The Separation of Church and State: Everson v. Board of Education

Separation of Church and State concept: Hands pushing a Bible away from an American flag
The Constitution's First Amendment contains, among other things, one of the most prolific founding principles of the Bill of Rights - the freedom of religion. In 1947, the Supreme Court was asked to decide just how separate our federal government needed to be from religious institutions.

In Everson v. Board of Education, a closely divided Supreme Court decided a New Jersey program that helped children in Catholic schools did not violate the First Amendment.

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Everson v. Board of Education Case Summary

In the 1940s, a New Jersey law allowed local school districts to make their own rules and contracts on transporting children to and from school. Under this law, the Board of Education of Ewing Township started reimbursing parents for the cost of sending their kids to school on public busses. This included bussing to private schools, 96% of which were Catholic parochial schools. Arch Everson filed a lawsuit as a taxpayer in Ewing Township, arguing that reimbursing parents who sent their children to religious schools violated the First Amendment.

A New Jersey trial court found the statute was unconstitutional but on appeal the New Jersey Supreme Court upheld it. In 1947, Everson v. Board of Education reached the United States Supreme Court.

Relying on the plain text of the First Amendment, the Supreme Court found that although the United States government cannot promote religion, it also cannot be religion's adversary.

The Court's Decision in Everson v. Board of Education

In a narrow 5-4 decision, the majority held that the New Jersey law did not violate the Constitution's establishment clause because it did not directly support Catholic schools. Instead, it assisted parents of all religions with getting their kids to school. The court also held that state and local governments are prohibited from the establishment of religion in the same way as the federal government.

The majority opinion was written by Justice Hugo Black. He acknowledged that "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."

However, he reasoned that because reimbursements were offered to all students, regardless of religion, it was constitutionally permissible. Furthermore, government funds were given to parents, not the schools themselves.

Separation of Church and State

In Everson v. Board of Education, the Supreme Court discussed the "wall of separation" that should be present between the government and religious institutions. This metaphor led to the commonly-used phrase "separation of Church and State." The justices agreed that the United States government must be cautious regarding religious freedoms under the First Amendment. In doing so, it must walk the line between allowing the free practice of religion while also not promoting one religion over others:

"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 religion..."

Even Justice Black, who wrote for the five justices who did not view the New Jersey law as unconstitutional, said that “[t]he 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."

However, as this case shows, balancing this separation with the Constitution's free exercise clause is not always easy.

The Establishment Clause vs. The Free Exercise Clause

While the government cannot promote religion, it also cannot punish someone because of their faith. Suppose someone is denied a government benefit due to their wish to send their child to a religious school. In that case, they may have a constitutional case as well.

This delicate balance is required by two essential components of the First Amendment, known as the establishment clause and the free exercise clause.

For being so important, these clauses do not include a lot of detail. First, the establishment clause:

"Congress shall make no law respecting an establishment of religion..."

Then, the free exercise clause:

"...or prohibiting the free exercise thereof."

That's all the drafters of the First Amendment gave us. So while this broad freedom provides protection from religious persecution, there's also a lot of room for interpretation. In the years that followed the passage of the amendment, the rules were expanded by courts - primarily the Supreme Court.

Dissenting Opinions in Everson v. Board of Education

Justices Robert H. Jackson, Harold Hitz Burton, Felix Frankfurter, and Wiley Rutledge disagreed. Justices Rutledge and Jackson wrote separate opinions to outline their dissent.

Justice Rutledge reasoned that because the funds used to reimburse parents were obtained through taxes, they could not be given to parents who sent their children to religious schools. He insisted that the First Amendment forbids "every form of public aid or support for religion."

"It is of no importance in this situation whether the beneficiary of this expenditure of tax-raised funds is primarily the parochial school and incidentally the pupil, or whether the aid is directly bestowed on the pupil with indirect benefits to the school. The state cannot maintain a Church and it can no more tax its citizens to furnish free carriage to those who attend a Church."

Justice Jackson pointed out that the program at issue in Everson reimbursed parents who sent their kids to public school or parochial school, but attendees of for-profit private schools did not qualify. In fact, parents were only reimbursed for transportation to public schools or Catholic schools. Children attending a Baptist or Jewish school, or even a secular private school did not get the same benefits. Therefore, according to Justice Jackson, the practice ran contrary to the First Amendment by favoring one religious denomination over another.

McCullum v. Board of Education - One year after deciding Everson v. Board of Education, the Supreme Court addressed the First Amendment's separation of church and state once again in McCollum. Justice Black and the majority found that the practice of releasing students from school early to attend religious services in a public school building violated the Constitution.

Zellers v. Huff - Also known as the Dixon School Case, this lawsuit challenged the employment of nuns, religious brothers, and priests as teachers in publicly funded schools. It reached the New Mexico Supreme Court in 1951. The justices decided that having teachers who "by their striking and distinctive ecclesiastical robes" were clearly connected to the Catholic church was inappropriate in a publicly funded school.

Espinoza v. Montana Dept. of Revenue - In 2020, the Supreme Court upheld a Montana law that provided tax credits to people who donated to organizations that provided students with private school scholarships. Although most funds went to religious schools, the Supreme Court found the program did not promote or favor religion.

Religious Freedom Today

In the years that followed Everson v. Board of Education, the Supreme Court continued to hear cases concerning government involvement in parochial schools.

The Supreme Court under Chief Justice John Roberts has generally leaned in favor of religious institutions when it comes to First Amendment cases. In 2012, the court created the "ministerial exemption, " which means the First Amendment prevents religious institutions from having to follow federal employment discrimination laws.

Initially, the ministerial exemption only meant that federal discrimination laws didn't apply in the hiring and firing of ministers. However, in 2020 the rule was expanded to include Catholic school teachers. The Supreme Court decided that even teachers who teach secular subjects were close enough to the mission of a religious school that the government should not get involved in decisions regarding their employment.

Visit FindLaw's Cases & Codes to read the Supreme Court's full opinion in Everson v. Board of Education.