A Wall of Separation - Everson v. Board of Education (1947)

Prior to the 14th Amendment, the protections offered by the Bill of Rights applied primarily to the Federal Government. While most States had similar protections in their own constitutions, these were inconsistent and locally interpreted.

The 14th Amendment changed all of that in ways neither immediate nor obvious. Passed in 1868 as part of the ‘Reconstruction Amendments,’ its initial intent was to guarantee full and equal citizenship for Freedmen – newly freed Black Americans.

It reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the first time that the States had been specifically targeted this way. It chipped away substantially at the wall separating State and Federal power – with central authority clearly coming out ahead.

Still, several generations passed before the Supreme Court began regularly interpreting the Fourteenth Amendment as a means of “incorporation” – applying the Bill of Rights to the States by way of that part about “equal protection.”

In 1947, this gradual “incorporation” finally crossed into the realm of public schooling. Well… sort of.

It made it as far as the bus.

New Jersey regularly reimbursed parents whose children rode public transportation to school. This sounds strange in the Midwest, where fleets of bouncy yellow school busses are a seasonal hallmark, but it’s not unusual in larger cities even today. Why duplicate something already in place and working, running up costs and clogging everything up unnecessarily? They’re not Congress, after all.  

Children who attended parochial Catholic schools were entitled to the same assistance. A local taxpayer challenged this on the basis that it was government support for religion – that his tax dollars were being used to make it easier for children to attend Catholic indoctrination.

The case eventually reached the Supreme Court as Everson v. Board of Education of the Township of Ewing (1947). The central question was whether New Jersey’s reimbursement to parents for the cost of sending their darlings to private religious schooling violated the Establishment Clause of the First Amendment as applicable to the states through the Fourteenth Amendment.

The short answer was no, New Jersey wasn’t violating anything. The bus thing was fine.

The Court’s decision was split 5-4, which doesn’t make it any less binding, but certainly makes the discussions more interesting. Justice Hugo Black, writing for the majority, argued that busing in this case was comparable to police or fire department protection, and that refusing parochial school students the same government services as public school students would in fact violate the Free Exercise clause of the First Amendment.

But the Supreme Court doesn’t just rule yay or nay. They write about why they decided what they did, and any Justices who disagree write about why they disagree. It can be tedious reading, but there are often nuggets of mirth or pith sprinkled amongst the elucidation.

For example, in Justice Black’s majority opinion:

The only contention here is that the state statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects… First. They authorize the State to take by taxation the private property of some and bestow it upon others to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment.

One argument by the petitioner – the guy who originally complained about his tax dollars being used this way – was that the Fourth Amendment guarantees him “due process” before the government can take his stuff. Essentially he argued that the government was acting as a sort of Papal Robin Hood, appropriating his money for redistribution against his will.

Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of state power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states.

That’s the part that got this one into the history books, and why we’re talking about it here.

First. The due process argument that the state law taxes some people to help others carry out their private purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public's interest in the general education of all children…

But the New Jersey legislature has decided that a public purpose will be served by using tax raised funds to pay the bus fares of all school children, including those who attend parochial schools… The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need.

In other words, it’s fine for the state to dedicate public funds to bus fare for all kids – whatever type of school they’re attending – because it serves a broader and legitimate government purpose benefitting all citizens.  

Not everyone needs the fire department the same. Not everyone calls the police the same number of times. But that doesn’t matter, Black explains, because those services aren’t about individuals – they’re about the larger ‘social contract’. They’re about ALL of us being better off when those around us are safe and whole.

And educated.

Modern civilization is built on the understanding that we’re all willing to give up a bit of our individual freedom – our short-term self-interest – in order to benefit the whole. This is the social contract at its most basic.
We cooperate not because it’s nice, or because it makes us feel like good people – we do it because in the end, we each benefit from this collective action. We behave unselfishly, but for self-serving reasons.

It is true that this Court has, in rare instances, struck down state statutes on the ground that the purpose for which tax raised funds were to be expended was not a public one… But the Court has also pointed out that this far-reaching authority must be exercised with the most extreme caution...

Sit up straight and pay attention – here comes a really good part:

Otherwise, a state's power to legislate for the public welfare might be seriously curtailed, a power which is a primary reason for the existence of states…

According to our founding documents, the primary function of national government is the protection of property – our life, our liberty, and our stuff – but if Justice Hugo is correct, one essential function of state government is coordinating and administering the collective good. The social contract.

It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose…

Justice Black then proceeds to offer an extensive history lesson in the necessity of the Establishment Clause. It’s too long to reproduce here, but certainly worth reading. It even contains the wonderful phrase, “Baptists were particularly obnoxious” – which out of context makes a great teaser for the rest, yes?  

The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religions and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion…

Seventy years later, we still encounter similar ‘difficulties’ from time to time.  

The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority…

Just a reminder that it works both ways. Yes, the Framers wanted to keep secular power out of religious control. But they also wanted to avoid secular interference in matters of faith. Historically, overt cooperation between church and government works out poorly more often than not.  

{W}e must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.

That was the key. It’s a tricky balance, the Court acknowledges, but in this case a balanced understanding dictates that the bus thing is fine.

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.

When every opinion you issue potentially shapes the logistics and ideology of an entire nation, you want to be as specific as possible regarding what you do and don’t mean by them.

There were two dissenting opinions, including one by Justice Robert Jackson which is both passionate and amusing. At one point he makes rather naughty use of Lord Byron.

Unfortunately, we’re out of time. You’ll just have to look it up on your own.

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