Everson v. Board of Education

Everson marked the first time the Court used the Fourteenth Amendment to apply the religion clauses of the First Amendment at the state level.

New Jersey passed a statute authorizing local school districts to make rules and contracts for the transportation of children to and from school. The Board of Education of Ewing Township, following this law, authorized reimbursement to parents of money spent by their children on public buses. When Arch Everson, a resident and taxpayer in the Ewing Township school district, learned that some of these monies were going to parents who sent their children to Catholic schools, he filed suit. While a New Jersey trial court agreed that the statute permitting state money to go to parents of parochial school students was unconstitutional, the New Jersey Supreme Court upheld the law. Everson then appealed this ruling to the U.S. Supreme Court.

In a lengthy opinion written for the Court majority, Justice Black recounted the history of religion in America. The earliest settlers, many of whom had come to this land seeking religious freedom, had determined that the best way to achieve that freedom was to give government no power to tax in order to aid religion, or the authority to support religion or any particular faith in any way. During the early years of the republic, 1785-1786, Thomas Jefferson and James Madison had led a successful revolt against a proposed state tax earmarked for support of the established church of Virginia. As part of his campaign, Madison wrote his famous "Memorial and Remonstrance" essay, in which he argued that no person, either believer or non-believer, should be taxed to support a religious institution of any kind. Black went on to discuss Jefferson's equally famous "Virginia Bill for Religious Liberty," which was enacted in place of the proposed tax. The philosophy of Madison and Jefferson regarding freedom of religion is clearly reflected in the First Amendment, which they helped to draft.

Justice Black was a First Amendment absolutist, fond of quoting the opening words of this first element of the Bill of Rights: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It was, therefore, not surprising to find that he was the author of an opinion that seemed to be endorsing Everson's point of view. But in fact, for Black and four other justices, a literal reading of the First Amendment had the opposite result.

The meaning of the Free Exercise Clause of the First Amendment was not, for a majority of the Everson Court, just that government could not promote religion, but that it could not act as religion's adversary. The state, Black wrote, must remain neutral:

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 . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions . . . 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 was the first time that the Supreme Court had, by means of the Fourteenth Amendment, made the Establishment Clause of the First Amendment applicable to individual states. On its face, the prohibition against state establishment of religion might seem to make the New Jersey school reimbursement statute unconstitutional. However, the Court reasoned, New Jersey cannot hamper its citizens from freely exercising their own religions. If the state extends tax benefits to parents of public school students, in order to remain truly neutral towards religion, it must also extend these benefits to parents of parochial school students.

Everson remains a valid legal precedent, primarily for its application of the religion clauses of the First Amendment to the states. It is most often cited, however, for its proposition that the founders' primary intention in drafting the First Amendment was to prevent government from setting up an official religion.

Related Cases

• Watson v. Jones, 13 Wall. 679 (1872).
• McGowan v. Maryland, 366 U.S. 429 (1961).
• Engel v. Vitale, 370 U.S. 421 (1962).
• Lemon v. Kurtzman, 403 U.S. 602 (1971).
• Abington School District v. Schempp, 374 U.S. 203 (1973).
• The Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 561 (1973).

Public and Private School Busing

Should parents be reimbursed for expenses incurred for busing their children to church schools? Opponents say that public funds used in this way is a clear violation of the separation of church and state because it forces the government to favor one religion over another. They contend that to allow this type of reimbursement opens the door for future entanglement between public funds and religious activities.

On the other hand, advocates say that reimbursement to families for private schools only indirectly supports church-run facilities and therefore falls outside the Establishment Clause of the First Amendment. They argue that the costs actually promote the public welfare and contend that transportation costs are no different than those incurred by the state when it provides crossing guards to assist children going to church schools. Additionally, since the reimbusement would be for all types of religious education facilities, it would not be a matter of the government treating any one religious entity preferentially to another.

Sources

Eastland, Terry. Religious Liberty in the Supreme Court. Washington, DC: Ethics and Public Policy Center, 1993.