The landmark Supreme Court case Lemon v. Kurtzman, 403 U.S. 602 (1971), established a tripartite test to determine violations of the First Amendment establishment clause.
Using the new test, the Supreme Court found that two states violated the establishment clause of the First Amendment by making state financial aid available to “church-related educational institutions.”
State laws gave financial aid to struggling church schools
Pennsylvania and Rhode Island had enacted legislation permitting tax-funded reimbursement to church-affiliated schools, covering expenses such as teacher salaries and the costs of textbooks and other instructional materials. Because educational costs were rapidly increasing, subjecting parochial schools to increasing budget constraints, the states offered financial assistance programs in an effort to secure the quality of education at church-affiliated schools.
In response to the payments, the plaintiff taxpayers filed suits in federal courts alleging the states violated the First Amendment by “respecting” an establishment of religion. After district courts delivered conflicting decisions, the Supreme Court granted certiorari and consolidated the cases for review.
Supreme Court said aid to church schools violated First Amendment
Chief Justice Warren E. Burger wrote the court’s unanimous decision, reviewing the language and history of establishment clause jurisprudence and observing, “A law may be one ‘respecting’ the forbidden objective [the establishment of religion] while falling short of its total realization.”
After noting the vague constitutional language of the First Amendment, the court turned to the question of creating a workable doctrine to determine whether an establishment had taken place.
Lemon test combined previous analysis of separation of church-state issues
To discern a violation, the majority identified and combined three distinct approaches previously used in establishment clause controversies:
- the secular purpose doctrine, which it took from Abington School District v. Schempp (1963);
- the principal or primary effects doctrine, citing Board of Education v. Allen (1968); and
- the excessive entanglement test, citing Walz v. Tax Commission (1970).
This three-part doctrine is known as the Lemon test, and the Supreme Court voided laws in which it found a violation of any of these elements.
The Lemon test has been questioned by some justices on the court through the years, but it remained the dominant way for establishment clause cases to be viewed for nearly four decades. In 2022, in Kennedy v. Bremerton School District (2022), the Supreme Court said that the Lemon test had been abandoned and, instead, shifted to a new jurisprudence of interpreting the establishment clause “by ‘reference to historical practices and understandings.'”
Court found excessive entanglement between religion and government
In the 1971 Lemon case, however, the Supreme Court applied the secular purpose prong of the three-part test to the Pennsylvania and Rhode Island funding programs and found no inadmissible legislative purpose. The reimbursement plans were designed to ensure the quality of student education, not to promote religious education.
The court did not apply the second “principal or primary effect” prong, however, because it found a violation of the excessive entanglement doctrine, ruling that “[a] comprehensive, discriminating, and continuing state surveillance will inevitably be required” to certify that state funds are not being used to advance religious teachings at the schools.
Lemon test had its critics
The Supreme Court applied the Lemon doctrine inconsistently, and it first modified the test in Agostini v. Felton (1997). The Agostini decision announced that the entanglement test is not an independent and distinct test, but it should be viewed in concert with other factors as part of the effects test. Some justices continued to advocate abandoning the Lemon test in favor of looking at whether the government improperly forced or coerced someone into some religious activity (the coercion test) or improperly endorsed religion (the endorsement test).
This article was originally published in 2009 and written by Geoffrey McGovern, a political and social scientist at the RAND Corporation and an instructor in the Institute for Politics and Strategy at Carnegie Mellon University. The article was updated in October 2023.