Application of the Lemon Test

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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 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 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 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

The Court also applied Lemon to disapprove of a number of financial aid programs in the 1970s.5 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 In Nyquist, the Court considered a state law that, among other things, offered grants to private schools for facilities maintenance and repair.7 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 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

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 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 Seven years after its decision in Levitt, the Supreme Court upheld a revised version of the same testing-reimbursement law.12 The new law did not allow reimbursement for teacher-prepared tests and allowed states to audit payments.13 The Court ruled that these new safeguards were sufficient to ensure “that the cash reimbursements would cover only secular services,” 14 and did not create an impermissible entanglement with religion.15

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 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 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 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

In Mueller v. Allen, the Supreme Court concluded that a state could allow individual tax deductions for tuition, textbooks, and transportation costs incurred in sending students to religious schools.20 While the program disallowed deductions for instructional materials used to “inculcate” religious tenets or doctrine,21 the Court’s analysis did not seem to turn on this restriction. The Court instead stressed, among other factors, that the tax deduction was “available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend non-sectarian private schools or sectarian private schools.” 22 Because the benefit was broadly available and neutral on its face with respect to religion, the Court believed that the program had a primarily secular effect and did not imply state endorsement of religion.23

The Court solidified this approach in Bowen v. Kendrick, upholding a federal grant program for adolescent health services even though it did not expressly prohibit the use of federal funds for religious purposes.24 The Court noted that the statute made funds available to a wide variety of organizations and concluded that there was no evidence that a “significant proportion of the federal funds” would be given to religious institutions.25 Further, the Court said that it would assume that even absent an express restriction on the religious use of funds, religious grantees could carry out the funded programs “in a lawful, secular manner.” 26

Texas Monthly, Inc. v. Bullock, however, illustrates the limits of the Supreme Court’s favored approach of the 1980s. In Texas Monthly, the Court struck down a state tax exemption for periodicals distributed by a religious faith that consisted wholly of religious writings.27 Justice William Brennan, writing for a plurality of the Court, concluded that this exemption failed the endorsement test.28 He said that “when government directs a subsidy exclusively to religious organizations that is not required by the Free Exercise Clause,” that conveys an impermissible message of “state sponsorship of religious belief.” 29

1: Kennedy v. Bremerton Sch. Dist., No. 21-418, (U.S. June 27, 2022).
2: 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).
3: 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).
4: Tilton, 403 U.S. at 683 (plurality opinion); id. at 692 (Douglas, J., dissenting).
5: 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).
6: Nyquist, 413 U.S. at 779–80; Levitt, 413 U.S. at 480.
7: Nyquist, 413 U.S. at 774.
8: Id.
9: 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).
10: Levitt, 413 U.S. at 480.
11: 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.
12: Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 657, 659 (1980).
13: Id. at 652.
14: Id. at 659.
15: 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).
16: 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” ).
17: 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).
18: 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).
19: See Mueller v. Allen, 463 U.S. 388, 397 (1983); Bowen v. Kendrick, 487 U.S. 589, 610–11 (1988); see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 842 (1995) ( “It does not violate the Establishment Clause for a public university to grant access to its facilities on a religion-neutral basis to a wide spectrum of student groups . . . .” ).
20: Mueller, 463 U.S. at 402–03.
21: Id. at 403.
22: Id. at 397.
23: Id.
24: Bowen, 487 U.S. at 614.
25: Id. at 608, 610.
26: Id. at 612, 614.
27: Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 5 (1989) (plurality opinion).
28: Id. at 17.
29: Id. at 15 (emphasis added). Justice Harry Blackmun, joined by Justice Sandra Day O’Connor, agreed that the tax exemption violated the Establishment Clause because the state had “engaged in preferential support for the communication of religious messages.” Id. at 28 (Blackmun, J., concurring).