Television preacher Pat Robertson can barely contain his anger when he talks about a 1947 Supreme Court decision called Everson 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 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.”