Berkley Center

In Lemon v. Kurtzman, the Supreme Court articulated a three-pronged test to determine whether a particular practice violates the Establishment Clause. While the Lemon test is not used by the Court in every Establishment Clause case, and this test has been criticized by some justices on the Court, the Court has often used the Lemon test to determine Establishment Clause issues. Lemon was a consolidation of two separate First Amendment challenges to Pennsylvania and Rhode Island statutes that provided state aid to parochial schools. Both statutes provided aid in the form of salary supplements to teachers of non-religious subjects at non-public schools, and the Pennsylvania statute further provided direct aid to non-public schools in the form of textbooks and instructional materials. To determine whether these statutes violated the Establishment Clause, the Court applied a three-pronged test based on several prior Court decisions: “First, the statute must have a secular 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.” The Court concluded that both statutes failed the test because they created the risk of excessive government entanglement with religious schools. To ensure the funds provided would actually be used for non-religious purposes, the Court reasoned, both statutes would require comprehensive government monitoring and oversight programs. These oversight programs would themselves create excessive government entanglement with religious schools because the government would effectively be required to direct how these schools spent their funds.