Abstract

Everson v. Board of Education stands as a key decision in laying the foundation for judicial review of all governmental practices supportive of religion. The beginning of an impressive and influential body of case law, it nationalized the restrictions embodied in the establishment clause of the first amendment and opened up a new and comprehensive surveillance of state and local laws and practices dealing with religious matters. While it has touched various sensitive areas of national life, the interpretations flowing from this decision have had their most important and dramatic impact in the field of education. On the one hand, Everson prepared the groundwork for decisions invalidating Bible-reading and prayer practices in the public schools. On the other, it and succeeding decisions staked out general guidelines for determining the validity of governmental aid in support of church-related educational enterprise. For all practical purposes the establishment limitation it applied to the states has superseded the old public purpose doctrine based on the substantive right interpretation of the due process clause as the governing approach to these questions.

What is equally interesting is that Everson has had a significant influence on the interpretation of state constitutional provisions. Prior to Everson state courts were reluctant to give a relaxed interpretation to constitutional and statutory provisions forbidding public assistance to sectarian interests. In Everson, however, the Court read into the establishment clause provisions commonly found in state constitutions but gave them a fairly liberal construction. Development of the secular purpose and child-benefit doctrines which justify the use of public funds to provide bus transportation and textbooks for parochial school children has led state courts to adopt a more liberal view in their interpretation of specific provisions in state constitutions. This development affords a fascinating study of the continuity and movement of constitutional ideas.

It cannot be gainsaid that Justice Black's notable opinion has had an important and enduring effect on our constitutional law. But a critical second look at the opinion reveals that Justice Black took considerable leeway with the history and language of the establishment clause and that some of his more sweeping assertions have been subsequently either qualified or repudiated. An appreciation of the importance Everson has played in the area of church-state relations should not obscure, therefore, assertions made by Justice Black which the Court has disowned. After setting the problems discussed in Everson against a background of earlier developments, Justice Black's opinion will be analyzed in five respects: the application of the establishment clause to the states; the historical interpretation of the establishment clause; the meaning of "no-aid" to religion; the wall of separation between church and state; and the concept of neutrality.

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