Everson v. Board of Education 1947

Petitioner: Arch R. Everson

Respondent: Board of Education of Ewing Township

Petitioner's Claim: That a New Jersey law allowing school boards to pay parents for transporting their children to schools, both public and religious, violated the constitutional separation of church and state.

Chief Lawyers for Petitioner: Edward R. Burke and E. Hilton Jackson

Chief Lawyer for Respondent: William H. Speer

Justices for the Court: Hugo Lafayette Black (writing for the Court), William O. Douglas, Frank Murphy, Stanley Forman Reed, Fred Moore Vinson

Justices Dissenting: Harold Burton, Felix Frankfurter, Robert H. Jackson, Wiley Blount Rutledge

Date of Decision: February 10, 1947

Decision: The New Jersey law was constitutional. It treated all children equally, and it served the general welfare of society by supporting education, not religion.

Significance: The Court's decision defined the meaning of the First Amendment separation of church and state.

Combating religious persecution

When the United States of America declared its independence in 1776, some of its founders wanted to escape the religious persecution that had been widespread in Europe. (Religious persecution is punishment for religious beliefs.) Most Europeans, including British citizens under the Church of England, were forced to be loyal to a state-approved religion. Loyalty meant paying taxes to support the official religion and refusing to follow a different religion. Penalties for violators included fines, jail, torture, and even death.

The United States's earliest leaders fought to keep the country free of these evils. In 1779 future president Thomas Jefferson drafted a Bill for Establishing Religious Freedom in Virginia. In it he wrote "that to compel a man to furnish contributions of money for the propagation [spreading] of opinions which he disbelieves, is sinful and tyrannical."

Six years later, with Jefferson's bill still not enacted, the Virginia legislature tried to pass a law to raise taxes to support Virginia's official church. Future president James Madison expressed his opposition to the law by writing an essay called "Memorial and Remonstrance." In it Madison wrote about the persecution that happens under government-supported religions. Madison's essay helped to defeat the tax bill and to pass Jefferson's Bill for Establishing Religious Freedom in 1786.

Three years later, as a member of the United States's first Congress under the new U.S. Constitution, Madison drafted the First Amendment for the Bill of Rights. (The Bill of Rights, adopted in 1791, contains the first ten amendments to the U.S. Constitution.) The First Amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first part of the amendment, called the Establishment Clause, prevents the government from establishing an official religion or supporting one religion over others. The second part, called the Free Exercise Clause, prevents the government from interfering with a person's right to choose his religious beliefs. The two clauses clashed in Everson v. Board of Education.

Fighting taxes for religion

In the 1940s, New Jersey passed a law allowing local school districts to make rules for transporting children to and from school. Following this law, the Board of Education of Ewing Township passed a law to pay parents the money they spent to send their children to public or Catholic Catholicism schools on public buses. The money to pay the parents came from taxes paid by all citizens.

Arch Everson, a resident and taxpayer in Ewing Township, filed a lawsuit. He argued that using tax dollars to help children get to Catholic schools violated the Establishment Clause. The trial court agreed, ruling that the New Jersey and Ewing Township laws were unconstitutional. On appeal, the highest court in New Jersey reversed the decision, ruling that the laws did not violate the Establishment Clause. Everson appealed to the U.S. Supreme Court.

Protecting the freedom of religion

The Supreme Court voted 5–4 to uphold the New Jersey and Ewing Township laws. Writing for the Court, Justice Hugo Lafayette Black discussed the history of religious persecution in Europe and the American colonies. He explained how the First Amendment was designed to avoid such persecution by keeping religion and government separate:

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 non-attendance. 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.'

This language made it seem as if the Court would rule against the New Jersey laws. After all, Everson had argued that using tax money to send children to Catholic school was aiding religion. The Court said the Establishment Clause prevented the government from passing laws to aid religion.

Justice Black, however, said the tax was not being used to support the Catholic Church. It was being used to transport children to both public and Catholic schools. Black said transportation to school was a public service for the general good of society because it supported education. To give that service to public school children and not Catholic school children would be like giving police protection only to public school children. Justice Black said that would violate the Free Exercise Clause by interfering with the right to attend Catholic school instead of public school. He wrote that the First Amendment requires the government to treat different religions equally and not to treat individual religions unfairly.

Lowering the wall of separation

Four justices dissented, meaning they disagreed with the decision by the majority of the Court. Two of them wrote dissenting opinions. Justice Robert H. Jackson said helping children attend Catholic schools was helping them to become Catholic adults. In that way, the law aided religion and violated the separation of church and state.

Justice Jackson also believed that the Ewing Township law discriminated against other religions. (Discrimination means treating people differently based on some characteristic, such as their religion.) The township law helped only children in public or Catholic schools. It did not pay bus fares for children going to other private schools or to religious schools that were not Catholic. In Jackson's opinion, this was like a law that gave police protection to children going to public and Catholic schools, but not Protestant schools.

Justice Wiley Blount Rutledge also wrote a dissenting opinion. He analyzed James Madison's historical fight against state-supported religions. Justice Rutledge said that when Madison wrote the First Amendment, one of his biggest goals was to outlaw state taxation to support religion. Rutledge believed the New Jersey and Ewing Township laws violated the First Amendment by supporting religion with tax dollars. Rutledge said they were no different from laws using taxes to send children to Sunday school. Rutledge feared that the Court's decision was a wrecking ball that would knock down the wall of separation between church and state.

The battle continues

More than fifty years after the Court's decision in Everson, school districts still struggle with the separation of church and state. School districts that want to improve education choices for poor children have created voucher programs. Poor children may use the vouchers to pay to attend private schools instead of public schools. Some of these programs allow the children to use the vouchers to attend religious schools. Because school districts use tax money to cover the cost of the vouchers, some people think they are violating the separation of church and state by aiding religion. The issue may be the subject of another Supreme Court case.

Suggestions for further reading

Evans, J. Edward. Freedom of Religion. Minneapolis, MN: Lerner Publications Company, 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

Gay, Kathlyn. Church and State: Government and Religion in the United States. Brookfield, CT: Millbrook Press, 1992.

THOMAS JEFFERSON BUILDS THE WALL

T homas Jefferson, author of the Declaration of Independence and third president of the United States of America, believed freedom of religion was a basic right of every human being. For Jefferson, protecting that right meant preventing government from being involved in religion. In a letter in 1802 to the Danbury Baptist Association, President Jefferson wrote of the importance of maintaining a "wall of separation between church and state."

The "wall of separation" language does not appear in the U.S. Constitution or the First Amendment. The U.S. Supreme Court, however, uses the language to understand the Establishment Clause in the First Amendment. That clause prevents the government from "respecting an establishment of religion."

Controversy over the "wall of separation" language erupted in 1998. Library of Congress scholar James H. Hutson analyzed Jefferson's letter to the Danbury Baptist Association. Hutson said Jefferson did not mean for the "wall of separation" language to be used to understand or apply the First Amendment Establishment Clause. Instead, Hutson said Jefferson only meant to win support from religious groups in New England. Some people think the "wall of separation" language is making it impossible for the government to pass laws that many Americans want, such as allowing prayer in schools.

Hirst, Mike. Freedom of Belief. New York, NY: Franklin Watts, 1997.

Kleeberg, Irene Cumming. Separation of Church and State. New York, NY: Franklin Watts, 1986.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Sherrow, Victoria. Freedom of Worship. Brookfield, CT: Millbrook Press, 1997.