Opinion — Lemon v. Kurtzman

SUPREME COURT OF THE UNITED STATES

Syllabus

LEMON er au. v. KURTZMAN, SUPERINTENDENT

OF PUBLIC INSTRUCTION OF

PENNSYLVANIA, er AL.

APPEAL FROM “THE DISTRICT COURT FOR THE EASTERN

; DISTRICT OF PENNSYLVANIA

No. 71-1470. Argued November 8, 1972—Decided April 2, 1973

Following this Court’s invalidation in Lemon v. Kurtzman, 403

U. 8. 602 (Lemon I) of Pennsyivania’s statutory program to

reimburse nonpublic sectarian schools (hereafter schools) for sec-

ular educational services, the District Court on remand enjoined

ny payments under the program for services rendered after

Lemon I, but permitted Pennsylvania to reimburse the schools

for services performed prior to that decision. Appellants chal-

lenge the scope of this decree. Held: The judgment is affirmed.

Pp. 1-16.

Tue Curr Justice, in an opinion joined by Mr. Justice

Bucxmun, Mr. Justice Powe.t, and Mr. Justice ReHnquist

concluded that: The District Court did not abuse its discretion in

permitting Pennsylvania to reimburse the schools for services

rendered and costs incurred in reliance on the statutory scheme

prior to its invalidation in Lemon I. Pp. 5-16.

(a) An unconstitutional statute is not absolutely void, but is a

practical reality upon which people rely. Courts recognize that

reality. Pp. 5-7.

(b) A trial court ha» wide latitude in shaping an equitable decree

and reaching an accommodation between public and private needs.

Pp. 7-8.

(c) The contested reimbursement will not contravene the con-

stitutional principle of Lemon I of avoiding the ongoing entangle-

ment of church and state, since only a final, ministerial post-audit

is involved and no further detailed state surveillance of the schools

“ig required. At the same time, however, supervision already

SUIT Gases cast for covtavun parpereh Tee progumed

nent will not be used for sectarian purposes. The proposed

I

payment reflects only the schools’ expenses incurred in expectation

of reimbursement. Pp. 9-10. - ’

(d) The schools relied in good faith on the state statute, which

invited the contracts and, authorized reimbursement for pas

services; and appellants, in sélf-styled “sensible recognition of the

practical realities of the situation,” may well have encouraged such

reliance by the,schools by not moving to have the payments en-

joined before the contract services had been performed. Pp. 11-13.

(e) The schools could not have anticipated the Lemon / holding,

which involved resolution of an issue of first impression that “was

not clearly foreshadowed.” Pp. 13-14.

(f) A State and those with whom it deals are not to be subjected

to harsh, retrospective relief merely because they act on the basis

of presumptively valid legislation, in the absence of contrary

judicial direction. Pp. 15-16.

Mr. Justice Wurre concurred in the judgment.

348 F. Supp. 300, affirmed.

Buragr, C. J., announced the judgment of the Court and an

opinion in which BLackmun, Powgi1, and Rennaquist, JJ., joined.

Wurrs, J., concurred in the judgment. Doveras, J., filed a dis-

senting opinion, in which BRENNAN and Srewart, JJ., joined. Mar-

SHALL, J., took no part in the consideration or decision of the case.

L

revision before publication

SUPREME COURT OF THE UNITED STATES

No. 71-1470

Alton J. Lemon et al.,

Appellants,

v

On Appeal from the United

States District Court for

the Eastern District of

David H. Kurtzman, Etc.,} poy nay)vania.

et al.

[April 2, 1973]

Mr. Cuzer Justice Burcer announced the judgment

of the Court and an opinion in which Mr. Justice BLACK-

mun, Mr. Justice Powett, and Mr. Justice REHN-

QUIST join. /

On June 28, 1971, we held that the Pennsylvania stat-

utory program to reimburse nonpublic sectarian schools

for certain secular educational services violated the Estab-

lishment Clause of the First Amendment. The case was

remanded to the Three-Judge District Court for further

i consistent with our opinion. Lemon v.

Kurteman, 403 U.S. 602 (1971) (Lemon I). On remand,

the District Court entered summary judgment in favor of

appellants and enjoined payment, under Act 109, of any

state funds to nonpublic sectarian schools for educational

services performed after June 28, 1971. The District

Court’s order permitted the State to reimburse non-

public schools for services provided before our decision

in Lemon I. Appellants made no claim that appellees

refund all sums paid under the Pennsylvania statute’

struck down in Lemon I.

1 Non-public Elementary and Secondary Education Act, 109 (24

P. 8. §§ 5601-5609).

LEMON v. KURTZMAN

Appellants, the successful plaintiffs of Lemon I, now

challenge the limited scope of the District Court’s in-

junction. Specifically, they assert that the District Court

erred in refusing to enjoin payment of some $24 million

set aside by Pennsylvania to-compensate nonpublic sec-

tarian schools for educational services rendered by them

during the 1970-1971 school year. We noted probable

jurisdiction, 406 U.S. 943 (1972), and we affirm the

judgment of the District Court.

(1)

The specifics of the Pennsylvania statutory scheme

held unconstitutional in Lemon J need be recalled only

briefly. Under Act 109, the participating nonpublic

schools of Pennsylvania were to be reimbursed by the

State for certain educational services provided by the

schools pursuant to purchase-of-service contracts with

the State. According to the terms of the contracts, the

schools were to provide teachers, textbooks, and instruc-

tional materials for mathematics, modern foreign lan-

guage, physical science, and physical education courses—

“secular” courses of instruction. The State was not only

to compensate the schools for the services provided, but

also to undertake continuing surveillance of the instruc-

tional programs to insure that the services purchased

were not provided in connection with “any subject matter

expressing religious teaching, or the morals or forms of

worship of any sect.” See Lemon I, supra, at 609-610.

Under § 5607 of the Act, any nonpublic school seeking

reimbursement was to “maintain such accounting pro-

cedures, including maintenance of separate funds and

accounts pertaining to the cost of secular educational

services, as to establish that.it actually expended in sup-

port of such service an amount of money equal to the

amount of money sought in reimbursement.” To this

end, the school accounts were to be subject to audit by the

LEMON v. KURTZMAN 3

State Auditor General. Actual payment was to be made

by the Superintendent of Public Instruction “in four equal

installments payable on the first day of September, De-

cember, March, and June of the school term following the

school term in which the secular educational service was

rendered.” (Emphasis supplied.)

~ ie. we held that, although Act 109 had a

secular. legislative purpose, the Act fostered “excessive

entanglement” of church schools and State through the

requirement of ongoing state scrutiny of the educational

programs of sectarian schools, the statutory post audit

procedures, and potential involvement in the political

process. We found it unecessary to decide whether Act

109 was constitutionally infirm on the additional ground

that the “primary effect” of any state payments to church

related schools would be to promote the cause of religion

in contravention of the Establishment Clause of the First

Amendment.

(2)

Against this backdrop we turn to the events relevant

to this appeal. On June 19, 1968, Act. 109 became law.

Approximately one month later, appellants publicly de-

clared their intention of challenging the constitution-

ality of the new legislation. During the following six

months, the State took steps to implement the Act,

promulgating regulations and, in January of 1969, enter-

ing for the first time into service contracts for the 1968-

1969 school year (then in progress) with approximately

1,181 nonpublic schools thoroughout Pennsylvania. The

schools submitted schedules in June of 1969, at the con-

clusion of the 1968-1969 school year, specifying the pre-

cise items of expense during that year for which they

would seek reimbursement, to be made during the 1969-

1970 school year. On June 3, 1969, appellants filed

their complaint, asking that Act 109 be declared un-

constitutional and its enforcement enjoined.

LEMON »v. KURTZMAN

Simultaneously with their 1969 complaint, appellants

filed a motion for a preliminary injunction, to restrain

the responsible state officials from “paying or processing

for paying any funds pursuant to {Act 109].” However,

appellants abandoned the request for preliminary relief

in a letter of August 28, 1969, from their counsel to Judge

Troutman. Appellants, describing their position as a

“sensible recognition of the practical realities of the sit-

uation,” . “withdrew from any attempt to prevent

initial puyinent to the nonpublic schools scheduled for

September 2 [1969].” In the same letter, appellants’

- counsel mentioned the payments scheduled for Decem-

ber 2 1969, but in fact no attempt was ever made to

enjoin those reimbursements.

On November 29, 1969, a divided District Court granted

appellees’ motion to dismiss appellants’ complaint for

failure to state a claim on which relief could be granted.

Appellants filed a notice of appeal to this Court on De-

cember 17, 1969; at no time before or after probable

jurisdiction was noted on April 20, 1970, did appellants

move for interlocutory relief pending appeal, even though

on January 15, 1970, the schools entered into service

contracts with the States for the 1969-1970 school year.

Consequently the District Court had no occasion to

consider the exercise of injunctive power pendente lite.

In September of 1970, the schools began performing

services for the 1970-1971 school year, compensable under

the terms of Act 109; and on January 15, 1971, contracts

were entered into for that school year. On June 28, 1971,

we held Act 109 unconstitutional and remanded the

cause to the District Court for further proceedings con-

sistent with our opinion. Not until appellants filed their

motion for summary judgment, in August 1971, did they

first indicate their intention to prevent reimbursement

LEMON v. KURTZMAN 5

under Act 109 for.the services already provided by the

schools during the 1970-1971 school year.

(3)

Claims that a particular holding of the Court should

be applied retroactively have been pressed on us fre-

eee! in recent years. Most often, we have been called

to decide whether a decision defining new consti-

Beretta od ¢ deleriatt in a eciminal cose should

be applied to convictions of others that predated the new

constitutional development. EZ. g., Robinson v. Neil,

— U. §:—— (Jan. 16, 1973) ; Adams v. Illinois, 405 U. S.

978 (1972) ; Desist v. United States, 394 U. S. 244 (1969) ;

Stovall v. Denno, 388 U. S. 293 (1967) ; Johnson v. New

Jersey, 384 U.S. 719 (1966); Tehan v. Shott, 382 U. S.

406 (1966); Linkletter v. Walker, 381 U.S. 618 (1965).

But “in the last few decades, we have recognized the

doctrine of nonretroactivity outside the criminal area

many times, in both constitutional and nonconstitutional

cases.” Chevron Oil Co. v. Huson, 404 U. S. 97, 106

(1971); Hanover Shoe v. United Shoe Machinery Corp.,

392 U. S. 481 (1968); Simpson v. Union Oi Co., 377

U. S.. 13 (1964); England v. State Board of Medical

Examiners, 375 U. S. 411 (1964). We have approved

nonretroactive relief in civil litigation, relating, for ex-

ample, to the validity of municipal financing founded

upon electoral procedures later declared unconstitutional,

Cipriano. v. City of Houma, 395 U. S. 701 (1969), and

City of Phoeniz v. Kolodziejski, 399 U. S. 204 (1970) ;

or to the validity of elections for local officials held under

possibly discriminatory voting laws, Allen v. State Board

of Elections, 393 U. S. 544 (1969). In each of these

cases, the common request is that we reach back to dis-

turb or to attach legal consequence to patterns of con-

duct premised either on unlawful statutes or on a differ-

6 LEMON v. KURTZMAN

ent understanding of the controlling judge-made law than

Appellants urge; as they did in the District Court, a

strange amalgam of flexibility and absolutism. Appel-

lants assure us that they do not seek to require the schools

to disgorge prior payments received under Act 109; in

the same breath, appellants insist that the presently dis-

puted payment be enjoined becatise an unconstitutional

statute “confers no rights; it imposes no duty; it affords

no protection; it creates no office; it is, in legal con-

templation, as inoperative as though it had never been

passed.” Norton v. Shelby County, 118 U.S. 425 (1886).

Conceding that we have receded from Norton in a host

of criminal decisions and in other recent constitutional

decisions relating to municipal bonds, appellants never-

theless view those precedents as departures from the

established norm of Norton. We disagree.

The process of reconciling the constitutional interests

reflected in a new rule of law with reliance interests

founded upon the old is “among the most difficult of

those that have engaged the attention of courts, state

and federal. .. .” Chicot County Drainage Dist. v.

Baxter State Bank, 308 U. 8. 371, 374 (1940). Conse-

quently, our holdings in recent years have emphasized

that the effect of a given constitutional ruling on prior

conduct “is subject to no set ‘principle of absolute retro-

active invalidity’ but depends upon a consideration of

‘particular relations . . . and particular conduct .

of rights claimed to have become vested, of status, of

prior determinations deemed to have finality’; and of

‘public policy in the light of the nature both of the stat-

ute and ite previous applications.’” Linkletter, supra,

at 626-627, quoting from Chicot County Drainage Dist.,

supra, at 374. ‘However appealing the logic of Norton

may have been in the abstract, its abandonment reflected

our recognition that statutory or even judge-made rules

LEMON v. KURTZMAN 7

of lew are hard facts:on which people must rely in mak-

ing decisions and in shaping their conduct. This fact of

jegal Jife- underpins ‘our modern decisions recognizing &

doctrine of ‘nonretroactivity. Appellants offer no per-

suasive reason for confining the modern approach to those

constitutional eases involving criminal procedure or mu-

nieipal.bonds, and we ourselves perceive none.

In Linkletter, the Court suggested a test, often re-

peated since, embodying the recent balancing approach ;

we looked to “the prior history of the rule in question, its

purpose and effect, and whether retrospective operation

will further or retard its operation.” Those guidelines

are helpful, see pp. 9-11, infra, but the problem of Link-

letter. and its progeny is not precisely the same as that

now before us. Here, we are not considering whether

we will apply a new constitutional rule of criminal law

in reviewing judgments of conviction obtained under a

prior standard; the problem of the instant case is es-

sentially one relating to the appropriate scope of federal

equitable remedies, a problem arising from enforcement

of & state statute during the period before it had been

declared unconstitutional. True, the temporal scope of

the injunction has brought the parties back to this Court,

and their dispute calls into play values not unlike those

underlying Linkletter and its progeny. But however we

state the issue, the fact remains that we are asked to re-

examine the District Court’s evaluation of the proper

means of implementing an equitable decree. Cf. United

States v. Estate of Donnelly, 397 U. S. 286, 295 (1970);

id., at 296-297 (Harlan, J., concurring).

In shaping equity decrees, the trial court is vested with

discretionary power; appellate review is corre-

spondingly narrow. Swann v. Charlotte-Mecklenburg,

ete, Board of Education, 402 U. 8. 1, 15, 27 n. 10 (1971).

Moreover, in constitutional adjudication as elsewhere,

equitable remedies are a special blend of what is neces-

_ ee LEMON v. KURTZMAN

sary; what is fair; and whatis workable. ‘Traditionally,

equity has been characterized by a practical flexibility in

shaping its remedies and by a facility for. adjusting and

reconciling: public and. private needs.” Brown v. Board

of Education. (11),:349.U. 8. 204, 300 (1955). Mr. Jus

Tice Doveuas; speaking for the Court, has said,

“The essence of equity jurisdiction has been the

power of the Chancellor to do equity and to mold

each decree to the necessities of the particular case.

Flexibility rather than rigidity: has distiguished it.

The qualities of mercy and practicality have made

equity the instrument for nice adjustment and recon-

ciliation between the public interest and private

needs as well as between competing private claims.”

Hecht Co. v: Bowles, 321 U. S. 321, 329-330 (1944).

See also Holmberg v, Armbrecht, 327 U. S. 392, 396

(1946).

In equity as nowhere elee courts eschew rigid absolutes

and look to the Practical realities and necessities inescap-

ably involved in reconciling competing interests, not-

withstanding those interests have constitutional roots.

"Fa. Liniloetcr supra, the Court recalled Mr. Justice Cardoso’s

statemenit that “the federal ‘Constitution has no voice upon the sub-

ject.” 881 U. S., at 629, citing Great Northern R. Co. v. Sunburst

Oil & Refining Co., 287 U. 8. 358, 364 (1932). In Sunburst, the

Court refused to accept the petitioner's contention that “[a}dherence

to precedent as establishing a governing rule for the past in respect

of the meaning of a statute is ... a denial of due process when

coupled with the dedarstion of intention to refuse to adhere to i

in adjudicating any controversies growing out of the transactions of

the future.” Instead, the Court held that

“A state, in defining the limits of adherence to precedent, may make

a choice for itself between the principle of forward operation and

that of relation backward.” /Jbid.

Sunburst does not, of course, suggest that we may ignore constitu-

tional interests in deciding whether to attach retrospective effect to

@ constitutional decision of this Court.

LEMON v. KURTZMAN 9

sideiaulials

The constitutional fulerum of Lemon I was the ex-

cessive entanglement of church and state fostered by Act

109. We found it unnecessary to decide whether Act

100’s “legislative précautions restrict the principal or pri-

mary effect of the programs to the point where they do

not offend the Réligion Clauses.” 403 U. 5S., at 613-614.

For, as we said of“both Act 109 and the similar Rhode

‘Island provision, “[a] comprehensive, discriminating, and

continuing state surveillance will inevitably be required

to ensure that these restrictions are obeyed.... These

tore contacts will involve excessive and endur-

entanglement between state and church.” 403 U.S.,

at 4! 619. We further emphasized the reciprocal threat to

First Amendment interests from enmeshing the divisive

issue of direct aid to religious schools in the traditional

political processes. Id., at 622-624.

The sensitive values of the Religion Clauses do not

readily lend themselves to quantification, but despite the

inescapable imprecision we think it clear that the proposed

distribution of state funds to Pennsylvania’s nonpublic

schools will not substantially undermine the constitu-

tional interests at stake in Lemon I. Act 109 required

the Superintendent of Public Instruction to ensure that

educational services to be reimbursed by the State were

kept free of religious influences. Under the Act, the

Superintendent’s supervisory task was to have been com-

pleted long ago, during the 1970-1971 school year itself;

nothing in the record suggests that the Superintendent

did not faithfully execute his duties according to law.

Hence, payment of the present disputed sums will compel

no further state oversight of the instructional processes

of sectarian schools. By the same token, since the con-

stitutionality of Act 109 is now settled, there is no further

potential for divisive political conflict among the citizens

and legislators of Pennsylvania over the desirability or

10 LEMON v. KURTZMAN

degree of direct state aid to sectarian schools under Act

100.

Two problems having constitutional overtones remain,

but their resolution requires no compromise of the basic

principles of Lemon I, There is, first, the impact of the

single and final post-audit. The record indicates that

the post-audit process will involve only a ministerial

“cleanup” function, that of balancing expenditures and

receipts in the closing accounting—undertaken only once,

and in that setting a minimal contact of the State with

the affairs of the schools, Second, there is the question

of impinging on the Religion Clauses from the fact of

any payment that. provides any state assistance or aid

to sectarian schools—the issue we did not reach in

Lemon I, Yet even assuming a cognizable constitu-

tional interest in barring any state payments, under the

District Court holding that interest is implicated only

once under special circumstances that will not recur.

There is no present risk of significant intrusive admin-

istrative entanglement, since only a final post-audit re-

mains and detailed state surveillance of the schools is

a thing of the past. At the same time, that very process

of oversight—now an accomplished fact—assures that

state funds will not be applied.for any sectarian pur-

poses.’ Finally, as will appear, even this single proposed

* See Lemon I, supra:

“If the government closed its eyes to the manner in which these

grants are actually used it would be allowing public funds to pro-

mote sectarian education. If it did not close ite eyes but undertook

the surveillance needed, it would, EM reo trainers Pa agape

at 640 (concurring opinion of Dovazas, J.).

Sethe ipeam abiebraiieanah tal Aebedig patent tee'thiy Crate wal

LEMON v. KURTZMAN ll

payment for services long since passing state scrutiny

reflects no more than the schools’ reliance on promised

payment for expenses incurred by them prior to June 28,

1971.

_ Offsetting the remote possibility of constitutional harm

‘from allowing the State to keep ite bargain are the

expenses incurred by the schools in reliance on the state

statute inviting the contracts made and authorizing reim-

bursement for past services performed by the schools.‘

It is well established that reliance interests weigh heavily

in the shaping of an appropriate equitable remedy.

City of Phoenix v. Kolodziejeki, supra; Cipriano v. City

of Houma; Allen v. Bd. of Elections, supra. That

there was such reliance by the schools is reflected by

a well supported District Court finding. The District

Court found that there was no dispute “that to deny

the church-related schools any reimbursement for their

services rendered would impose upon them a substantial

hardship which would be difficult for them to meet.” *

it, it is then entangled in the ‘no entanglement’ aspect of the Court’s

Establishment Clause jurisprudence.” Jd., at 601 (dissenting opinion

of Wurrs, J.).

Here, the “insoluble paradox” is avoided because the entangling

supervision prerequisite to state aid has already been accomplished

and need not enter into our present evaluation of the constitutional

interests at stake in the proposed payment.

*We agree with the District Court that whether the payments in

question constitute payments under valid contracts or a subsidy

“makes no difference in our decision.” To characterize the pay-

ments as subsidies does not “lessen the reliance of the nonpublic

schools on the payments or the subsequent hardship upon them if

the payments are not made.”

*The District Court’s comment in turn reflects the following col-

loquy between that court and counsel for appellants, at the Decem-

ber 15, 1971 hearing after remand from this Court:

“MR. SAWYER: I am perfectly willing to concede—and I think

I must here; we have taken no evidence—that there was reliance.

> J LEMON ‘v. KURTZMAN

‘The significance'of appellee schools’ reliance is rein-

forced by the fact that appellants’ tactical choice not

to. press for interim injunctive suspension of pay-

ments or contracts during the pendency of the Lemon |

litigation may well have encouraged the appellee schools

to incur detriments in reliance upon reimbursement by

the State under Act 109. In June 1960, appellants ini-

tiated the litigation that culminated in LemonI. Though

initially appellants moved for a preliminary injunction,

to block the September 1960 payment of funds for serv-

ices rendered during the 1968-1969 school year, for rea-

sons of their own appellants withdrew the request.

Funds were paid in September and December of 1969,

and in March and June of 1970. In 1970, the State

entered into new contracts with the nonpublic schools;

appellants took no steps to block the making of these

contracts or to prevent the State from disbursing funds,

in September and December of 1970, March and June

of 1971, for services rendered during the 1969-1970

school year. Appellants, meanwhile, had filed a notice

of appeal to this Court by the time the distribution of

funds for the 1969-1970 school year began. It was only

after our decision in Lemon I—six months after the con-

tracts for the 1970-1971 school year were perfected and

after all services under those contracts had been per-

formed—that appellants asserted their intention to block

And. I would like to state, so there is no question about that, that

I am assuming there was reliance. I think as a practical matter,

however, the schools continued to do what they were doing before.

“JUDGE HASTIE: Reliance in the sense, I assume, of deter-

mining activities and expenditures in anticipation that this amount

would be reimbursed?

“MR. SAWYER: I know of a school that escrowed it, but I would

think that would be rare. And I have to live with that, I think,

unless I want to be prepared to go ahead and ask to take testimony

and try to prove that wasn’t so... .”

LEMON v. KURTZMAN 13

the payments due beginning in the fall of 1971. Thus

for nearly two years, the State and the schools pro-

ceeded to act’ on the assumption that appellants would

continue to adhere to a “sensible recognition of the

practical realities of the situation.”

There has been no demonstration by the appellee

schools of the precise amount of any detriment in-

curred by them during the 1970-1971 school year in the

expectation of reimbursement by the State. The com-

plexity of such a determination for each of Pennsylvania’s

1,181 nonpublic schools that contracted with the State

under Act 109 is readily apparent.’ But we need not

dwell on the-matter of uncertainty. On this record the

District Court could reasonably find reliance on the part

of the appellee schools and reasonably could conclude no

more was needed to demonstrate retrospectively the de-

gree of their reliance.

It is argued, though, that the schools were foolhardy

to rely on any reimbursement by the State whatever, in

view of the constitutional cloud over the Pennsylvania

program from the outset. We conclude, however, that

our holding in Lemon I “decid[ed] an issue of first im-

pression: whose resolution was not clearly foreshadowed.”

Chevron Oil Co. v. Huson, supra, 404 U.S., at 106. A

three-judge district court, with one dissent, upheld Act

*As to eath school, the determination of actual reliance would

be subtle, premised largely on credibility and not on facts of record.

Nonreliance could not be assumed simply because expenditure levels

remained constant before and after Act 109; any school might well

assert that it would have reduced its educational expenditures in

some particular but for the expectation of compensation for certain

other expenditures incurred in connection with Act 109. Similarly,

the inquiry could not be limited to expenditures for those items

specified by the Act. Increased expenditures for any of the gamut

of a school’s activities might have been incurred in reliance on reim-

bursement for services covered by Act 109.

14 LEMON v. KURTZMAN

109, Soon after, another three-judge district court in

Rhode Island held unconstitutional the Rhode Island

statutory scheme we considered together with Pennsyl-

vania’s program in Lemon J. Nor were district courts

alone in disagreement over the constitutionality of

Lemon-style plans to provide financial assistance to

sectarian schools. This Court was itself divided when

the issue was ultimately resolved after full briefing and

argument. And the Court acknowledged “that we can

only dimly perceive the lines of demarcation in this

extraordinarily sensitive area of constitutional law.”

Lemon I, supra, 403 U. &., at 612."

That. there would be constitutional attack on Act 109

was plain from the outset. But this is not a case where

it could be said that appellees acted in bad faith or that

they relied on a plainly unlawful statute. In this case,

even the clarity of hindsight is not persuasive that the

constitutional resolution of Lemon I could be predicted

with assurance sufficient to undermine appellees’ reliance

on Act 109.

* According to the dissent, appellees can “tender no considerations

of equity” because they had *‘cléar warning” that they were “tread-

ing on unconstitutional grotind.” The apparent premise for this

assertion is the view that the Establishment Clause forbids any and

all use of tax moneys to “support” or to “subsidize” sectarian schools,

Yet the Court’s decisions, prior to and at the time of Lemon /, shied

away from this sweeping application of the Establishment Clause,

favoring instead particularised analysis of state involvement in reli-

gious schools, with the analysis based upon the facts and circum-

stances before us. Tilton v. Richardson, 403 U. 8. 672 (1971);

Wals v. Taz Commission, 307 U. 8. 664, 669 (1970); Board of Edu-

cation v. Allen, 392 U. 8. 236, 242-243 (1968); Everson v. Board of

Education, 380 U.S. 1, 14 (1947), There is, then, no basis for the

dissent's Suggestion that the Court has been “unequivocal” in pro-

scribing all state assistance to religious schools.

LEMON »v. KURTZMAN 15

(5)

In the end, then, appellants’ position comes down to

this: that any reliance whatever by the schools was un-

justified because Act 109 was an “untested” state statute

whose validity had never been authoritatively determined.

The short answer to this argument is that governments

must act if they are, to fulfill their high responsibilities.

As one scholar has observed, the diverse state governments

were preserved by the framers “as separate sources of

authority and organs of government—a point on which

they hardly had a choice.” H. Wechsler, Principles,

Politics, and Fundamental Law 50 (1961).

Appellants ‘ask, in effect, that we hold those charged

with executing state legislative directives to the peril of

having their arrangements unraveled if they act before

there has been an authoritative judicial determination

that the governing legislation is constitutional. Appel-

lants would have state officials stay their hands until

newly enacted state programs are “ratified” by the fed-

eral courts, or risk draconian, retrospective relief should

the legislation fall. In our view, appellants’ position

could seriously undermine the initiative of state legis-

lators and executive officials alike. Until judges say

otherwise, state officers—the officers of Pennsylvania—

have the power to carry forward the directives of the

state legislature. Those officials may, in some circum-

stances, elect to defer acting until an authoritative judi-

cial pronouncement has been secured; but particularly

when there are no fixed and clear constitutional prece-

dents, the choice is essentially one of political discretion

and one this Court has never conceived as an incident of

judicial review. We do not engage lightly in post hoc

evaluation of such political judgment, founded as it is on

“one of the first principles of constitutional adjudica-

16 LEMON v. KURTZMAN

tion—the basic presumption of the constitutional validity

of a duly enacted state or federal law.” San Antonio

School. Dist. v. Rodriguez, — U. 8. —— (1973) (Srew-

gt, J,, concurring).

Federalism suggest that federal court intervention in

state judicial processes be appropriately confined. See

Younger v. Harris, 401 U. 8. 37 (1971), and companion

cases. Likewise, federalism requires that federal injunc-

tions unrelated to state courts be shaped with concern

and care for the responsibilities of the executive and

legislative branches of state governments." In short, the

propriety of the relief afforded appellants by the Dis

trict Court, applying familiar equitable principles, must

be measured against the totality of circumstances and in

light of the general principle that, absent contrary direc-

tion, state officials and those with whom they deal are

entitled to rely on a presumptively valid state statute,

enacted in good faith and by no means plainly unlawful.

; Affirmed.

Mr. Joenca Wurre concurs in the judgment.

Ma. Jugrice Manamita, took no part in the considers-

tion or decision of this case.

+”

* This is not to say, of course, that the flexible range of federal

injunctive powers. should be curtailed so as to permit state officers

to proceed with their business regardless of serious constitutional

questions concerning state legislation. Indeed, « significant purpose

of thase tools is to preserve rights of all parties and to confine unneces-

sary harm during the often protracted pendency of constitutional

SUPREME COURT OF THE UNITED STATES

No. 71-1470

Alton J, ~ seaigg MTG Aeent tapi ‘thie. United

~~ States District Court for

the Eastern District of

Pennsylvania.

David H. Kurtzman, Etc.,

etal .’

[April 2, 1973]

Mr. Justice Dova.as, with whom Mr. Justice BREN-

wan and Mr. Justice Stewart concur, dissenting.

There is as much a violation of the Establishment

Clause of the First Amendment whether the payment

from public funds to sectarian schools involves last

year, the current year, or next year. Madison in his

Remonstrance stated “(T]he same authority whieh can

force a citizen to contribute three pence only of his prop-

erty for the support of any one establishment, may force

him to conform to any other establishment ... .”*

Whether the grant is for teaching last year or at the

present time taxpayers are forced to contribute to sec-

tarian schools a part of their tax dollars.

The ban on that practice is not new. Lemon I, 403

U. 8. 602, did not announce a change in the law. We

had announced over and again that the use of taxpayers’

money to support parochial schools violates the First

Amendment, made applicable to the States by virtue of

the Fourteenth.

*Memorial and Remonstrance Against Religious Assessments,

2 The Writings of James Madison 183, —— (G. Hunt ed. 1901).

The Remonstrance is reprinted in Everson v. Board of Education,

$30 U. 8. 1, 63 (Rutledge, J., dissenting), and in Walz v. Tax Com-

mission, 397 U. 8. 664, 719 (Dovatas, J., dissenting).

ae LEMON v. KURTZMAN —

We said in unequivocal words in Everson v. Board of

Education, 330 U.S. 1, 16-17. “No tax in any amount,

large or small, can be levied to support any religious activ-

ities or institutions, whatever they may be called, or what-

ever form they may adopt to teach or practice religion.”

We reiterated the same idea in Zorach v. Clauson, 343

U. S. 306, 314, and in McGowan v. Maryland, 366 U. 8.

420, 443, and in Torcaso v. Watkins, 367 U. 8S. 488, 493.

We repeated the same idea in McCollum v. Board of

Education, 333 U. 8. 208, 210, and added that a State’s

tax-supported public schools could not be used “for the

dissemination of religious doctrines” nor could a State

provide the church “pupils for their religious classes

through use of the States’ compulsory public school

machinery.” Id., at 212.

Mr. Justice Brennan in his separate opinion in

Lemon I put the matter succinctly when he said,

“For more than a century, the consensus, en-

forced by legislatures and courts with substantial

consistency, has been.that public subsidy of sec-

tarian schools constitutes an impermissible involve-

ment of secular .with slaions institutions.” 403

U. S. 642, 648-649.,

So there was clear’ warning that those who proposed

such subsidies were treading on unconstitutional ground.

They can tender no considerations of equity that should

allow them to profit from their unconstitutional venture.

The issues presented in this type of case are often

caught up in political strategies, designed to turn judi-

cial or legislative minorities into majorities. Lawyers

planning trial strategies are familiar with those tactics

But those who use them and lose have no equities

that make constitutional what has long been declared to

be unconstitutional. From the days of Madison the issue

LEMON v. KURTZMAN 3

of subsidy has never been a question of the amount of

the subsidy but rather a principle of no subsidy at all.

The problem of retroactivity involved in criminal

cases is therefore inapplicable. There the question is

whether the newly announced rule goes to the fairness

of the trial that had been completed under the old rule.

See Johnson v. New Jersey, 384 U.S. 719, 726-729. Here

there'is no new rule supplanting an old rule. The rule

of no subsidy has been the dominant one since the days

of Madison. We deal with the normal situation that

governs judicial decisions. Normally they determine

legal rights and obligations with respect to events that

have already ‘transpired. By definition courts decide

disputes that have already arisen. A losing litigant has

no equity in the fact that he “relied” on advice that

turned out to be unreliable or wrong.’ A decision over-

ruling @ prior authority may at times deny a litigant due

process if applied retroactively. See Brinkerhoff-Faris

Trust & Savings Co. v. Hill, 281 U. S. 673. Only a com-

pelling circumstance has been held to limit a judicial

ruling to prospective applications. The disruptive effect

in criminal law enforcement is one example. Stovall v.

Denno, 388 U. S. 293, 300. Likewise a ruling on the

legality of municipal bonds has been given only pro-

spective application where many prior bonds had been

issued in good faith on a contrary assumption. Phoenix

v. Kolodziejski, 399 U. S. 204, 213-215.

_ Retroactivity of the decision in Lemon I goes to the

very core of the integrity of the judicial process. Con-

stitutional principles do not ride on the effervescent argu-

*The rule of Bruton v. United States, 391 U. 8. 123, which re-

jected Delli Paoli v. United States,-352 U. S. 232, was given retro-

Spective effect. We said, “The element of reliance is not persuasive,

for Delli Paoli has been under attack from its inception and many

-— have in fact rejected it.” Roberts y. Russell, 392 U. 8. 293,

4 3 LEMON »v. KURTZMAN

ments advanced by those seeking to obtain unconstitu-

tional subsidies. The happenstance of litigation is no

criterion for dispensing these unconstitutional subsidies.

No matter the words used for the apologia, the subsidy

today given to sectarian schools out of taxpayers’ monies

exceeds by far the “three pence” which Madison con-

demned in his‘Remonstrance. —

I would reverse the judgment below and adhere to the

see TT oe ee