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4 Church and State The Religion Clauses  .  The First Amendment to the Constitution contains two clauses concerning religion: “Congress shall make no law respecting an establishment of religion , or prohibiting the free exercise thereof.” For most of the first 150 years following the adoption of the Bill of Rights Congress obeyed this injunction, and not until 1947 did the Court rule that the religion clauses applied to the states as well as to the national government. Justice Hugo Black, in his majority ruling in Everson v. Board of Education, expounded at length on the historical development of religious freedom in the United States, and concluded: 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 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 organization or groups and vice versa. In the words of [Thomas] Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”1 This paragraph contains the starting point for nearly every religion case decided by the Court in the last sixty years, whether it involves the establishment clause (in which the government promotes a religious function) or the free exercise clause (in which the government restricts an individual from adhering to some practice). For those who believe in a complete and impregnable wall of separation between church and state, Justice Black’s statement says all that is necessary. For those, however, who believe that the religion clauses allow accommodation between government and religious groups, provided no one faith is favored or disfavored above others, then the Black reading of history is greatly mistaken. Yet the Everson decision provided an interesting twist. A New Jersey statute authorized school districts to make rules providing transportation for students, “including the transportation of school children to and from school other than a public school, except such school as is operated for profit.” One local school board allowed reimbursement to parents of parochial school students for fares paid by their children on public buses when going to and from school, and a taxpayer in the district challenged the payments as a form of establishment. After his lengthy review of the history of the clauses, and language which implied that no form of aid—direct or indirect—could be tolerated under the establishment clause, Justice Black concluded that the reimbursement plan did not violate the First Amendment, which only requires that “the state be a neutral in its relations with groups of religious believers and nonbelievers ; it does not require the state to be their adversary. . . . [The] 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.”2 The opinion evoked dissents from four members of the Court, and Justice Robert H. Jackson noted that Black, after marshalling every argument in favor of a total separation of church from state, weakly allowed that no breach of the wall had occurred. “The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports , ‘whispering “I will ne’er consent,”—consented.’”3 Justice Wiley B. Rutledge took the logic of Black’s historical argument and reached the inevitable conclusion that if “the test remains undiluted as Jefferson and Madison made it, [then] money taken by taxation from one is not to be used or given to support another’s religious training or belief, or indeed one’s own. [T]he prohibition is absolute.”4 Black had written what might be considered the first accommodationist opinion, allowing an indirect form of governmental aid to religious schools, utilizing what would later be termed the “pupil benefit” theory. So long as the aid...

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