Illinois ex rel. McCollum v. Board of Education

Justice Black, writing for the eight-member Court majority, cited an opinion he had written in another Establishment Clause case, Everson v. Board of Education, just the year before:

[T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.

The four justices who had dissented in Everson--Frankfurter, Jackson, Rutledge, and Burton--concurred here. Whereas in the earlier case a one-vote majority had upheld a state statute authorizing reimbursement of transportation costs to and from schools, including parochial schools, here the Court stood solidly behind a rejection of state support for religion. In Everson Black had emphasized state neutrality towards religion, but in McCollum the two clearly were too close for comfort:

Here not only are the state's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the state's compulsory public school machinery. This is not separation of Church and State.

The Everson dissenters signed on to a concurring opinion, written by Justice Frankfurter, which emphasized an historical trend away from mixing religious and sectarian instruction in public schools.

However, Justice Frankfurter's concurrence also noted that in 1948 nearly two million students took part in "released time" activities such as the program for religious studies in Champaign, Illinois. In Zorach v. Clauson (1952), the Supreme Court would uphold a New York City practice of releasing students from public school so that they could receive instruction at religious centers of their own choosing. The Court was moving away from an absolute prohibition of any state support for religion and towards the "excessive entanglement" test for impermissible government involvement with religion that would be articulated in Lemon v. Kurtzman (1971).