DECISION IN LEMON V. KURTZMAN

The second rationale provided in Lemon v. Kurtzman for striking down the Rhode Island and Pennsylvania statutes was that the process of policing the teachers of secular subjects will inevitably be so intrusive that it will result in "excessive and enduring entanglement between state and church." 403 U.S. at 619. Justice White correctly observed in dissent that this proposition "creates an insoluble paradox for the State and the parochial schools." 403 U.S. at 668. Teaching religion in a publicly financed secular class of a religious school is, under this reasoning, constitutionally impermissible, but enforcing the assurance that no religion will be taught is itself a reason for invalidating the entire program.

This Court categorically rejected the identical entanglement argument in Agostini. It noted that only "excessive" entanglement is constitutionally forbidden, and it subsumed the "no-entanglement" inquiry in the overall appraisal of a statute's effect. 521 U.S. at 232. The Court observed that "[u]nder our current understanding of the Establishment Clause," neither "administrative cooperation" between government officials nor the possibility of "political divisiveness" (discussed in Lemon, 403 U.S. 622-624) amounts to "excessive" entanglement. 521 U.S. at 232. And it concluded that when the Court abandoned the assumption that secular teachers would necessarily inculcate religion "simply because they happen to be in a sectarian environment" (521 U.S. at 233), it made pervasive monitoring -- the only kind of surveillance that is, by current standards, constitutionally impermissible -- unnecessary.

The Court's opinions in Witters v. Washington Dept. of Servs. for the Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993); and Agostini, 521 U.S. 203 (1997), have, therefore, as significantly "undermined the assumptions" (521 U.S. at 206) on which Lemon v. Kurtzman was decided as they "undermined the assumptions" of School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985). Recent significant changes in constitutional doctrine led to this Court's explicit overruling of Ball and Aguilar, and they justify, as well, the explicit overruling of Lemon v. Kurtzman.

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