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Lemon v. Kurtzman

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Significance: While vetoing state subsidies for teachers of parochial schools, the Supreme Court established a three-part Lemon test for evaluating whether governmental programs ran afoul of the establishment clause of the First Amendment.


In 1968 the Pennsylvania legislature enacted a statute allowing direct salary supplements for teachers of secular subjects in private schools. Alton Lemon, supported by the American Civil Liberties Union, brought suit against David Kurtzman, state superintendent of schools. The Supreme Court consolidated this case with a similar one from Rhode Island, and it ruled, by a 7-0 vote, that both state laws were unconstitutional. Chief Justice Warren E. Burger's opinion for the majority was of later importance because of its three-part test known as the Lemon test: First, a statute must have a secular legislative purpose; second, its primary effect must not be to either advance or inhibit religion; and third, it must not promote “an excessive government entanglement with religion.” Burger noted that the teachers at religious schools, many of whom were nuns, would find it impossible to make a clear distinction between religious and nonreligious instruction. Government grants, moreover, would require surveillance and controls, which would involve a great deal of entanglement between state and religion. The Lemon test, in its application, is susceptible to a great deal of interpretation, depending on whether the particular justice desires “accommodation” or a “high wall of separation” between church and state. Applying the test often split the justices into 5-4 votes. Although often criticized, the Lemon test has endured because a majority of the justices have been unable to coalesce behind an alternative standard. In Agostini v. Felton (1997), Justice Sandra Day O’Connor cited the Lemon test as good law, but she endorsed an accommodationist view of the first part of the test.