403 U.S. 602 (1971), 89, Lemon v. Kurtzman

Docket Nº:Nos. 89, 569, 570. [*]
Citation:403 U.S. 602, 91 S.Ct. 2125, 29 L.Ed.2d 745
Party Name:Alton J. LEMON et al., Appellants, v. David H. KURTZMAN, as Superintendent of Public Instruction of the Commonwealth of Pennsylvania, et al. John R. EARLEY et al., Appellants, v. Joan DiCENSO et al. William P. ROBINSON, Jr., Commissioner of Education of the State of Rhode Island, et al., Appellants, v. Joan DiCENSO et al.
Case Date:June 28, 1971
Court:United States Supreme Court

Page 602

403 U.S. 602 (1971)

91 S.Ct. 2125, 29 L.Ed.2d 745

Alton J. LEMON et al., Appellants,


David H. KURTZMAN, as Superintendent of Public Instruction of the Commonwealth of Pennsylvania, et al.

John R. EARLEY et al., Appellants,


Joan DiCENSO et al.

William P. ROBINSON, Jr., Commissioner of Education of the State of Rhode Island, et al., Appellants,


Joan DiCENSO et al.

Nos. 89, 569, 570. [*]

United States Supreme Court.

June 28, 1971

For opinions of the Court see 91 S.Ct. 2091, 2105.


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[91 S.Ct. 2126] Mr. Justice BRENNAN.

I agree that the judgments in Nos. 569 and 570 must be affirmed. In my view the judgment in No. 89 must be reversed outright. I dissent in No. 153 insofar as the plurality opinion and the opinion of my Brother WHITE sustain the constitutionality, as applied to sectarian institutions, of the Federal Higher Education Facilities Act of 1963, as amended, 77 Stat. 363, 20 U.S.C. s 711 et seq. (1964 ed. and Supp. V). In my view that Act is unconstitutional insofar as it authorizes grants of federal tax monies to sectarian institutions, but is unconstitutional only to that extent. I therefore think that our remand of the case should be limited to the direction of a hearing to determine whether the four institutional appellees here are sectarian institutions.

I continue to adhere to the view that to give concrete meaning to the Establishment lishment Clause

'the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. It is a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First

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Amendment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. When the secular and religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers--as much to church as to state--which the Framers feared would subvert religious liberty and the strength of a system of secular government.' Abington School District v. Schempp, 374 U.S. 203, 294--295, 83 S.Ct. 1560, 1609--1610, 10 L.Ed.2d 844 (1963) (concurring opinion); Walz v. Tax Commission, 397 U.S. 664, 680--681, 90 S.Ct. 1409, 1417--1418, 25 L.Ed.2d 697 (1970) (concurring opinion).

The common feature of all three statutes before us is the provision of a direct subsidy from public funds for activities carried on by sectarian educational institutions. We have sustained the reimbursement of parents for bus fares of students under a scheme applicable to both public and nonpublic schools, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). We have also sustained the loan of textbooks in secular subjects to students of both public and nonpublic schools, Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). See also Bradfield v. Roberts, 175 U.S. 291, 20 S.Ct. 121, 44 L.Ed. 168 (1899).

The statutory schemes before us, however, have features not present in either the Everson or Allen schemes. For example, the reimbursement or the loan of books ended government involvement in Everson and Annen. In contrast each of the schemes here exacts a promise in some form that the subsidy will not be used to finance

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courses in religious subjects--promises that must be and are policed to assure compliance. Again, although the federal subsidy, similar to the Everson and Allen subsidies, is available to both public and nonpublic colleges and universities, the Rhode Island and Pennsylvania subsidies are restricted to nonpublic schools, and for practical purposes to Roman Catholic parochial schools. 1 [91 S.Ct. 2127] These and other features I shall mention mean for me that Everson and Allen do not control these cases. Rather, the history of public subsidy of sectarian schools, and the purposes and operation of these particular statutes must be examined to determine whether the statutes breach the Establishment Clause. Walz v. Tax Commission, supra, 397 U.S., at 681, 90 S.Ct., at 1417 (concurring opinion).

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In sharp contrast to the 'undeviating acceptance given religious tax exemptions from our earliest days as a Nation,' ibid., subsidy of sectarian educational institutions became embroiled in bitter controversies very soon after the Nation was formed. Public education was, of course, virtually nonexistent when the Constitution was adopted. Colonial Massachusetts in 1647 had directed towns to establish schools, Benjamin Franklin in 1749 proposed a Philadelphia Academy, and Jefferson labored to establish a public school system in Virginia. 2 But these were the exceptions. Education in the Colonies was overwhelmingly a private enterprise, usually carried on as a denominational activity by the dominant Protestant sects. In point of fact, government generally looked to the church to provide education, and often contributed support through donations of land and money. E. Cubberley, Public Education in the United States 171 (1919).

Nor was there substantial change in the years immediately following ratification of the Constitution and the Bill of Rights. Schools continued to be local and, in the main, denominational institutions. 3 But the demand for public education soon emerged. The evolution of the struggle in New York City is illustrative. 4 In 1786, the first New York State Legislature ordered that one section in each township be set aside for the 'gospel and schools.' With no public schools, various private agencies and churches operated 'charity schools' for the poor of New

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York City and received money from the state common school fund. The forerunner of the city's public schools was organized in 1805 when DeWitt Clinton founded 'The Society for Establishment of a Free School in the City of New York for the Education of such poor Children as do not belong to or are not provided for by any Religious Society.' The State and city aided the society, and it built many schools. Gradually, however, competition and bickering among the Free School Society and the various church schools developed over the apportionment of state school funds. As a result, in 1825, the legislature transferred to the city council the responsibility for distributing New York City's share [91 S.Ct. 2128] of the state funds. The council stopped funding religious societies which operated 16 sectarian schools but continued supporting schools connected with the Protestant Orphan Asylum Society. Thereafter, in 1831, the Catholic Orphan Asylum Society demanded and received public funds to operate its schools but a request of Methodists for funds for the same purpose was denied. Nine years later, the Catholics enlarged their request for public monies to include all parochial schools, contending that the council was subsidizing sectarian books and instruction of the Public School Society, which Clinton's Free School Society had become. The city's Scotch Presbyterian and Jewish communities immediately followed with requests for funds to finance their schools. Although the Public School Society undertook to revise its texts to meet the objections, in 1842, the state legislature closed the bitter controversy by enacting a law that established a City Board of Education to set up free public schools, prohibited the distribution of public funds to sectarian schools, and prohibited the teaching of sectarian doctrine in any public school.

The Nation's rapidly developing religious heterogeneity, the tide of Jacksonian democracy, and growing

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urbanization soon led to widespread demands throughout the States for secular public education. At the same time strong opposition developed to use of the States' taxing powers to support private sectarian schools. 5 Although the controversy over religious exercises in the public schools continued into this century, Schempp, 374 U.S., at 268--277, 83 S.Ct., at 1596--1601 (Brennan, J., concurring), the opponents of subsidy to sectarian schools had largely won their fight by 1900. In fact, after 1840, no efforts of sectarian schools to obtain a share of public school funds succeeded. Cubberley, supra, at 179. Between 1840 and 1875, 19 States added provisions to their constitutions iprohibiting the use of public school funds to aid sectarian schools, id., at 180, and by 1900, 16 more States had added similar provisions. In fact, no State admitted to the Union after 1858, except West Virginia, omitted such provision from its first constitution. Ibid. Today fewer than a half-dozen States omit such provisions from their constitutions. 6

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And in 1897, [91 S.Ct. 2129] Congress included in its appropriation act for the District of Columbia a statement declaring it

'to be the policy of the Government of the United States to make no appropriation of money or property for the purpose of founding, maintaining, or aiding by payment for service, expenses, or otherwise, any church or religious denomination, or any institution or society which is under sectarian or ecclesiastical control.' 29 Stat. 411.

Thus for more than a century, the consensus, enforced by legislatures and courts with substantial consistency, has been that public subsidy of sectarian schools constitutes an impermissible involvement of secular with

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religious institutions. 7 If this history is not itself compelling against the validity of the three subsidy statutes, in the sense we found in...

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