Lemon v.

Kurtzman
403 U.S. 602 (1971)

Primary Holding
The test for determining whether a law meets the requirements of the Establishment Clause is whether it has a legitimate
secular purpose, does not have the primary effect of either advancing or inhibiting religion, and does not result in an
excessive entanglement of government and religion.

Facts
Under the Nonpublic Elementary and Secondary Education Act, Pennsylvania gave the Superintendent of Public Schools
the authority to allocate state funds for textbooks, educational materials, and teacher salaries in private schools. Most of
these private schools happened to be Catholic institutions. However, the law was carefully written to require that the
salaries of teachers could be augmented only if they taught the same courses as those offered in public schools, used the
same materials, and refrained from teaching courses in religion. In reality, the only beneficiaries of the extra funding were
teachers at Catholic schools, which constituted 95 percent of the state's total private schools, which in turn comprised 25
percent of all elementary schools in the state.

In Rhode Island, a similar law known as the Salary Supplement Act designated government money to provide salary
supplements of 15 percent for teachers at private schools. Most of these institutions also were Catholic. The First Circuit
had ruled against the Rhode Island law under the First Amendment.

Opinions

Majority

Warren Earl Burger (Author)

Hugo Lafayette Black
William Orville Douglas
John Marshall Harlan II
Potter Stewart
Thurgood Marshall
Harry Andrew Blackmun

Describing the prong of the Lemon test that concerns excessive government entanglement with religion, Burger
recommended that courts consider factors such as the nature of the government assistance, the character and purpose of
the institution receiving the assistance, and the relationship that resulted between the government and the religious
authority. All three of the prongs in the test, which are listed in the Primary Holding above, must be satisfied for a law to
survive a challenge under the Establishment Clause. In this situation, Burger pointed out that private and parochial schools
were essentially synonymous in the state and that the Catholic Church viewed its educational program as a central part of
its religious mission. Viewing the cumulative effect of the relationship between the state and the Catholic Church created
by this law, he found that there was excessive entanglement between government and religion. Once he made this
finding, the law would be unconstitutional whether or not it passed the other prongs of the test.

Concurrence

William Orville Douglas (Author)

Hugo Lafayette Black
Thurgood Marshall

Concurrence
 William Joseph Brennan, Jr. (Author)

Concurrence/Dissent In Part

Byron Raymond White (Author)

Case Commentary
The Supreme Court held that the founders clearly intended to prevent the state from any type of sponsorship, financial
support, or involvement in religious activities, which verged too closely on establishing a state religion. While the Lemon
test has been challenged early in the 21st century, the Court continues to use it as the principal tool of Establishment
Clause analysis. A few current Justices, such as Clarence Thomas and Antonin Scalia, have been skeptical about its
appropriateness.

U.S. Supreme Court

Tilton v. Richardson, 403 U.S. 672 (1971)
Tilton v. Richardson
No. 153
Argued March 2-3, 1971
Decided June 28, 1971
403 U.S. 672

Syllabus

The Higher Education Facilities Act of 1963 provides federal construction grants for college and university facilities,
excluding "any facility used or to be used for sectarian instruction or as a place for religious worship, or . . . primarily in
connection with any part of the program of a school or department of divinity."

The United States retains a 20-year interest in any facility constructed with funds under the Act, and if, during this period,
the recipient violates the statutory conditions, the Government is entitled to recovery of funds. Four church-related
colleges and universities in Connecticut received federal construction grants for five facilities. Appellants attempted to
show, in a three-judge court, that the recipient institutions were "sectarian" by introducing evidence of their relations with
religious authorities, the curricula content, and other indicia of religious character. Appellee colleges introduced testimony
that they had fully complied with the statutory conditions, and that their religious affiliations did not interfere with their
secular educational functions. The court held that the Act authorized grants to church-related schools, and sustained its
constitutionality, finding that the Act had neither the purpose nor the effect of promoting religion.

Held: The Act is constitutional except for that portion providing for a 20-year limitation on the religious use of the facilities
constructed with federal funds. Pp. 403 U. S. 676-689, 403 U. S. 661-671, 403 U. S. 692.

312 F.Supp. 1191, vacated and remanded.

THE CHIEF JUSTICE, joined by MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded
that:

1. The Act includes colleges and universities with religious affiliations. Pp. 403 U. S. 676-677.

2. Congress' objective of providing more opportunity for college education is a legitimate secular goal entirely appropriate
for governmental action. Pp. 403 U. S. 678-679.

Page 403 U. S. 673

3. The record fully supports the District Court's findings that the colleges involved have not violated the statutory
restrictions; it provides no basis for assuming that religiosity necessarily permeates the secular education of the colleges;
and it yields no evidence that religion seeps into the use of any of the five facilities. Pp. 403 U. S. 680-682.

4. The limitation of federal interest in the facilities to a period of 20 years violates the Religion Clauses of the First
Amendment, as the unrestricted use of valuable property after 20 years is in effect a contribution to a religious body.
Pp.403 U. S. 682-684.

5. This case is distinguished from Lemon v. Kurtzman, ante, p. 403 U. S. 602; (a) there is less danger here than in church-
related primary and secondary schools dealing with impressionable children that religion will permeate the area of secular
education, since religious indoctrination is not a substantial purpose or activity of these church-related colleges, (b) the
facilities provided here are themselves religiously neutral, with correspondingly less need for government surveillance, and
(c) the government aid here is a one-time, single-purpose construction grant, with only minimal need for inspection.
Cumulatively, these factors lessen substantially the potential for divisive religious fragmentation in the political arena.
Pp. 403 U. S. 684-689.

6. The implementation of the Act does not inhibit the free exercise of religion in violation of the First Amendment. P. 403
U. S. 689.

MR. JUSTICE WHITE concurred in the judgment in this case. Pp. 403 U. S. 661-671.

MR. JUSTICE DOUGLAS, joined by MR. JUSTICE BLACK and MR. JUSTICE MARSHALL, agreed only with that part of the
plurality opinion relating to the limitation of federal interest in the facilities to 20 years, concluding that a reversion of a
facility at the end of that period to a parochial school would be unconstitutional as a gift of taxpayers' funds. P. 403 U. S.
692.

BURGER, C.J., announced the Court's judgment and delivered an opinion in which HARLAN, STEWART, and BLACKMUN, JJ.,
joined. WHITE, J., filed an opinion concurring in the judgment, ante, p. 403 U. S. 661. DOUGLAS, J., filed an opinion
dissenting in part, in which BLACK and MARSHALL, JJ., joined, post, p. 403 U. S. 689. BRENNAN, J. filed a dissenting
opinion, ante, p. 403 U. S. 642.

County of Allegheny v. ACLU

492 U.S. 573 (1989)

Primary Holding
The Establishment Clause prohibits placing religious symbols on public property if it results in promoting religion.

Facts
A nativity scene and a menorah were featured in different locations throughout the County of Allegheny in Pennsylvania.
While the nativity scene was placed alone, the menorah was juxtaposed with a Christmas tree and a sign reading "Salute
to Liberty." However, the ACLU argued that the displays violated the Establishment Clause and should be removed. The
lower courts reached clashing conclusions about this claim.

Opinions

Majority

Harry Andrew Blackmun (Author)

William Joseph Brennan, Jr.
 Thurgood Marshall
John Paul Stevens
Sandra Day O'Connor

Governments may not give the impression of endorsing a specific religion or religion in general. As a result, they may not
allow the creation of religious displays that promote religion. Since the nativity scene strongly suggests Christian beliefs
and is placed by itself, it violates the Establishment Clause. The menorah does not violate the Establishment Clause
because it is juxtaposed with secular objects and connects to Jewish culture as well as religion.

Concurrence

Sandra Day O'Connor (Author)

William Joseph Brennan, Jr.
John Paul Stevens

The context of the menorah is permissible because it promotes pluralism, which is a secular concept.

Concurrence/Dissent In Part

William Joseph Brennan, Jr. (Author)

Thurgood Marshall
John Paul Stevens

Both the nativity scene and the menorah should be removed, since each implies a preference for a certain religion.

Concurrence/Dissent In Part

John Paul Stevens (Author)

William Joseph Brennan, Jr.
Thurgood Marshall

Local governments cannot endorse multiple religions any more than they can endorse a single religion. Both displays
should be removed.

Concurrence/Dissent In Part

Anthony M. Kennedy (Author)

William Hubbs Rehnquist
Byron Raymond White
Antonin Scalia

Religion may be accommodated under the Establishment Clause, even though it may not be established. This case
provides an example of an accommodation rather than an establishment.

Case Commentary
Decisions on the Establishment Clause are often inconsistent and difficult to predict. The fragmented nature of this
opinion continues this trend and may leave little precedential value for courts trying to decide similar cases.