Case Summary and Outcome
The U.S. Supreme Court held that Rhode Island and Pennsylvania statutes which provided state funding for the teaching of secular subjects, as well as the associated teacher’s salaries, in parochial schools were unconstitutional. The Court found that the statutes were an excessive entanglement of church and state thereby violating the Establishment and Free Exercise Clauses of the First Amendment. The Court affirmed the decision in the Rhode Island case which had held that the state aid in support of secular instruction to teachers in Roman Catholic schools violated the Establishment Clause. Meanwhile, the Court reversed and remanded the decision of the Eastern District Court of Pennsylvania which had held that state reimbursements to non-public schools for expenditure on secular educational services did not violate the Establishment nor Free Exercise Clause. The Court reasoned that state funding for secular activities at non-public schools, as well as the required monitoring of the programs and the potential for political divisiveness this would entail, went beyond the acceptable degree of entanglement between church and state. It said that programs like the ones created in the Pennsylvania and Rhode Island statutes “too greatly blur the separation of church and state. Such entanglement is extremely dangerous and violates the First Amendment”.
This case is significant because the Court outlined what has become known as the “Lemon Test,” which was recently cited by the Hawaii and Maryland district courts in support of their issuing of temporary restraining orders against President Trump’s travel ban. According to the test: “First, the statute must have a secular legislative 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.”
In the late 1960s, the states of Rhode Island and Pennsylvania enacted statutes that provided non-secular religious private schools with financial support for the teaching of secular subjects. Secular subjects are nonreligious and are not limited by teachings of a religious order. The Rhode Island and Pennsylvania cases were brought separately but decided in a joint decision upon reaching the Supreme Court.
1. Rhode Island – Earley et al. v. DiCenso
Plaintiffs, citizens and taxpayers of Rhode Island, brought suit against the State of Rhode Island to have the 1969 Salary Supplement Act declared unconstitutional. Rhode Island’s 1969 Salary Supplement Act provided that the State could supplement 15% of teacher’s salaries who taught secular subjects at religious schools. Eligible teachers must have agreed to not teach courses in religion and only teach courses, using the same materials, as those offered in public schools. Appellees argued that the statute violated the Establishment Clause of the First Amendment. The District Court agreed, finding the statute unconstitutional under the Establishment Clause of the First Amendment and holding that the statute “fostered ‘excessive entanglement’ between government and religion… the Act had the impermissible effect of giving ‘significant aid to a religious enterprise.” The State appealed and the case was granted certiorari by the Supreme Court.
2. Pennsylvania – Lemon v. Kurtzman
Plaintiffs, citizens and taxpayers of Pennsylvania, brought suit against the Commonwealth of Pennsylvania to have Pennsylvania’s Nonpublic Elementary and Secondary Education Act of 1968 declared unconstitutional. The Act reimbursed religious schools for teachers’ salaries, textbooks, and materials related to secular subjects. The Act provided that all textbooks and materials must be pre-approved by the Superintendent and no payment could be made towards any course that expressed religious teachings. The Act was originally funded by a new tax on horse racing. One of the Plaintiffs, Alton J. Lemon, was the father of a child who attended Pennsylvania Public Schools. Lemon claimed to have paid the specific tax to support non-secular schools under the Act. The District Court found that the Act did not violate the Establishment or Free Exercise Clauses of the First Amendment. The Plaintiffs appealed and the case was brought before the Supreme Court.
Chief J. Burger delivered the opinion of the Court. The Court found that both the Rhode Island and Pennsylvania statutes were unconstitutional. The Court held that the statutes violated the Establishment and Free Exercise Clause of the First Amendment as well as the Due Process Clause of Fourteenth Amendment.
The Court firstly highlighted the “three main evils” which the Establishment Clause was intended to prevent: “sponsorship, financial support and involvement of the sovereign in religious activity.” The Court then specified the three tests that had been used previously by the Court to determine whether a State is guilty of one of the”three main evils”. First, the statute must have a secular legislative 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 found that both the Rhode Island and Pennsylvania statutes passed the first test and that, in fact, the statutes clearly stated an intention to enhance the quality of secular education.
The Court then considered the conclusion reached by the State legislators that secular and religious education are identifiable and separable with which, it said, it had no quarrel in the abstract. However the Court said that the States’ recognition that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented, had led them to create statutory restrictions designed to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former. The Court said that these provisions were precautions taken in candid recognition that the programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. In these circumstances, the Court said it didn’t need to decide whether the legislative precautions restricted the principal or primary effect of the programs to the point where they did not offend the Religion Clauses because it concluded “that the cumulative impact of the entire relationship arising under the statutes in each State involve[d] excessive entanglement between government and religion.”
The Court explained that the aim of the Establishment Clause is not absolute separation and that it was not possible for such an absolute to exist. It said that there are situations in which the state must have a relationship with religious institutions, for example, ensuring churches follow building regulations and requiring religious schools to comply with compulsory school attendance laws. However, the objective of the Establishment Clause is to prevent, as much as possible, the encroachment of religion onto the state and vice versa. An excessive entanglement of government and religion is determined by “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority”.
1. Rhode Island –Earley et al.v. DiCenso
With respect to the Rhode Island statute, the Court stated the following: Roman Catholic elementary schools are the sole beneficiaries of the 1969 Salary Supplement Act. The environment in such schools is entrenched with the values of the church, so far as catholic schools are considered to be “integral to the religious mission of the Catholic Church.” Approximately 75% of teachers at these elementary schools are nuns where nuns are taught to enhance the religious atmosphere while non-secular individuals are appointed to positions of authority and the schools in question had policies that aimed to keep a one-to-one ratio between nuns and secular teachers.
The pre-approval of the textbooks used is not enough to ensure secular teachings are actually occurring since teachers can have substantially different ideologies than textbooks. More importantly, there is nothing to say that a teacher under the authority of a religious institution will not teach religion or insert religion into an otherwise secular subject. The schools are supervised by their local parish and all teaching contracts are signed by the parish priest which has some discretion over salaries. The implication is not an assumption that these teachers would act in bad faith, but a frank realization that it would be extremely difficult for these teachers to remain secular in such an environment.
While the District Court stated the teaching of religious values did not necessarily infringe on secular teaching, the requirements as set forth in the Act would include heightened state surveillance of these schools to ensure that state aid was only going towards secular education. This surveillance would consequently be discriminatory against religious schools.
Finally, in order to receive funding, the government must have access to the school’s records to determine how much is spent on secular versus non-secular activities. The state’s observation of the religious activity is further proof of the entanglement the Constitution forbids. It places the government in a position to unduly influence religious schools and, thereby, religious institutions. The government’s interference here would violate the First Amendment.
The Court affirmed.
2. Pennsylvania –Lemon v. Kurtzman
With respect to the Pennsylvania statute, the Court expressed similar concerns that non-secular elementary and secondary schools have an ingrained interest in promoting religious faith. The Court noted that direct funds to non-secular institutions vary by level of state control and surveillance. The Pennsylvania statute in no way indicated to the Court what level of surveillance the state would adopt, therefore, the Court could not determine how great the relationship between the government and religious schools would be in this instance. However, entanglement is still present through the potential for these state programs to be politically divisive. As tuition rises or any number of scenarios occur, supporters of the religious schools (parents, teachers, churches) could politically align themselves solely based on faith. While democracies usually favor increased political discourse, the Court stressed that political division based on religious faith was “one of the evils” the First Amendment aimed to prevent. The Court noted that while the lower courts did not per se discuss this issue, the Court feared that political discourse would pressure Pennsylvania into expanding funding. The Court noted that the pressure to expand aid had caused the Pennsylvania state legislature to include a portion of state revenue cigarette taxes to fund the program.
The Court reversed and remanded the Pennsylvania case (Lemon) to be decided in compliance with this decision.
In conclusion, the Court emphasized that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn. It said that programs like the ones created in the Pennsylvania and Rhode Island statutes “too greatly blur the separation of church and state. Such entanglement is extremely dangerous and violates the First Amendment”.