary Holding above, must be satisfied for a law to survive a challenge under the Establishment Clause. In this situation, Burger pointed out that private and parochial schools were essentially synonymous in the state and that the Catholic Church viewed its educational program as a central part of its religious mission. Viewing the cumulative effect of the relationship between the state and the Catholic Church created by this law, he found that there was excessive entanglement between government and religion. Once he made this finding, the law would be unconstitutional whether or not it passed the other prongs of the test.


  • William Orville Douglas (Author)
  • Hugo Lafayette Black
  • Thurgood Marshall


  • William Joseph Brennan, Jr. (Author)

Concurrence/Dissent In Part

  • Byron Raymond White (Author)

Case Commentary

The Supreme Court held that the founders clearly intended to prevent the state from any type of sponsorship, financial support, or involvement in religious activities, which verged too closely on establishing a state religion. While the Lemon test has been challenged early in the 21st century, the Court continues to use it as the principal tool of Establishment Clause analysis. A few current Justices, such as Clarence Thomas and Antonin Scalia, have been skeptical about its appropriateness.

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