Lemon v. Kurtzman
Supreme Court of the United States
Argued March 3, 1971
Decided June 28, 1971
Full case nameAlton T. Lemon, et al. v. David H. Kurtzman, Superintendent of Public Instruction of Pennsylvania, et al.; John R. Earley, et al. v. John DiCenso, et al.; William P. Robinson, Jr. v. John DiCenso, et al.
Citations403 U.S. 602 (more)
91 S. Ct. 2105; 29 L. Ed. 2d 745; 1971 U.S. LEXIS 19
Case history
PriorLemon v. Kurtzman, 310 F. Supp. 35 (E.D. Pa. 1969); probable jurisdiction noted, 397 U.S. 1034 (1970);
DiCenso v. Robinson, 316 F. Supp. 112 (D.R.I. 1970); probable jurisdiction noted, consolidated, 400 U.S. 901 (1970).
SubsequentOn remand to 348 F. Supp. 300 (E.D. Pa. 1972), aff'd, 411 U.S. 192 (1973)
Holding
For a law to be considered constitutional under the Establishment Clause of the First Amendment, the law must (1) have a legitimate secular purpose, (2) not have the primary effect of either advancing or inhibiting religion, and (3) not result in an excessive entanglement of government and religion.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
Hugo Black · William O. Douglas
John M. Harlan II · William J. Brennan Jr.
Potter Stewart · Byron White
Thurgood Marshall · Harry Blackmun
Case opinions
MajorityBurger, joined by Black, Douglas, Harlan, Stewart, Marshall, Blackmun
ConcurrenceDouglas, joined by Black, Brennan, Marshall (who filed a separate statement)
Concur/dissentWhite
Laws applied
U.S. Const. amend. I; R.I. Gen. Laws Ann. 16-51-1 et seq. (Supp. 1970); Pa. Stat. Ann. tit. 24, §§ 5601-5609 (Supp. 1971)
Abrogated by
Kennedy v. Bremerton School District (2022)

Lemon v. Kurtzman, 403 U.S. 602 (1971), was a case argued before the Supreme Court of the United States.[1] The court ruled in an 8–0 decision that Pennsylvania's Nonpublic Elementary and Secondary Education Act (represented through David Kurtzman) from 1968 was unconstitutional and in an 8–1 decision that Rhode Island's 1969 Salary Supplement Act was unconstitutional, violating the Establishment Clause of the First Amendment.[2] The act allowed the Superintendent of Public Schools to reimburse private schools (mostly Catholic) for the salaries of teachers who taught in these private elementary schools from public textbooks and with public instructional materials.[3] Lemon was a major precedent in federal and local courts until it was effectively overturned by Kennedy v. Bremerton School District in 2022.[4]

Lemon test

The Court's decision in this case established the "Lemon test"[5] (named after the lead plaintiff Alton Lemon),[6] which details legislation concerning religion. It is threefold:

  • The "Purpose Prong": The statute must have a secular legislative purpose.
  • The "Effect Prong": The principal or primary effect of the statute must neither advance nor inhibit religion.
  • The "Entanglement Prong": The statute must not result in an "excessive government entanglement" with religion. Factors to be considered include:
    • The character and purpose of institution benefited.
    • The nature of aid the state provides.
    • The resulting relationship between government and religious authority.

If any of these prongs is violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution. In the 1985 case Wallace v. Jaffree the Supreme Court further stated that the effect prong and the entanglement prong do not need to be examined, if the law in question doesn't have an obvious secular purpose.[7] In Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos (1987) the Supreme Court noted that the purpose prong's requirement of a secular legislative purpose doesn't mean that the law's purpose must be unrelated to religion, because this would amount to a requirement, in the words of Zorach v. Clauson, 343 U. S. 306 (1952), at 314, "that the government show a callous indifference to religious groups." Instead, "Lemon's 'purpose' requirement aims at preventing the relevant governmental decisionmaker – here, Congress – from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters."[8] As observed by the Supreme Court in McCreary County v. American Civil Liberties Union (2005), "When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides."[9]

The act stipulated that "eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion." Still, a three-judge panel found 25% of the State's elementary students attended private schools, about 95% of those attended Roman Catholic schools, and the sole beneficiaries under the act were 250 teachers at Roman Catholic schools.

The court found that the parochial school system was "an integral part of the religious mission of the Catholic Church", and held that the Act fostered "excessive entanglement" between government and religion, thus violating the Establishment Clause.[1]

Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion.[1]

Agostini v. Felton modification

The Lemon test was modified,[10] according to the First Amendment Center, in the 1997 case Agostini v. Felton in which the U.S. Supreme Court combined the effect prong and the entanglement prong. This resulted in an unchanged purpose prong and a modified effect prong.[5] "The Court in Agostini identified three primary criteria for determining whether a government action has a primary effect of advancing religion: 1) government indoctrination, 2) defining the recipients of government benefits based on religion, and 3) excessive entanglement between government and religion."[5]

Later use

Conservative justices, such as Clarence Thomas and Antonin Scalia, have criticized the application of the Lemon test.[11] The test was compared to a "ghoul in a late night horror movie" by Justice Scalia in Lamb's Chapel v. Center Moriches Union Free School District (1993).[11]

The Supreme Court itself has applied the Lemon test in Santa Fe Independent School Dist. v. Doe (2000),[12] while in McCreary County v. American Civil Liberties Union (2005) the court did not overturn the Lemon test, even though it was urged to do so by the petitioner.[13]

The test was also central to Kitzmiller v. Dover, a 2005 intelligent design case before the United States District Court for the Middle District of Pennsylvania.[14]

The Fourth Circuit Court of Appeals applied the test in Int'l Refugee Assistance Project v. Trump (2017) upholding a preliminary injunction against President Donald Trump's executive order banning immigration from certain majority-Muslim countries.[15]

In concurring opinions to The American Legion v. American Humanist Association (2019), some of the Court's more conservative justices heavily criticized the Lemon test. Justice Samuel Alito stated that the Lemon test had "shortcomings" and that "as Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them."[16] Justice Brett Kavanaugh noted that the Court "no longer applies the old test articulated in Lemon v. Kurtzman" and said that "the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases."[16] Although the Court did not overrule Lemon v. Kurtzman in American Legion v. American Humanist Association, Justice Thomas stated that he "would take the logical next step and overrule the Lemon test in all contexts" because "the Lemon test is not good law."[16] Additionally, Justice Neil Gorsuch called Lemon v. Kurtzman a "misadventure" and claimed that it has now been "shelved" by the Court.[16] Justice Elena Kagan, however, defended the Lemon test, stating that "although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test's focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows."[16]

Kennedy v. Bremerton School District

Members of the Supreme Court have long criticized Lemon.[4] In June 2022, the Supreme Court de facto overturned Lemon in Kennedy v. Bremerton School District.[4] While Associate Justice Neil Gorsuch's majority opinion did not explicitly overturn Lemon, it instructed lower courts to disregard Lemon in favor of a new standard for evaluating religious actions in a public school.[17] Associate Justice Sonia Sotomayor's dissent, however, explicitly stated that Kennedy had overturned Lemon.[18]

See also

References

  1. 1 2 3 Lemon v. Kurtzman, 403 U.S. 602 (1971).
  2. ↑ "Lemon v. Kurtzman". Oyez. Retrieved November 1, 2017.
  3. ↑ DiCenso v. Robinson, 316 F. Supp. 112 (D.R.I. 1970).
  4. 1 2 3 Howe, Amy (June 27, 2022). "Justices side with high school football coach who prayed on the field with students". SCOTUSblog. Archived from the original on July 7, 2022. Retrieved June 27, 2022.
  5. 1 2 3 "Religious liberty in public life: Establishment Clause overview". First Amendment Center. Archived from the original on September 5, 2010. Retrieved May 28, 2020.
  6. ↑ Liptak, Adam (May 26, 2013). "Alton T. Lemon, civil rights activist, dies at 84". The New York Times. Retrieved August 15, 2014.
  7. ↑ Malila N. Robinson. "Wallace v. Jaffree". Encyclopædia Britannica. Archived from the original on November 5, 2020. Retrieved November 5, 2020.
  8. ↑ "Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987), at 335". Justia US Supreme Court Center. June 24, 1987. Retrieved November 8, 2020.
  9. ↑ "McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005), at Part II A". Justia US Supreme Court Center. June 27, 2005. Retrieved November 8, 2020.
  10. ↑ "Freedom of Religion". www.lincoln.edu. Lincoln University (Pennsylvania). Archived from the original on May 24, 2020. Retrieved May 28, 2020.
  11. 1 2 Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398 (1993) (Scalia, dissenting).
  12. ↑ Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).
  13. ↑ McCreary County v. American Civil Liberties Union, 545 U.S. 844 (2005).
  14. ↑ Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005).
  15. ↑ Int'l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017).
  16. 1 2 3 4 5 Am. Legion v. Am. Humanist Ass'n, No. 17-1717, 588 U.S. ___ (2019). See also:
    • A "syllabus"
    • The Opinion from Alito ("[This pattern is a testament to the Lemon test's] "shortcomings"; "as Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them.")
    • The Concurrence from Gorsuch ("[Lemon was a] misadventure")
    • The Concurrence from Thomas ("[I] would take the logical next step and overrule the Lemon test in all contexts"; "the Lemon test is not good law.")
    • The Concurrence from Kagan ("Although I agree that rigid application of the Lemon test does not solve every Establishment Clause problem, I think that test’s focus on purposes and effects is crucial in evaluating government action in this sphere—as this very suit shows.")
    • The Concurrence from Breyer
    • The Concurrence from Kavanaugh ("no longer applies the old test articulated in Lemon v. Kurtzman"; "the Court's decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases")
    • The Dissent from Ginsburg
  17. ↑ Feldman, Noah (June 27, 2022). "Supreme Court Is Eroding the Wall Between Church and State". The Washington Post. Archived from the original on June 30, 2022. Retrieved June 27, 2022.
  18. ↑ Kennedy v. Bremerton School District p. 42

Further reading

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