Adoption of the Lemon Test

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The tripartite Establishment Clause test asking courts to look to purpose, effect, and entanglement is primarily associated with Lemon v. Kurtzman, decided in 1971.1 However, the Supreme Court first compiled these three factors a year earlier, in Walz v. Tax Commission.2 The Walz petitioners raised an Establishment Clause challenge to a state tax exemption for religious properties used solely for religious worship.3 In upholding the exemption, the Court held first that its “legislative purpose” was “neither the advancement nor the inhibition of religion; . . . neither sponsorship nor hostility.” 4 The state had granted the exemption not only to religious properties, but to “a broad class of property owned by nonprofit, quasi-public corporations” that the state considered to be “beneficial and stabilizing influences in community life.” 5 The Court then considered whether the effect of the law was “an excessive government entanglement with religion.” 6 The Court acknowledged that the exemption would create some entanglement by giving churches “an indirect economic benefit,” but stated that the exemption entailed less government involvement than either taxing the churches or giving them a direct money subsidy.7 As part of its analysis into whether the exemption impermissibly sponsored religion, the Court also emphasized widespread historical precedent for tax exemptions.8 Ultimately, the Court ruled that the exemption created “only a minimal and remote involvement between church and state.” 9

In Lemon, the Supreme Court formally synthesized a three-part test for analyzing Establishment Clause challenges: to be constitutional, laws (1) “must have a secular legislative purpose;” (2) must have a “principal or primary effect . . . that neither advances nor inhibits religion . . .;” (3) and “must not foster ‘an excessive government entanglement with religion.’” 10 The Court applied this test in Lemon to conclude that two state programs providing public funds to church-affiliated schools were unconstitutional because they created an excessive entanglement with religion.11

The first program provided supplemental payments to teachers in nonpublic schools.12 The Court believed there was significant “danger that a teacher under religious control and discipline” could not separate “the religious from the purely secular aspects of . . . education.” 13 Given this “potential for impermissible fostering of religion,” the Court said that the state would have to ensure “that subsidized teachers do not inculcate religion” —and noted that the state had in fact imposed a number of restrictions on the use of state aid.14 But in the Supreme Court’s view, these restrictions created an “excessive and enduring entanglement between state and church” by requiring “a comprehensive, discriminating, and continuing state surveillance” of the religious schools.15

The second program considered in Lemon reimbursed nonpublic schools for purchasing certain secular educational services or textbooks.16 The Court ruled this program unconstitutional for the same reasons as the first, noting that the program required the state to review reimbursements and required schools to use certain accounting procedures.17 The Court said that the second program suffered from “the further defect of providing state financial aid directly to the church-related school.” 18 This was particularly concerning to the Court because historically, programs involving “a continuing cash subsidy . . . have almost always been accompanied by varying measures of [government] control and surveillance.” 19 The Court was also concerned about the “divisive political potential” and the relatively unprecedented nature of both programs, stating that these factors might suggest a danger of even greater government regulation of religious schools in the future.20

1: Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).
2: Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970). The Supreme Court looked to the first two Lemon factors, purpose and effect, prior to Walz. See Amdt1.3.5.3 Purpose and Effect Test Before Lemon.
3: Walz, 397 U.S. at 666–67.
4: Id. at 672.
5: Id. at 673.
6: Id. at 674.
7: Id. at 674–75.
8: Id. at 676–78 (noting that all fifty states provided tax exemptions for places of worship at the time of decision, and noting examples from colonial times and early Congresses).
9: Id. at 676.
10: Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (internal citation omitted) (quoting Walz, 397 U.S. at 674).
11: Id. at 613–14.
12: Id. at 606–07.
13: Id. at 617.
14: Id. at 619.
15: Id.
16: Id. at 607.
17: Id. at 620–21.
18: Id. at 621.
19: Id.
20: Id. at 622–24. Two years later, however, the Supreme Court held that, with respect to the second program, the state could reimburse schools for services they had provided before the program was ruled unconstitutional, emphasizing the schools’ reliance interests. Lemon v. Kurtzman (Lemon II), 411 U.S. 192, 201–03 (1973). But see New York v. Cathedral Acad., 434 U.S. 125, 131, 133 (1977) (ruling unconstitutional a state law attempting to reimburse schools for expenses incurred in reliance on a law that the Supreme Court declared unconstitutional, noting that unlike in Lemon II, the “constitutional defect” in the law “lay in the payment itself, rather than in the process of its administration” ).