February 2022 Church & State Magazine - February 2022

A ‘High And Impregnable Wall’: 75 Years Ago, A Pivotal Supreme Court Ruling On Church And State Helped Sparked The Formation Of Americans United

  Liz Hayes

As Americans United for Sep­aration of Church and State celebrates its 75th anniver­sary this year, so too does a landmark religious freedom case deci­ded by the U.S. Supreme Court 75 years ago this month: Everson v. Board of Education of Ewing Town­ship.

That’s not a coincidence, as the outcome in Everson was one of the catalysts that led to the formation of Americans United.

Everson is a bit of a paradox – technically, it was a narrowly decided loss for church-state separation advo­cates. The Supreme Court let stand a New Jersey law that used tax dollars to reimburse parents for the cost of busing children to both public schools and to religious and other private schools.

And yet, the majority opinion (as well as the two dissents) offered rousing endorsements for the consti­tutional principle of church-state separation. In particular, the opinion went to great lengths to spell out the history and intent of the First Amend­ment’s Establishment Clause, which prevents government from estab­lish­ing, or favoring, religion.

Everson was the first Supreme Court case to explain in detail what the Establishment Clause means,” said Alex J. Luchenitser, Americans United’s associate vice president and associate legal director. “It also was the first Supreme Court case to clearly hold that the Establishment Clause applies to the states, not just to the federal government.”

Writing for the majority, Justice Hugo L. Black said, “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 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,” Black continued. “In the words of [Thomas] Jefferson, the clause against estab­lish­ment of religion by law was in­tended to erect ‘a wall of separation between Church and State.’”

Luchenitser also noted the signifi­cance of the historical context that’s detailed in Black’s opinion: “Everson is further important because it de-­­     s­cribes the historical events that led to the enactment of the First Amend­ment’s Establishment and Free Exer­cise Clauses and explains that the two clauses should be understood in light of those historical events. In parti­cu­lar, Everson holds that these two clauses, ‘in the drafting and adoption of which [James] Madison and Jeffer­son played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia [S]tatute’ for Reli­gious Freedom, which was auth­ored by Jefferson and guided to pas­sage by Madison.

Everson thus provides substantial support for relying on the writings of Jefferson and Madison – who were both strong advocates of church-state separation and strong opponents of public funding of religion – in under­standing and applying the Establish­ment and Free Exercise Clauses,” Luch­enitser said.

And yet, the Everson opinion forced New Jersey taxpayers to pay for busing that benefited private religious education. The five-justice majority ruled that the busing law principally served the purpose of pro­viding safe transportation for all students. “The First Amendment has erected a wall between church and state,” Black con­cluded. “That wall must be kept high and impregnable. We could not ap­prove the slightest breach. New Jersey has not breached it here.”

The four dissenting justices agreed with the majority that the separation of religion and government is vitally important – and that’s why they would have struck down the New Jersey law.

The First Amendment’s religion clauses were “intended not only to keep the states’ hands out of religion, but to keep religion’s hands off the state, and, above all, to keep bitter religious con­troversy out of public life by de­nying to every denomination any advantage from getting control of public policy or the public purse,” wrote Justice Rob­­ert H. Jackson. “Those great ends, I cannot but think, are immeasurably comprom­ised by today’s decision.”

Justice Wiley B. Rutledge also wrote a dissent that was joined by Jackson and two other jus­tices. In it, Rutledge warned of the slippery slope he saw the country heading toward by al­low­ing public funds, no matter how small the amount, to be used for the benefit of religious ed­u­cation.

“Two great drives are con­stantly in motion to abridge, in the name of education, the com­plete division of religion and civil auth­ority which our forefathers made. One is to introduce religious educa­tion and observances into the public schools. The other, to obtain pub­lic funds for the aid and support of var­ious private reli­gi­ous schools,” Rut­ledge wrote. “In my opinion, both ave­nues were closed by the Consti­tu­tion. Neither should be opened by this Court.

“Now, as in Madison’s day, it is one of principle, to keep separate the separate spheres as the First Amend­ment drew them, to prevent the first experiment upon our liber­ties, and to keep the question from becoming entangled in corrosive pre­cedents. We should not be less strict to keep strong and untarnished the one side of the shield of religious freedom than we have been of the other,” Rutledge concluded.

Nine months later, the court’s decision, as well as Rutledge’s warn­ing, would serve as inspiration for a group of religious and educational leaders meeting in Chicago to draft a mission statement for what would become Americans United: “Its single and only purpose is to assure the main­tenance of the American prin­ciple of separation of church and state upon which the Federal Constitution guaran­tees religi­ous liberty to all the people and all churches of this Repub­lic.”

This manifesto enumerated several key church-state principles and voiced strong support for secular pub­lic education. It also referenced Rut­ledge’s dissent in Everson: “The four dissenting justices in the bus-trans­portation case solemnly warned the nation that these two breaches in the wall of separating church and state are only the beginning. ‘That a third and a fourth breach, and still others, will be attempted, we may be sure,’ say the dissenting justices.” (The first breach Rutledge referenced was the 1930 case Cochran v. Board of Edu­ca­tion, in which the court unani­mously upheld a Louisiana law that allowed the state to buy and lend secu­lar textbooks to stu­dents in parochial schools; that law had not been chal­lenged on Estab­­lishment Clause grounds, how­ever.)

AU’s mission statement noted the organization was “determined to as­sert its full strength to the end that there shall be no more breaches in this wall, that the breaches already made shall be repaired, and that the com­plete separation of church and state in an undivided state-supported educa­tional system shall be main­tained.”

Seventy-five years later, Ever­son’s legacy is as much a con­tradiction now as it was then. In 1947, it was both a loss and a resounding endorse­ment for church-state separa­tion. Now, in light of re­cent Supreme Court deci­sions like Espinoza v. Mon­tana Dep­art­ment of Reve­nue and Trinity Luth­­eran Church v. Comer, both of which allowed more taxpayer funding to be funneled to relig­ious schools and org­anizations, and the pending decision this term in Car­son v. Makin, in which Maine taxpay­ers could be forced to pay for explicitly religi­ous instruction, the outcome in Everson seems very limited by comparison.

“Despite its holding allowing payment of the costs of bus trans­portation to religious schools, Everson is properly thought of as the first in a line of cases that strictly limited public funding and aid for religious schools,” Luch­enitser said. “A series of Supreme Court deci­sions strength­ened those limits over the next several dec­ades, but by the 1990s the restric­tions were gradually being eroded.

“Recent Supreme Court deci­sions such as Trinity Lutheran, Espinoza, and now potentially Carson, are un­der­mining separa­tion of religion and government even further by con­cluding that there are situations in which gov­ernment bodies must fund religi­ous institutions equally with nonrel­i­gious ones,” Luchenitser said.

It’s probably little comfort to Jus­tice Rutledge, who died two years after writing his dissent in Everson, that his warning of future breaches in the church-state wall was prescient.

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