In the mid-1940s, New Jersey resident Arch Everson filed a lawsuit against Ewing Township to prevent state tax revenues from being allocated to transport parochial students to their Catholic high school in Trenton. This lawsuit culminated in the landmark Supreme Court case of Everson v. Board of Education (1947). The court, ironically, given the legacy of the case, denied Everson's claim, but it did so in language that proved to be the best weapon ever handed to those looking to strip Christianity from the public schools or public life.
In his majority opinion in Everson, Justice Hugo Black is the one who firmly incorporated-out of context, many would argue 4 Thomas Jefferson's "wall of separation" language into American jurisprudence.5 "The First Amendment," said Black, "has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach." Justice Black gave the separation language its first real teeth, delineating its initial parameters. Black wrote:
U.S. Supreme Court Justice William Rehnquist, in a dissenting opinion in Wallace v. Jaffree, 472 U. S. 38 (1985), stated, "the wall of separation between church and state is a metaphor based upon bad history, which should be frankly and explicitly abandoned," as a "mischievous diversion of judges from the actual intention of the drafters of the Bill of Rights."
5 Actually, Jefferson's language ostensibly advocating a wall of separation between church and state was introduced into our case law in the earlier Supreme Court case of Reynolds v. U.S. 98 U.S. 145 (1878), but the language didn't yet give rise to a revolution in church/state case law. In that case, Chief Justice Waite quoted Jefferson's famous language in an 1802 letter to the Danbury Baptist Church: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ' make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State." In Chapter Seven, I discuss recent scholarship arguing that Jefferson's language was taken out of context by our courts.
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. 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. Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa."
Author Gerard V. Bradley noted that Everson "effectively opened the modern era of church/state jurisprudence." Constitutional scholar Paul G. Kauper underscores the point. Everson, according to Kauper, "stands as a key decision in laying the foundation for judicial review of all governmental practices supportive of religion. The beginning of an impressive and influential body of case law, it nationalized the restrictions embodied in the Establishment Clause of the First Amendment and opened up a new and comprehensive surveillance of state and local laws and practices dealing with religious matters." Professor Daniel L. Dreisbach goes so far as to say, "Any informed discussion of the constitutional prohibition on 'an establishment of religion' must contend with the reasoning and holding of Everson v. Board of Education. The Everson court's "version of history" and "separatist construction of the First Amendment," according to Dreisbach, "laid the foundation" for later First Amendment cases involving released-time, school prayer, "the continuing controversies over religious expression and instruction in public schools," and other lines of cases. Indeed, American courts have, on the whole, expanded the separationist concept over time. But the courts' unwillingness to go even further in certain areas has not prevented the education establishment from pushing the envelope of separation to new heights. That establishment, when unchallenged, has become a law unto itself, as this chapter will amply show.
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