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Everson
v. Board of Education
330
U.S. 1(1947)
The
Rothgerber Johnson & Lyons Religious Institutions
Group gratefully acknowledges the contribution of the
Ethics and Public Policy Center which provided the following case commentary taken from Terry Eastland, Religious
Liberty in the Supreme Court: The Cases That Define
the Debate over Church and State (1993).
In
this landmark case arising from the state of New Jersey,
the Supreme Court upheld public funding of the transportation
of pupils to and from both public and parochial schools.
The policy had been challenged as a violation of the First
Amendment's no-establishment provision, and for the Court
to rule on the merits of the question, it had to agree that
the provision binds the states as strictly as it does the
federal government. Of course, the Court had indicated in
Cantwell v. Connecticut (1940) that the religion
clause applies to the states. But Cantwell involved
only a free-exercise claim. If there was doubt as to whether
the Court would also apply the establishment prohibition
to the states, Everson v. Board of Education removed
it.
Everson
was the Court's first significant effort to interpret the
religion clause. The opinion for the Court, written by Justice
Hugo Black, declared that the term "no establishment" means
that neither the federal government nor the states "can
pass laws which aid one religion, aid all religions, or
prefer one religion over another." "No tax in any amount,
large or small," said the opinion, "can be levied to support
any religious activities or institutions. . . . In the words
of Jefferson [from his letter to the Danbury Baptists],
the clause . . . was intended to erect 'a wall of separation
between church and State.'"
The
four dissenting justices agreed with this very broad interpretation
but not with the majority's application of it to the facts
in the case. While Justice Black concluded that New Jersey
had not breached the wall separating church and state, Justices
Harold Burton, Robert Jackson, Felix Frankfurter, and Wiley
Rutledge emphatically said otherwise. Everson generated
three opinions—Justice Black's, for the Court, and dissents
by Justices Jackson and Rutledge. All three are presented
here. Following these opinions is a Washington Post
editorial.
From
the perspective of subsequent establishment cases, the 5-to-4
disagreement on the constitutionality of the New Jersey
funding scheme is less important than the Court's agreement
on not only the meaning of the no-establishment provision
but also how that meaning is discerned. All nine justices
drew on history, and all placed great weight upon the labors
of Thomas Jefferson and especially James Madison in behalf
of religious liberty in the Virginia of the 1770s and 1780s.
Since Everson, some justices—most notably William
Brennan in Abington School District v. Schempp (1963)—have
been dubious about turning to history for guidance in interpreting
the no-establishment provision. (See Case 9.) Others have
argued that the justices in 1947 were right to look to history
but got it wrong. For example, Justice William Rehnquist's
lengthy dissent in the "moment of silence" case, Wallace
v. Jaffree (1985), vigorously disputed the history informing
the opinions in Everson, the pace-setting case for
establishment jurisprudence. (See Case 21.) In Lee v.
Weisman (1992), the graduation school-prayer case, Justice
David Souter responded to Rehnquist's history by offering
his view of the making of the ban. (See Case 25.)
Under
New Jersey law authorizing local school boards to make rules
and contracts for transporting children to and from schools,
the board of education for the Township of Ewing approved
reimbursement to parents of money they spent for the bus
transportation of their children to schools, both public
and Catholic. The fares amounted to about $40 a year. A
township taxpayer challenged the reimbursement to parents
of the parochial-school children as a violation of both
state and federal constitutions. He won in the New Jersey
Supreme Court, but the New Jersey Court of Errors and Appeals
reversed. The federal questions were then appealed to the
U.S. Supreme Court, which declined to strike down the funding
arrangement.
Participating
in Everson v Board of Education decided February
10, 1947, were Chief Justice Fred M. Vinson and Associate
Justices Hugo L. Black, Harold H. Burton, William O. Douglas,
Felix Frankfurter, Robert H. Jackson, Frank Murphy, Stanley
F. Reed, and Wiley B. Rutledge.
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