The Most Important Church-State Decision You Never Heard of

The Most Important Church-State Decision You Never Heard of

By Rob Boston

Church and State, Posted on February 3, 2007

http://www.alternet.org/story/47365/

Television preacher Pat Robertson can barely contain his anger when he talks
about a 1947 Supreme Court decision calledEverson v. Board of Education.

Robertson attacked the ruling on his "700 Club" several times last year.
Everson came out of anti-Catholicism, he sputtered in January of 2006. Four
months later, he blasted the decision because in it the justices "relied on
a letter written by Thomas Jefferson to the Danbury Baptists talking about a
wall of separation that isn't in the Constitution."

Robertson is not the only one riled up over Everson. The case, considered a
seminal ruling in modern church-state law, marks its 60th anniversary next
month. Acknowledged as the most pivotal church-state ruling of the 20th
century, Everson has become a magnet for both Religious Right broadsides and
law review blasts from right-wing legal scholars.

Why is the far right so eager to discredit Everson? The case is crucial
because in it the Supreme Court laid down a concise and wide-ranging
definition of the First Amendment's religion provisions that have had a
profound effect on church-state law. In addition, a unanimous court strongly
endorsed Jefferson's assertion that the American people, through the First
Amendment, have "erected a wall of separation between church and state." For
anyone seeking to undermine that wall, discrediting Everson is job one.

The importance of Everson can hardly be overstated. Virtually every case
that deals with the "establishment of religion" cites Everson. Federal
judges use it as a touchstone when seeking guidance in contentious clashes
over the proper role of religion in government. Its language appears in
countless lower court rulings and legal briefs.

Yet for all of its importance, Everson is not as well known as high court
cases over school prayer, displays of religious symbols or legal abortion.
Everson v. Board of Education is hardly a household phrase -but for anyone
who labors to defend the separation of church and state, the ruling is a
guiding principle.

"Everson was a seminal case," said J. Brent Walker, executive director of
the Baptist Joint Committee for Religious Liberty. "It set the tone for the
Court's modern religion-clause jurisprudence and was significant because
Supreme Court Justice Hugo Black, a former Baptist Sunday school teacher,
popularized the 'wall of separation' metaphor that Roger Williams and Thomas
Jefferson talked about in earlier days."

The Religious Right sees Everson in a different light. To "Christian nation"
propagandist David Barton and other Religious Right revisionists, Everson
was the vehicle the Supreme Court used to dredge up an obscure letter by
Jefferson and make it the law of the land. Overnight, as this story goes,
the justices created the wall of separation of between church and
state -motivated by their unrelenting hostility toward religion.

The Religious Right version is bunk, but that hasn't stopped it from being
spread far and wide. As the nation marks the 60th anniversary of the
decision this year -Everson was handed down by the Supreme Court on Feb. 10,
1947 -it's a good time to look at how the case came about, to examine what
it really says and to ponder the legacy of the ruling.

Even a casual reading of the decision repudiates the Religious Right's
pseudo-history. Far from being hostile to religion, the ruling in Everson
actually upheld a form of tax subsidy to parochial schools. The case did not
mark the first time the high court dealt with this issue, nor was it the
product of a court full of rigid secularists. The justices were a diverse
lot religiously, and there was a Roman Catholic among them.

By 1947, the court had already affirmed the right of private religious
schools to exist in Pierce v. Society of Sisters and upheld a Louisiana law
in which the state "loaned" secular textbooks to students in parochial
schools (Cochran v. Board of Education).

Other church-state cases had come earlier. In the 19th century, the court
had decided important controversies over the free exercise of religion in a
series of legal clashes over Mormon polygamy and laid down parameters for
government intervention in internal church disputes. A string of cases from
the 1920s and '30s dealt with religiously based objections to compulsory
military service.

Everson was not the first time the Supreme Court made note of Jefferson's
wall, either. The Supreme Court cited the metaphor in one of the Mormon
cases, Reynolds v. United States (1879). In this ruling, a unanimous high
court mentioned Jefferson's wall-of-separation metaphor favorably,
remarking, "Coming as this does from an acknowledged leader of the advocates
of the measure, it may be accepted almost as an authoritative declaration of
the scope and effect of the [First] amendment thus secured."

Reynolds was handed down 68 years before Everson. So where did this notion
come from that the high court invented church-state separation in the latter
case? It was fabricated by the Religious Right, eager to discredit
Jefferson's handiwork.

This distortion is possible because in the public mind the Everson case
remains somewhat obscure. Few outside legal circles can name it or talk
about how it came to be. The facts are easy to discern: New Jersey in 1941
passed a law authorizing local public school districts to provide
transportation to students. Ewing Township extended its subsidies to pupils
attending parochial schools. The move was promptly challenged in court.

Arch R.Everson, executive vice president of a group called the State
Taxpayers Association, led the legal challenge. Sixty years after the fact,
Everson's motives are difficult to ascertain, but media accounts at the time
state that Everson was driven by principle. The amounts spent on busing
parochial school students were not large -in Everson's Ewing Township only
$357 was allocated for it -but Everson and his supporters argued that the
government should never use any tax funds for private religious purposes.

The case plowed through state courts, with Everson winning the first round
but losing on appeal. From the New Jersey courts, the case went to the U.S.
Supreme Court. It was argued on Nov. 20, 1946. An Associated Press story
about the two-hour oral argument before the high court noted that Everson's
attorney, Edward R. Burke, a former U.S. senator who had represented
Nebraska, made a strong argument based on church-state separation.

"To say that parents may not only be excused from sending their children to
the public schools but shall be paid for exercising this choice is extending
religious liberty beyond anything heretofore suggested and runs counter to
the mandate of the separation of church and state," Burke told the justices.

But Burke's argument failed to carry the day. By a 5-4 vote, the justices
upheld the New Jersey Court of Errors and Appeals and approved the bus
subsidy.

This outcome would seem to take the wind out of the sails of those who argue
that Everson was an anti-Catholic opinion or that it manifested hostility
toward religion. The tax subsidy to religious education was approved, so
where on earth does this claim come from?

Everson opponents zero in on a 174-word passage in the lengthy decision in
which the majority, led by Justice Black, observed, "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 any
religion," Black continued. "No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance or
non-attendance.

"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," Black added.
"Neither a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations or groups and vice
versa.

"In the words of Jefferson," Black concluded, "the clause against
establishment of religion by law was intended to erect 'a wall of separation
between church and State.'"

The four dissenters also endorsed that idea -but argued that the New Jersey
plan was a tax subsidy toward religion that should be declared
unconstitutional.

The dissenting bloc, led by Justice Wiley B. Rutledge, quoted extensively
from James Madison's writings and warned that acquiescing on this demand for
aid would only lead to more.

"Public money devoted to payment of religious costs, educational or other,
brings the quest for more," Rutledge wrote. "It brings too the struggle of
sect against sect for the larger share or for any. Here one by numbers alone
will benefit most, there another. That is precisely the history of societies
which have had an established religion and dissident groups. It is the very
thing Jefferson and Madison experienced and sought to guard against, whether
in its blunt or in its more screened forms. The end of such strife cannot be
other than to destroy the cherished liberty."

Thus, in Everson, the Supreme Court unanimously -including its sole Roman
Catholic member, Justice Frank Murphy -endorsed the idea of the wall of
separation between church and state, even while arguing about how high it
ought to be. When all is said and done, this is why Religious Right
operatives hate the case so much and explains their belief that the high
court "invented" church-state separation in Everson.

But the Religious Right's analysis is facile. As previous cases demonstrate,
church-state separation had been discussed at the high court before. More
importantly, the concept has even longer historical roots, stretching back
to the battle over state-established religion in colonial America and the
meaning of the "Establishment Clause" -that part of the First Amendment that
bars laws "respecting an establishment of religion."

In the Everson decision, the high court did not rely solely on Jefferson's
famous letter. It discoursed at length about the history of church-state
separation in America, noting the conflict that arose when government chose
to take sides on theological matters.

The court also talked about Madison's influential "Memorial and Remonstrance
Against Religious Assessments." That document, written in the heat of battle
over a Virginia law that would have compelled tax support for Christian
clergy, is essentially a list of reasons why government support for religion
is misguided. It led to the creation of the Virginia Statute for Religious
Freedom, which in turn set the stage for the First Amendment.

"Everson did not create the concept of separation of church and state in
American constitutional law; the First Amendment did," said Erwin
Chemerinsky, Alston & Bird Professor of Law and Political Science at Duke
University School of Law. "It is striking that all nine members of the
Supreme Court saw the Establishment Clause that way. I believe that they are
right that this is how the Establishment Clause is best understood."

Religious Right activists ignore or distort this history and, therefore, are
unable to come to grips with the historical underpinnings of the Everson
decision. According to Chemerinsky, critics also fail to understand how the
justices used Jefferson's letter.

"They were saying that the concept of the Establishment Clause can be
understood through the metaphor that Jefferson coined," Chemerinsky told
Church & State. "Jefferson is a very important and respected person in
American history. It was completely appropriate to quote him in the way in
which he was invoked."

Unhappy with Everson's powerful affirmation of church-state separation,
revisionist legal scholars have coined an alternate history more to their
liking. Writing a briefing paper for the Heritage Foundation in June, Daniel
Dreisbach of American University asserted that Jefferson would not support
Black's version of the church-state wall.

Dreisbach argued that in Everson, "the Court essentially constitutionalized
the Jeffersonian phrase, subtly and blithely substituting Jefferson's
figurative language for the literal text of the First Amendment. In the last
half of the 20th century, it became the defining motif for church-state
jurisprudence. The 'high and impregnable' wall central to the past 50 years
of church-state jurisprudence is not Jefferson's wall; rather, it is the
wall that Black -- Justice Hugo Black -built in 1947 in Everson v. Board of
Education."

Another tactic used by the Religious Right is to assert that the Everson
ruling is anti-Catholic. The argument is hard to sustain since the decision
upheld tax aid for parochial school busing -but has been made for 60 years
nonetheless.

Black's conclusion to the ruling reads, "It appears that these parochial
schools meet New Jersey's requirements. The State contributes no money to
the schools. It does not support them. Its legislation, as applied, does no
more than provide a general program to help parents get their children,
regardless of their religion, safely and expeditiously to and from
accredited schools. 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 all was said and done, Black approved the busing subsidy -a curious act
for a supposed anti-Catholic. In fact, the charge that Black was
anti-Catholic stems from an earlier action -his membership in the Ku Klux
Klan in the 1920s.

At the time, the reconstituted Klan was seen as a vehicle for advancement in
the Alabama Democratic Party, which controlled the state politically. Black,
a native of Clay County, Ala., had political ambitions and served two terms
in the U.S. Senate prior to his appointment to the high court by President
Franklin D. Roosevelt.

Black was a Klan member for about three years before he resigned and
repudiated the group. The Klan was known for its anti-black, anti-Semitic
and anti-Catholic views, but on the Supreme Court Black gave the
organization no cause for celebration. He repeatedly ruled in favor of civil
rights, most notably joining a unanimous court in striking down racial
segregation in public schools. After the ruling, Black was burned in effigy
by segregationists in the South.

Nevertheless, several right-wing scholars have accused Black of being
anti-Catholic, among them Dreisbach, Philip Hamburger and even Jay Sekulow,
TV preacher Pat Robertson's top lawyer.

In his 2006 book Witnessing Their Faith: Religious Influence on Supreme
Court Justices and Their Opinions, Sekulow notes that Black grew
disillusioned with the Baptist faith he was raised in and in Washington
attended a Unitarian church. Sekulow hastens to add, "While many of the
theological doctrines and practices of the Baptist denomination did not
appeal to Black, their separationist and anti-Catholic declarations found a
deep resonance within him."

Sekulow's source for this is the writings of Hamburger, who accuses Black of
anti-Catholicism as a way to impugn the separation concept. Hamburger's
magnum opus is the misnamed Separation of Church and State, a 492-page
screed against that principle. The reasoning is somewhat circular: Black was
an anti-Catholic bigot. Therefore, Black supported the separation of church
and state. Therefore, support for separation of church and state means you
are an anti-Catholic bigot.

Yet the question of Black's alleged anti-Catholicism is not so simple. Some
Black biographers, primarily Steve Suitts in his book Hugo Black of Alabama,
defend Black against the charge.

More relevant is Black's behavior on the court. He not only approved bus aid
for parochial school students, but in the 1948 case McCollum v. Board of
Education wrote a strong opinion that helped end the de facto establishment
of generic Protestantism in public schools.

Fifteen years later, in the school prayer cases of 1962 and '63, Black again
ruled in a manner that favored Catholic and Jewish students in public
schools. Many of these students were being compelled to take part in
generally Protestant worship exercises in the schools; the high court's
rulings freed them from unwanted religious coercion.

Black wrote the lead opinion in Engel v. Vitale, the 1962 case banning
mandatory recitation of government-written school prayers. In several
footnotes, Black points out the discrimination against Catholics that was
common in colonial America where Protestant sects were established by law.

In the majority opinion, Black states, "The history of governmentally
established religion, both in England and in this country, showed that
whenever government had allied itself with one particular form of religion,
the inevitable result had been that it had incurred the hatred, disrespect
and even contempt of those who held contrary beliefs."

A common theme runs through Black's writings in church-state cases over his
34 years on the court. He was concerned about the union of any religion with
government. His views are perhaps best summed up in this cogent passage from
Everson.

"With the power of government supporting them," Black noted, "at various
times and places, Catholics had persecuted Protestants, Protestants had
persecuted Catholics, Protestant sects had persecuted other Protestant
sects, Catholics of one shade of belief had persecuted Catholics of another
shade of belief, and all of these had from time to time persecuted Jews."

Six decades after it was handed down, the findings of Everson remain under
attack in some quarters. The decision has been cited in numerous
church-state cases since then, but its core findings are now at risk.
Virtually no scholar believes today's Supreme Court would unanimously
endorse a high wall of separation between church and state -and it's
doubtful that even a majority would.

Everson's critics came on fast and furious in the modern era. In 1985,
William H. Rehnquist, an appointee of President Richard M. Nixon who was put
on the court in part to roll back the progressive views of the Earl Warren
court, penned a bitter dissent to a school prayer case in which he attacked
Everson's reasoning.

"There is simply no historical foundation," Rehnquist wrote, "for the
proposition that the Framers intended to build the 'wall of separation' that
was constitutionalized in Everson."

Rehnquist called Everson's lofty rhetoric "useless as a guide to sound
constitutional adjudication" and labeled Jefferson's wall metaphor "useless
as a guide to judging."

Other high court justices, notably Clarence Thomas and Antonin Scalia, have
since joined the attack. The Everson decision has also come under fire from
Religious Right propagandists like Barton, whose gross oversimplifications
and error-ridden prose tend to undercut his arguments, and from more
sophisticated legal critics like Hamburger.

But Everson has its stalwart defenders. Justice John Paul Stevens stood up
for Everson's core principles when he dissented in the school voucher case
of 2002. Stevens wrote, "Whenever we remove a brick from the wall that was
designed to separate religion and government, we increase the risk of
religious strife and weaken the foundation of our democracy."

National organizations have also rallied around the Everson language
affirming the church-state wall -even while disagreeing with the high
court's conclusion allowing the busing subsidy.

Americans United for the Separation of Church and State (AU) was formed in
part as a reaction to Everson. While many clergy and leaders in public
education were pleased to see the high court endorse the church-state wall,
they were dismayed that a court majority had, for the second time, extended
tax aid to religious schools.

AU's governing manifesto, issued on Nov. 20, 1947, cites the Everson case
and the earlier Cochran decision, noting, "The four dissenting justices in
the bus-transportation case solemnly warned the nation that these two
breaches in the wall of separating church and state are only the beginning.
'That a third and a fourth breach, and still others, will be attempted, we
may be sure,' say the dissenting justices."

The manifesto goes on to say that AU "is determined to assert its full
strength to the end that there shall be no more breaches in this wall, that
the breaches already made shall be repaired, and that the complete
separation of church and state in an undivided state-supported educational
system shall be maintained."

Alas, AU's founders were a little too optimistic. The high court did strike
down more direct forms of aid to religious schools in the 1960s and '70s but
began to drift off course in the '80s as more conservative appointments were
made. In 2002, the court approved vouchers for private religious education.

Everson's downward trajectory and the erosion of Jefferson's wall underscore
the importance of future appointments to the Supreme Court. A faction on the
court is clearly hostile to Everson, while another bloc can be counted on as
supportive. Neither probably has enough votes to muster a majority to either
reinforce or undermine the ruling. Thus, the next few appointments are
crucial.

No matter what the future holds, Everson will be remembered by church-state
separation advocates as a seminal case, important for its clear explanation
of the scope and meaning of the First Amendment's religious freedom
provisions. Had subsequent courts embraced the Everson formula, church-state
relations in America might look quite different. Vouchers and other forms of
tax aid to religious schools would not have been upheld, and "faith-based"
initiatives would be dead in the water.

"Everson's impact was profound," said Ayesha N. Khan, legal director of
Americans United. "Virtually every church-state case felt its impact, from
prayer in schools and tax aid to religion to displays of religious symbols
on government property."

Continued Khan, "Justice Black's definition of church-state separation in
Everson is probably the most well-stated and powerful ever issued by the
high court. It's a shame the court did not stick with it. They might have
spared the nation the raging 'culture wars' that afflict so much of
church-state law these days."

Rob Boston is the editor of Church and State magazine.

Posted by Sylvie K.