Our amicus brief of three decades ago in Lemon v. Kurtzman (reproduced in the Appendix) argued that excluding religiously affiliated schools from the class of those whose teachers of secular subjects receive government sponsorship would violate the Free Exercise Clause because it would discriminate against the religiously observant. See Appendix, pp. 9-12. In the intervening thirty years, this Court has developed another constitutional doctrine -- most recently applied in Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819 (1995) -- that follows essentially the same course and leads to the same result.

The Court noted in its Rosenberger opinion that programs providing government financing to education will pass constitutional muster only if they are "neutral . . . towards religion." 515 U.S. at 839. This was the dispositive rule as early as Everson v. Board of Educ. of Ewing, 330 U.S. 1 (1947), where the Court warned that "general state law benefits" had to be available equally to all so that no "members of any . . . faith, because of their faith, or lack of it," would be excluded "from receiving the benefits of public welfare legislation." 330 U.S. at 16 (emphasis in original). Justice Black said in Everson that the First Amendment "requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary." 330 U.S. at 18.

This Court's Rosenberger opinion traced the "neutrality" principle from Everson through a series of later decisions of the Court. 515 U.S. at 839-842. The Court held in Rosenberger that excluding publications with religious content from the category of those entitled to government subsidies would manifest "pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires." 515 U.S. at 846.

By the same token, this constitutional principle -- developed in a series of decisions that were rendered after Lemon v. Kurtzman (including principally Widmar v. Vincent, 454 U.S. 263 (1981); Board of Educ. of Westside Community Schs. v. Mergens, 496 U.S. 226 (1990); and Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)) -- warrants overruling the holding in Lemon v. Kurtzman. The result reached by the majority in Lemon effectively disqualified religious schools -- which have come to be described as "pervasively sectarian" -- from programs of government financing for secular education entirely because they provide religious teaching to their students in addition to secular instruction.

Parents who are conscientiously moved to enroll their children in religious schools in order that they may receive intensive religious training are constitutionally entitled to be free of governmental discrimination based on their religious beliefs. Yet Lemon v. Kurtzman has precisely such a discriminatory effect. It forbids sponsorship of secular teachers in religious schools even though comparable private schools that do not teach religion qualify, under the Lemon ruling, for secular teacher reimbursement or salary supplementation. The court below invoked the decisions that followed Lemon to deny secular computer technology to the secular programs of religious schools, thereby discriminating against parents and students "because of their faith." This denies to observant Jews, Christians, or Muslims who send their children to parochial schools the benefits of generally available governmentally financed educational programs. The principle of neutrality prohibits that result.

For the foregoing reasons, Lemon v. Kurtzman, 403 U.S. 602 (1971), should be overruled and the judgment of the Court of Appeals for the Fifth Circuit should be reversed.

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