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Religious Freedom & Establishment Cause - William Allan Kritsonis, PHD
Religious Freedom & Establishment Cause - William Allan Kritsonis, PHD
Two questions:
What is the purpose of the law?
What is the primary effect of the law?
Court reasoning:
Lemon v. Kurtzman/Earley v.
DiCenso (1971)
Court reasoning: Burger brought together the three
criteria in earlier cases to create the Lemon test:
1. the statute must have a secular legislative
purpose.
2. its primary effect must be one that neither
advances nor inhibits religion.
3. it must not foster an excessive government
entanglement with religion.
Where did these statutes fail this test?
Lemon v. Kurtzman/Earley v.
DiCenso (1971)
First prong - secular legislative intent fine.
Second prong - primary effect unclear
Third prong excessive government entanglement
clearly fails. To monitor compliance, government has to be
continuously involved in examining church records &
surveilling teachers. Further, in Pennsylvania, the funds
go directly to the schools, not the teachers or parents.
A broader entanglement also arises, because of the
divisive political potential of these state programs.
Could result in political campaigns based on people's
religious faith.
Lemon v. Kurtzman/Earley v.
DiCenso (1971)
Concurrence (Douglas): Tax payer funds
cannot be used even for the secular portion
of a parochial school, because a school is a
single organism operating under one
budget. Public subsidies of secular
activities frees up funds for those schools to
use for religious instruction.
Lemon v. Kurtzman/Earley v.
DiCenso (1971)
Dissent in DiCenso (White): the plaintiffs
provided no evidence that non-secular
lessons were taught in secular classrooms in
religious schools. He argued that the 1 st
amendment permits state funds to
supplement salaries of teachers of secular
subjects.
Cases in the 1980s & early 1990s