The Constitutional Principle: Separation of Church and State
Welcome Contents What's New Search this site
View Our Stats
Visitors since 7/15/1998
Links   Guest Book Contact Us
This site is eye friendly: Use your browser's view options to increase or decrease font size

SCOTUS Justice changed his mind

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

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.


Excerpted from;

Supreme Court interpretation of the Establishment Clause does not begin until 1947 in Everson v Board of Education. Voting 5 to 4, the Court upheld a state law that reimbursed parents for the cost of busing their children to parochial schools. (It was clear from the various opinions in Everson that if the state had reimbursed the parochial schools for the cost of providing the transportation, that it would have been found to violate the Establishment Clause.) Although in his majority opinion Justice Black wrote of the "wall of separation" that the Constitution maintains between church and state, Black viewed the aid in question of serving the state's secular interest in getting kids "safely and expeditiously" to schools. The case is noteworthy for its extensive discussion of the purposes of the Establishment Clause, and for the fact that all nine justices agree that the clause was intended to do far more than merely prohibit the establishment of a state religion.

Subsequent decisions make clear that a majority of justices on the Supreme Court view "the wall" separating church and state more as a shifting, porous barrier. Small factual differences in cases often produce different outcomes. For example, in 1948, the Court found that the practice of inviting religious instructors into public schools to give optional religious instruction violates the Establishment Clause. Then, in the 1952 case of Zorach v Clauson, the Court upheld the practice of giving public school students "release time" so that they could attend religious programs in churches or synagogues. Writing for the Court in Zorach, Justice Douglas said the Constitution does not require "callous indifference to religion."

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.

The question of school-sponsored prayer has, of course, proven highly controversial. In the landmark case of Engel v Vitale in 1962, the Court ruled that New York's practice of beginning school days with a prayer drafted by school officials violated the Establishment Clause. This is the case, the Court said, whether or not students are given the option of not participating in the prayer. Following Engel, the Court has faced a whole series of prayer-related cases in the public school context raising issues such a prayer in special circumstances (e.g., graduation ceremonies), periods for silent meditation or silent prayer, and student-initiated prayer. In general, the Court has demonstrated a willingness to strike down any practices that might be likely to be perceived either as coercive or as a state endorsement of religion.

You can find the Walz v. Tax Commmission at

William R. Long summarizes Walz v. Tax Commission 397 US 664 (Decided May 4, 1970) like this:

In this 8-1 decision the Court, over the vigorous dissent of Justice William O. Douglas, held that real property tax exemptions for property owned by religious organizations and used solely for religious worship did not violate the Establishment Clause.

Justice Douglas was so vigorous in dissent possibly because he had to do a mea culpa for his change of heart since Everson. In that case he voted for the majority, but here he sought to distance himself from that vote by stressing the difference between Everson and Walz and recasting the tax exemption as actually a financial subsidy from state to church. If the exemption can be convincingly so characterized, an exemption stands foursquare in contradiction to Madison's language in his 1785 Memorial and Remonstrance, which undermined the 1784 Act to provide state financial support for Christian teachers. He quotes a 1933 Brookings Institution Report to the effect that "Tax exemption, no matter what its form, is esssentially a government grant or subsidy." He concludes his opinion by saying that if believers are entitled to public financial support through the tax exemption, then so are nonbelievers. Because believers and nonbelievers are treated differently because of their faith, the tax exemption law violates the Establishment Clause of the First Amendment.

Nedstat Counter