Up Against the Wall
If only the Supreme Court had Washington's clarity.
Feb 16, 2009, Vol. 14, No. 21 • By KEVIN R. KOSAR
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
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.
The Everson decision was a debacle that irreversibly plunged the Court into a moral and public policy snarl. As it has attempted to explain what the establishment clause permits and forbids, the Court has more deeply entangled itself.
These obfuscatory adjudications have bewildered legislators and elicited more lawsuits seeking to discern where the contours of the wall lie. May a state provide books or services to special needs children at parochial schools? May a principal recite a nondenominational prayer at a high school graduation? May a high school permit religious groups to rent school facilities?
The list is endless, precisely because there is no wall of separation between church and state. For there to be one the Court had to erect it, brick by brick, case by case. The First Amendment, as Black knew, was designed to discourage religious controversies. Perversely, the High Court's church-state decisions have fanned disputes.
The Everson decision is a dismaying example of the Court's fallibility. Nine justices propagated bad history. It is crudely Hegelian to assert that the First Amendment was the high expression of a social evolution toward the absolute separation between church and state. And it is factually inaccurate. From the founding of the republic to this day, government and religion have been deeply intertwined. The government does not tax churches. Federal Pell grants can be used to pay tuition at religious colleges. The federal government incorporated the Episcopal foundation that built the National Cathedral in Washington. Both the Senate and the House of Representatives have used tax dollars to pay chaplains for more than 200 years.
Additionally, relying heavily on the writings of just two of the Founders was egregiously selective. The choice of Jefferson was especially odd. He was not at the Constitutional Convention, nor did he serve in Congress when Madison introduced the Bill of Rights as amendments to the Constitution. He was minister to France during 1785-89 and his own beliefs on church-state separation are far from clear. As president, he refused to declare days of Thanksgiving and prayer; but as Virginia's governor, he did so.
One wonders how different things might be today if the Supreme Court had taken into consideration George Washington's approach to religion. Arguably, Washington is much more representative of the Founders' views on church and state. He presided over the Constitutional Convention and was president when the Bill of Rights was ratified. Unlike Jefferson's, his religious views did not attract ridicule and opprobrium. And according to this easy-reading study, Washington's approach to church and state issues was a pragmatic mixture of high-mindedness and good horse sense.
Throughout his adult life, he expressed deep belief in the inherent importance of freedom of conscience. In a 1783 speech to a New York congregation, General Washington professed that "the establishment of Civil and Religious liberty was the motive which induced me to the Field [of battle]." While he was exasperated by some Quakers' insistent refusal to partake in the Revolutionary War effort, he respected their right to believe. And while he thought that everyone should bear arms in defense of the country, he was willing to make exceptions for those who were "conscientiously scrupulous against it."
Though no adherent of Roman Catholicism, Washington found the anti-Catholic shenanigans on Pope Day appalling, and called for its end: The rights of conscience in others were to be respected because, he declared, "God alone is the Judge of the hearts of Men and to him only in this case are they answerable."
Tara Ross and Joseph C. Smith Jr. show that Washington's views on church and state also had a utilitarian bent: "To the degree that official uses of religion could be relied upon for the general good of the community," they write, "he was in favor of such measures. If such measures harmed the community, however, he was opposed."
Thus, when Washington believed that religious services would benefit the soldiers who served under him in the revolution, he asked Congress to pay for chaplains of every denomination. When he thought the public would benefit from prayer, he issued proclamations for days of worship and prayer.
Yet, behind these calculations of benefit and cost was an abiding belief that the health of the republic was intimately related to the virtue of the public and its representatives. In his 1783 letter to state governors notifying them of the disbandment of the Continental Army, Washington wrote:
I now make it my earnest prayer that God would have you, and the State over which you preside, in his holy protection; that he would incline the hearts of the citizens to cultivate a spirit of subordination and obedience to government, to entertain a brotherly affection and love for one another, for their fellow-citizens of the United States at large, and particularly for brethren who have served in the field; and finally that he would most graciously be pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacific temper of mind, which were the characteristics of the Divine Author of our blessed religion, and without an humble imitation of whose example in these things, we can never hope to be a happy nation.
In his first inaugural address, Washington exhorted Congress to devise policy based on the "pure and immutable principles of private morality," rather than local prejudices or partisanship. He proclaimed that God was active in human affairs and beneficent. However, he cautioned that heaven would not smile on "a nation that disregards the eternal rules of order and right." In letters and speeches, Washington urged that it is "our common duty to pay the tribute of gratitude to the greatest and best of Beings," and to "acknowledge our infinite obligations to the Supreme Ruler of the Universe."
According to Ross and Smith, Washington did not view government and religion as adversaries that needed to be separated by a wall. Rather, he perceived a "mutually beneficial relationship" with government protecting and encouraging the free exercise of religion, and religion nurturing the values that sustained Republican self-governance.
"Of all the dispositions and habits which lead to political prosperity," Washington wrote, "Religion and morality are indispensable supports. . . . great Pillars of human happiness, the firmest props of the duties of Men & citizens." In those instances where religion and government were at cross purposes, free exercise should be indulged unless it imperiled the nation's "essential Interests."
The Supreme Court may not be able to start church-state jurisprudence anew, but it can candidly admit its error. The late Chief Justice William Rehnquist put matters succinctly: "Whether due to its lack of historical support or its practical unworkability, the Everson 'wall' has proved all but useless as a guide to sound constitutional adjudication. . . . It should be frankly and explicitly abandoned."
Kevin R. Kosar is a writer in Washington.