Everson v. Board of Education of Ewing Township, 330 U.S. 1; 67 S. Ct. 504; 91 L. Ed. 711 (1947)

Facts—A New Jersey statute authorized local school districts to make rules and contracts for the transportation of children to schools. In this case, Ewing Township provided reimbursement to taxpayers using the public bus system in the township to transport their children. The reimbursement was also made to the parents of Catholic school children going to and from parochial schools. The appellant, a taxpayer, challenged the right of the board to reimburse parents of parochial school students.

Question—Does this statute providing reimbursement for parents who send their children to parochial schools violate the establishment clause of the First Amendment as applied to the states by the Fourteenth?

Decision—No.

Reasons—J. Black (5–4). The transportation of children to their schools is in the same category as the provision of police protection near school crossings, the availability of fire protection, sanitary sewer facilities, public highways, and sidewalks. To cut off these facilities would make it far more difficult for the parochial schools to operate. This was not the intention of the First Amendment. Under the amendment state power can no more handicap religions than favor them. Here the children attending Catholic schools were receiving no more than the benefits of public welfare legislation and therefore the New Jersey statute was not unconstitutional. It did not run contrary to the concept of separation of church and state.

J. Black said that “The ‘establishment of religion’ 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. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. 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. In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.’”

In dissent, J. Jackson and J. Rutledge accused the majority of refusing to apply the implications of its own reasoning.

Note—Justice Black’s famous “wall between church and state” (actually a Jeffersonian metaphor that was in turn borrowed from Roger Williams) surfaced for the first time in a court decision. Critics believe that the metaphor has sown confusion rather than leading to clarification. Contrary to popular belief, the metaphor is not found within the text of the U.S. Constitution.