Church & State

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .

In those words of the First Amendment to the Constitution,* chosen with exquisite care, James Madison sought to separate church & state forever. He hoped thus to stamp out the conflicts and persecutions which had been transplanted from the Old World to the New. Time & again the Supreme Court of the United States has had to define what separation meant. Last week, the age-old question was before it again. And the Court, operating more as a debating society than as the Government's judicial mind, could produce nothing better than a 5-to-4 decision which settled little and solved nothing. It did show-- and thereby took aback those who fondly imagined that the question had been answered long ago--that the relations of church and state were still, or again, an issue.

The issue had come to a head in Ewing Township, N.J., hereto fore chiefly noted because Washington's men marched through its woods and fields on thier way to victories at Trenton and Princeton. For some years, Ewing Township had been reimbursing parents out of tax money for bus fares paid by their children traveling to & from school. Several thousands of dollars a year were refunded to parents of public-school children. Then, under a 1941 state law, $357.74 (for a half year) went to parents who sent their children to Roman Catholic schools. The amount was trifling, but the principle was vital to one Arch R. Everson, a townsman who is the paid secretary of a taxpayers' league. He won a judgement that the 1941 law was unconstitutional. By successive appeals the case reached the Supreme Court.

The Greater Freedom. In deciding the case last week, that unhappy family of jurists showed how deeply it was divided, not on separation of church & state, but on where to draw the line of separation. Justices Burton, Rutledge, Jackson and Frankfurter voted to throw out the New Jersey law, Justices Douglas, Murphy, Reed and Black voted to uphold it. The 4-4 tie put the issue squarely up to Chief Justice Fred Vinson--in experience, the baby of the court. His deciding vote upheld the state law and the payments to Roman Catholic parents.

As the learned judges saw it, the issue was whether religious freedom was better preserved by upholding the freedom of non-Catholics from taxation for the benefit of another sect, or by upholding New Jersey in "extending its general state law benefits to all its citizens without regard to their religious belief."

For the five-man majority, Justice Hugo Black proclaimed eloquently and forcefully the wisdom of separating church & state. Cried Black: "Neither a state nor the Federal Government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions ... whatever form they may adopt. . . ."

Black reasoned that New Jersey could not exclude individuals of any faith "because of their faith, or lack of it, from receiving the benefits of public welfare legislation." The Court had unanimously decided in 1925 that parents may "send their children to a religious rather than a public school if the school meets the secular educational requirements." Now, he said, "The state contributes no money to the schools. It does not support them."

He concluded that the wall between. church & state "must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here."

Non Sequitur. Justice Robert Jackson saw a deep contradiction between Black's protestations on the one hand and his finding on the other. To Jackson, the breach was evident.

"We know," he argued further, "that such schools are parochial only in name--they, in fact, represent a worldwide and age-old policy of the Roman Catholic Church. . . . Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself."

Jackson saw danger ahead, for Roman Catholics no less than for other creeds: "If the state may aid these religious schools, it may therefore regulate them."

From the Past. Justice Wiley Rutledge, for 15 years a law professor, felt that there was so much more to be said that he filed another dissent. In an impassioned opinion running to 47 pages he lectured his learned colleagues and the nation on the relentless struggle by which the separation of church & state had been riveted into the Constitution. A quotation from Jefferson which Black had used was taken also by Rutledge, but put to different purpose: ". . . To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." Said Rutledge: "I cannot believe that the great author of those words . . . could have joined in [the majority] decision. Neither so high nor so impregnable today as yesterday is the wall raised between church and state. . . . Thus with time the most solid freedom steadily gives way before continuing corrosive decision."

The issue was not settled. In the past, the courts of six states had thrown out, as unconstitutional, laws similar to New Jersey's permitting transportation at public expense for parochial-school pupils. There was talk of drafting a constitutional amendment to bar the practice. The issue would be before the people for a long time to come.

*Extended by the 14th Amendment to apply to the states as well as to Congress.

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