LEMON v. KURTZMAN 403 U.S. 602 (1971) (I) 411 U.S. 192 1973) (II)

This case involved one of the school aid statutes produced by state legislatures in the wake of board of education v. allen (1968). Lemon I stands for three cases joined for decision by the Court. Lemon challenged the constitutionality of a Pennsylvania statute that authorized the Superintendent of Public Instruction to reimburse nonpublic schools for teachers' salaries, textbooks, and instructional materials in secular subjects. Erley v. DiCensoandRobinson v. DiCenso (1971) challenged a Rhode Island statute that made available direct payments to teachers in nonpublic schools in amounts of up to fifteen percent of their regular salaries.

Both statutes were unconstitutional, Chief Justice warren burger concluded, and he set forth a threefold test which continues to be invoked in establishment of religion cases: any program aiding a church-related institution must have an adequate secular purpose; it must have a primary effect that neither advances nor inhibits religion; and government must not be excessively entangled with religious institutions in the administration of the program. The Pennsylvania and Rhode Island schemes provided government aid to religious institutions. Burger argued that in order to see that these dollars were not used for religious instruction, the states would have to monitor compliance in ways involving excessive entanglement.

Lemon v. Kurtzman returned to the Court (Lemon II) two years later on the question of whether the Pennsylvania schools could retain the monies that had been paid out in the period between the implementation of law and the decision of the Supreme Court invalidating it in Lemon I. In a plurality opinion for himself and Justices harry blackmun, lewis f. powell, and william h. rehnquist, Chief Justice Burger held that they could. An unconstitutional statute, he suggested, is not absolutely void but is a practical reality upon which people are entitled to rely until authoritatively informed otherwise. Justice byron r. white concurred. Justice william o. douglas, joined by Justices william j. brennan and potter stewart, dissented. Douglas argued that there was "clear warning to those who proposed such subsidies" that they were treading on unconstitutional ground. "No consideration of equity, " Douglas suggested, should allow them "to profit from their unconstitutional venture."

Richard E. Morgan
(1986)