Everson v. Board of Education (1947)
Introduction
Nothing has quite bedeviled the modern Supreme Court like questions around the interplay between religious and governmental actors. The first command of the 1st amendment, that “Congress shall make no law respecting an establishment of religion . . .” long lay dormant in American constitutional history. That changed with Everson v. Board of Education (1947), which thrust the Court into the murky mire of church-state relations. Unfortunately, Everson, with its reliance on bad law office history and an ill-chosen metaphor, would prove a shaky edifice upon which to construct an establishment clause jurisprudence. Its legacy would be a half century of Supreme Court activity plagued by little doctrinal clarity or consistency.
The Historical Context:
The Long-Simmering Protestant-Catholic Conflict over Aid to Religious Education
The question at the center of Everson, namely the constitutional propriety of public financial support for parochial education, had been a subject of political and legal contestation for at least a century. The influx of Catholic immigrants from Germany, Ireland and Italy in the mid-1800s turned the Catholic faith from a small minority in colonial America to one with a large presence, particularly in urban America and within the Democratic Party. With that growth came increasing resistance among Catholics to common schools which were essentially Protestant in nature, with mandated prayers and readings aloud from the King James Bible. With the rise of separate Catholic schools came demands for public support. As early as 1840, Catholic leadership in New York City led a concerted attempt to secure public funding for their schools. The failure of those efforts only strengthened Catholic resolve to further develop a separate Catholic system of education. The continued growth in the numbers of Catholic immigrants during the mid-19th Century produced a concomitant expansion of kids attending Catholic schools.
The growth of Catholicism fed a mounting intensity in anti-Catholic sentiment, an important piece of which was a hardening of political opposition to any public funding of Catholic schools. Thus did the advance of Catholic influence catalyze its opponents in their hostility to the school aid demands of Catholics. A critical moment came in 1875, when Republican congressman James Blaine sought to bolster his presidential aspirations by proposing a federal constitutional amendment that would prohibit “any money raised by taxation in any State” from falling “under the control of any religious sect.” Well understood as an effort to snuff out any hope of public funding for Catholic schools, the amendment passed overwhelmingly in the House, only to fall several votes short of the two-thirds support needed for passage in the Senate. The proposed amendment’s failure hardly ended the matter; rather it redirected legal efforts to the states, where “mini-Blaines” prohibiting funding of sectarian education proved popular. By 1890, twenty-five of the then-forty states had enacted constitutional prohibitions on public funding of sectarian education. Eventually thirty-eight states in total would enact state-level bans on aid to religious schools.
But state-level Blaines were only half of the story. Continued Catholic expansion across America, and the heightened political influence that came with it, sparked an important legal movement that pulled in the opposite direction. As Catholics became the dominant religious and political force in many American cities, their demands for public aid for their parochial schools grew more assertive. Throughout the 1920’s and ‘30s, those efforts bore fruit. By the time Everson reached the Supreme Court on 1947, twenty-two states had laws on their books authorizing transportation subsidies for children attending parochial schools.
New Jersey’s constitution did not have a Blaine-type prohibition against funding of private, religious schools. It was, however, one of the states that allowed local school boards to cover the cost of transportation to and from public and private schools, virtually all of which were parochial Catholic schools. Ewing township had public schools that only went through eighth grade. Its local school board reimbursed parents for the cost of transportation to three neighboring public schools, as well as four Catholic private schools. Arch Everson, a resident of Ewing township, challenged the policy under the Establishment Clause, arguing that it constituted impermissible state support for religious schools. The trial court agreed, holding that the provision violated the state constitution by allowing for public spending on parochial schools. New Jersey’s highest appellate court reversed the trial court, and Everson appealed to the US Supreme Court. On February 10, 1947, the Court issued its decision, siding with the Ewing School Board and upholding the state law by a narrow 5-4 margin.
The Majority Opinion
Justice Hugo Black authored the majority opinion upholding the transportation subsidies. There were three important dimensions to the opinion. First, Black invoked an originalist approach in finding that the establishment clause mandated a substantive policy of separation between church and state. Black claimed to base his interpretation of the establishment clause on “the background and environment of the period in which that constitutional language was fashioned and adopted.” But without Supreme Court precedent to guide him, Black’s originalism was badly blindered, focusing almost exclusively on the state of Virginia and the respective roles of Madison and Jefferson in torpedoing a proposed public tax levy to support the established church. Black relied heavily on Madison’s Memorial and Remonstrance and the subsequent Virginia Bill for Religious Liberty drafted by Jefferson and which protected Virginians from being compelled “to . . . support any religious worship, place, or ministry whatsoever, . . .” Black explicitly equated the efforts of Madison and Jefferson in Virginia with the meaning of the 1st amendment, ascribing to the establishment clause “the same objectives and . . . the same protection against governmental intrusion on religious liberty as the Virginia statute.”
When Black offered his understanding of the foundational parameters of the establishment clause, it was less the result of careful historical probing than conventional mid-20th century wisdom on the separation of church and state. Nevertheless, his dictum would frame church-state doctrine well into the future.
The ‘establishment of religion’ clause . . . 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. . . 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 from they may adopt to teach or practice religion.
Black ended his discourse by invoking Jefferson’s metaphor that the prohibition on religious establishment was “intended to erect ‘a wall of separation between Church and State.’”
The second important facet of the Black opinion was to extend the substantive principle of separation under the establishment clause to the states by way of incorporation via the 14th amendment due process clause. Bringing sub-national governments under the purview of the establishment clause would dramatically reshape the Court’s docket for the remainder of the century. Yet it merited a mere several sentences in Black’s opinion. By 1947, the Court had selectively incorporated most of the 1st amendment liberties (speech, press, petition, assembly), most recently having extended the free exercise of religion to the states in Cantwell v. Connecticut (1940). In a conclusory and unsupported statement, Black merely extended Cantwell to the establishment clause:
The Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause.
Thirdly, Black had to judge whether the New Jersey law offended the principle of separation under the 1st amendment. He attempted to balance two competing principles, acknowledging “the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion.” On one hand, New Jersey was precluded by the Establishment Clause from “contribut[ing] tax-raised funds to the support of an institution which teaches the tenets and faith of any church.” On the other hand, Black warned against a rule that would “inadvertently prohibit New Jersey from extending its general state law benefits to all of its citizens without regard to their religious belief.” The 1st amendment required neutrality in its relations with religious adherents; it did not require being their adversary. People of all faiths, or none, were entitled to the benefits of public welfare legislation, including a “general program to help parents get their kids to school safely . . .” Black deemed transportation costs “so separate and so indisputably marked off from the religious function” that the Court could not say that “the 1st amendment prohibits New Jersey from paying bus fares of parochial school as part of a general program under which it pays fares of pupils attending public and other schools.” He added:
The State contributes no money to the schools. It does not support them. Its legislation, as applied, 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.
Black analogized busing to state-paid police tasked with ensuring that kids could safely cross the street to school, in the category of such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Black ended his opinion with one final, seemingly incongruous pronouncement. “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”
The Dissent by Justice Rutledge
While several dissenting justices wrote opinions, Justice Rutledge’s provided the most interesting counterpoint to the majority. Rutledge agreed in large part with the Black opinion. It was assumed without comment that the establishment clause applied to the states on the same terms as it did to the federal government. The dissent also read a substantive principle of separation into the language of the 1st amendment. Rutledge, like Black, claimed to anchor that principle in the history of the amendment, asserting that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.” Rutledge too invoked Madison and Jefferson as furnishing “irrefutable confirmation of the Amendment’s sweeping content,” though he offered no particular evidence that sweep. Taking an even narrower view, Rutledge identified the drafters aims in the 1st amendment as indistinguishable from those of Madison.
All the great instruments of the Virginia struggle for religious liberty thus became warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison’s life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment’s compact, . . .
Rutledge attributed to Madison a view of religion as “a wholly private matter beyond the scope of civil power either to restrain or to support.” According to Rutledge, Madison could not tolerate a hint of governmental interference with religion. Hence he sought to “tear out the institution [of state aid] not partially but root and branch, and to bar its return forever.”
Rutledge parted ways with Black in arguing for a more radical and total separation of religion and the state. He emphasized the breadth of the admonition against “any law respecting an establishment of religion,” claiming that its aim 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. . . in any guise, form or degree.” He especially focused on the “use of the taxing power to support . . . religious establishments, or establishments having a religious foundation . . .” as the only remaining threat to the complete and permanent separation of religion and civil power as compelled by the 1st amendment.
Rutledge had no trouble finding that the New Jersey law impermissibly constituted support for religion through the use of the taxing power. He flatly declared that the funds for transportation costs were raised by taxation, and that their use in fact gave aid and encouragement to religious instruction. The reimbursement of the cost of transporting kids to religious schools “aids them in a substantial way to get the very thing which they are sent to the particular school to secure, namely, religious training and teaching.” The essence of the state’s contribution was to “defray the cost of conveying the pupil to the place where he will receive not simply secular, but also and primarily religious, teaching and guidance.”
The Consequences of the Everson Decision
The Everson case had profound implications for church-state relations and on the Court’s role in shaping those relations. Chief among them was the decision to incorporate the establishment clause. Incorporation catapulted the establishment clause from a standstill to one of the more heavily litigated constitutional provisions over the next seventy-five years. In the 150 years leading up to Everson, there had been two establishment clause cases, neither of which was particularly noteworthy. In the fifty years following Everson, the Supreme Court would hear fifty-two establishment clause cases, twenty-one of them dealing with public aid to elementary and secondary parochial education.
A related byproduct of incorporation was a top-down, federalized determination of permissible church-state relations across the country. This arguably was the very opposite of what the drafters of the establishment clause had intended. The determination of what laws or policies were “respecting an establishment of religion” long confounded scholars and defied judicial consensus. But more recent scholarship has yielded significant support for an alternative meaning, one that reads the establishment clause, not as a substantive principle of separation, but as a jurisdictional provision that only divested the national government of authority to establish or disestablish religion. In other words, it was meant to leave the regulation of church-state interaction to the states and localities. In this light, the proscription against Congress taking action “respecting” religion makes perfect sense. That textual reading also aligns much more closely with what existed in the states at the time, namely substantial establishment of religion by the states, and significant variation across states in their policies of church-state interactions. In short, the establishment clause was not meant to advance a substantive conception of the proper relationship between religious and governmental actors, but only that such matters would be for local resolution.
That common-sense textual reading undermines the case for incorporation. If the establishment clause aimed to ensure that states alone wielded exclusive authority over religion, then incorporating that phrase to prohibit states from allowing aid to religion is illogical and paradoxical. To apply the clause against the states is to turn it on its head by eliminating the very authority the provision gives to the states. Nor is this simply an objection to faulty logic. The practical consequences of a single interpretation of church-state relations across all levels of government made the confusion and doctrinal hair splitting that characterized establishment clause jurisprudence in the latter 20th century inevitable. A reading of the establishment clause hewing more closely to one that laid down procedural boundaries for religion policy might have yielded a church-state jurisprudence that took into account the broad diversity in the religious character in the country. Allowing different jurisdictions flexibility to strike a church-state balance that better fit their particular character might have spared us decades of doctrinal perplexity and the intense political backlash around issues of religion in the public square.
Finally, Black’s “wall of separation” metaphor proved to be a shaky conceptual tool for clarifying the strictures of the establishment clause. Untethered from actual constitutional text or historical foundation, the metaphor took on a life of its own, working its way into the national consciousness. It reinforced a separationist view of church-state relations that was at odds with the 1st amendment text and with church-state interactions that actually existed at the time of its enactment. Indeed, the end to Black’s opinion foreshadowed the problems that would follow. He envisioned a “high and impregnable” wall of separation that would not allow the “slightest breach,” then proceeded to uphold New Jersey’s seeming breach of that wall. Separationist in tone, accommodationist in result, the contradictory conclusion was a harbinger of the confusion that would plague the Court’s church-state jurisprudence for decades to come.
