xt7msb3wtd0h_43 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Everson v. Board of Education of the Township of Ewing - no. 52 text Everson v. Board of Education of the Township of Ewing - no. 52 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_177/Folder_10_11/Multipage5437.pdf 1946 1946 1946 section false xt7msb3wtd0h_43 xt7msb3wtd0h SUPREME COURT OF THE UNITED STATES?

No. {ii—OCTOBER TERM, 1946.

Arch R. Ererson, Appellant, Appeal from the Court.

'1). ' of Errors and Ap—
peals of the State of
New Jersey.

Board of Education of the"
Township of Ewing, et, al.
, I

[February ', 1947.]

Bin. thsTICE BLACK delivered the opinion of the Court

A New Jersey statute authorizes its local school dis-
tricts to male rules and contracts for the transportation
of children to and from schools.1 The appellee. a town—
shipboard of education. authorized reimbursement to par—
ents of money expended by them for the bus transporta-
tion of their children. Part of this money was for the
payment of transportation of some children in the com-
munity to Catholic parochial schools. These church-
schools give their students, in addition to secular educa-
tion, regular religious instruction conforming to the reli—
gious tenets and modes of worship of the Catholic Faith.
The superintendent of these schools is a Catholic priest.

1 “Whenever in any district there are children living: remote from
any schoolhouse the hoard of education of the district may make
rules and contracts for the transportation of such children to and
from school, including the t1‘ans1mrtation of school children to and
from sc'hool other than a pulxlic school, except such school as is
operated [or profit in whole or in part.

“When any school district provides any transportation for public
school children to and l'rom school. transportation from any point
in such estalilished school route to any other point in such estab-
lished school route shall he supplied to school children residing in
such school district in going to and from school other than a puhlic
school, except such school as is operated for prolit in whole or in part.”
NewJerseyLaws,lttll,c.1tt1,p.551; N. J. Rev. Stat. 15: 14—8.

 

 52
EVERSON '0. BOARD OF EDUCATION.

The appellant, in his capacity as a district taxpayer,
filed suit in a state court challenging the right of the Board
to reimburse parents of parochial school students. He
contended that the statute and the resolution passed pur-
suant to it violated both the State and the Federal Consti—
tutions. That (‘ourt held that the legislature was with-
out power to authorize such payment under the State
(‘onstitutiotr 132 N. J. 19.98. The New Jersey Court of
Errors and Appeals reversed. holding that neither the stat—
ute nor the resolution passed pursuant to it was in conflict
with the State constitution or the provisions of the Federal
Constitution in issue. 133 N. J. L. 350. The case is here
011 appeal under ‘28 [7. S. C. § 344 (a).

Since there has been no attack on the statute on the
ground that a part of its language excludes children attend—
ing private schools operated for profit from enjoying state
payment for their transportation, we need not consider

this exclusionary language; it has no relevancy to any
constitutional question here presented.2 Furthermore, if
the exclusion clause had been properly challenged, we do
not. know whether New Jersey’s highest court would con—

3 Appellant does not challenge the New Jersey statute or the reso-
lution on the ground that either“ violates the equal protection clause
ot' the Fourteenth Amendment liv excluding payment for the trans—
portation of any pupil who attends a “private school run for profit.”
Appellant does not allege. nor is there anything in the record which
\\'t)llltl oll'er the slightest support to an allegation, that there were any
children in the township who attended or would have attended, but
for want of transptn'tation, anv hut pultlic and Catholic schools. It
will he appropriate to consider the exclusion ol' students ot‘ private
schools operated for profit when and it" it is proved to have occurred,
is made the Itasis ot' a suit hv one in a position to challenge it, and
New Jersey's highest court has ruled adversely to the challenger.
St rilx'ing down a state law is not a matter ot' such light moment that, it
should he done lny a l'etleral court or men) met/t on a postulate
neither charged nor proved, hut which rests on nothing but a possi—
hilirv. ('ll'. Lircrlme/ X. l'. d' I’. Steal/[slap Co. v. ('omm‘rs. of
.Ellttgl'tlltoll: 113 C. b 33, $30.

 

 52
EVERSON 1;. BOARD OF EDUCATION. 3‘

strue its statutes as precluding payment of the school
transportation of any group of pupils, even those of a
private school run for profit." Consequently, we will
assume for the purposes of this case. that the statute
authorizes payment for the transportation generally of
school children in New Jersey.

The only contention here is that the State statute and
the resolution. in so far as they authorized reimbursement
to parents of children attending parochial schools, violate
the Federal Constitution in these two respects, which to
some extent. overlap. First. They authorize the State to
take by taxation the private property of some and bestow
it upon others, to be used for their own private purposes.
This. it is alleged. violates the due process clause of the
Fourteenth Amendment. Second. The statute and the
resolution forced inhabitants to pay taxes to help support
and maintain schools which are dedicated to, and which
regularly teach, the Catholic, '“aith. This is alleged to
be a. use of State power to support church schools contrary
to the prohibition of the First Amendment which the
Fourteenth .»\mendment made applicalfle to the States.

First. The due process argument that the state law
taxes some people to help others carry out their private
purposes is framed in two phases. The first phase is that
a state 'annot tax A to reimburse B for the cost of trans-

, \‘x

i ‘ "f M 3 It. might hold the excepting.r clause to be invalid, and sustain the
W “7 statute with that clause excised. Section l:ltJ N. .1. Rev. Stat. pro—

20' fi’ "' What it' "anv provision thereof shall be declared unconstitu—
,l ” tiona . . . in whole or to part, by a court ol competent Jurisdiction,

I

I . ‘ i t t . t
,% d r such article shall, to the extent ll is not unconstitutionaly . . . be en-
y, {/0 ‘

[1/ forced . . ."" The opinion ol' the ('ourt, ol' lirrors and Appeals in this
/ Very case suggests that state law now authorizes transpmtation of all
pupils. lts opinion stated: “Since we hold that the legislature may
appropriate general state l'unds or authorize the use of local funds for
the transportation of pupils to (my school, we conclude that, such
authorization of the use of local l'unds is likewise authorized by Pump/t.
L. 11H 1. ('lt. lit], and It. is. lsz—Tb‘." 1.3;} X. .J. L. 2350, 2-554. (ltalics
supplied.)

 

 52
4 EYERSON 2;. BOARD OF EDUCATION.

porting his children to church schools. This is said to
Violate the due. process clause because the children are
sent» to these church schools to satisfy the personal desires
of their parents, rather than the public's interest in the
general education of all children. This argument, if
valid. would apply equally to prohibit state payment for
the transportation of children to any non—public school,
whether operated by a church. or any other non—govern-
ment individual or group. But. the New Jersey legis—
lature has decided that. a, public purpose will be served by
using tax—raised funds to pay the bus fares of all school
children. including those who Lttend parochial schools.
The New Jersey (‘ourt of Errors and Appeals has reached
the same conclusion. The fact that a state law. passed
to satisfy a, public need. coincides with the personal desires
of the individuals most directly affected is certainly an
inadequate reason for us to say that a legislature has
erroneously appraised the public need. So far as the
transportation of school children generally at state ex—
pense is concerned. we repeat that: “With the wisdom of
such legislation. and the soundness of the . . . policy
involved we are not concerned. Whether it will result in
ultimate good or harm. it is not within our province to
inquire.” Green v. Frazier, 25317. S. 233. 240.

It is true that this (‘ourt has. in rare instances, struck
down state statutes on the ground that the purpose for
which tax—raised funds were to be expended was not a pub—
lic one. Loan Association v. Tape/.11, 20 \Vall. 655; Park-
er's-burg v. Brown, 106 U. S. 487; Thompson v. Consoli—
r/nlm/ (his ('[flilirs ('or/)., 300 l'. S. 35. But the Court has
also pointed out that this far—reaching autl'iority must be
exercised with the most extreme caution. Green V.
I’l'tzzz‘rr, supra. Otherwise. a state's power to legislate
for the public welfare might be seriously curtailed. a
power which is a. primary reason for the existence of states.
(‘hanging local conditions create new local problems which
may 1 *ad a state's people and its local authorities to believe

 

 52
EVERS‘ON 1?. BOARD OF E13I'C‘;\’l‘lON. 5

that laws authorizing new types of public services are nec—
essary to promote the general well-beingr of the people.
The lt‘ourteenth Amendment did not strip the States of
their power to meet problems previously left for individual
solution. Dar/(Ison v. New (Jr-leans. 06 l'. S. 97. 103—104;
liar/tier y. ('onnolty, 113 l'. S. 27. 33l732: WWI/[brook Irri-
gation District v. Bradley. 164 1'3. 112. 157—158.

It is much too late to argue that legislation intended to
facilitate the opportunity of children to get a secular edu—
cation serves no public purpose. ('oc/Iran v. Louisiana
Slate Boar/l of Education, 281 l'. S. 5370; Holmes. .l., in
Inlers/al‘e [fl/1. y. .l/assac/tuse/ls. 207 IV. S. 70. 87. See
opinion of (Wooley. .l.. in Stuart v. School District No. I of
[valor/loam). 30 Mich. (it) (1875‘). The same thingr is no
less true of legislation to reimburse needy parents. or all
parents. for payment of the fares of their children so that
they can ride in public busses to and from schools rather
than run the risk of tratfic and other hazards incident to
walling or hitch-hiking. See [Barlnier y. Connolly, supra
at 231. See also cases collected (33 A. L. R. 4113: 118 -\. L. R.
806. Nor does it follow that a law has a private rather than
a public purpose l',)CCtll,lS€ it provides that tax-raised funds
will be paid to individuals in order to further a public
program. ('arInfc/lael v. Soul/tern ('oal (t' (lo/re Company,
301 l'. S. 4-9."). SIR. Subsidies and loans to individuals
such as farmers and home owners. and to privately owned
transportation systems. as well as many other kinds of
businesses. have been commonplace practices in our state
and national history.

Insofar as the second phase of the due process argument
may differ from the first. it is by suggestitif.)r that taxation
for transportation of children to church schools constitutes
support of a religion by the state. But it" the law is invalid
for this reason, it is because it violates the First Amend—
ment's prohibititm against the establishment of religion
by law. This is the exact question raised by appellants
second contentitm, to consideration of which we, now"
turn.

 

 52
EYERSON 0. BOARD OF EDUCATION:

Second. The New Jersey statute is challenged as a “law
respecting the establishment of religion.” The First
Amendment. as made applicable to the states by the Four—
teenth, illurdoc/r v. l’cnnsylzxania, 319 U. S. 105, 108, com—
mands that a state “shall make no law respecting an estab—
lishment of religion. or prohibiting the free exercise
thereof." These words of the First Amendment reflected
in the minds of early Americans a vivid mental picture of
conditions and practices which they fervently wished to
stamp out in order to preserve liberty for themselves and
for their posterity. Doubtless their goal has not been en—
tirely reached; but so tar has the Nation moved toward it
that the expression "law respecting the establishment of
religion." probably does not so vividly remind present-day
Americans of the evils, fears. and political problems that
caused that expression to be written into our Bill of
Rights. Whether this New Jersey law is one respecting
the “establishment of religion" requires an understanding
of the meaning of that language. particularly with respect
to the imposition of taxes. Once again,‘ therefore, it is
not inappropriate briefly to review the background and
environment of the period in which that constitutional
language was fashioned and adopted.

A large proportion of the \arly settlers of this country
came here from Europe to escape the bondageof laws
which compelled them to support and attend Government
favored churches. The centuries immediately before and
contemporaneous with the colonization of America, had
been filled with turmoil. civil strife, and persecutions, gen—
erated in large part by established sects determined to

maintain their absolute political and religious supremacy.
With the power of government supporting them, at various
times and places, ('atholics had persecuted Protestants,

'1 See li’l'l/HH/l/N \r I'M/{ed Ntlllr‘x, [lb l" 5. HF), ltig; Cf. Knot/111072 V1
illool‘c, 175 U. 5. ll, 59, lUU.

 

 52
EVICRSON e. BOARD OF EIH'C‘AT‘ION. 7

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. ln efforts to force loyalty to whatever religious
group happened to he on top and in league with the gov—
ernment of a particular time and place, men and women
had been fined. cast in jail. cruelly tortured and killed.
Among the offenses for which these punishments had been
intlicted were such things as speaking disrespectfully of
the Views of ministers of goveriuncut—established churches,
non—atteinlance at those churches. expressions of non—
belief in their doctrines, and failure to pay taxes and tithes
to support them.“

These practices of the old world were transplanted to
and began to thrive in the soil of the new America. The
very charters granted by the English crown to the indi~

riduals and companies designated to make the laws which
would control the destinies of the colonials authorized
these individuals and companies to erect religions estab-
lishments which all. whether believers or non—believers,
would be required to support and attend.” An exercise of

3See 1‘. {/. .\lacanlcy, llistory of England (liq-till l, cc. 2, 4; The
Cambridge Modern History (19th V, cc. \7, lX, Xl; Beard, llise of
American (divilixation tlltith l. of): (‘obb, lleligious Liberty in Amer-
ica t litttfit c. ll: Sweet, The Story of lleligion in America (10359) c. H;
Sweet, lleligion in ('olonial .\merica tilt—12) 5120—322.

“See e, (I. the charter of the colony of (‘arolina which gave the
grantees the right of “patronage and avowdsons of all chappeles and
churches . . . together with power to build and found churches,
chapels and oratories . . . and cause them to be dedicated accordingr
to the ecclesiastical law of our kingdom of lingland." l’oore, Con—
stitutions (IN—\t ll. liltttt, lilttl. That of Maryland gave to the
grantee Lord llaltiniore "the I’atronages and .\\'o\\'dson.< of all
(‘hurches which . . . shall happen to be built, together with License,
and Faculty of erecting and founding (‘hnrehcsy (,‘liapcls and l’laccs
of \Vot'ship . . . and of causing the same to be dedicated and conse-
erated according to the Ecclesiastical Laws of our Kingdom of Eng--

 

 52
8 EVERSON v. BOARD OF EDIT‘ATION.

this authority was accompanied by a repetition of many
of the old world practices and persecutions. Catholics
found themselves hounded and proscribed be :ause of their
faith: Quakers who followed their conscience went to jail;
Baptists were peculiarly obnoxious to certain dominant
Protestant sects; men and women of varied faiths who
happened to be in a minority in a particular locality were
persecuted because they steadfastly persisted in worship-
ping (iod only as their own consciences dictated.T And all
of these dissenters were compelled to pay tithes and taxes 8
to- support gorernment—sponsored churches whose min-
isters preached inflammatory sermons designed to
strengthen and consolidate the established faith by gener—
ating a burning hatred against dissenters.

These ru‘actices became so commonplace as to shock
the freedom—loving colonials into a feeling of abhorrence.0

land. with all, and singular such, and as ample llights, Jurisdiction,
l’rivileges, (kc . . . as am" liishop . . . in our Kingdom of lingland
c\'cr hath. ‘ . ." Ali-Donald, Documentary Source llook of American
llistory (Willi Z11, iii. The (‘ommission of New llampshire of lost),
l’oore, ail/Mu. ll, l3 7, stated: "And above all things \Ve do by these
presents will, require and command our said (‘ouncill to take all possi—
ble care for _\‘e disctaintenanciug of Vice and encouraging of Virtue and

1

good living; and that by such examples ye intidlc may be iu\'ited and
desire to partake of _\‘e ('hristian lIeligieu. and for ye greater ease and
satisfaction of _\'e sd lo\'il]'_" subjects in mat ters of religioir \Ve do hereby
require and comaud _\'( liberty of (ainsciencc shall be allowed unto all
protestants: yt such especially as shall be conformable to ye rites of
ye ('hurcli oI' lCngd shall be particularly cotmtcnanced and encour—
aged." See also /)/III‘/( It \'. (tar/c. it (‘rancli 2113.

7See c. g. Scmple, laptists in Virginia (1&04); Sweet, Religion in
Colonial America, supra at 1531—153, 2132-3325”.

“‘ Almost eyery colony exacted some kind of tax for church support.
See c. y. ('obb, op, cit supra. note 7), 11(1 (Virginian l-‘ll (North
('arolina D: IN.) (Massachusetts): 1370 ((‘onnecticut l; 30-1, 310, 1330
(New Yorkl: 2N3 (.\laryland I: 20;”) (New Hampshire).

9 Madison wrote to a friend in 1774: "That diabolical, hell—conceived
principle of persecution ragcs among some . . . This; \‘excs me the
worst of anything whatever. There are at this; time in the adjacent

 

 52
EVERSON 7;. BOARD OF EDFCATION. 9

The imposition of taxes to pav ministers’ salaries, and to
build and maintain ehurehes and ehureh property aroused
their indignation.” lt was these sentiments which found
expressit'm in the First Amendment. No one lo *ality
and no one group throughout the (i‘olonies ean rightly
be given entire eredit for having aroused the sentiment
that eulminated in adoption of the Bill of Rights‘ provi—
sions embraeing religious liberty. 3ut Virginia, where the
estal'dished (-hureh had aehieved a dominant, influence in
politieal affairs and where many exeesses attracted wide
publi * attention, provided a gr ‘at stimulus and able lead—
ership for the movement. The people there. as elsewhere,
reaehed the eonvietion that individual religious liberty
could be aehieved best under a government which was
stripped of all power to tax. to support. or otherwise to
assist any or all religious. or to interfere with the activities
of any religious individual or group.

The movement toward this end reaehed its dramatic
elimax in Virginia in 1783—86 when the Virginia legis-
lative body was about to renew Virginia’s tax levy for
the support of the established ehureh. Thomas Jeffer—
son and James Madison led the fight against this tax.
Madison wrote his great. Memorial and temonstrance
against the law.” In it. he eloquently argued that a
true religion did not need the support of law; that no

country not less than live or six well—meaning men in Close jail for

publishing their religious sentiments, whieh in the main are very
orthodox. l have neither patienee to hear, talk or think of any—
thing relative to this matter, for l have squabbled and seolded,
abused and ridieuled, so It ug about it to little i'iiii'pose, that I am
without eominon patienee.’ So I must beg you to pit_v me, and pray
for liberty of eonseienee for all.” I Writing of James Madison
(llltlttt 13, ill.

1" Virginia‘s resistanee to taxation for rhureh support was crystal-
lized in the famous ”l’arson's Case" argued by l):lll'lt'l’ llenry in 1703.
l’oran .‘lt't'tilllll see (fobb, op. wt. supra. note 7), 105411.

“ ll \Vritings ot' James Madison, 1.555.

 

 52
10 EVERSON v. BOARD OF EDUCATION.

person. either believer or non—believer. should be taxed
to support a religious,institution of any kind; that the
best interest of a society required that the minds of men
always be wholly free: and that cruel persecutions were
the inevitable result of governmcnt-cstablished religions.
Madison's Remonstrancc received strong support from all
over Virginia.” and the Assembly postponed consideration
of the proposed tax measure until its next. session. When
the proposal came up for consideration at that session, it
not only died in committee. but the Assembly enacted
the famous “Virginia Bill for Religious Liberty" originally
written by Thomas Jefferson.“ The preamble to that Bill
stated among other things that

“Almightly God hath created the mind free. and
manifested his supreme will that it shall remain free
by making it altogether insusecptible of restraint;
that all attempts to influence it by temporal punish—
ments. or burtlrcns or by civil incapacitation, tend
only to beget habits of hypocrisy and meanness. and
are a departure from the plan of the holy author of

religion . . .1 that to compel a man to furnish con—
tributions of money for the propagation of opinions
which he disbelieves and abhors. is sinful and tyran—
nical; that even the forcing him to support this or
that t ‘acher of his own religious persuasion is depriv—
ing him of the comfortable liberty of giving his

‘3 In a recently discoyereil collection of Madison's, papers, Madison
recollectcd that his llcinonstrance “met with the approbation of the
llaptists. the l)l't’>li_\'lt‘l'lilll.". the Quakers, and the few ltoman (‘ath—
olics, universally: of the Methodists in part: and-even of not a few
of the Sect formerly est;">|ishcd by law." Madison, il/onopot’fcx,
I’t I'M led/rs. ('ot'po/‘alams. I[cc/(".viuslirri/ Iz'm/oII‘H/culs. in Fleety Jim/—
[son's "/h’fllt'l/é't/ JIcmorum/am," :3 William and Mary Q. tlthj) 5.34,
55h 5.1—).

"‘ li‘or accounts of background and evolution of the Virginia Bill for
ltcligious liberty see c. (I. James, The St rugglc for Religious Liberty in
Virginia tl'Jlltl): Thom. The Struggle for Religious Freedom in Vir-
ginia: the Baptists (19(10): (’obb, op. ('i[.. supra. note 5, 74415;
Madison, .llouopo/its. l’cr/a'lm'lim. ('m'porulimm, Ecclesiastical En.-
r/oI/‘mcats, op, cit, supra, note 12, .3511, 550'.

 

 52
EYE {SON tr. BOARD OF EDIT‘ATION. 11

contribution to the particular pastor whose morals he
would make his pattern. .”
And the statute itself enacted
“that no man shall he compelled to frequent or sup—
port anv religious worship. place. or minister whatso-
ever. nor shall he he enforced. restrained. molested. or
hurthened. in his hotly or goods nor shall otherwise
sut’t‘er. on account of his religious opinions or
belief. . . .” “
This (‘ourt has previously recogni::ed that the provi—
sions of the First Amendment. in the drafting and adop—
tion of which Madison and Jefferson played such leading
roles. had the same objective and was intended to provide
the same protection against governmental intrusion on
religious liberty as the Virginia statute. Rot/Holds V.
I'IIi/er/ SIN/es, supra. at 154: ll'rt/son v. Jones, 13 Wall.
(379: Dow's v. Benson, 1323 1'. S. 332 . 3342. Prior to the
adoption of the Fourteenth Amendment, the First Amend~
ment did not appl ' as a restraint against the states.“ Most
of them did soon provide similar constitutional protections
for religious lilierty.” But solne states persisted for about
half a century in imposing restraints upon the free exercise
of religion and in discriminating against particular reli-
gious groups.” In recent years. so far as the provision
against the establishment of a religion is concerned,

“ |‘_’ lleningi Statutes of Virginia (1821)") 3st; C‘ommager, Docu-

ments of American History t ltlrt—tl if».

‘i' l’crmo/i Vt New Orleans. 23 llow. 551).. ('1'. Barron v. Bullhnorc,
7 l'et. ‘Jlili

"" l’or a eolleetion of state constitutional provisions on Freedom of
religion see (lavel, l’ultlie l’unds l'or (‘hureh and Private Schools
t 1937) IAIN-I’m. {\‘ec also 2 Cooley, (‘oustitutional Limitations (19127)
tltitl~tl§l

”'l‘est provisions t‘orltade olliee holders to “deny . . . the truth
ot' the Protestant religion." e. or (‘oustitution of North ('arolina tlTTtil
§XXXlL ll l’oore. .s'II/ti’r. lllit. Alarvland permitted taxation for
support oi the (‘hristian religion and limited civil otlice to (.‘hristians
until ism/11,. 1,510,815532.

 

 52

1‘2 EYERSON v. BOARD OF EDUCATION.

the question has most frequently arisen in connection with
proposed state aid to church schools and efforts to carry on
religious teachings in the public schools in accordance with
the tenets of a particular sect.“ Some churches have
either sought or accepted state financial support for their
schools. Here again the efforts to obtain state aid or
acceptance of it have not been limited to any one particu-
lar faith.” The state courts. in the main. have remained
faithful to the language of their own constitutional provi—
sions designed to protect religious freedom and to separate
religions and governments. Their decisions. however,
show the difficulty in drawing the line between tax legis—
lation which provides funds for the welfare of the general
public and that which is designed to support institutions
which teach religion."0

The 111eaning and scope of the First Amendment. pre—
venting establishment of religion or prohibiting the free
(.‘xercise thereof. in the light of its history and the evils it
was designed forever to suppress. have been several times
elaborated by the decisions of this ("ourt prior to the appli-
'ation of the First Amendment to the states by the Four—
teenth.“ The broad meaning given the Amendment by
these ‘arlier cases has been accepted by this Court in its
decisions concerning an individual's religious freedom ren—
dered since the Fourteenth Allit‘lltllnt‘lit was interpreted
to make the prohibitions of the First applicable to state'
action abridging religious freedom.” There is every rea-

“See Note 30 Yale L. .l. (lit—ll) 917; see also cases collected 14
L It. A. its; .3 ;\. It. It. s79: H] A. l.. ll. ll»l.\’.

1“ See eases collected Li L. ll. A, 418; 5 A. L. ll. 570; 141 A. L. R.
THS.

'~‘" [bit]. See also Cooley, op, cit” supra, note 16.

3‘ '1’: rrcll v, Toy/m; {I (‘ranch ~12}: ll'rrlsoii \'. Jones. 13 'Wall 670;
Due/x \'. lie/Mon. bid [1 5. Will: (it. ll’i‘yiiiiir/s \'. L7. 5., 81111171 10".};
[fez/hi 1i Quir/J lie/11‘ \'. law/lip 2H) [7. S, St).

'43 ( '«ml/l'i‘i/ \‘. (Vii/IL. ll ltl l', S, ‘_",ltl; l,(l/‘[/(,’]/[ v. Terr/s. 1318 l7. 9. HS;
Maniac/r \'. l‘t nusy/i'miiu. sup/'11; ll'cs‘l l'ii'g/inia Stale Board of Educa-

 

 52

FYICRSON 2:. BOARD OF FDIT‘ATION. 13

son to give the same applieation and broad interpretation
to the “establishment of religion" clause. The, interrela—
tion of these eoniplerneniary clauses was well summarized
in a statement of the ( 'ourt of Appez ls of South Carolina?3
quoted with approval by this (hurt in ll'alson, V. Jones,
13 Wall. HTS). 73’0: “The structure of our government has,
for the preservation of (.‘ivil Liberty. rescued the Tem—
poral Institutions from religious interference. On the
other hand. it has seenred Religious liberty from the
invasions of the ( 'iyil .v\uthority.”

The “estal‘iiishnient of religion” clause of the First
Amendment. means at hast that: Neither a state nor the
Federal (lovernment full set up a ehureh. Neither tan
pass laws which aid one religion, aid all religions. or pre-
fer one religion over another. Neither fan force nor influ-
enee a person to go to or to remain away from ehureh
against his will or foree him to profess a belief or disbelief
in any religion. No person ean be punished for entertain—
ing or professing religious beliefs or disbeliefs. for ehureh
attendanee or non—attendanee. No tax in any amount;
large or small. ean be levied to support any religious
aetivities or institutions. whatever they may be ealled,
or whatever form they may adopt to teaeh or prac—
tiee religion. Neither the state. nor the Federal Govern—
ment ean. openly or secretly. partieipate in the affairs of
any religious organizations or groups and wire rersa. In
the words of Jefferson. the Clause against establishment of
religion by law was intended to erect “a wall of separation
between ehnreh and state." Reynolds V. United States,
supra at 164.

[ion \‘. lit/l‘nr‘llr‘. illll ll. 9. till: I'VIINI‘H \‘. ,l/t'rol'mt'r’lr, «‘l'll [19373;
il/m's/t \'. .‘l/II/HIIIHI. IIZT l'. S. .Utlll ('j. le'm/jir/v/ v. Roberts. 175 L'. S.
1391.

'-'-‘[lurmon V. 1)I'(’]tt’l', 2 Speer's liqnity llepoi'ts (S. C., 1543), ST,
120.

 

 52
14 EVEHSON tr. BOARD OF EDI’CATION.

“'e must consider the New Jersey statute in accordance
with the foregoing limitations upon state law imposed
by the First Amendment. But we must not strike that
state statute down if it is within the state’s constitutional
power even though it approaches the verge of that power.
Sec Intel's/rite 137/. V. Jim-such use/‘13. Holmes. J.. supra, at
83, 88. New Jersey 'annot consistently with the “estab-
lishment of religion clause" of the First Amendment con—
tribute tax—raised funds to the, support of an institution
which teaches the tenets and faith of any church. ()n the
other hand. other language of th ‘, amendment commands
that New Jersey cannot hamper its citizens in the free
exercise of their own religion. (‘onsetpientlv it ‘annot
exclude individual (‘atholics Lutherans. Mohammedans,
Baptists. Jews, Methodists. Non—believers, Presbyterians,
or the members of any other faith, because of l’ltcirfuil/I, or
[ac/c of it, from receiving the benefits of public welfare leg—
islation. While we do not mean to intimate that a state
could not provide transportation only to children attend—
iner public schools. we must be careful. in protecting
the citizens of New Jersey against state—established
churches. to be sure that we do not inadvertently prohibit
New .lersey from extending its general state law benefits
to all its citizens without regard to their religious belief.

Measured by these standards. we cannot say that the
First Amendment prohibits the State from spending tax—
raised funds to pay the bus fares of parochial sehool pupils,
just as it pays the tares of pupils attending public and
other private schools.“ It is undoubtedly true that chil-
dren are helped to act to church schools. There is even a
possibility that some of the children might, not be sent to
the church schools it the parents were compelled to pay
their childrens’ bus fares out of their own pockets when
transportation to a public school would have been paid for
by the State. The same possibility exists where the state

3‘ See p. '3, supra.

 

 52
EVERSON v. BOARD OF EDI'C‘ATION. 15

requires a local transit company to provide reduced fares to‘
school children including those attending)‘ parochial
schools.“ or where a municipally owned transportation sys-
tem undertakes to carry all school children free of charge.
Moreover. state—paid policemen. detailed to protect chil—
dren going to and from church schools from the very real
hazards of traffic. would serve much the same purpose and
accomplish much the same result as state provision for
free. safe and rapid transportation. And parents might
refuse to risk their children to the serious danger of traffic
accidents going to and from parochial schools. the ap—
proacl'ies to which were not protected by policemen.
Similarly. parents might be reluctant to permit their
children to attend schools which the state had cu