The Magazine

Up Against the Wall

If only the Supreme Court had Washington's clarity.

Feb 16, 2009, Vol. 14, No. 21 • By KEVIN R. KOSAR
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Under God

George Washington and the Question of Church and State

by Tara Ross and
Joseph C. Smith

Spence, 317 pp., $24.95

In church-state jurisprudence, no case looms larger than Everson v. Board of Education of Ewing Township (1947).

The facts of the case were not sexy: A state law authorized school districts to provide reimbursements to parents who spent cash sending their children to school on the public bus system. Ewing Township permitted all parents, including those with children in parochial schools, to partake of this reimbursement. A taxpayer, Arch R. Everson, sued the school board, complaining that the reimbursement policy violated the New Jersey Constitution and the First Amendment of the U.S. Constitution. That, though, was not Everson's only gripe. In a remarkable stretch, he also claimed that the reimbursements violated the Fourteenth Amendment's prohibition of the taking of private property for a nonpublic use.

The establishment clause of the First Amendment begins, "Congress shall make no law respecting an establishment of religion." The plain language would appear to mean that Congress has no power to use governmental power to benefit one religion over another, or to choose an official U.S. church. Since the reimbursement policy was available to students attending any private schools, parochial or not, it is hard to see how it could be deemed problematic.

Everson won in a New Jersey state court, but lost in the New Jersey Court of Errors and Appeals. Matters might have ended there, but Everson doggedly appealed his case to the Supreme Court.

The High Court's 5-to-4 decision was, to put it mildly, confused. In his majority opinion, Justice Hugo Black declared that New
Jersey's reimbursement program was constitutional. In a few paragraphs, he dismissed Everson's crabbed claim about unconstitutional takings. Providing bus fare reimbursements was a reasonable means for the state to achieve the public goal of educating the young.

Then Black turned to the First Amendment question. The establishment clause was designed to be a bulwark to keep out the evils that afflicted the Old World, where "Catholics found themselves hounded," Quakers were jailed, and "dissenters were compelled to pay tithes and taxes to support government-sponsored churches." Black then went off the rails, arguing that there had been a colonial American "movement" against religious oppression that culminated in an effort to strip government of "all power to tax, to support, or otherwise assist any or all religions." In support of this assertion, he quoted James Madison's "Memorial and Remonstrance" against the taxation of citizens in support of churches and, most memorably, Thomas Jefferson's 1802 letter to the Danbury Baptists.

"In the words of Jefferson, the [First Amendment's] clause against the establishment of religion by law was intended to erect a 'wall of separation between Church and State.'"

How, then, could the Court approve New Jersey's subsidization of parochial schools and their customers? Black's opinion falls into a complete muddle:

New Jersey cannot hamper its citizens in the free exercise of their religion. Consequently, it cannot exclude Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.

The bus fare reimbursement program did not breach the wall because it was available to everyone, just like government-provided sidewalks, police protection, and fire services. Did this mean that New Jersey was obliged to make the benefit available to all, lest it obstruct the free exercise of religion? Nope, says Black in the very next sentence: "[W]e do not mean to intimate that a state could not provide transportation only to children attending public schools."

Meanwhile, the four dissenters agreed with Black's view of the establishment clause, and took it to its logical conclusion. The practical effect of the reimbursement policy was to provide an indirect subsidy to private and religious schools, as the schools did not have to expend funds to transport pupils. The First Amendment, Justice Wiley Rutledge thundered, aimed 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."

Thus, the dissenters reasoned, New Jersey's policy was constitutional.