|The Constitutional Principle: Separation of Church and State|
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Which SCOTUS Justice said the following?
"The Everson case," he wrote, "seems in retrospect to be out of line with the First Amendment."
What did he mean?
In 1947 there was a SCOTUS case, Everson v. Board of Education. It was about reimbursing parents who paid for transportation for their to kids attend private Religions K-12 schools.
The importance of the case was (1) it legally defined the Establishment clause for the first time.(2) It applied the Establishment Clause to the states. (3) It created the child benefit theory which modern day conservative justices developed into the rationale for allowing tax money to be used to for faith-based projects and the SCOTUS Cleveland Voucher case they claimed wasn't unconstitutional.
In Everson all nine justices agreed on the meaning of the Establishment Clause: "The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force 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... . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"
After all nine agreed to the above, five of them turned around and said paying transportation costs for kids to attend private K-12 religious schools didn't violate the Establishment Clause.
MR. JUSTICE BLACK delivered the opinion of the Court. Justice William O. Douglas joined the majority.
You can find the opinion of Everson v. Board of Education at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0330_0001_ZS.html
Dissenting Justices were Harold Burton, Felix Frankfurter, Robert H. Jackson, Wiley Blount Rutledge.
The significance in reality was zero but huge in a non-reality, "what if" way. Douglas's comments show that he realizes he made a mistake in how he voted in Everson. That is a pretty big "confession" for a SCOTUS Justice. In reality though it didn't change anything. Everson remained as it was, and it did become the foundation for what is happening now with the SCOTUS.
It is sadly ironic that he wasn't impressed with Rutledge's argument when they debated the case in private yet years later quotes from the argument. Had he realized its truth at the time, recent SCOTUS might very well be quite different but he didn't and the rest is history.
It had been said, Justice Black noted, that such an interpretation of the Constitution indicated a hostility toward religion or toward prayer. "Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion." The First Amendment was written to quiet well-justified fears "arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." To those who thought the Regents' official prayer so brief and general that the establishment of it created no hazard to religious freedom, Justice Black submitted the words of James Madison in his Memorial and Remonstrance:
"It is proper to take alarm at the first experiment on our liberties. ... Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property2 for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"
Significant in this prayer decision was the fact that Justice Douglas, who had written the opinion upholding religious exercises in the Zorach case, stood with the majority in this instance. He emphasized his concurrence by taking a stand that would have reversed the position of the Court in the New Jersey parochial school busfare case had it been taken in 1947. "The Everson case," he wrote, "seems in retrospect to be out of line with the First Amendment. . . . Mr. Justice Rutledge stated in dissent what I think is durable First Amendment philosophy." The lengthy quotation that followed, from the Rutledge dissent, was a condensation of various passages from Madison's Remonstrance of 1785. It all came down to the conclusion that any form of state support of religion produces a struggle of sect against sect, the end of which (wrote Rutledge) "cannot be other than to destroy the cherished liberty." SOURCE: The Bill of Rights, Its Origin and Meaning. Irving Brant. The Bobbs-Merrill Co, Inc. (1965) p. 415.
You can find the Walz v. Tax Commmission at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0397_0664_ZO.html
William R. Long summarizes Walz v. Tax Commission 397 US 664 (Decided May 4, 1970) like this: