Untitled Document

The significance of this case is that it articulated a three-pronged framework for determining whether a proposed law or practice violated the Establishment Clause of the First Amendment. While the Lemon framework was used to decide several subsequent cases, it became subject both to attack and to neglect in the jurisprudence of the 1980s and 1990s. It has never been overturned by the Court, but its staying power remains uncertain in 2004-05.

In these two cases (the Lemon case, named after the Superintendent of Public Instruction, was from PA and the DiCenso case was from RI), the Court held that the RI practice of giving salary supplements to teachers of secular subjects in nonpublic (Catholic) schools, and the PA practice of the state's reimbursement of nonpublic (mostly Catholic) schools for teachers' salaries and textbooks in four areas of secular instruction (PE, physical science, modern foreign languages and math) violated the Establishment Clause.

Writing for the eight Justice majority, Chief Justice Burger first described the nature of the state statutes before articulating the test for determining whether these statutes violated the Establishment Clause. Significant is that the RI statute was only passed in 1969 and the PA in 1968; thus the Supreme Court's consideration was much more rapid than is normally the case today. RI's law allowed a 15% salary supplement to parochial school teachers if they taught secular subjects with secular textbooks and the perpupil expenditure in their schools was less than the average perpupil expenditure on secular education in the state. PA's statute authorized the Superintendent of Public Instruction to purchase "secular educational services" from nonpublic schools by reimbursing these schools for actual expenditures for teachers and books in the "secular" subjects listed above.

Though confessing that the language of the Religion Clauses "is at best opaque," the Chief Justice, drawing on the 1970 Walz case, stated that the three main evils against which the Establishment Clause was intended to protect were "sponsorship, financial support, and active involvement of the sovereign in religious activity." After so stating, he articulated the Lemon test--in order to pass muster under the First Amendment (1) the statute must have a secular legislative purpose; (2) its principal or primary effect must neither advance nor inhibit religion; and (3) it must not foster an excessive government entanglement with religion.

The Chief Justice conceded the statutes' secular legislative intent by recognizing their purpose was to "enhance the quality of secular education." He then stated that the Court need not talk about the effect of the statutes because, under the "entanglement prong," both statutes fell short. Entanglement, in these cases, related to three things: the pervasive nature of Catholic doctrine permeating the entire school curriculum, the resulting situation that extensive state supervision would be required to monitor separation between church and state and the potential for "political divisiveness" along religious lines as religious and non-religious entities fought for scarce state funds.

In an insight that would continue to resonate, though often weakly, in Establishment Clause jurisprudence, the Chief Justice (as well as the concurrences) recognized that all of Catholic primary and secondary education is so suffused with principles of Catholic doctrine and the authority of the priests/bishops that even to try to separate secular from sacred subjects would founder because the persons sought to be reimbursed (teachers) had a "substantially different ideological character from books." Even if the Court assumed that the teachers in parochial schools would not consciously inculcate Catholic doctrine in "secular" subjects, the mere presence of the authority structure in the schools as well as the philosophy of the schools articulated in the "Handbook of School Regulations" for diocesan schools suggested that entanglement was inevitable. "A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected." Finally, the potential for political divisiveness is present in these two programs because of the need for continuing annual appropriations from the state legislature to fund them.

As with almost all frameworks, this one raises as many questions as it answers. Questions that will be of importance after Lemon include not only how important the framework will be for subsequent cases but also what satisfies each of the prongs. Will a legislatively-stated secular purpose be enough or does the Court engage in its own speculation? What happens if a law has both a secular and sacred purpose? Does one weigh them to determine predominance? And, again, the same questions could be raised about a secular effect. Then, are the two major components of entanglement articulated here (surveillance and divisiveness) the only two to consider? Finally, in a philosophical issue that gets to the heart of the nature of religion, to what extent is the division between secular and sacred a useful one when considering religious traditions and programs? All of these will be considered in subsequent cases.