U.S. Supreme Court Establishes the Test

In Lemon v. Kurtzman, the U.S. Supreme Court established a three-part test to uphold the separation of church and state. Any government-sponsored act or legislation needed to pass the “Lemon test” to show that its intent was pervasively secular, that it did not prefer or inhibit any one religion over another, and that it did not produce excessive entanglement between government and religion.

Summary of Event

Controversies over school busing and government support of parochial schools provided the background for Lemon v. Kurtzman. In the 1960’s, Alton J. Lemon was one of many parents suing the state of Pennsylvania for violation of the U.S. Constitution, in particular the establishment clause of the First Amendment. Lemon was a resident of Pennsylvania whose child attended public school. Schools;funding Lemon claimed to have purchased a ticket at a horse track, thereby paying the Pennsylvania tax providing revenue for the Nonpublic Elementary and Secondary Education Act that diverted funds to largely Roman Catholic schools in the state. Supreme Court, U.S.;separation of church and state
Supreme Court, U.S.;separation of church and state
Burger, Warren E.
Lemon, Alton J.
Kurtzman, David H.

In the 1947 case of Everson v. Board of Education, Everson v. Board of Education (1947) the Supreme Court upheld a law that reimbursed bus transportation costs to parents of children attending private schools. However, Justice Hugo L. Black Black, Hugo L. wrote that the decision to support the law carried the Court to the limit of unconstitutionality. By allowing public money to go to families sending children to Catholic schools, the Court in Everson raised the question of whether the government was showing preference to one particular religion.

One impetus for the rise of private schools was the beginning of school desegregation following Brown v. Board of Education of Topeka, Kansas (1954), Brown v. Board of Education of Topeka, Kansas (1954) in which the Court ruled that the unfair policy of “separate but equal” schools for African American children and all other races was unconstitutional. The Court ordered that desegregation of schools take place beginning in 1955, but busing children of different races across school jurisdiction boundaries did not begin in earnest until 1971, following Swann v. Charlotte-Mecklenburg Board of Education. Swann v. Charlotte-Mecklenburg Board of Education (1971) The growth of the suburbs also caused many white families to move away from cities and to choose private, church-sponsored schools if their children were required to be bused to racially diverse schools. Well before then, especially in the South and Midwest, private schools sponsored by the Roman Catholic Church and Protestant denominations had offered parents an alternative to the public schools. The private schools argued that they were responding to parents’ requests for a more conservative, Bible-based curriculum, though it was often the case that parents were displeased with the prospect of their children riding buses to racially mixed schools.

Traditionally, the financial strength of public schools was based on the real estate tax revenues of each independent district. The reality of Brown v. Board of Education was that segregation, though illegal, still occurred along economic lines. African American populations tended to live in less prosperous, urban areas where property values were lower than for white, suburban families. More tax revenues thus flowed into public schools in wealthier districts.

At issue in Lemon v. Kurtzman were two similar state statutes from Pennsylvania and Rhode Island that allowed for transfer of public education funds to financially weaker religious schools. The Pennsylvania law was called the Nonpublic Elementary and Secondary Education Act. Nonpublic Elementary and Secondary Education Act (Pennsylvania, 1968) After the act was passed in 1968, the state of Pennsylvania’s superintendent of public instruction, David H. Kurtzman, was authorized to reimburse private schools (most of which were Roman Catholic) for required textbooks and materials that did not pertain to religious subjects. The Rhode Island statute was called the Salary Supplement Act (1969), Salary Supplement Act (Rhode Island, 1969) which allowed for a 15 percent supplementary increase to be given to private school teachers in school districts spending below state averages for per-student funding in the pubic schools. Most of these schools were also Roman Catholic. The Rhode Island supplement could be given only to teachers offering nonreligious courses common in the public schools.

The Court ruled that both the Pennsylvania and Rhode Island laws were unconstitutional because they violated the establishment clause and the free exercise clause of the First Amendment of the U.S. Constitution, First Amendment (U.S. Constitution) which state, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Chief Justice Warren E. Burger wrote that the wording of the religion clauses is vague and difficult to interpret compared with the precision of most of the First Amendment. The First Amendment authors did not make absolutely illegal the future establishment of a state church, but they were well aware of the dangers of mixing religion and government. Burger wrote that the main injury the First Amendment authors wanted to prevent was government involvement in private religious groups.

Lemon v. Kurtzman established the so-called Lemon test, which outlines the limits of future legislation and government activity with reference to religion. According to the Lemon test, any law, act, or public display by the government must abide by three principles: It must be secular in purpose, it must not promote or prevent the practice of any one religion, and it must not become excessively entangled with religion. In the opinion written by Chief Justice Burger, the Supreme Court stated that the parochial school system in Rhode Island was “an integral part of the religious mission of the Catholic Church” and that the payments to private school teachers could be seen as “excessive entanglement” between church and state.

The Court’s interpretation of “excessive entanglement” came about in the Rhode Island statute because the Catholic Church regulated the parochial school teachers. The Court held that religiously affiliated teachers could not be relied upon to deliver state-mandated secular curricula, especially in the early grades. The Court also held that the Rhode Island and Pennsylvania laws encouraged entanglement because the state superintendents were required to supervise instruction in secular subjects in church-related schools. Kurtzman’s attorneys argued that the government upholds tax exemptions for places of religious worship, but the Court decided that the Rhode Island and Pennsylvania laws were not based on generally accepted practice. These programs threatened to become self-perpetuating and self-expanding; if the programs continued unchecked, more religious groups might be encouraged to support educational ventures expecting government financial support.


Lemon v. Kurtzman was the definitive case for arguments about the separation of church and state in the late twentieth century. The Court ruled that government funding of any kind for religious education was illegal, but the Lemon test has neither been clearly defined nor consistently enforced over the years. States are not allowed to contribute to the salaries of teachers in private, religious schools; they cannot redirect money toward the maintenance of parochial school buildings or help to finance field trips or religious instructional materials; and they cannot reimburse parents for private school tuition. However, in some cases, states have been allowed to help finance the construction of new buildings intended for secular purposes at colleges with a religious affiliation, and states have been allowed to lend general textbooks to students in religious schools. Rather than submitting each new law to a rigorous screening to determine whether it passes the three-pronged test, the Court has allowed generally accepted practices to continue. Separation between church and state is not absolute simply because of building regulations, fire inspections, programs for school lunches, health services, transportation, and provision of textbooks. The Court has recognized that religion is important to the lives of many Americans even as it attempts to uphold the religion clauses of the Constitution. Supreme Court, U.S.;separation of church and state

Further Reading

  • Bravin, Jess. “Court Hears Cases on Public Display of Commandments.” The Wall Street Journal, March 3, 2005, p. A2. Reviews cases in Texas and Kentucky that affirmed the Lemon test and said that government references to religion must not advance or inhibit the practice of any religion.
  • Coyle, Marcia. “Justices Struggle with a ’Lemon.’” National Law Journal, July 3, 2000, p. A1. The U.S. Supreme Court is not willing to get rid of the Lemon test even though most justices believe that the landmark ruling is not a good constitutional test for violations of the separation between church and state.
  • Farish, Lean. Lemon v. Kurtzman: The Religion and Public Funds Case. Berkeley Heights, N.J.: Enslow, 2000. Accessible study that covers the background of the case but lacks energy and controversy.

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