Lemon v. Kurtzman Explained: The Three-Part Test and Its Demise

Lemon v. Kurtzman is the 1971 Supreme Court decision that struck down two state programs funding teachers at religious schools and set out a three-part test for deciding when a government action violates the First Amendment’s ban on establishing religion. Chief Justice Warren Burger wrote the opinion. The framework it produced, known as the Lemon test, guided Establishment Clause cases for more than fifty years before the Court formally abandoned it in 2022.¹

The State Programs the Court Reviewed

Two state laws reached the Court together, each designed to support struggling nonpublic schools by paying for secular instruction. Rhode Island’s Salary Supplement Act, passed in 1969, gave teachers in nonpublic elementary schools a bonus of up to 15 percent of their annual salary, on the condition they taught only secular subjects.¹ Pennsylvania’s Nonpublic Elementary and Secondary Education Act of 1968 took a different route and reimbursed religious schools directly for teachers’ salaries, textbooks, and instructional materials in subjects like math, modern foreign languages, physical science, and physical education. Schools that took Pennsylvania money had to keep separate accounting records for secular expenses, and the state could audit them.²

Both programs tried to draw a clean line between religious and secular instruction. Taxpayers challenged both, arguing that the money inevitably supported religious institutions and that policing the secular-only restriction would drag government into an uncomfortably close relationship with churches and parochial schools.

The Three-Part Lemon Test

Instead of ruling narrowly on the two programs in front of it, the Court laid down a general standard for all Establishment Clause cases going forward. To survive, a law or government action touching religion had to clear three hurdles:

It must have a genuine secular purpose. Courts look at the statute’s text and legislative history to decide whether lawmakers were pursuing something for the general public rather than promoting a particular faith.
Its primary effect must neither advance nor inhibit religion. A program that channels a direct benefit to a religious organization, giving it an advantage it would not otherwise have, fails here.
It must not create excessive entanglement between government and religious institutions. If enforcing the law requires the state to constantly monitor a church or religious school, the administrative machinery itself becomes a constitutional problem.

Fail any one prong and the law is unconstitutional. A single failure ended the analysis; the Court did not need to reach the other prongs.¹

Why Both Programs Failed

The Court was willing to assume both statutes had a legitimate secular purpose: improving the quality of education in nonpublic schools. The fatal problem was entanglement. Teachers in religious schools work in an environment where faith and academics blend, especially with younger children. To make sure no public dollar funded religious instruction, the state would need to audit financial records, review lesson plans, and monitor classrooms on an ongoing basis.¹

That level of surveillance was the very thing the Establishment Clause was designed to prevent. The government would become a permanent presence inside religious institutions, checking whether a math teacher strayed into theology or whether a textbook carried devotional content. Pennsylvania’s program had an added defect: money went directly to the schools rather than to individual teachers, making the state a financial partner of religious organizations.² The Court struck down both programs on entanglement grounds without having to decide whether they also failed the effects prong.

How the Test Changed Over Time

Almost from the moment it was announced, the Lemon test drew criticism from justices who found it too rigid or too vague. Over the following decades, the Court modified it rather than replacing it.

The Endorsement Test

In Lynch v. Donnelly (1984), a case about a city-owned nativity scene, Justice Sandra Day O’Connor proposed reframing the first two prongs around a single concept: endorsement. The purpose prong would ask whether government intended to endorse or disapprove of religion; the effects prong would ask whether a reasonable observer would perceive the action as sending that message. A practice that makes non-adherents feel like outsiders in their own political community violates the clause, even if no money changes hands.³ The endorsement test became especially influential in religious-display cases.

Entanglement Folded Into Effects

In Agostini v. Felton (1997), the Court acknowledged that the entanglement inquiry and the effects inquiry largely overlap. How much government monitoring a program requires is really just evidence of whether the program advances religion in practice. The Court folded entanglement into the effects prong, effectively reducing the framework from three independent hurdles to two.⁴ That lowered the bar for public aid programs, since some interaction between the state and religious schools was inevitable and tolerable.

School Vouchers Survive

Agostini paved the way for Zelman v. Simmons-Harris (2002), where the Court upheld Ohio’s school voucher program even though most participating families used the vouchers at religious schools. The key was private choice. The state gave money to parents, not schools, and parents decided where to spend it. Because the program was neutral toward religion, covered a broad class of beneficiaries defined by financial need, and offered genuine secular alternatives, the Court treated the funds as outside state control once they reached families.⁵ Lemon had blocked direct payments to religious schools. Zelman showed that indirect funding through individual choice could survive.

Other Tests the Court Used Alongside Lemon

Even before the framework was overruled, the Court sometimes sidestepped it in favor of other reasoning.

In Lee v. Weisman (1992), the Court struck down clergy-led prayer at a public high school graduation without leaning on Lemon. Justice Anthony Kennedy’s majority opinion focused on coercion. The state had put students in a position where social pressure compelled them to participate in a religious exercise, and telling a dissenting teenager to skip graduation was not a realistic alternative.⁶

Marsh v. Chambers (1983) took a different path. When a state legislator challenged Nebraska’s practice of opening sessions with a chaplain-led prayer, the Court bypassed Lemon and looked to history. Legislative prayer traced back to the First Continental Congress and the same Congress that drafted the Bill of Rights. Town of Greece v. Galloway (2014) extended that reasoning to local government meetings, holding that even sectarian prayers are permissible so long as the program does not single out disfavored religions or serve as a vehicle for proselytizing.⁷

By 2019, in American Legion v. American Humanist Association, seven justices agreed that a 40-foot cross-shaped war memorial in Bladensburg, Maryland, did not violate the Establishment Clause. The Court said longstanding religious monuments carry a strong presumption of constitutionality and that Lemon was not useful for evaluating them.⁸ Several justices were ready to bury Lemon entirely. They just needed the right case.

The End of the Lemon Test

That case arrived in 2022. Kennedy v. Bremerton School District involved a public high school football coach who knelt to pray on the 50-yard line after games. The Court ruled 6-3 in the coach’s favor and, in the process, formally abandoned the Lemon framework. The majority said the Establishment Clause must be interpreted by reference to historical practices and understandings, not by running government actions through a multi-pronged analytical test.⁹

Under the new standard, courts ask whether a challenged government action resembles the kinds of religious establishments the founding generation specifically sought to prevent. If it does not, the action stands. That is a fundamentally different exercise than Lemon’s secular-purpose and effects analysis. Instead of asking whether a law is neutral toward religion in the abstract, courts look at whether history shows the practice was accepted by the people who wrote the First Amendment. The endorsement test went down with Lemon, since both were replaced by the same historical-practices inquiry.¹⁰

Why the Case Still Matters

Even though courts no longer apply the Lemon test, the case reshaped how Americans think about the boundary between government and religion. For decades it supplied the vocabulary for these disputes: secular purpose, primary effect, excessive entanglement. Hundreds of lower court decisions and multiple Supreme Court opinions built on, refined, or argued against that vocabulary. Understanding Lemon remains essential for reading those earlier cases, which are still part of the legal landscape even after the framework that produced them has been retired.

The case also exposed a tension the new historical-practices standard has not resolved. Direct government funding of religious schools failed in 1971 because the oversight needed to keep it secular was itself unconstitutional. Indirect funding through vouchers survived in 2002 because the money passed through private hands first. The distinction between direct and indirect aid continues to shape school-funding debates, and the principles behind it did not vanish when the three-pronged test stopped being the law.

1
Justia U.S. Supreme Court Center. Lemon v. Kurtzman, 403 U.S. 602 (1971)
2
Legal Information Institute. Lemon v. Kurtzman, 403 U.S. 602
3
Justia U.S. Supreme Court Center. Lynch v. Donnelly, 465 U.S. 668 (1984)
4
Justia U.S. Supreme Court Center. Agostini v. Felton, 521 U.S. 203 (1997)
5
Justia U.S. Supreme Court Center. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
6
Justia U.S. Supreme Court Center. Lee v. Weisman, 505 U.S. 577 (1992)
7
Justia U.S. Supreme Court Center. Town of Greece v. Galloway, 572 U.S. 565 (2014)
8
Justia U.S. Supreme Court Center. American Legion v. American Humanist Association, 588 U.S. ___ (2019)
9
Congress.gov. Kennedy v. Bremerton School District: School Prayer and the Establishment Clause
10
Supreme Court of the United States. Kennedy v. Bremerton School District, 597 U.S. ___ (2022)