The U.S. Supreme Court’s first major ruling on the meaning of the First Amendment’s Establishment Clause was in Everson v. Board of Education, in 1947, when it upheld a state law that provided busing of students to parochial schools. The Court’s entry into this constitutional maze foreshadowed the controversy that surrounds to this day governmental acts and programs that promote religion.
At issue in Everson was a New Jersey statute that authorized local school boards to reimburse parents, including those whose children attended Catholic parochial schools, for the cost of bus transportation to and from school. Arch Everson, a local resident and taxpayer, contended this program violated the Establishment Clause, which provides: “Congress shall make no law respecting an establishment of religion.”
Justice Hugo Black delivered the Court’s 5-4 opinion, which began with a review of the history of the Establishment Clause and the contributions to it of Thomas Jefferson and James Madison. Justice Black said of the meaning of the Clause: “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. 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 and practice religion.”
And then, in words familiar to Americans across the land, Black added: “In the words of Jefferson, the clause against the establishment of religion by law was intended to erect ‘a wall of separation between church and State.’”
Justice Black’s review of the background to the Establishment Clause emphasized that American settlers believed that religious liberty could best be achieved by a government stripped of all power to tax, support, or otherwise assist religion. For this conclusion, he relied on the writings, teachings and efforts of Jefferson and Madison who, in 1785-1786, led a successful fight against a tax to support Virginia’s established church.
Madison’s famous essay, “Memorial and Remonstrance,” written in 1785, championed a complete separation of church and state, which he believed was the only guarantee of the equal right of every citizen to the free exercise of religious liberty. Madison, who was the principal author of the First Amendment and the Bill of Rights, conceived of religious freedom as an “unalienable” right to be exercised solely on a voluntary basis. Religion, he asserted, should be exempt from the power of society, the legislature and the magistrate. A true religion, he contended, did not need the support of state tax dollars. It’s standing hinged on the support of its faithful.
Madison’s elaborate argument led to the rejection of the tax measure and to the enactment of Jefferson’s famous Virginia Statute of Religious Freedom.
Justice Black’s historical review of the origins of the Establishment Clause seemed to point the way to a ruling that would declare the New Jersey law unconstitutional. To the surprise of his colleagues, however, he pivoted and upheld the law on grounds that the state assistance was a public safety measure enacted to protect students and not to be interpreted as aid to church-related schools.
Black introduced the “Neutral Benefit” principle and explained that the Establishment Clause requires the state to be neutral in its relations with believers and non-believers alike. The state, he said, should neither favor nor handicap religion. The state should not be an adversary of religion. The busing program, he asserted, provided no funds to parochial schools, but simply sought to assist parents in getting their children to school safely.
Drawing on Jefferson’s words, Black concluded that there was no violation of the Establishment Clause. “The First Amendment has erected a wall between church and state. The wall must be kept high and impregnable. We could not approve the slightest breach.”
Four Justices dissented. They shared Black’s analysis of the historical origins of the Establishment Clause yet believed he had erred in applying that history to the case at hand. In short, they thought he had missed the point.
Justice Robert Jackson wrote a dissent in which he declared that the “undertones” of Black’s opinion were at odds, indeed, “utterly discordant” with its conclusion. “The case which irresistibly comes to mind as the most fitting precedent,” he wrote, was Lord Byron’s epic poem, Don Juan, in which Julia, who “whispering ‘I will ne’er consent,’ consented.”
Justice Wiley Rutledge’s dissent characterized Everson as the Court’s first breach in the wall of separation between church and state and forecast a future in which additional breaches would occur: “Thus with time the most solid freedom steadily gives way before continuing corrosive decision.”
Whether subsequent church-state cases would constitute a breach of the wall would be the subject of considerable, often heated debate. Yet, as we shall see, the high, erect wall envisioned by Jefferson and Madison, has become, through the Court’s interpretations, a winding, serpentine wall, leaving citizens in a state of confusion about the legal line separating church and state.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.