The 1971 Case of Lemon v Kurtzman

Public Funding of Religious Schools

Catholic school children posing at the doors of their school.

nloik/Flickr/CC BY 1.0

There are many people in America who would like to see the government provide funding to private religious schools. Critics argue that this would violate the separation of church and state, and sometimes the courts agree with this position. The case of Lemon v. Kurtzman is a previous Supreme Court decision on the matter.


The decision of the court regarding religious school funding actually began as three separate cases: Lemon v. Kurtzman, Earley v. DiCenso, and Robinson v. DiCenso. These cases from Pennsylvania and Rhode Island were joined together because they all involved public assistance to private schools, some of which were religious. The final decision has become known by the first case in the list: Lemon v. Kurtzman.

Pennsylvania’s law provided for paying the salaries of teachers in parochial schools and assisting with the purchase of textbooks and other teaching supplies. This was required by Pennsylvania’s Non-Public Elementary and Secondary Education Act of 1968. In Rhode Island, 15 percent of salaries for private school teachers was paid by the government as mandated by the Rhode Island Salary Supplement Act of 1969. 

In both cases, the teachers were teaching secular, not religious, subjects.

Court Decision

Arguments were made on March 3, 1971. On June 28, 1971, the Supreme Court unanimously (7-0) found that direct government assistance to religious schools was unconstitutional. In the majority opinion written by Chief Justice Burger, the Court created what has become known as the “Lemon Test” for deciding if a law is in violation of the Establishment Clause.

Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, in as much as excessive entanglement was found. This entanglement arose, according to the opinion, because the legislature

"has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion."

Because the schools concerned were religious schools, they were under the control of the church hierarchy. In addition, because the primary purpose of the schools was the propagation of the faith, a

"comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected."

This sort of relationship could lead to any number of political problems in areas where ​large numbers of students attend religious schools. This is just the sort of situation the First Amendment was designed to prevent.

Chief Justice Burger further wrote:

"Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhibits religion; finally, the statute must not foster and excessive government Entanglement with religion."

The “excessive entanglement” criteria was a new addition to the other two, which had already been created in the Abington Township School District v. Schempp. The two statutes in question were held to be in violation of this third criteria.

Lemon v Kurtzman Significance

This decision is especially significant because it created the aforementioned Lemon Test for evaluating laws relating to the relationship between church and state. It is a benchmark for all later decisions regarding religious liberty.


Burger, Warren et al. "Lemon v. Kurtzman." Cornell University, 2019.