Church and State in the Modern Age: A Documentary History

By J. F. MacLear | Go to book overview

not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendment to the Constitution.

Source: Epperson et al. v. Arkansas, 393 U.S. 97.


SUGGESTIONS FOR BACKGROUND AND REFERENCE

D. E. Boles, The Bible, Religion and the Public Schools ( New York, 1961).

P. Kurland, Church and State: The Supreme Court and the First Amendment ( Chicago, 1975).

R. Morgan, The Supreme Court and Religion ( New York, 1972).

L. Pfeffer, God, Caesar, and the Constitution ( Boston, 1975), pp. 220-224.


178
Lemon v. Kurtzman (Extracts) June 28, 1971

In the 1960s private schools, often church-related and usually Catholic, had benefited from laws whereby financial assistance could be made available for certain educational functions. Thus Pennsylvania in 1968 granted public funds to defer costs of teachers' salaries, textbooks, and instructional aids in private schools; in 1969 Rhode Island supplemented wages of instructors of secular subjects in such schools. Both states' arrangements were disallowed by this 1971 decision, the Pennsylvania practice by unanimous judgment and the Rhode Island statute with only the single qualified dissent of Justice Byron R. White. The opinion, written by Chief Justice Warren E. Burger ( 1907-1986), stressed the entanglement test: the statutes failed to qualify constitutionally because in administering such practices, states would have to keep continuous surveillance to confirm that aid was used for secular purposes only. Moreover, politics would inevitably divide on religious lines if legislatures were called upon to vote funds for church-related institutions.

"Parochial aid" measures had been chiefly sought by Catholic schools, though some Protestant leaders, fearful of "secularism," and some politicians (including President Nixon) favored such legislation. While the decision added to financial crisis for some Catholic school systems, it did not invalidate indirect aid (such as health, bus, or lunch programs). Moreover, the issue did not die; it resurfaced in new ways in proposals for tax credits, parent reimbursement, various "voucher" arrangements, and other legislative strategems.

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our

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