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Everson v. Board of Education

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Everson v. Board of Education
Argued November 20, 1946
Decided February 10, 1947
Full case nameArch R. Everson v Board of Education of the Township of Ewing, et al.
Citations330 U.S. 1 (more)
67 S. Ct. 504; 91 L. Ed. 711; 1947 U.S. LEXIS 2959; 168 A.L.R. 1392
Case history
PriorEverson sued as a school district taxpayer, judgment for plaintiff, 132 N.J.L. 98, 39 A.2d 75; New Jersey Court of Errors and Appeals reversed, 133 N.J.L. 350, 44 A.2d 333, cert. granted.
SubsequentRehearing denied, 330 U.S. 855 (1947).
(1) The Establishment Clause of the First Amendment is incorporated against the states through the Due Process Clause of the Fourteenth Amendment. (2) New Jersey law providing public payment of the costs of transportation to and from parochial Catholic schools is not in violation of the Establishment Clause.
Court membership
Chief Justice
Fred M. Vinson
Associate Justices
Hugo Black · Stanley F. Reed
Felix Frankfurter · William O. Douglas
Frank Murphy · Robert H. Jackson
Wiley B. Rutledge · Harold H. Burton
Case opinions
MajorityBlack, joined by Vinson, Reed, Douglas, Murphy
DissentJackson, joined by Frankfurter
DissentRutledge, joined by Frankfurter, Jackson, Burton
Laws applied
U.S. Const. amends. I, XIV

Everson v. Board of Education, 330 U.S. 1 (1947), was a landmark decision of the United States Supreme Court that applied the Establishment Clause of the First Amendment to state law.[1] Before this decision, the clause, which states, "Congress shall make no law respecting an establishment of religion",[2] imposed limits only on the federal government, while many states continued to grant certain religious denominations legislative or effective privileges.[3]

It was the first Supreme Court case incorporating the Establishment Clause of the First Amendment as binding upon the states through the Due Process Clause of the Fourteenth Amendment.

The case was brought by a New Jersey taxpayer against a tax-funded school district that provided reimbursement to parents of both public and private school students taking the public transportation system to school. The taxpayer contended that reimbursement given for children attending private religious schools violated the constitutional prohibition against state support of religion, and the use of taxpayer funds to do so violated the Due Process Clause. The Justices were split over the question whether the New Jersey policy constituted support of religion, with the majority concluding that the reimbursements were "separate and so indisputably marked off from the religious function" that they did not violate the constitution. Both affirming and dissenting Justices, however, were decisive that the Constitution required a sharp separation between government and religion, and their strongly-worded opinions paved the way to a series of later court decisions that taken together brought about profound changes in legislation, public education, and other policies involving matters of religion.[3] Both Justice Hugo Black's majority opinion and Justice Wiley Rutledge's dissenting opinion defined the First Amendment religious clause in terms of a "wall of separation between church and state."


After repealing a former ban, a 1941 New Jersey law authorized payment by local school boards of the costs of transportation to and from schools, including private schools, most of which were parochial Catholic schools.[4]

Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit on state constitutional grounds.[5] The Establishment Clause was not yet incorporated when the lawsuit was filed. Everson was to become the first Establishment Clause challenge against a state law heard by the Supreme Court. In deciding this case, the Supreme Court would hold that the Establishment Clause was made applicable to the states by the Due Process Clause of the Fourteenth Amendment.

The New Jersey Supreme Court held that the provision violated the state constitution's purpose restriction on the legislative power to authorize spending for private and parochial schools.[6][a] After this decision was reversed by the New Jersey Court of Errors and Appeals, then the state's highest court, Everson appealed to the US Supreme Court which decided the case on federal grounds only.[7][b]

Supreme Court[edit]

The 5–4 decision upholding the state law was handed down on February 10, 1947. The decision was the first to hold that the Establishment Clause was applicable against the states. It is also remembered as the first Supreme Court case to attempt an explanation of the Establishment Clause.[4] They held that the New Jersey law providing reimbursement to transportation to all students was not a violation of the establishment clause.[8]

Majority opinion[edit]

In a majority opinion written by Justice Hugo Black, the Supreme Court ruled that the state bill was constitutionally permissible because the law had a "public purpose" to provide safe transportation to parochial school students.[9]

The interpretation given by the Court to the Establishment Clause was broad and would guide the Court's jurisprudence for decades to come. Arthur E. Sutherland Jr. called it "the most influential single announcement of the American law of church and state".[10] Black's language was sweeping:

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. 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."

This highly influential dictum was supported only by a historical analysis based on James Madison's Memorial and Remonstrance Against Religious Assessments and Thomas Jefferson's Virginia Statute for Religious Freedom.[11]


Justice Jackson wrote a dissenting opinion in which he was joined by Justice Frankfurter. Justice Rutledge wrote another dissenting opinion in which he was joined by Justices Frankfurter, Jackson, and Burton. The four dissenters agreed with Justice Black's definition of the Establishment Clause but protested that the principles that he laid down would logically lead to the invalidation of the challenged law:[12]

The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting.

Legal scholarship[edit]

"Wall of separation": No aid to religion[edit]

Everson confirmed that the Supreme Court would interpret the Establishment Clause to protect against more than the establishment of a state church. The "wall of separation" was a principle of the founding age that prohibited any government aid to religion. The Establishment Clause would not allow any public spending "to support any religious activities, or institutions whatever they may be called, or whatever form they may adopt to teach or practice religion".[13]

"Public purpose": Indirect benefit[edit]

Everson upheld the constitutionality of reimbursing the students transportation costs because the program had a public welfare purpose. The Court said that public funds could not be used "to teach or practice religion."[14] Citing Cochran v. Louisiana State Board of Education, Justice Black wrote that it was "too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose".[8]

An "indirect benefit" to parochial schools did not make a statute with a legitimate secular purpose unconstitutional.[11][15] The divided opinion laid the groundwork for the Lemon test which would add the primary effect and excessive entanglement criteria. [16]


Everson's holding incorporating the Establishment Clause was controversial and more cases followed.[17] A few months later the court reaffirmed this holding in the first released time case McCollum v. Board of Education.[11][18] The court continued to hear cases about religion in public schools in cases like Abington v. Schempp which banned daily bible readings in public school. The American public was divided and some viewed the cases as heralding the secularization of public life in the United States.[19]

Having invoked Jefferson's metaphor of the wall of separation in the Everson decision, lawmakers and courts have struggled how to balance governments' dual duty to satisfy the Establishment and Free Exercise Clauses of the First Amendment. The majority and dissenting Justices in Everson split over the question, with Rutledge in the minority by insisting that the Constitution forbids "every form of public aid or support for religion."[20]

Writing for the majority in McCollum, Justice Black defended the Everson holding and the "wall of separation" dictum. The four Justices who dissented in Everson—Justices Harold H. Burton, Felix Frankfurter, Robert H. Jackson, Wiley Rutledge— were reluctant to endorse the McCollum ruling. The Court's historical argument was reaffirmed in subsequent cases Abington School District v. Schempp, Engel v. Vitale and McGowan v. Maryland.[11]

See also[edit]


  1. ^ The NJ Supreme Court held the spending authorization for transportation reimbursement to parents violated Article 4 §7 ¶6 of the state constitution, which reads: "The fund for the support of free schools[...]shall be annually appropriated to the support of public free schools, for the equal benefit of all the people of the state; and it shall not be competent for the legislature to borrow, appropriate or use the said fund, or any part thereof, for any other purpose, under any pretense whatever."132 N.J.L. 98. 39 A.2d 75
  2. ^ Since there has been no attack on the statute on the ground that a part of its language excludes children attending private schools operated for profit from enjoying state payment for their transportation[...]we put to one side the question as to the validity of the statute against the claim that it does not authorize payment for the transportation generally of school children in New Jersey. The only contention here is that the State statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constition 330 US 1, 4, 5


  1. ^ Everson v. Board of Education, 330 U.S. 1 (1947). Public domain This article incorporates public domain material from this U.S government document.
  2. ^ in the United States Bill of Rights
  3. ^ a b Schultz 1999, p. 78
  4. ^ a b Finkelman 2013, p. 255
  5. ^ Ivers 1995, p. 18
  6. ^ Ivers 1995, p. 19
  7. ^ "Everson v. Board of Education of the Township of Ewing". Oyez. Retrieved March 18, 2024.
  8. ^ a b Ivers 1995, p. 23
  9. ^ Kauper 1968, p. 270
  10. ^ Arthur E. Sutherland Jr. "Establishment According to Engel," 76 Harvard Law Review 25 (November 1962): 25-52
  11. ^ a b c d Alito, Samuel A. (1974). "The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court". The Yale Law Journal. 83. Retrieved March 12, 2024.
  12. ^ Pollak, Louis. "W.B.R.: Some Reflections" (PDF). The Yale Law Journal: 1456.
  13. ^ Kauper 1968, p. 270
  14. ^ Kauper 1968, p. 270-71
  15. ^ Ivers 1995, p. 23
  16. ^ Maltz 2000, p. 169
  17. ^ Larson, Edward John (2003). Trial and error: the American controversy over creation and evolution (3, revised ed.). Oxford University Press US. ISBN 9780195154702.
  18. ^ Wiecek, William M. (January 23, 2006). The History of the Supreme Court of the United States. Cambridge University Press. pp. 258–263. ISBN 9780521848206.
  19. ^ Tushnet, Mark V.; Graber, Mark Aaron; Levinson, Sanford (2015). The Oxford handbook of the U.S. Constitution. Oxford university press. ISBN 978-0-19-024575-7.
  20. ^ McWhirter 1994, p. 37


External links[edit]