The “Wall of Separation”

We turn today to concerns about the establishment of religion.  We’re now asking not whether the Government must exempt religious believers from generally applicable laws under the Free Exercise Clause, but whether it may do so without violating the Establishment Clause. And we will explore many other applications of the Establishment Clause.  We will soon see that the Supreme Court’s approach to Establishment Clause cases is anything but clear. 

Today, we begin with Everson, which is the first case to hold that the Establishment Clause is incorporated against the states. In Everson, Justice Rutledge says that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.” Keep in mind the historical influences that we studied early on in this semester, and think about what bearing they might have on Establishment Clause jurisprudence.

The majority in Everson says that “[n]o 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.” Yet the result in Everson comes out the other way, allowing a local school board to reimburse bus fares to parents sending their children to Catholic schools. Can you explain this discrepancy? Is the standard announced in Everson workable?

In Allen, we move from buses to books; the Court allows the state to loan school books to religious schools. Are books different than buses? Justice Black’s dissent makes the case that “[i]t’s not difficult to distinguish books, which are the heart of any school, from bus fares, which provide a convenient and helpful general public transportation service.” Do you agree?

We will see religious education arise consistently in the second half of this course. Religious schools pursue two goals: religious instruction and secular education. In these cases, the religious schools push for a relatively thin description of their formational aspects. But in cases we will see later (like those on the ministerial exception), religious schools argue that everything they do is infused with religious instruction. Bearing a similar inconsistency are the inverse arguments of those who oppose both funding to religious schools and the ministerial exception.

Reading Assignment:

  • Everson v. Board of Education, 330 U.S. 1 (1947)

  • Board of Education v. Allen, 392 U.S. 236 (1968) 

Optional Reading: