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Lemon
v. Kurtzman
403
U.S. 602 (1971)
The
Rothgerber Johnson & Lyons Religious Institutions
Group gratefully acknowledges the contribution of the
Ethics and Public Policy Center which provided the following case commentary taken from Terry Eastland, Religious
Liberty in the Supreme Court: The Cases That Define
the Debate over Church and State (1993).
By
the end of the sixties it appeared that under the Supreme
Court's First Amendment jurisprudence a state might be free
to assist secular education in parochial schools provided
none of the state money supported instruction in religion.
In 1971, the Court explicitly addressed this question in
Tilton v. Richardson (403 U.S. 672) and Lemon
v. Kurtzman, cases distinguished from each other primarily
by the fact that in Tilton the state aid went to
higher education, while in Lemon it went to precollege
education.
This
distinction proved critical to the Court as it decided the
two cases. In Tilton the Court sustained federal
grants to church-related colleges and universities for the
construction of buildings used for secular purposes, but
in Lemon it struck down state laws of Pennsylvania
(No. 89) and Rhode Island (Nos. 569 and 570) that supported
instructors engaged in teaching secular subjects in church-related
elementary and secondary schools. Lemon actually
consisted of three separate cases decided together.
In
Tilton, decided the same day as Lemon, no
opinion was written for the Court. Lemon is the case
with major doctrinal significance, for here the Court majority
announced for the first time a three-part test for determining
whether a challenged governmental action passes constitutional
muster. Applying the Lemon test in subsequent cases
involving state aid to religious schools, the Court handed
down a series of decisions that seemed contradictory. In
the eighties, the Court grew skeptical about the utility
of the Lemon test, refusing to apply it in 1983 in
Marsh v. Chambers, when it upheld a legislative chaplaincy
against constitutional challenge; see Case 19. The Court,
however, rejected invitations to scrap the test, which has
attracted substantial scholarly discussion. Few critics
have been entirely satisfied with it. For a brief summary
of the scholarly literature on the test, see the entry "Lemon
Test" in Kermit L. Hall, ed., The Oxford Companion to
the Supreme Court of the United States (New York: Oxford
University Press, 1992).
Chief
Justice Warren Burger wrote for the Court in Lemon,
expressing the views of seven (on Nos. 569 and 570) and
six (on No. 89) members. There were three other opinions,
two of which are presented here, as are editorial responses
from the Washington Post, The New Republic,
and Christianity and Crisis.
Participating
in the two cases from Rhode Island, Nos. 569 and 570, were
Chief Justice Warren E. Burger and Associate Justices Hugo
L. Black, Harry A. Blackmun, William J. Brennan, Jr., William
O. Douglas, John M. Harlan II, Thurgood Marshall, Potter
Stewart, and Byron R. White. All but Justice, Marshall participated
in the case from Pennsylvania, No. 89. The decisions were
handed down on June 28, 1971.
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