Everson v. Board of Education 330 U.S. 1 (1947)

Author:Richard E. Morgan

Page 931

A New Jersey statute authorized local school boards to reimburse parents for the cost of public transportation of students to both public and private schools. Such reimbursement for the cost of transportation to church-related schools was challenged as an unconstitutional ESTABLISHMENT OF RELIGION.

Justice HUGO L. BLACK delivered the opinion of a 5?4 Supreme Court. He began with a consideration of the background of the establishment clause, which relied heavily on the writings of JAMES MADISON and THOMAS JEFFERSON, but he had little to say about the actual legislative history of the FIRST AMENDMENT'S language in the First Congress. Black concluded that the establishment clause "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.? 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 and practice religion.? In the words of Jefferson, the clause against the establishment of religion by law was intended to erect "a wall of separation between church and State."

But after this sweeping separationist pronouncement, Justice Black pirouetted neatly and upheld the New Jersey program on the grounds that the state aid in that case was a public safety measure designed to protect students and could in no way be construed as aid to church-related schools.

Four dissenters were convinced that Justice Black had missed the point. Justice ROBERT H. JACKSON likened Black's MAJORITY OPINION to Byron's Julia who, "whispering I will ne'er consent, consented." What could be more helpful to a school, Jackson asked, than depositing the students at its door? Justice WILEY B. RUTLEDGE, with whom Justices Jackson, FELIX FRANKFURTER, and HAROLD BURTON joined, also filed a lengthy dissent. Justice Rutledge also made lavish use of the writings of Madison and Jefferson, and argued that the New Jersey program could not be justified as a public safety expenditure.

Everson stands at the entrance to the maze of law and litigation concerning participation by church-related schools in public programs. It was the first major utterance by...

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