Everson v. Board of Education
330 US 1 (Decided February 10, 1947)
Bill Long
This case can fairly be said to inaugurate the modern Supreme Court Establishment Clause jurisprudence. It was the first case applying the Establishment Clause to the States through the Fourteenth Amendment due process clause. It was the vehicle for articulation of the separationist theory, through a lengthy dissent by Justice Rutledge, which would be largely unexamined until Justice Rehnquist's dissent in Wallace in 1985. Finally, it was the first case considering at any length the way that provision of tax or educational resources to religious groups might impinge upon the Establishment Clause.
Relevant Facts
New Jersey passsed a statute in 1941 authorizing school districts to make rules and contracts for transporting students to and from schools. Private, for-profit schools, however, were exempt from this requirement. Ewing Township (population 10,000) school board authorized reimbursement of parents for public bus expenses incurred in sending their children to three public schools and four Catholic schools outside the Township. The board apparently did not pay for or provide transportation to any other public or private schools. Everson was a taxpayer who argued that reimbursement of money (about $40/student/semester) violated the due process clause of the Fourteenth Amendment and the Establishment Clause of the First Amendment.
The Decision
Writing for a 5-4 majority, Justice Black contended that such aid did not violate the First Amendment because of the public purpose served as determined by the legislature in passing the legislation. Earlier Court precedent (such as Cochran) held that legislation intended to facilitate the opportunity of children to get a secular education served a legitimate public interest. The same is true of legislation to reimburse parents for payment of fares for buses so that their children don't have to run the risks of traffic or other hazards in getting to school. Though citing the same documents from early Virginia state history as Justice Rutledge did in dissent, and though interpreting these documents to establish a "wall of separation" (using Jefferson's phrase from his early 19th century letter to the Baptist ministers in Danbury, CT) between church and state, Justice Black held that such legislation was within New Jersey's power, "though it approaches the verge of that power," to enact such legislation. The linchpin for the majority seemed to be the public benefit and secular means provided by bus transportation.
Justice Black also laid down six principles of what "establishment of religion" means. Several other internet resources list these six principles, and need not be repeated here, but the most important for subsequent cases is: "Neither can [a state] pass laws which aid one religion, aid all religions, or prefer one religion over another." Paramount for the Court was that the state needed to be neutral in its relations with groups of believers and non-believers; it does not require hostility. Provision of this benefit did not breach that neutrality, in the Court's judgment.
The four dissenters strongly disagreed. Justice Jackson was astonished that the separationist principles articulated by Justice Black would yield such an utterly discordant "commingling" conclusion. He was also bothered by the way that Ewing Township implemented the state statute. In its enumeration of schools for which transportation reimbursement was possible, it listed three public and four Catholic schools. No mention was made of other secular or religious private schools. Though no information was presented in the record about the nature of Catholic education, he cited passages from the Canon Law of the Catholic Church that emphasized the completely spiritual/sectarian nature of Catholic education. Thus, to give benefits through reimbursement really was supporting a sectarian religion. Reading between the lines of his opinion, however, he may have been persuaded to join the majority had the Township's implementation of state law also included other private non-profit schools in its authorization.
Justice Rutlege's Dissent
Speaking for the four dissenters, Justice Rutledge presented the basic articulation of the separationist philosophy, derived from the original documents (from the Virginia debates over religious liberty in the 1780s and the Constitutional debates in the 1780s and 1790s). Of crucial importance to him was the role of James Madison both in penning the 1785 Memorial and Remonstrance and his subsequent participation in the crafting of the First Amendment. Rutledge's central point can be succinctly expressed: "The Amendment's purpose was not to strike merely at the offical establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships." The object of the founders was to create a "complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion." Using such a principle, it was not hard for the dissenters to argue that providing reimbursement for Catholic school parents for bus expenses was a direct support of religion.
Conclusion
As will be argued in other mini-essays, both the separationists and accommodationists will draw upon the same history in honing their philosophies. Though Everson is really a victory for minimal accommodation, it was accomplished through careful exposition of the separationist philosophy. This will not be the only confusion faced by the diligent student as you examine the cases.
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