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

  • Laws that allowed the State to pay part of the salaries for private school teachers were passed in Pennsylvania (Nonpublic Elementary and Secondary Education Act) and Rhode Island (Rhode Island Salary Supplement Act).
    • The laws were facially-neutral in that they allowed any private school to apply for reimbursement.
      • However, the majority of the private schools were Catholic schools.
  • Lemon and others sued, claiming that the use of tax money to fund religious schools was a violation of the Establishment Clause of the 1st Amendment.
  • The US Supreme Court found both laws to be unconstitutional.
    • The US Supreme Court found that the laws did not discriminate among religions.
      • If they did, then they would have to meet strict scrutiny review.
        • See Larson v. Valente (456 U.S. 228 (1982)).
    • The Court found that laws that were non-discriminatory must meet a three-pronged test:
      • The government’s action must have a secular legislative purpose,
      • The government’s action must not have the primary effect of either advancing or inhibiting religion,
      • The government’s action must not result in an “excessive government entanglement” with religion.
    • In this case, the Court found that both laws were unconstitutional because they created “excessive government entanglement”.
  • This three-prong test is now known as the Lemon Test.
    • It’s a pretty malleable test, and the provisions are a bit vague. It tends to be invoked when the Justices want to strike down a practice they don’t like, and ignored when judging the merits of a practice they want to uphold.
    • While the Lemon Test is still good law, its future is in doubt. A number of Justices have called for it to be overruled.
      • See Justice Scalia’s concurrence in Lamb’s Chapel v. Center Moriches Union Free School District (508 U.S. 384 (1993)).