Lemon v. Kurtzman is the 1971 U.S. Supreme Court decision that struck down two state programs sending public money to religious schools and produced the three-part framework, known as the Lemon test, that courts used for the next half century to decide Establishment Clause cases.1Legal Information Institute. Lemon v. Kurtzman The Court formally abandoned that test in 2022, but the case remains a foundational reference point for any dispute over government support of religion.
The Two State Programs at Issue
The case took its name from Alton J. Lemon, a Pennsylvania parent and taxpayer, and David H. Kurtzman, the state’s Superintendent of Public Instruction.1Legal Information Institute. Lemon v. Kurtzman The Supreme Court consolidated Lemon’s Pennsylvania lawsuit with a parallel challenge to a Rhode Island program and decided them together.
Pennsylvania’s Nonpublic Elementary and Secondary Education Act of 1968 reimbursed private schools for teacher salaries, textbooks, and instructional materials in secular subjects such as mathematics, modern foreign languages, physical science, and physical education. Schools had to keep separate accounting records for the covered courses.2Laws of Pennsylvania. Pennsylvania Act 109 – Nonpublic Elementary and Secondary Education Act
Rhode Island’s 1969 Salary Supplement Act took a different route. It paid teachers in private schools a fifteen percent salary bonus, but only if they taught subjects offered in public schools, used public school materials, and agreed in writing not to teach religion.3Justia. Lemon v. Kurtzman Taxpayers in both states argued the money was effectively subsidizing religious institutions, since most participating schools were Catholic.
What the Supreme Court Decided
The Court issued its decision on June 28, 1971, striking down both programs under the First Amendment’s religion clauses.3Justia. Lemon v. Kurtzman Chief Justice Warren Burger wrote the majority opinion. The Pennsylvania program fell unanimously among the eight justices who took part; Justice Thurgood Marshall did not participate in that portion. The Rhode Island program was invalidated with only Justice Byron White dissenting.
The majority accepted that both states had a legitimate secular goal: improving education. What sank the programs was the level of ongoing government supervision they required. Burger explained that unlike a textbook, a teacher cannot be examined once to see how personal beliefs shape classroom instruction. Keeping religious content out of state-funded classes would demand “comprehensive, discriminating, and continuing state surveillance,” and that permanent monitoring between government and church was exactly what the First Amendment forbids.3Justia. Lemon v. Kurtzman
Burger also flagged a broader worry about political divisiveness. When public money flows to religious schools, he wrote, political campaigns tend to split along religious lines, and that kind of division “was one of the principal evils against which the First Amendment was intended to protect.”3Justia. Lemon v. Kurtzman
The Three-Prong Lemon Test
The lasting significance of the decision was the framework it produced. To survive an Establishment Clause challenge, a law had to satisfy all three prongs:4Constitution Annotated. Amdt1.3.6.1 Lemon’s Purpose Prong
- Secular purpose: The law must have a genuine non-religious reason for existing. A purely religious motive fails on its own, and courts will look past a stated purpose to find the real one.
- Primary effect: The law’s main result must neither promote nor hinder religion. If the practical consequence is to advance a faith or burden religious practice, it is unconstitutional regardless of stated intent.
- No excessive entanglement: The law must not create an overly close or ongoing relationship between government and religious institutions. Constant monitoring, joint decision-making, or financial interdependence all point to entanglement.
Applied to the two programs in front of it, the Court found the first prong satisfied. Both states genuinely wanted stronger secular education. The programs failed on entanglement because enforcing the secular-only restriction turned the government into a permanent supervisor of religious schools.3Justia. Lemon v. Kurtzman
How Courts Used the Test
For decades after 1971, the Lemon test served as the default tool in Establishment Clause disputes, though the Court’s relationship with its own creation was uneven.
The secular purpose prong did real work in Edwards v. Aguillard (1987), where the Court struck down a Louisiana law requiring public schools to teach “creation science” alongside evolution. The Court concluded that the law’s actual purpose was to advance a religious belief about the origins of life, not to promote academic freedom.5Justia. Edwards v. Aguillard, 482 U.S. 578 (1987)
In Agostini v. Felton (1997), the Court reshaped the framework by folding the entanglement inquiry into the effects analysis, recognizing that the factors overlapped.6Justia. Agostini v. Felton, 521 U.S. 203 (1997) In practice, the three-prong test began operating as a two-prong test, even as courts continued to cite the original structure.
Other decisions pulled back further. In Lynch v. Donnelly (1984), the Court upheld a city-owned nativity display and stated it was unwilling “to be confined to any single test or criterion in this sensitive area.”7Justia. Lynch v. Donnelly, 465 U.S. 668 (1984) Justice Sandra Day O’Connor’s concurrence in that case proposed a competing “endorsement test.” In Zelman v. Simmons-Harris (2002), the Court upheld Cleveland’s school voucher program using a “private choice” framework rather than a strict Lemon analysis, reasoning that the link between government funding and religious instruction was broken when parents, not the state, chose where the money went.8Justia. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
When the Lemon Test Was Abandoned
The end came in two stages. In American Legion v. American Humanist Association (2019), a plurality held that longstanding religious monuments and symbols should not be evaluated under Lemon at all and should be presumed constitutional if they follow a historical tradition of religious accommodation.9Constitution Annotated. Establishment Clause and Historical Practices and Tradition Justice Brett Kavanaugh went further in his concurrence, writing that the Court’s own decisions showed the Lemon test “is not good law” in any category of Establishment Clause case.
The formal break came in Kennedy v. Bremerton School District (2022), a case about a public school football coach who prayed at midfield after games. The majority opinion by Justice Neil Gorsuch described both the Lemon test and the endorsement test as “long ago abandoned.” In their place, the Court held that the Establishment Clause must be interpreted by reference to “historical practices and understandings.”9Constitution Annotated. Establishment Clause and Historical Practices and Tradition The question is no longer whether a law has a secular purpose, a neutral effect, and minimal entanglement. It is whether the challenged government action is consistent with the historical meaning of the Establishment Clause as understood at the founding.
Why Lemon Still Matters
The Lemon test is no longer binding, but the case remains one of the most consequential Establishment Clause decisions in American history. For more than fifty years it supplied the vocabulary courts, lawyers, and legislators used to talk about the boundary between government and religion. Terms like “secular purpose,” “primary effect,” and “excessive entanglement” shaped how laws were drafted and how challenges were argued.
The move to a historical-practices standard changes the method more than the underlying concerns. Courts still ask whether government action amounts to support for religion. They now look to founding-era history rather than a three-part formula for the answer. The questions that drove Lemon in the first place, about how close government and religious institutions can get and who decides where that line falls, are still being litigated.