Amendment 1 — Application Of The Lemon Test

prev | next

First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Since 1971, the Supreme Court has most frequently evaluated financial assistance to religious entities under the Lemon framework, notwithstanding its gradual disfavor and eventual “abandonment” of Lemon.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn1amd1 " Kennedy v. Bremerton Sch. Dist., No. 21-418, (U.S. June 27, 2022). ") In a series of decisions issued during the 1970s, the Court applied these three factors to a series of programs offering funds to schools, holding some of those programs constitutional and others unconstitutional. The Court rejected Establishment Clause challenges to generally available aid programs that provided that funds could not be used “for sectarian purposes,” concluding this type of restriction ensured the program would not have an unconstitutional effect of advancing religion under Lemon.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn2amd1 " Roemer v. Bd. of Pub. Works, 426 U.S. 736, 747 (1976) (plurality opinion) (upholding a state program offering grants to private institutions of higher education); id. at 767 (White, J., concurring in the judgment). ") For example, in Tilton v. Richardson and Hunt v. McNair, the Court upheld programs that funded the construction or improvement of educational facilities, but expressly excluded facilities used for religious worship or instruction.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn3amd1 " Tilton v. Richardson, 403 U.S. 672, 689 (1971) (plurality opinion) (upholding most of a federal program providing construction grants for educational facilities); Lemon v. Kurtzman, 403 U.S. 602, 664 (1971) (White, J., concurring in the judgment in Tilton); Hunt v. McNair, 413 U.S. 734, 749 (1973) (upholding a state law authorizing the issuance of revenue bonds to a religious college for construction and improvement of certain nonsectarian facilities). ") Further, in Tilton, the Court ruled that a provision that would have allowed federally funded facilities to revert to religious purposes after twenty years was unconstitutional.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn4amd1 " Tilton, 403 U.S. at 683 (plurality opinion); id. at 692 (Douglas, J., dissenting). ")

The Court also applied Lemon to disapprove of a number of financial aid programs in the 1970s.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn5amd1 " New York v. Cathedral Acad., 434 U.S. 125, 133 (1977); Sloan v. Lemon, 413 U.S. 825, 828 (1973); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 783 (1973); Levitt v. Committee for Public Education, 413 U.S. 472, 482 (1973). ") In Committee for Public Education and Religious Liberty v. Nyquist and Levitt v. Committee for Public Education, the Supreme Court held that two state programs funding private schools violated the Establishment Clause because the programs lacked any measures to ensure that the funds would not be used for religious purposes.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn6amd1 " Nyquist, 413 U.S. at 779–80; Levitt, 413 U.S. at 480. ") In Nyquist, the Court considered a state law that, among other things, offered grants to private schools for facilities maintenance and repair.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn7amd1 " Nyquist, 413 U.S. at 774. ") The law did not “restrict payments . . . to the upkeep of facilities used exclusively for secular purposes,” and would have, for example, allowed schools to use the funds for “the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught.” [8](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn8amd1 " Id. ") Accordingly, the Court concluded that the program failed the effect prong of Lemon because it would “inevitably . . . subsidize and advance the religious mission of sectarian schools.” [9](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn9amd1 " Id. at 779–80. See also Sloan, 413 U.S. at 828 (concluding that a state tuition reimbursement program was unconstitutional under Nyquist because there was “no constitutionally significant difference” between the programs in both cases). ")

Similarly, in Levitt, the Supreme Court held that a state program reimbursing religious schools for performing certain testing and recordkeeping services violated the Establishment Clause because “the aid that [would] be devoted to secular functions [was] not identifiable and separable from aid to sectarian activities.” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn10amd1 " Levitt, 413 U.S. at 480. ") The Court noted that the tests were prepared by “teachers under the authority of religious institutions” and ruled that there was an inherent risk of the test being used for “religious indoctrination.” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn11amd1 " Id. The state responded to the Supreme Court’s decision in Levitt in part by attempting to allow schools to recover any expenses they had incurred in reliance on the law that the Court declared unconstitutional. New York v. Cathedral Acad., 434 U.S. 125, 127 (1977). The Court held that these new payments were similarly unconstitutional because they did not “differ in any substantial way from those authorized” under the law it had already ruled unconstitutional. Id. at 131. ") Seven years after its decision in Levitt, the Supreme Court upheld a revised version of the same testing-reimbursement law.[12](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn12amd1 " Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 657, 659 (1980). ") The new law did not allow reimbursement for teacher-prepared tests and allowed states to audit payments.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn13amd1 " Id. at 652. ") The Court ruled that these new safeguards were sufficient to ensure “that the cash reimbursements would cover only secular services,” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn14amd1 " Id. at 659. ") and did not create an impermissible entanglement with religion.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn15amd1 " Id. at 660. The Court also rejected an Establishment Clause challenge to a program that supplied testing and scoring services to nonpublic schools, but did “not authorize any payment to nonpublic school personnel,” noting that the testing program was controlled entirely by the state. Wolman v. Walter, 433 U.S. 229, 240–41 (1977), partially overruled on other grounds by Mitchell v. Helms, 530 U.S. 793 (2000). ")

Starting in 1980, the Supreme Court almost uniformly rejected Establishment Clause challenges to financial aid provisions, finding a constitutional violation in only one case, discussed below.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn16amd1 " Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 5 (1989) (plurality opinion). Cf. Carson v. Makin, No. 20-1088, slip op. at 16–17 (U.S. June 21, 2022) (suggesting that a funding condition attempting to prevent religious uses of funds in an indirect aid program could “raise serious concerns about state entanglement with religion and denominational favoritism” by requiring scrutiny of “whether and how a religious school pursues its educational mission” ). ") The Court’s analysis generally continued to focus on purpose, effect, and entanglement, although it occasionally referred more generally to a program’s neutrality without explicitly citing Lemon.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn17amd1 " See Espinoza v. Mont. Dep’t of Revenue, No. 18-1195, slip op. at 7 (U.S. June 30, 2020) ( “[T]he Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.” ); Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1983) (rejecting an Establishment Clause challenge to an IRS policy that extended tax exemptions only to nonprofit organizations that did not racially discriminate, noting that the policy had a neutral, secular basis). ") Further, the Court began to move away from the separationist approach of Nyquist and Levitt, suggesting that financial aid programs might not have to prohibit expressly the religious use of funds in order to be ruled constitutional.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn18amd1 " See Mitchell v. Helms, 530 U.S. 793, 856 (2000) (O’Connor, J., concurring) ( “Wolman and Levitt were both based on the same presumption that government aid will be used in the inculcation of religion that we have chosen not to apply to textbook lending programs and that we have more generally rejected in recent decisions.” ); see also Bowen v. Kendrick, 487 U.S. 589, 634–35 (1988) (Blackmun, J., dissenting) (arguing that the majority opinion “mark[ed] a sharp departure from” the Court’s precedents, including Levitt). ") Indeed, the Supreme Court has rejected Establishment Clause challenges to a number of programs in part because they offer benefits broadly to both religious and nonreligious recipients.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/application-of-the-lemon-test#fn19amd1 " See Mueller v. Allen, 463 U.