Everson v. Board of Education, 330 U.S. 1 (1947)
This landmark Supreme Court decision is important for two reasons. One, it held for the first time that the Establishment Clause of the First Amendment (‘‘Congress shall make no law respecting an establishment of religion . . . .’’) is incorporated into the Due Process Clause of the Fourteenth Amendment (‘‘[N] or shall any State deprive any person of life, liberty, or property, without due process of law . . . .’’) and, thus, applies to state governments as well as the federal government. Two, the Court’s Everson opinion was the first to give an extensive, if not authoritative, interpretation of the Establishment Clause.
Facts, Issues, and Holdings
In 1941, New Jersey passed a statute authorizing local school districts to provide transportation to children going to either public or private schools. In turn, the Township of Ewing began reimbursing parents for money they spent on the public transportation of their children to either public or private schools. In Ewing, however, the only children who did not go to public schools went to Catholic schools, which taught them not only secular subjects, but the tenets and practices of Catholicism. A district taxpayer challenged the constitutionality of the state law on the grounds that it violated the Due Process Clause of the Fourteenth Amendment in two ways. First, the law authorized the taking of private property and spending it for a private, not public, purpose. Second, the law was one ‘‘respecting an establishment of religion,’’ which, because it was prohibited by the First Amendment, was also prohibited by the Fourteenth Amendment. By a five-to-four vote, the Court upheld the law.
Justice Hugo Black wrote the opinion for the majority. He rather easily disposed of the first argument that the law had a private rather than a public purpose. He said that the law’s purpose was to protect the safety of the children by enabling them to ‘‘ride in public busses to and from schools rather than run the risk of traffic and other hazards incident to walking or ‘hitchhiking.’’’ It did not matter, he said, that the public money went to individuals as reimbursement for what they had already spent. Subsidies and loans to private individuals and businesses that serve to promote a public good ‘‘have been commonplace practices in our state and national history.’’
As for whether the Establishment Clause applied to state and local governments via the Fourteenth Amendment, Black simply assumed that it did. All that he did to justify his assumption was cite a brief passage from Murdock v. Pennsylvania (1943) that said the Fourteenth Amendment had made the First Amendment ‘‘applicable to the states.’’
More troublesome for Black was the issue of what the Establishment Clause prohibited. Although he quickly asserted that the Establishment Clause prohibited government from funding ‘‘any or all religions,’’ he noted that it was difficult to distinguish ‘‘between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion.’’ Black even suggested that in deciding cases like this the Court had no margin for error—that the First Amendment required it, in effect, to walk a tightrope. Although the Establishment Clause does not allow tax funds to go to institutions that teach religious doctrines, the Free Exercise Clause, he said, disallows government’s excluding any persons, ‘‘because of their faith, or lack of it, from receiving the benefits of public welfare legislation.’’
The main issue, therefore, was how to categorize the law. Was it a general welfare provision or a law that supported the teaching of religion? The Court majority concluded it was the former. Although Black conceded that the state’s providing free school transportation indirectly aided the church schools (and thus the teaching of religion), by causing some children, who otherwise would not do have done so, to attend those schools, he said the same could be said of the state’s providing police protection to children going to and from schools. Obviously, he said, the state was not required to remove general government services, such as police and fire protection, from church schools. Black concluded: ‘‘The State contributes no money to the schools. It does not support them. Its legislation . . . does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.’’
Justice Black’s History and Interpretation of the Establishment Clause
If Black had said only what was summarized above, the Everson decision might have caused hardly a ripple, but he did not. He felt obliged to give a definitive interpretation of the Establishment Clause. In an often-quoted passage, he said:
The ‘‘establishment of religion’’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘‘a wall of separation between Church and State.’’
To justify this interpretation of the Establishment Clause, Black presented a lengthy account of its origin. He relied primarily on James Madison’s ‘‘Memorial and Remonstrance’’ and Thomas Jefferson’s ‘‘Virginia Statute of Religious Liberty,’’ both of which were opposed to a bill in Virginia that would have taxed persons for the purpose of supporting all Christian clergy. More specifically, Black wrote that
the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against government intrusion on religious liberty as the Virginia [Jefferson’s] statute.
Black, however, did not stop here. Aware that his ‘‘wall of separation’’ interpretation of the Establishment Clause was difficult to reconcile with the actual holding of the Court, he enunciated another ‘‘purpose of the First Amendment.’’ It ‘‘requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.’’ Ultimately, then, Black justified the Everson decision on the grounds of neutrality, not separation.
Black’s opinion has been widely and sharply criticized by both scholars and justices on the Court. At the time, the dissenting opinions, written by Justices Robert Jackson and Wiley Rutledge, who wanted the law nullified, complained that the Court’s decision was simply inconsistent with Black’s interpretation of the Establishment Clause, especially with his assertion that ‘‘[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.’’ They insisted that the New Jersey law breached the ‘‘wall of separation between Church and State.’’
Since then, Black’s opinion has been criticized for other reasons: for simply assuming that the Establishment Clause, even though it guarantees no ‘‘liberty’’ and may have been intended to protect state establishments of religion, was incorporated into the Due Process Clause of the Fourteenth Amendment; for interpreting the Establishment Clause so broadly as to make the Free Exercise Clause superfluous; for saying that the clause prohibits not just aid to one religion, but aid to all religions; for saying that the clause prohibits religious organizations from ‘‘participating’’ in the affairs of government; for asserting without any evidence that it was the views of Virginians, especially Madison and Jefferson, that are reflected in the Religion Clauses; and for failing to present evidence from the drafting of the clauses by the First Congress.
Perhaps above all else, Black’s opinion can be criticized for spawning what most scholars consider to be a series of confusing and inconsistent Court decisions based on the Religion Clauses of the First Amendment. By being indecisive and saying that the Religion Clauses require both separation of government and religion, and government neutrality between religion and nonreligion, Black gave the justices of the Court two different principles that for decades competed for dominance. In some decisions, separation prevailed; in others neutrality did. Eventually, however, the Court rejected the principle of separation in favor of the principle of neutrality.
ELLIS M. WEST
References and Further Reading
- Formicola, Jo R., and Hubert Morken, eds. Everson Revisited: Religion, Education, and the Law at the Crossroads. Lanham, MD: Rowman & Littlefield, 1997.
- Kauper, Paul G., Everson v. Board of Education: A Product of the Judicial Will, Arizona Law Review 15 (1973): 307–326.
- Murray, John Courtney, Law or Prepossessions? Law and Contemporary Problems 14 (1949): 23–43.
- Sorauf, Frank J. The Wall of Separation. Princeton, NJ: Princeton University Press, 1976.
Cases and Statutes Cited
- Murdock v. Pennsylvania, 319 U.S. 105 (1943)
- Virginia Statute for Religious Freedom (1786), Statutes at Large 12 (1823): 84