The Federalist Society

Optional Login

Have an account?

Sign in

Email

Password


Forgot password?

Proceed as Guest

Continue
Our website is currently undergoing updates, some links may no longer work and content may change. Please check back soon.

Lemon v. Kurtzman

Facts of the Case

Provided by Oyez

Both Pennsylvania and Rhode Island adopted statutes that provided for the state to pay for aspects of non-secular, non-public education. The Pennsylvania statute was passed in 1968 and provided funding for non-public elementary and secondary school teachers’ salaries, textbooks, and instructional materials for secular subjects. Rhode Island’s statute was passed in 1969 and provided state financial support for non-public elementary schools in the form of supplementing 15% of teachers’ annual salaries.

The appellants in the Pennsylvania case represented citizens and taxpayers in Pennsylvania who believed that the statute violated the separation of church and state described in the First Amendment. Appellant Lemon also had a child in Pennsylvania public school. The district court granted the state officials’ motion to dismiss the case. In the Rhode Island case, the appellees were citizens and tax payers of Rhode Island who sued to have the statute in question declared unconstitutional by arguing that it violated the Establishment Clause of the First Amendment. The district court found in favor of the appellees and held that the statute violated the First Amendment.

Questions

  1. Do statutes that provide state funding for non-public, non-secular schools violate the Establishment Clause of the First Amendment?

Conclusions

  1. Yes. Chief Justice Warren E. Burger delivered the opinion for the 8-0 majority as to the Pennsylvania statute and 8-1 as to the Rhode Island statute. The Court held that a statute must pass a three-pronged test in order to avoid violating the Establishment Clause. The statute must have a secular legislative purpose, its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster “excessive government entanglement with religion.” The Court held that both the state statutes in question had secular legislative purposes because they reflected the desire of the states to ensure minimum secular education requirements were being met in the non-public schools. The Court did not reach a holding regarding the second prong of the test, but it did find that the statutes constituted an excessive government entanglement with religion. In the Rhode Island program, the amount of oversight of teachers and curricula required to ensure that there is no unnecessary injection of religion into secular topics would require the government to become excessively involved in the nuances of religious education. The same danger holds true for the Pennsylvania statute, which additionally provides state funding directly to a church-related organization. Government financial involvement in such institutions inevitably leads to “an intimate and continuing relationship” between church and state. The Court also noted the potential political implications of public funding, as there is a risk of religious issues becoming politically divisive.

    In his concurring opinion, Justice William O. Douglas wrote that the intrusion of the government into the running of non-public schools through grants and other funding creates the entanglement that the Establishment Clause prohibits. He also argued that non-secular schools are so thoroughly governed by religious ideologies that any amount of public funding supports those doctrines, which the Framers of the Constitution dictated the government must not do. Justice Hugo L. Black joined in the concurrence, and Justice Thurgood Marshall joined in the parts relating to case numbers 569 and 570. Justice William J. Brennan, Jr. wrote a separate concurrence in which he argued that the danger was not only that religion would infiltrate the government, but also that the government would push secularization onto religious creeds. An analysis of the statutes in question shows that they impermissible involve the government in “essentially religious activities,” which the Establishment Clause is meant to prevent. In his opinion concurring in part and dissenting in part, Justice Byron R. White wrote that the majority opinion goes too far and, in restricting the use of state funds in non-secular schools, creates an obstacle to the use of public funds for secular education. He argued that there was no proof that religion would invade secular education or that the government oversight of the use of public funds would be so extensive as to constitute entanglement.

    Justice Thurgood Marshall did not participate in the discussion or decision of case number 89.

Credentials Not Required: Why an Employee’s Significant Religious Functions Should Suffice to Trigger the Ministerial Exception
Federalist Society Review

Credentials Not Required: Why an Employee’s Significant Religious Functions Should Suffice to Trigger the Ministerial Exception

Thomas C. Berg, Erik Money, Nathaniel M. Fouch

Federalist Society Review, Volume 20

Note from the Editor:  The Federalist Society takes no positions on particular legal and public...