Lemon v. Kurtzman

Notable Items:

• See Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 760 (1995) for claim that Lemon ' “invited chaos” in lower courts, led to “differing results” in materially identical cases, and created a “minefield” for legislators.'
• Established the Lemon Test:
  • Three such tests may be gleaned from our cases.
  • First, the statute must have a secular legislative purpose; ["exclusively secular" objectives not required Lemon footnote 6]
  • Second, its principal or primary effect must be one that neither advances nor inhibits religion,
  • Finally, the statute must not foster "an excessive government entanglement with religion."

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools.
• Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion.
• A three-judge court found that about 25% of the State's elementary students attended nonpublic schools, about 95% of whom attended Roman Catholic affiliated schools ....
• ... 250 teachers at Roman Catholic schools are the sole beneficiaries under the Act.
• Pennsylvania's Nonpublic Elementary and Secondary Education Act authorizes the state Superintendent of Public Instruction to "purchase" certain "secular educational services" from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials.
• Contracts were made with schools that have more than 20% of all the students in the State, most of which were affiliated with the Roman Catholic Church.
• A full recounting of the facts is available below

Procedural History:

• Appellees are citizens and taxpayers of Rhode Island.
• They brought this suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment.
• The District Court concluded that the [Rhode Island] Act violated the Establishment Clause, holding that it fostered "excessive entanglement" between government and religion.

Rationale

Burger Majority Opinion (Black, Douglas, Harlan, Stewart, Marshall, Blackmun)

• Three such tests may be gleaned from our cases.
• First, the statute must have a secular legislative purpose;
• second, its principal or primary effect must be one that neither advances nor inhibits religion,
• finally, the statute must not foster "an excessive government entanglement with religion."
• ... we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.
• A full description of the rationale is available below

Douglas Concurrance (Black, Marshall)

Brennan Concurrance (null)

Full Recounting of Facts

• Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools.
• Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion.
• A three-judge court found that about 25% of the State's elementary students attended nonpublic schools, about 95% of whom attended Roman Catholic affiliated schools ....
• ... 250 teachers at Roman Catholic schools are the sole beneficiaries under the Act.
• Pennsylvania's Nonpublic Elementary and Secondary Education Act authorizes the state Superintendent of Public Instruction to "purchase" certain "secular educational services" from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials.
• Contracts were made with schools that have more than 20% of all the students in the State, most of which were affiliated with the Roman Catholic Church.
• A list of the material facts is available above

Majority Full Argument

• [Part I: The Statutes]
• The Rhode Island Statute
• The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary.
• In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State's public schools during a specified period.
• Appellant State Commissioner of Education also requires eligible schools to submit financial data.
• If this information indicates a per-pupil expenditure in excess of the statutory limitation, the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity.
• The District Court concluded that the Act violated the Establishment Clause, holding that it fostered "excessive entanglement" between government and religion.
• We affirm.
• The Pennsylvania Statute
• The statute authorizes appellee state Superintendent of Public Instruction to "purchase" specified "secular educational services" from nonpublic schools.
• ... the State directly reimburses nonpublic schools solely for their actual expenditures for teachers' salaries, textbooks, and instructional materials.
• A school seeking reimbursement must maintain prescribed accounting procedures that identify the "separate" cost of the "secular educational service."
• These accounts are subject to state audit.
• The court granted appellees' motion to dismiss the complaint for failure to state a claim for relief.
• We reverse.
• [Part II: ]
• Instead, they commanded that there should be "no law respecting an establishment of religion."
• A law may be one "respecting" the forbidden objective while falling short of its total realization.
• A given law might not establish a state religion, but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.
• ... the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity."
• Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years.
• Three such tests may be gleaned from our cases.
• First, the statute must have a secular legislative purpose; ["exclusively secular" objectives not required Lemon footnote 6]
• second, its principal or primary effect must be one that neither advances nor inhibits religion,
• finally, the statute must not foster "an excessive government entanglement with religion."
• ... we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.
• [Part III]
• Some relationship between government and religious organizations is inevitable.
• Fire inspections, building and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts.
• In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority.
• Here we find that both statutes foster an impermissible degree of entanglement.
• [Part III (a): Rhode Island program]
• ... the role of teaching nuns in enhancing the religious atmosphere has led the parochial school authorities to attempt to maintain a one-to-one ratio between nuns and lay teachers in all schools, rather than to permit some to be staffed almost entirely by lay teachers.
• ... the District Court concluded that the parochial schools constituted "an integral part of the religious mission of the Catholic Church."
• The dangers and corresponding entanglements are enhanced by the particular form of aid that the Rhode Island Act provides.
• Bus transportation, school lunches, public health services, and secular textbooks supplied in common to all students were not thought to offend the Establishment Clause.
• We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education.
• The conflict of functions inheres in the situation.
• An eligible recipient must teach only those courses that are offered in the public schools and use only those texts and materials that are found in the public schools.
• In addition, the teacher must not engage in teaching any course in religion.
• A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected.
• These prophylactic contacts will involve excessive and enduring entanglement between state and church.
• ... we cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion and thus conflict with the Religion Clauses.
• [Part III (b): Pennsylvania program]
• The complaint describes an educational system that is very similar to the one existing in Rhode Island.
• As we noted earlier, the very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglements between church and state.
• The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school.
• ... the government's post-audit power to inspect and evaluate a church-related school's financial records and to determine which expenditures are religious and which are secular creates an intimate and continuing relationship between church and state.
• [Part IV: Political Entanglement]
• A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs.
• Partisans of parochial schools, ..., will inevitably champion this cause and promote political action to achieve their goals.
• Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail.
• ... political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.
• Here we are confronted with successive and very likely permanent annual appropriations that benefit relatively few religious groups.
• Political fragmentation and divisiveness on religious lines are thus likely to be intensified.
• [Part V: Conclusion]
• We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches.
• Nor can we fail to see that, in constitutional adjudication, some steps which, when taken, were thought to approach "the verge" have become the platform for yet further steps.
• Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction, and churches excluded from the affairs of government.
• The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.
• The core of the rationale is available above