Is the Wall Crumbling?

By Redlich, Norman | The Nation, October 9, 2000 | Go to article overview

Is the Wall Crumbling?

Redlich, Norman, The Nation

Between 1947 and 1971, three Supreme Court decisions forged the law of church/state separation that remains largely in place today, though each case spawned controversies and doctrines that have threatened to engulf the principles for which the cases are remembered. The current Supreme Court is so divided on these fundamental questions that the appointment of one or two conservative Justices could well tip the balance and jettison the important principles enunciated in the three cases.

The first--Everson v. Board of Education (1947)--upheld the use of public funds to pay for the transportation of children to religious schools. The opinion, written by Justice Hugo Black, sets forth constitutional doctrine that still governs the Court's interpretation of the First Amendment provision that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Justice Black wrote:

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 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 organization 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."

In upholding the New Jersey statute providing funds to bus parochial school students, Justice Black expressed concern for the safety of the children walking on highways. This "child benefit" concept provided a basis not only for noncontroversial forms of government aid to parochial schools, such as providing police and fire protection, but also for more controversial forms of assistance, such as the issuance of publicly supported bonds to finance the construction of facilities in church-related colleges and universities, the provision of diagnostic and remedial services, and various forms of teaching aids to parochial schools.

The Everson case highlighted another potential tension in the Constitution's religion clauses--that the denial of certain benefits to parochial schools might be viewed as depriving the schools of equal protection or abridging the children's rights, particularly their right of free exercise of religion.

A second prong of church/state law emanates from the "school prayer" decision, Engel v. Vitale (1962). Justice Black, for a near-unanimous Court, invalidated a state-mandated "non-denominational" prayer. The concept that state-mandated prayers violate the establishment clause remains largely unchallenged today, but the case also gave rise to countervailing tensions and principles. For example, did Engel prohibit a moment of silent prayer? Did students have the constitutional right to form a student group to promote religion? Would a so-called student prayer at a graduation exercise constitute an establishment of religion or merely a recognition of the right of students to free speech? Critics have sought to narrow the decision's scope by contending that religion has been driven from the public square, both in schools and other public places. Defenders of the Engel decision have argued (for the most part successfully) that the decision does not bar religious practices and activities in public schools so long as the state is not placing its imprimatur of support on the particular religious practice. …

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