Lemon v. Kurtzman is the 1971 Supreme Court decision that struck down Pennsylvania and Rhode Island laws funneling public money to religious schools and created the three-part “Lemon test” for deciding when a government action violates the Establishment Clause of the First Amendment. That test governed church-state disputes for half a century. In 2022, the Supreme Court said it had “long ago abandoned” it.
The State Laws Behind the Case
Two statutes were on trial, both trying to prop up private schools without formally funding religion.
Pennsylvania’s Nonpublic Elementary and Secondary Education Act of 1968 reimbursed private schools for teacher salaries, textbooks, and instructional materials, but only in mathematics, modern foreign languages, physical science, and physical education.1Pennsylvania General Assembly. Pennsylvania Act 109 – Nonpublic Elementary and Secondary Education Act Schools had to keep separate books isolating the cost of those secular services, and the state could audit them.2Justia. Lemon v. Kurtzman
Rhode Island’s Salary Supplement Act of 1969 paid a 15% salary supplement directly to teachers in private elementary schools. To qualify, a teacher had to teach only subjects offered in the public schools, use the same materials, and agree not to teach religion.2Justia. Lemon v. Kurtzman
Both laws were built to keep tax dollars out of religious instruction. The question was whether the safeguards worked, or whether the effort to police that boundary was itself the constitutional problem.
The Three Prongs of the Lemon Test
Chief Justice Warren Burger’s majority opinion pulled together “cumulative criteria developed by the Court over many years” into a single framework. To survive an Establishment Clause challenge, a law had to satisfy all three of these conditions:2Justia. Lemon v. Kurtzman
- The law must have a genuine secular purpose. If the real legislative goal is to promote or discourage a religion, it fails at the threshold.
- Its principal effect must neither advance nor inhibit religion. Good intentions do not save a law whose practical result is a meaningful boost to a religious mission.
- It must not foster excessive government entanglement with religion. Courts look at the character of the institution getting aid, the kind of aid provided, and how deeply the government has to insert itself to enforce the rules.3Congress.gov. Amdt1.3.6.1 Lemon’s Purpose Prong
Fail one prong, fail the test.
Why the Court Struck Down Both Laws
The Court invalidated both statutes. It was willing to assume the laws had a secular purpose (better education), and it did not resolve whether the restrictions were tight enough to prevent a religion-advancing effect. It did not need to. Both laws failed the entanglement prong.2Justia. Lemon v. Kurtzman
Burger’s reasoning was structural. The private schools receiving aid were overwhelmingly Roman Catholic, and the Church treated education as central to its religious mission. Teachers worked in buildings full of religious imagery, under religious authorities, in an environment where faith influenced everything. Ensuring those teachers kept their state-funded classes purely secular would require, in Burger’s words, “comprehensive, discriminating, and continuing state surveillance.” A teacher is not a textbook. You cannot inspect a person once and know their beliefs. The monitoring needed to enforce the secular-only rule would itself entangle the state in the school’s religious life.
The opinion also warned about political fallout. Programs that channel tax dollars to religious schools generate recurring conflict along religious lines, with voters in the aided faith pushing for more and others pushing back. Burger saw that kind of division as exactly what the Establishment Clause was meant to prevent.
How the Lemon Test Shaped Later Cases
For decades, Lemon was the default framework for Establishment Clause disputes, from school funding to religious displays on public land.
In 1980, the Court used the test to strike down a Kentucky law requiring the Ten Commandments in classrooms. In 1985, it invalidated a program sending public school teachers into religious schools for remedial instruction, citing entanglement. And in 1987, it struck down a Louisiana law requiring public schools that taught evolution to also teach “creation science,” finding the law lacked a secular purpose.4Congress.gov. Other Establishment Clause Tests
The test did not always block aid to religious schools. In Zelman v. Simmons-Harris (2002), the Court upheld a Cleveland voucher program that let parents use public funds at religious schools, because the money reached the schools through parents’ independent choices rather than direct state payments.5Justia. Zelman v. Simmons-Harris
Even during its long run, Lemon drew criticism from justices across the ideological spectrum. Some called it too rigid, others too malleable. The last time a Supreme Court majority actually used the test to decide an Establishment Clause case was McCreary County v. ACLU in 2005.4Congress.gov. Other Establishment Clause Tests
How the Court Abandoned the Lemon Test
The formal break came in Kennedy v. Bremerton School District (2022), which involved a public school football coach who knelt to pray on the field after games. Justice Gorsuch’s majority opinion said the Court had “long ago abandoned” the Lemon test and the related “endorsement test.” In their place, the Establishment Clause must be interpreted “by reference to historical practices and understandings,” with the focus on “original meaning and history.”6Justia. Kennedy v. Bremerton School District
The shift had been building. In American Legion v. American Humanist Association (2019), a plurality said longstanding monuments and symbols should not be evaluated under Lemon and are presumptively constitutional if they follow a historical tradition of religious accommodation.7Constitution Annotated. Establishment Clause and Historical Practices and Tradition Kennedy made the historical approach official across all Establishment Clause cases.
Under the current standard, courts ask whether a challenged government practice is consistent with the historical understanding of what the Establishment Clause forbids. The Founders were mainly concerned with government controlling churches, mandating attendance, or punishing religious dissent. Practices that do not resemble those historical dangers are more likely to survive today than they would have been under Lemon.
What the Rule Is Now for Religious School Funding
The core question in Lemon (whether states may send tax money to religious schools) has been reframed. Two recent decisions have flipped it: the issue is no longer just whether states may include religious schools in funding programs, but whether they must.
In Espinoza v. Montana Department of Revenue (2020), the Court struck down a Montana constitutional provision that barred government aid to schools “controlled in whole or in part by any church, sect, or denomination.” Montana had created a tax-credit scholarship program for private school students, then excluded religious schools. The Court held that a state “need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”8Justia. Espinoza v. Montana Department of Revenue
Carson v. Makin (2022) went further. Maine’s tuition assistance program paid for students in rural areas to attend private schools but excluded schools that provided religious instruction. The Court held that exclusion violated the Free Exercise Clause.9Justia. Carson v. Makin
Together, Espinoza and Carson mean state tuition aid and scholarship programs cannot exclude religious schools from the pool. Lemon’s concern was that direct state payments to religious schools created unconstitutional entanglement. The current Court’s view is that when funds reach religious schools through parents’ independent choices rather than direct grants, the constitutional problem falls away. The framework Burger built in 1971 is gone; the underlying tension it tried to manage between public funding and religious education keeps generating new cases.