Everson v. Board of Education

The "establishment of religion" clause of the First Amendment means at least this:

(1) Neither a state nor the Federal Government can set up a church.

(2) Neither can pass laws which aid one religion aid all religions, or prefer one religion over another.

(3) 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.

(4) No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.

(5) 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.

(6) 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, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

We note that these words betray no anti-religious bias; on the contrary, the court seems to be at least as interested in protecting the church from the state as it is in protecting the state from the church. In particular, principles 3, 4, and 6 safeguard the right of people to freely practice their religion without interference from the state. Conversely, principles 1, 2, and 5 prohibit the state from favoring any religious belief system above another, or forcing people to support a religion in which they do not believe.

Taken together, principles 2 and 5 constitute what is known as the no-aid-to-religion rule. This rule prohibits the government using tax money to support one religion, or to favor religion above no irreligion. Despite no-aid-to-religion rule, however, the Everson Court upheld the New Jersey statute. It did so by formulating a second rule known as the sacred-secular doctrine. As explained by legal scholar Stephen Monsma, Justice Black distinguished

between programs that would contribute "money to the schools" or would "support them" and those, such as the one that was being challenged in that case, "indisputably marked off from the religious function" of schools. He held that bus transportation was clearly separable from the religious mission of the schools and similar to general public services such as police and fire protection and sewage disposal. Thus it could be supported by public funds.

The Supreme Court thereby established a second crucial legal doctrine, namely, that while public money may not go to support religious programs or organizations, it may go to provide services not directly related to the religious mission of religious organizations. This was the beginning of the legal doctrine that separates the sacred and the secular aspects of a religiously based organization, and holds that public money may flow to its secular, but not its sacred aspects (When Sacred and Secular Mix: Religious Nonprofit Organizations and Public Money, p. 31-32).

In many ways the history of establishment clause jurisprudence has been a matter of working out the details of the no-aid-to-religion and sacred-secular doctrines. What constitutes aid to religion? Does indirect aid violate the law? How can we tell when aid breaches the sacred-secular line? None of these questions admit of absolute answers. Fortunately, as the other articles in this section make clear, the Court has hit on additional guidelines that resolve many of the ambiguities in these questions.