Lemon v. Kurtzman: The Case That Created the Lemon Test

Lemon v. Kurtzman, decided by the Supreme Court on June 28, 1971, struck down two state programs that sent public money to religious schools and created a three-part framework, later called the Lemon test, for judging whether any government action improperly supports religion. The test asked whether a law had a secular purpose, whether its primary effect advanced or inhibited religion, and whether it created excessive entanglement between government and faith. It shaped Establishment Clause law for roughly fifty years. In 2022, the Court said it had “long ago abandoned” the test and replaced it with a historical-practice standard.¹

The Programs the Court Reviewed

Two state laws reached the Court together. Pennsylvania’s Nonpublic Elementary and Secondary Education Act of 1968 let the state buy “secular educational services” from nonpublic schools, reimbursing them for teacher salaries, textbooks, and materials in subjects like mathematics, foreign languages, and physical sciences. Participating schools had to keep separate accounting records for secular and religious expenses and sign contracts with the state.²

Rhode Island’s Salary Supplement Act of 1969 paid teachers at nonpublic elementary schools a bonus of up to 15% of their annual salary. To qualify, a teacher had to be state-certified, teach only subjects offered in public schools, use the same instructional materials, and sign a written pledge not to teach religion while receiving the supplement.³ Most schools benefiting under both programs were Roman Catholic.

The lead plaintiff, Alton Lemon, sued Pennsylvania’s Superintendent of Public Instruction, David Kurtzman, arguing the reimbursements forced taxpayers to subsidize religious institutions. A parallel Rhode Island challenge raised the same First Amendment objection, and the Court consolidated them.⁴

What the Court Decided

Chief Justice Warren Burger wrote for the majority. Both statutes fell: the Pennsylvania law by 8–0, with Justice Marshall not participating, and the Rhode Island law by 8–1, with Justice White in dissent.⁴ The programs aimed only at secular instruction, but the Court concluded that the oversight required to keep religious content out of publicly funded classes created an unconstitutional entanglement between government and religion.³

The reasoning turned on a practical point. A textbook can be reviewed before it is used. A teacher cannot. A teacher working within a religious institution might blend faith into a lesson without intending to, or might do it deliberately, and the state could not guard against that without stationing monitors in classrooms. That surveillance would itself breach the separation the Constitution requires.⁴

Burger also flagged political divisiveness. If states routinely funded religious schools, budget fights would split voters along religious lines, producing the factional conflict the First Amendment was designed to prevent.³

The Three-Prong Lemon Test

The opinion distilled prior Establishment Clause cases into a checklist. To survive, a law had to satisfy all three prongs:³

Secular purpose. The law needed a genuine non-religious reason for existing. If the real motivation was to promote a faith, the law failed at the threshold.
Primary effect. The law’s principal effect could neither advance nor inhibit religion. A program that delivered a direct benefit to a religious institution, or that placed obstacles in front of religious practice, violated this prong.
No excessive entanglement. The law could not create a relationship between government and a religious institution that required ongoing, intrusive oversight of religious activity. Courts weighed the nature of the aid, the character of the institution receiving it, and the resulting government-religion relationship.

Failing any single prong made a law unconstitutional. Lower courts got a concrete framework, and for decades it dominated Establishment Clause litigation, though its application was never as clean as the structure suggested.

How the Test Was Modified

In Agostini v. Felton (1997), the Supreme Court restructured the analysis. The Court called the entanglement and effect inquiries “critically related” and folded them together into a single question: does the government action advance or inhibit religion? Entanglement became a factor within the effects analysis rather than an independent prong.⁵

The change loosened the standard. Programs that would have failed the original three-part test because they required some government monitoring of religious institutions could now survive if the monitoring was not so intrusive that it amounted to an impermissible effect.

The Criticism

Justices grew openly hostile to the test long before it was formally set aside. Justice Antonin Scalia, concurring in Lamb’s Chapel v. Center Moriches Union Free School District (1993), compared it to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Scalia said the Court invoked Lemon when it wanted to strike down a law, ignored it when it wanted to uphold one, and dismissed the prongs as “no more than helpful signposts” when it wanted to split the difference.⁶

The complaint had teeth. Lower courts applying Lemon to similar facts routinely reached opposite conclusions. Whether a holiday display, a moment of silence, or a graduation prayer survived scrutiny often turned on which circuit heard the case.

How the Test Was Abandoned

The decline happened in stages. In American Legion v. American Humanist Association (2019), the Court refused to apply Lemon to a challenge against a World War I memorial cross on public land, saying the test “presents particularly daunting problems” for longstanding monuments and practices. The Court set a presumption of constitutionality for religious symbols and practices with historical roots, carving out a large category of cases from Lemon’s reach.⁷

The final step came in Kennedy v. Bremerton School District (2022), which held that a public school football coach had a First Amendment right to pray on the field after games. Justice Gorsuch, writing for the majority, said the Court had “long ago abandoned” Lemon and its endorsement-test offshoot. The Establishment Clause, the Court held, “must be interpreted by reference to historical practices and understandings,” asking whether a challenged action fits how the Founding generation understood the relationship between government and religion.¹

The new standard is less formulaic. Instead of running a three-part checklist, courts examine whether a practice fits within a historical tradition of permissible government interaction with religion. Critics argue that history and tradition can be cherry-picked just as Lemon’s prongs were. Either way, the three-prong test is no longer good law.

What Happened to Religious School Funding

The legal terrain Lemon helped create — skeptical of any public money reaching religious schools — has since reversed. In Zelman v. Simmons-Harris (2002), the Court upheld Ohio’s school voucher program even though most participating families used vouchers at religious schools. The distinction was that the money went to parents, who chose where to spend it, rather than flowing directly from the state to a religious institution.⁸

Then the Court went further. In Carson v. Makin (2022), it struck down Maine’s requirement that schools receiving state tuition assistance be “nonsectarian.” Once a state decides to subsidize private education, the majority held, it cannot exclude schools solely because they are religious. Doing so triggers strict scrutiny under the Free Exercise Clause, which Maine’s exclusion could not survive.⁹

In 1971, public funding of religious schools was presumptively unconstitutional. By 2022, excluding religious schools from generally available public funding programs was presumptively unconstitutional. Lemon v. Kurtzman still matters for understanding how the Court once drew the line between church and state, but the specific rules it produced no longer govern where that line sits today.

1
Constitution Annotated. Establishment Clause and Historical Practices and Tradition
2
Pennsylvania General Assembly. Pennsylvania Act 109 – Nonpublic Elementary and Secondary Education Act
3
Justia U.S. Supreme Court Center. Lemon v. Kurtzman, 403 U.S. 602 (1971)
4
Library of Congress. Lemon v. Kurtzman, 403 U.S. 602
5
Justia. Agostini v. Felton, 521 U.S. 203 (1997)
6
Cornell Law School. Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist.
7
Justia. American Legion v. American Humanist Association, 588 U.S. (2019)
8
Justia. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
9
Supreme Court of the United States. Carson v. Makin