Is the Wall Crumbling?

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."

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