Lemon v. Zelman

This is a paper I just wrote for my Religion and the Constitution class on the debate over how the Supreme Court should decide its cases that deal with ... well, you'll see. Comments, feedback, arguments and critique are welcomed :-)

The 2002 Supreme Court case Zelman v. Simmons-Harris is just one piece in the controversy surrounding the First Amendment establishment clause, but it is important since it sets new precedent in the way the Establishment Clause is handled. Before Zelman, the Court used the precedent set in Lemon v. Kurtzman to determine if the First Amendment was being violated. In Zelman, the Court tacitly acknowledged that the prongs of the Lemon test were not adequate for cases that challenge “neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing” (406), and took a new approach: that of taking the principles behind the decisions in Mueller, Witters and Zobrest as precedent instead of Lemon.

The issue in Zelman was the state of the Cleveland public schools, which were failing all the tests given to schools to ensure minimum competency to the extent that a Federal District Court in 1995 “declared a ‘crisis of magnitude’ and placed the entire Cleveland school district under state control” (404). Consequently, the State of Ohio found it necessary to assist the parents of these failing school children to help provide the standard of education the state had taken responsibility to provide (Yoder, p. 133). The method the state chose to accomplish this goal was to give vouchers – financial assistance – to parents, who could in turn use the money to send their child to a private school – religious or non-religious – of their choice. In Zelman, the Court ruled that “[T]he Ohio program is entirely neutral with respect to religion … [it] is therefore a program of true private choice” (409). By this the Court acknowledged that the program was, at the very least, not obviously in violation, and since the case was not a clear yes or no, a good test was needed to see if the voucher system should be overturned or left in place. Since the question concerned neutrality in governmental aid to sectarian schools, the obvious solution was to look at cases with similar situations, such as Mueller, Witters and Zobrest, instead of trying to stretch Lemon to apply to all cases.

Although the Court’s decision may use criteria drawn from Lemon, the majority opinion does not cite Lemon at all, but instead draws its main strength in precedent from Mueller, Witters and Zobrest. “There is no dispute that the [voucher] program challenged here was enacted for [a] valid secular purpose” (405), Justice Rehnquist wrote. This could be taken as an application of one of the prongs of Lemon – but that is questionable evidence for the argument that Lemon was helpful in deciding the case. Drawing from the three cases the majority thought to be most applicable, the Court opinion stated that “no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement” (407). The Zelman double criterion of obvious neutral intention, and aid solely as a result of private choice on the part of ‘numerous’ individuals is a much better test for cases dealing with these issues.

While Lemon can be useful in deciding some cases that deal with the First Amendment, the prongs of Lemon are unhelpful in cases like Zelman – secular purpose can be argued, but so can religious establishment. Primary purpose can be easily explained as helping educate children; primary effect can be thrown back in the form of vouchers redeemed at sectarian schools. Lastly, there is the ambiguous, ominous “excessive entanglement” factor that depends almost entirely on subjective belief and individual perspective in a case where both sides claim First Amendment rights to their side. The precedent set in Zelman without using Lemon is clearer and more easily applicable to the category of First Amendment cases dealing with neutrality in government funding for education and therefore is the preferable approach for such cases.