*1 THE OF EDUCATION OF v. BOARD EVERSON OF EWING TOWNSHIP et al. February 10, 1947. 20, 1946. Argued Decided November
No. *2 argued E. Hilton Jackson R. Burke and Edward Mr. the brief were appellant. With Burke on cause for Ellis, Spriggs. D. and Kahl K. B. W. Jamieson Challen appellees. for With Speer argued H. the cause 'William Roger R. and R. him on the brief were Porter Chandler Clisham. support appellant were filed
Briefs of amici curiae E. Hilton Conference of Sev- by Jackson for the General Osborne, al.; Harry V. Ken- enth-Day by Adventists et Whitney Seymour W. and N. for the neth Oreenawalt T. Union; by American Civil Liberties and Milton Lasher of the Junior Order of United for State Council Jersey. American Mechanics of New appellees Briefs of amici curiae in were filed Barrett, Attorney Illinois, F. Wil- by George General Wines, Attorney Illinois, liam C. Assistant General of Emmert, Indiana, A. Attorney James General of for LeBlanc, Indiana; by of Illinois and Fred S. Attor- States A. ney General, Louisiana; for the State of Clarence Barnes, Attorney General, for the Commonwealth of Mas- sachusetts; by Shepherd, General, Edmund E. Solicitor O’Hara, Attorney Daniel J. Assistant for General, Goldstein, Attorney by Nathaniel L. Michigan; State of Brown, P. General, and Wendell Solicitor General, Vaughn George N. York; of New James State et E. National Council of Catholic Men al. Flood Mr. Justice Black delivered the of the Court. opinion A local school dis Jersey New statute authorizes its transportation tricts to make rules and contracts for the a town appellee, children to and schools.1 ship education, pursuant statute, to this acting board authorized parents money expended reimbursement by them for children on transportation the bus of their regular sys operated by public transportation busses *3 tem. Part of was trans money payment this for the portation of some children in community to Catholic parochial give schools. These church stu schools their in dents, education, regular religious addition to secular conforming instruction to the tenets and modes Catholic Faith. worship superintendent The priest. these schools is a Catholic appellant, capacity in his taxpayer, as district in a challenging right
filed suit state court of the Board reimburse parents parochial school students. He 1 any living in “Whenever district there are children remote from any schoolhouse, the board of education of the district make transportation rules and contracts for the of such children to and school, including transportation from of school children to and public school, from school other than a except such school as is operated profit part. for in whole or in any provides any transportation
“When school district public for school, school children to from transportation any point from in any such established school route to point other in such estab supplied lished residing school route shall be to school children in going such school district to and from school other than a school, except operated such school profit part.” as is for whole or Jersey Laws, 1941, New p. 581; c. Supp., 18, c. 14, § 8 N. J. R. S. Cum. tit.
4 pur- passed resolution the statute
contended
Federal Consti-
and the
both the State
to it violated
suant
was
legislature
with-
held that
That court
tutions.
the state
under
payment
authorize such
power
out
The New
A. 2d 75.
98, 39
J. L.
N.
constitution.
holding that
reversed,
Appeals
Court of Errors
Jersey
pursuant
passed
resolution
nor the
neither
the statute
provi-
or the
State constitution
in conflict
was
133 N. J. L.
issue.
of the Federal Constitution
sions
appeal
is here on
under
350,
Since there language its excludes children attend ground part that a profit enjoying for State ing operated schools private need transportation, their we not consider for payment language; relevancy it has no exclusionary if presented.2 Furthermore, here question constitutional we do properly challenged, clause had been the exclusion would con Jersey’s highest New court not know whether payment of the school precluding strue its statutes Jersey challenge statute or the reso Appellant does not the New equal protection ground violates the clause lution on the that either excluding payment for the trans Amendment of the Fourteenth “private profit.” any pupil school run portation of who attends township reimbursement Although resolution authorized *4 allege, pupils, appellant parents does of and Catholic school slightest sup anything in which would offer the nor is there the record any township who allegation, children port to an that there were any transportation, attended, for want of attended or would have but appropriate will be to consider public and Catholic schools. It but operated profit private when of students of schools exclusion by proved occurred, made the basis of a suit one and if it is to have highest challenge Jersey’s has ruled position it., New court in a to adversely challenger. Striking law is not a matter down state to the by mero light a federal court ex of such moment that it should be done charged proved, which postulate but rests on motu on a neither nor Liverpool, Y. P. Co. v. nothing possibility. N. & S. S. but a Cf. Emigration, 33, 39. Comm’rs 113 U.S. of any transportation group pupils, even those of a private Consequently, put profit.3 school run for we to question validity one side the as to the of the statute against payment claim that it does not authorize transportation generally of school children New Jersey.
The
contention here is that the state statute and
they
the resolution, insofar as
authorized reimbursement
parents
attending parochial
to
of children
schools,violate
respects,
Federal Constitution
these
which
two
to
overlap.
They
some extent
First.
authorize the State to
by
private property
take
taxation the
some
and bestow
upon
private purposes.
others, to be used for their own
alleged,
process
This, it is
violates the due
clause of the
Fourteenth Amendment. Second. The
and the
statute
pay
help support
resolution forced inhabitants to
taxes to
and maintain schools which are
to,
dedicated
regularly
alleged
teach, the Catholic Faith. This is
to
power
contrary
be a use of state
church schools
prohibition
to the
of the First Amendment which the
applicable
Fourteenth Amendment made
to the states.
process argument
First. The due
that the state law
people
help
carry
private
taxes some
others
out their
3 might
excepting
It
invalid,
hold the
clause to be
and sustain the
S.,
1,
10,
statute with that
1,
pro
clause excised. N. J. R.
tit.
c.
§
regard
“any provision thereof,
vides with
statute that if
shall
be declared to
part,
be unconstitutional
...
or in
whole
a court
competent
jurisdiction,
shall,
such . . .
.
article
. .
to the extent
unconstitutional,
that it is not
enforced . . .
opinion
...
Appeals
very
the Court of
suggests
Errors and
in this
case
that state
law
of all
transportation
opinion
now authorizes
pupils.
Its
stated:
legislature
we hold
may appropriate general
“Since
that the
state funds
or authorize the use of local
transportation
pupils
funds for the
any school, we conclude that such authorization of the
use
local
Pamph.
L.
funds is likewise
ch.
R.
1941,
authorized
S.
191,
350,
18:7-78.”
333,
(Italics
N. J. L.
44 A. 2d
supplied.)
*5
is that
phase
first
The
phases.
framed in two
purposes
trans-
B for the cost of
A reimburse
tax
to
cannot
a state
to
is said
This
church schools.
his children to
porting
children are
the
clause because
process
the due
violate
desires
satisfy
personal
the
church schools to
to these
sent
in the
public’s interest
rather than the
parents,
their
if
argument,
all children. This
general education
payment
state
prohibit
valid,
apply equally
would
school,
any non-public
children to
transportation
non-govern-
other
by a church
operated
whether
Jersey legis-
New
But,
group.
ment
individual or
will be served
public purpose
has decided that a
lature
bus fares of all school
pay
funds to
using tax-raised
parochial schools.
including those who attend
children,
Appeals has reached
of Errors and
Jersey
The New
Court
law, passed
fact
a state
the same conclusion.
desires
personal
with the
need, coincides
satisfy public
a
certainly an
affected is
directly
the individuals most
legislature
that a
has
inadequate
say
reason for us to
need.
erroneously appraised
public
struck
has,
instances,
Court
in rare
It is true that
this
purpose ground
down state statutes on
expended
pub-
be
was not a
which tax-raised funds were to
655; Park-
Topeka,
Association v.
20 Wall.
lic one. Loan
Thompson
Brown,
487;
v. Consoli-
ersburg v.
106 U. S.
Corp.,
Gas Utilities
7 strip did not Fourteenth Amendment people. The of previously left problems of their to meet power the states Orleans, New 96 v. individual solution. Davidson for 103-104; Barbier v. 27, 31-32; U. S. Connolly, 113 97, S.U. 112, Bradley, v. 164 U. S. Irrigation District Fallbrook 157-158. legislation intended argue much too late to that
It is a edu- get of children to secular opportunity facilitate the v. Louisiana no Cochran public purpose. cation serves Education, J., 370; Holmes, Board 281 U. S. State of 79, Massachusetts, U. S. 87. See Ry. 207 Interstate v. 1 School District No. J., of Stuart v. opinion Cooley, of is no Kalamazoo, thing The same (1874). 69 Mich. all parents, or legislation needy to reimburse less true of their children so payment for of the fares of parents, rather from schools they can ride busses to and public risk hazards than run the of traffic other incident Connolly, v. “hitchhiking.” See Barbier walking L. 413; 63 A. R. supra, at 31. See also cases collected private L. R. 806. it follow a law has a A. Nor does provides than a because it that tax- purpose rather on raised funds will be to reimburse individuals paid which by way them in a furthers money spent account of v. Southern Coal & public program. See Carmichael Co., Subsidies loans Coke U. S. home-owners, pri- and to individuals such as farmers vately systems, many owned as well as transportation kinds have businesses, commonplace prac- other been history. tices our state national phase process argument Insofar as second the due first, suggesting differ from it is that taxation children to schools transportation church constitutes if law religion by the State. But is invalid reason, is because it the First Amend- violates prohibition against religion ment’s establishment by appellant’s raised question This is exact law. we now contention, to consideration second turn. a “law challenged as statute is Jersey The New
Second. First religion.” an respecting establishment Four by the to the states Amendment, applicable as made 105, com 319 U. S. Pennsylvania, v. teenth, Murdock an estab respecting no law “shall make mands that a state *7 the free exercise religion, prohibiting lishment of re First Amendment of the thereof . . .” These words . pic mental vivid early Americans flected in the minds of fervently they practices which of conditions and ture liberty for them preserve in to stamp to out order wished goal has Doubtless their posterity. and for selves their far moved has the Nation entirely reached; not been but so an respecting “law establish expression toward it that the vividly does not so remind religion,” probably ment of evils, political and present-day fears, Americans of the into our problems expression that caused that to be written Jersey Bill of this New law is one Rights. Whether an religion” requires an of un respecting “establishment derstanding meaning language, particularly of that imposition again,4 with to of taxes. respect the Once therefore, briefly to inappropriate it is review the back period of in ground and environment which fashioned and language adopted. constitutional was large A proportion early settlers of this country came Europe escape bondage here from of laws and compelled government- them to attend favored churches. The centuries immediately before and contemporaneous with the colonization of had America strife, been filled with turmoil, persecutions, gen- civil and in part by erated established large sects determined to Reynolds States, 145, 162; See v. Knowlton United 98 U. S. v. cf. Moore, 41, 89, 106. 178U. S. supremacy. and political maintain their absolute them, at various supporting power government With the Protestants, persecuted places, Catholics had times sects had persecuted Catholics, Protestants had Protestant of one persecuted sects, other Protestant Catholics shade had persecuted belief Catholics of another shade persecuted all belief, and of these had from time to time In loyalty Jews. efforts to force whatever happened top gov on group league to be particular place, ernment of a time and men and women tortured, had fined, jail, cruelly been cast and killed. Among punishments for which had been offenses these inflicted were things speaking disrespectfully such of government-established views ministers churches, non-attendance at those churches, expressions of non- doctrines, belief their pay failure to taxes and tithes to support them.5 practices transplanted
These of the old world were began thrive the soil new America. The very granted by English charters Crown to the indi *8 viduals and companies designated to the laws which make would control the destinies of the colonials authorized these individuals and companies to erect estab all, lishments which whether non-believers, believers or required would be support to An and attend.6 exercise of g. See e. Macaulay, England (1849) I, 2, 4; cc. The History of Cambridge History (1908) Modern V, V, IX, XI; Beard, cc. Rise of (1933) I, 60; Cobb, American Civilization Religious Liberty Rise of in (1902) II; Sweet, Story Religion America c. of (1939) in America II; Sweet, Religion (1942) c. in Colonial America 320-322. g. 6See e. of colony gave charter of Carolina which
grantees right “patronage of and advowsons of all the churches and chapels together . . power . with licence and to build and found chapels churches, and oratories . . . and cause them to be dedicated consecrated, according and to the kingdom ecclesiastical our laws of of England.” Poore, (1878) II, 1390, Constitutions 1391. That of Maryland gave grantee to the Lord Patronages, Baltimore “the and many by repetition accompanied authority was Catholics persecutions. practices and old-world their because of proscribed hounded and
found themselves jail; went to Quakers who followed their conscience faith; dominant to certain peculiarly obnoxious Baptists were faiths who of varied men and women sects; Protestant were locality minority particular in in a to be happened worship- steadfastly persisted they because persecuted And all dictated.7 only as their own consciences ping God tithes and taxes8 compelled pay were of these dissenters min whose churches government-sponsored designed to sermons preached inflammatory isters gener by the established faith strengthen and consolidate burning against hatred dissenters. ating a happen built, to be which . . . shall of all Churches Advowsons erecting founding Churches, Faculty together Licence and with causing Worship the same to be . . . and of Chapels, and Places of according Laws of our to the Ecclesiastical and consecrated dedicated ample Rights, singular such, England, all, and as Kingdom Bishop Kingdom Privileges, ... in our Jurisdictions, ... Documentary MacDonald, England, . . hath had ever . (1934) 31, History 33. The Commission of Book of American Source 1680, Poore, supra, II, 1277, “And Hampshire stated: above New presents will, require our said things do these and comand all We possible ye discountenancing all care for of vice and Councill to take good living; examples ye encouraging and that such of virtue partake ye Religion, be invited and desire Christian infidle ye subjects ye greater loving ease and satisfaction of sd and for hereby require yt liberty religion, do and comand matters of We protestants; yt especially unto all such shall allowed conscience ye ye Engd be conformable to rites of Church of shall be as shall encouraged.” v. particularly also Pawlet countenanced See Clark, 9 Cranch g. Semple, Virginia Sweet, Religion Baptists (1894); e. See *9 supra America, 131-152, at 322-339. Colonial 8 every colony support. Almost exacted some kind of tax for church Cobb, (North g. op. supra, (Virginia); note 131 e. cit. 110 See (Massachusetts); Carolina); (Connecticut); 304, 310, 169 270 339 (Maryland); (New Hampshire). (New York); commonplace became so as to shock practices These freedom-loving feeling colonials into a of abhorrence.9 and to imposition pay to ministers’ salaries taxes aroused property build and maintain churches and church indignation.10 feelings their was these which found It in expression locality the First Amendment. No one rightly group throughout and no one the Colonies can given having entire credit for aroused the sentiment Rights’ in Bill adoption provi that culminated of the where the embracing religious liberty. Virginia, sions But established church had achieved a dominant influence wide political many affairs and where excesses attracted lead public attention, provided great stimulus and able there, élsewhere, for ership people the movement. The religious liberty reached the conviction that individual could government be achieved best under a which was stripped of all power tax, support, or otherwise to religions, assist or all or beliefs to interfere any religious individual group. The movement toward this end reached its dramatic legis- Virginia Virginia climax 1785-86 when the body levy tax for Virginia’s lative was about to renew support Jeffer- established church. Thomas diabolical, Madison wrote to a friend in hell-conceived 1774: “That principle persecution rages among some . This me . . vexes anything adjacent worst of whatever. There are at this time in the country well-meaning jail not less than five or six men in close for publishing religious sentiments, very their the main are patience hear, talk, any orthodox. I have neither or think of thing matter; squabbled scolded, relative to this I have ridiculed, long abused and purpose, so about it to little I am patience. beg you without pity me, pray common So I must liberty Writings of conscience I to all.” of James Madison (1900) 18, 21. 10Virginia’s crystal resistance to taxation for church was lized in argued by Henry the famous “Parsons’ Cause” Patrick in 1763. Cobb, op. cit., supra, an account 5, 108-111. For see note *10 12 tax. against fight James Madison led the
son and and Remonstrance great wrote Memorial Madison his a argued In he that against it, eloquently the law.11 no law; did the of that religion support true not need non-believer, should be taxed person, either believer or the kind; institution of that men required the minds of society best interest of a that were wholly free; persecutions and that cruel always be religions. government-established the of inevitable result through strong support Remonstrance received Madison's Virginia,12 Assembly postponed out and consideration tax next When measure until its session. proposed session, it at that proposal up came for consideration committee, Assembly enacted only died but “Virginia Liberty” originally Bill Religious the famous for Bill by to that preamble written Thomas Jefferson.13 The among things other stated
“Almighty free; hath the mind God created punishments it attempts by temporal all to influence burthens, by incapacitations, or civil tend beget are hypocrisy meanness, habits of and Madison, Writings 11 II of James recently papers, Madison In a discovered collection of Madison’s approbation that his with the recollected Remonstrance “met Baptists, Presbyterians, Quakers, the few Roman Cath- olics, universally; part; even not a few the Methodists in formerly Monopolies, Madison, of the Sect established law.” Perpetuities, Corporations, Endowments, Fleet, Ecclesiastical Mad- Mary Q. (1946) 534, Memorandum,” ison’s “Detached William and 551, 555. Virginia background For Bill for accounts evolution of Religious Liberty Religious Liberty g. James, Struggle The see e. Virginia (1900); Struggle Religious Thom, in Vir The Freedom ginia: 74-115; Baptists (1900); Cobb, op. cit., supra, note Monopolies, Perpetuities, Madison, Corporations, En Ecclesiastical op. cit., supra, dowments, 12, 554, 556. note Holy from the departure plan author our religion, being body yet who Lord both and mind, .; not to on propagate chose coercions either . . *11 compel to a toman furnish contributions of money the propagation opinions which he dis believes, tyrannical; is sinful and that even the forc him ing support this or that teacher of his own religious him persuasion, depriving is of the com giving fortable liberty his contributions to the particular pastor, whose morals he would make his pattern . . . ."
And the statute itself enacted
“That no man shall be compelled frequent or sup religious port any worship, place, or ministry whatso ever, enforced, nor shall be restrained, molested, or in body burthened his or nor goods, shall other wise suffer on religious account of opinions his or ."14 belief . . . This Court has previously recognized that provi of the First Amendment, sions drafting adop tion of which leading Madison and played Jefferson such roles, objective had the same provide were intended to protection the same against governmental intrusion on religious liberty Virginia Reynolds as the statute. v. States, supra United Jones, Watson v. 164; at 13 Wall. Beason, Davis v. 679; 133 U. S. 342. Prior to adoption of the Fourteenth Amendment, the First Amend ment apply did not against as a restraint the states.15 Most of them did provide soon similar protections constitutional
14 12 Hening,
Virginia (1823) 84;
Statutes of
Commager, Docu-
ments
History (1944)
of American
Orleans,
Permoli v.
Baltimore,
New
Barron v.
half a discriminating against reli particular religion provision far as the years, In recent so gious groups.17 concerned, religion against the establishment connection frequently arisen question has most carry on church schools and efforts state aid to proposed in accordance with teachings in the schools have Some churches the tenets of sect.18 particular for their sought or state accepted either financial aid again Here the efforts to obtain state schools. particu one acceptance of have been limited main, in the have remained courts, lar faith.19 state provi of their own constitutional language faithful to the separate freedom and to designed to protect sions *12 however, governments. decisions, religions and Their legis tax drawing the line between difficulty show the general welfare of the provides lation which funds for the designed that which to institutions religion.20 which teach meaning scope Amendment, pre-
The
First
religion
free
venting
prohibiting
establishment of
or
light
its
the evils
thereof,
history
exercise
16
provisions
a
freedom of
For
collection of state constitutional
on
religion
Gabel,
see
Funds for Church and Private Schools
Public
(1937)
(1927)
Cooley,
148-149.
2
Constitutional Limitations
See also
960-985.
17
“deny
provisions
Test
forbade
. . the truth
officeholders to
.
g.
(1776)
religion,”
of the Protestant
e.
North
Constitution of
Carolina
XXXII,
Maryland
Poore, supra,
permitted
II
1413.
taxation for
§
religion
support of the Christian
and limited civil office to Christians
819,
1818, id., I,
820,
until
832.
18
(1941) 917;
See Note 50
L. J.
14
Yale
see also cases collected
R. A. 418; 5 A. L. R. 879;
The “establishment least Neither state nor means at this: Amendment Neither can up can set church. Federal Government religions, pre- pass religion, which aid one aid all laws nor influ- religion fer over another. Neither can force one go away to or remain from church person ence a against profess his will or force him to a belief or disbelief religion. punished person No can be for entertain-
21
679;
43;
v.
v.
13
Taylor,
9 Cranch
Wall.
Jones,
Terrett
Watson
333;
v.
Reynolds
133 U.
v. United
Beason,
States, supra,
S.
Davis
Cf.
162;
Quick
Bear v.
210 S.U.
Leupp,
50.
Reuben
22
296;
v.
v.
Connecticut,
310 U. S.
318
Texas,
Cantwell
Jamison
413; Largent
418;
v.
Texas,
U. S.
318
S.
Murdock v.
Pennsylvania,
U.
Virginia
v.
supra;
Barnette,
State Board
319 U. S.
Education
West
624;
573;
Follett v.
McCormick,
S.
Marsh v.
U.
Alabama,
U. S. 501.
v.
ing professing or amount, any or non-attendance. No tax attendance any large small, support or can be levied to they may called, or be institutions, activities whatever prac- they adopt form to teach or or whatever religion. tice Neither a state nor the Federal Govern- can, openly secretly, ment or the affairs of participate organizations vice In groups or versa. Jefferson, against the words the clause establishment of religion lawby separation was intended erect “a wall of Reynolds States, State.” v. between church and United supra at Jersey
We must consider the New statute accordance foregoing with the imposed by limitations the First Amendment. But we must strike that state statute down if it is within the power State’s constitutional though even it approaches verge power. of that Ry. Massachusetts, See Interstate v. Holmes, supra J., at 85, 88. Jersey New cannot consistently the “estab- religion” lishment of clause of the First Amendment con- tribute tax-raised funds to the of an institution which teaches the tenets and faith of On any church. hand, other other language of the amendment commands that New Jersey hamper cannot its citizens in the free exercise their religion. own Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, faith, because their it, lack from receiving the benefits of public leg- welfare islation. While we do not to intimate state mean provide could not transportation only to children attend- ing public schools, we must be careful, in protecting the citizens of Jersey against New state-established churches, sure that we do not inadvertently prohibit New Jersey from extending general its state law benefits all its citizens without regard to their religious belief.
17 say standards, we cannot these Measured spending from Jersey New prohibits Amendment First school parochial bus fares of to pay tax-raised funds pays which it under general program pupils part as a It attending and other schools. public pupils the fares of to get helped to that children are undoubtedly true some of possibility even a church schools. There is if the schools the church might not be sent to the children out bus fares children’s compelled pay to their parents were school public to a transportation when pockets of their own possi The same by the State. paid have been would com a local transit requires the state bility exists where including fares children reduced to school pany provide municipally schools,24or where attending parochial those carry all school undertakes to transportation system owned state-paid policemen, charge. Moreover, children free of church and from going children protect detailed to serve traffic, hazards of would real very schools from the same much the accomplish purpose much the same trans guarantee free provisions intended result as state be best for deems to kind which the state of a portation refuse might And parents children’s welfare. the school traffic danger of to the serious their children to risk ap schools, the from parochial to and going accidents by policemen. protected were not to which proaches their permit might be reluctant Similarly, parents had cut off from which the state children to attend schools ordinary police services general government such sewage disposal, protection, connections fire charge ago school Jersey long permitted public utilities to New Utility v. Public See Public S. R. Co. children reduced rates. Ry. Comm’rs, also Interstate (1911); v. 363, N. J. L. 80 A. see Massachusetts, supra. The District of Columbia Code requires that company provide public transportation the new charter of the District going public, a three-cent “for school children . . . to and fare parochial, . . . .” 47 schools Stat. or like *15 cutting church
highways course, and sidewalks. Of off separate indisputably and so services, schools these so religious marked off make it far function, from the would operate. more difficult for the schools to But such ob- viously purpose not the of the First Amendment. That Amendment be neutral in its rela- requires state to a non-believers; tions with groups of believers and it does not require adversary. the state to be their State power is no handicap religions more to be used so as to than it is to favor them.
This Court has parents said that may, the dis- charge of their duty under state compulsory education laws, send their children public to a rather than a if school the school meets the require- secular educational ments which the state has power impose. See Pierce v. Society Sisters, 268 U. appears S. It these parochial schools meet Jersey’s New requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide general program to help parents get their children, regardless their religion, safely expedi- tiously to and from accredited schools.
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve slightest breach. New Jersey has not breached it here.
Affirmed. Mr. Justice Jackson, dissenting.
I find myself, contrary to first impressions, unable to join in this I decision. have a sympathy, though it is not ideological, with Catholic citizens who are compelled by law pay taxes for schools, and also feel con- strained by conscience and discipline to support other schools for their own children. Such relief to them as tax burden to is not itself serious this case involves I little serious assumed it to had payers me otherwise. this case convinces principle. Study every argument favor opinion marshals Court’s light, in its favorable aid and the ease most puts of state reasoning conclusions my but of its confirms much good pres which to grounds upon there are no fact, opinion, ent In the undertones legislation. separation advocating uncompromising complete utterly discordant its con State, Church from seem *16 commingling in to their educa yielding clusion mind irresistibly tional matters. The case which comes to who, according fitting as is that of Julia precedent the most 'I will never Byron’s reports, “whispering consent,’— consented.”
I. assuming two legislation by The Court sustains this it first, particular case; from the facts this deviations and facts not support, assumes a state of the record does inescapable it are secondly, to consider facts which refuses on the record. “legislation, applied, concludes as
The Court that par- general program help does no more than a provide safely religion, ents their get children, regardless their it and schools,” to and from accredited expeditiously comparison provisions “state intended draws between for children guarantee transportation” free school protection, implies as and fire police services such authorizing types with “laws new dealing we are here hypothesis permeates the public . . . .” This services The facts will not bear that construction. opinion. Ewing furnishing transportation is not Township any form; operating it is not school
to the children their contracting operation; itself or for busses kind with this any public not service performing ride left to All school children are money. taxpayer’s oper- busses regular on the ordinary paying passengers What system. public transportation ated of, is complains does, taxpayer and what the Township the fares paid, parents at stated intervals to reimburse schools or Cath- public the children attend either provided has of tax funds expenditure olic Church schools. This safety expedition on the child’s possible no effect they busses travel passengers public transit. As on the safer, since faster, and are as safe and no as fast no parents their are reimbursed as before. that does assuming type
In addition to thus of service must close our exist, the Court also insists we resolution eyes to a discrimination which does exist. The taxpayer’s money of this authorizes disbursement limits reimbursement to those who attend schools way applied and Catholic schools. That is the the Act is taxpayer. to this
The New Act in the character Jersey question makes children, determine school, not needs of eligibility The Act parents to reimbursement. permits payment transportation parochial schools *17 public prohibits private oper- or schools but it to schools are part profit. ated whole or Children often private parents feel that sent to schools because their they require public instruction than more individual provide, they schools can or because are backward or defec- If special tive and need attention. all children of objects impartial solicitude, were no reason is state to stu- denying transportation obvious for reimbursement needy dents of this for these often are as and as class, worthy go public parochial as those who to or schools. Refusal reimburse those who attend such schools is to light purpose in the of a to aid the understandable might aiding well abstain schools, because the state Thus, enterprise. under the Act profit-making private a are case, us this children brought and resolution to and are they attend according classified to the schools private or public if attend the schools they to be aided if to be aided are not allowed schools, they Catholic they private attend secular or private schools schools of other faiths. or a Jew or Baptist
Of this case not one of a course, is complaining an school Episcopalian pupil private urging that he taxpayer of discrimination. of a It is one I think being purpose. is taxed for an unconstitutional writ- just Act as it is he is entitled to have us consider the court that it holds Jersey ten. The statement the New local funds “for Legislature may authorize use of 350, 133 N. J. L. any school,” to transportation pupils 2d in view of the other constitutional 333, 337, A. this Act authorizes expressed, holding views is not a applied As to pupils to all schools. transportation of all complains certainly the of, he taxpayer by the action to those who choose Act does not authorize reimbursement except Catholic alternative to the school Church schools. our us,
If facts before we are to decide this case on the tax this question simply this: Is constitutional to Church complainant pay carrying pupils the cost of specified schools of one denomination?
II. constitutionally Whether the can be made to taxpayer their at parents contribute aid to of students because of nature of parochial depends upon tendance at schools The Con those schools and their relation to the Church. obligation says nothing lays stitution of education. It no on the states and does not undertake provide schools fit to they state if see regulate systems of education *18 through policy school they cannot, maintain them. But rights through more than invade secured means, other West the United States. by to citizens the Constitution of Barnette, U. S. Virginia State Board Education v. be free of taxation rights our basic is to 624. One of constitutional command transgression of the an respecting make no law authorities “shall free religion, prohibiting exercise establishment of Cantwell v. Const., I; Amend. thereof . . . .” U. S. Connecticut, U. S. 296. subject which school is a on
The function Church that the schools are meager. only this record is It shows “religion superintendence priest under of a and that taught part is of the curriculum.” But we know that fact, such schools are in in parochial only name—they, represent age-old policy a world-wide and of the Roman Catholic Church. Under the rubric “Catholic Schools,” Canon Law of the all Church, Catholics are bound, provides:
“1215. Catholic children are to be educated schools where not nothing contrary to Catholic faith and taught, morals but rather schools where training and moral occupy the first (Canon place. 1372.)” . . .
“1216. In every school the children elementary must, according their age, be instructed Christian doctrine. young
“The people higher who attend the schools are to receive a deeper religious knowledge, bishops appoint priests qualified shall for such work learning their piety. (Canon 1373.)”
“1217. Catholic children shall not attend non- Catholic, indifferent, schools that are mixed, is to say, open schools to Catholics and alike. non-Catholics The bishop of the diocese only has the right, har- mony with the Holy instructions of the See, to decide under what and with what circumstances, safe- *19 may be tolerated faith, loss prevent to guards (Canon schools. go to such children that Catholic 1374.)” any youth teaching of
“1224. The inspection authority and subject to is schools the Church. to right duty and Ordinaries have
“The local good to taught contrary faith nothing is watch that territory. of their morals, of the schools right approve to have the “They, moreover, of reli- the teachers Christian and books of doctrine safeguarding for the sake of demand, and gion, to religion the removal teachers morals, (Canon 1381.)” Stanislaus, Rev. (Woywod, books. imprimatur of Most Rev. The under Law, New Canon York and Archbishop J. of New Spellman, Francis others, 1940.) exaggeration
It is the whole historic say no temporal policy conflict in between the Catholic Church respective focus in their and non-Catholics comes a policies. Church, The counseled school Roman Catholic with all many ages many lands and by experience men, from the view- what, sorts and conditions of takes point mission, own and the success its is progress its religion. a wise estimate of the of education importance religion pick up It does not leave individual early It on and indelible indoctrination chance. relies word and the faith and order of Church example persons consecrated to task. Protestantism, public school,
Our if not product than least more with it with the Catholic at is consistent relatively scheme of It recent culture and values. development It is on dating organized about 1840.1 (1934) Cubberley, See Public Education in United States VI; (1941) Knight, ch. Education in the United States ch. VIII.
the premise that secular can education be isolated from all religious teaching so that the school can inculcate all temporal knowledge needed also maintain a strict and lofty neutrality religion. assumption as to is that after in worldly the individual has been instructed wisdom *20 he will be better fitted choose his religion. to Whether such disjunction a is and if possible, possible whether it is wise, I questions try are not to need answer.
I surprised should be if deny Catholic would that parochial vital, school is a if most vital, part not the of the Roman Catholic If put Church. the choice, to venerable I institution, expect, forego should would its whole for service mature persons give before it would up . education it young, and would be a wise choice Its growth cohesion, discipline and loyalty, spring from its schools. education Catholic is the rock on which the whole rests, structure and to render tax to aid its Church indistinguishable rendering school is to me from the same aid to the Church itself.
III. It is no importance this situation whether the beneficiary of this expenditure of pri- tax-raised funds is marily parochial incidentally school and pupil, whether the aid is directly pupil bestowed on the indirect benefits to school. The cannot main- state tain a Church it can no more tax its citizens to furnish free carriage those who attend a prohi- Church. The bition against of religion establishment cannot be cir- by a cumvented bonus or subsidy, reimbursement of expense receiving for individuals instruction and indoctrination. Court, however, compares this to other subsidies
and loans to individuals says, “Nor it follow does a law has private a rather than a because public purpose paid bewill to reimburse that tax-raised funds provides it way them in a money spent by on account of individuals v. Carmichael a See public program. which furthers course, Co., 495, 518.” Of & 301 U. S. Southern Coal Coke pauper- funds relieve may pay the state out tax-raised induce do not our Constitution so ism, may but it under age funds old spend It to secure piety. may or reward religion funds to secure want, spend but it not against may compensate individuals It against skepticism. compensate them cannot but it employment, loss of to a creed. adherence Court’s fallacy to me that the basic
It seems prin- apply its failure to reasoning, which accounts for essentially avows, ignoring is in ciples expenditure are selected. which beneficiaries of test be- protects Catholic, of course—but policeman A a he is a man Catholic; he it is because cause *21 the Church protects The fireman society. member of our it is because school; not it a Church school—but because is of our Neither part society. is of the assets property, it policeman nor the has to ask he renders the fireman before man or identified the Catholic building aid “Is this draw a But before these school authorities Church?” just fare they check to reimburse for a student’s must ask they may and if a question, that the school is Catholic one if any while other such, render aid because it is it is help run for the must withheld. To profit, faith or is be the Court’s will best reasoning consider converse of the fallacy. its That there is no between parallel disclose police protection and fire and this plan of reimbursement apparent is incongruity of the limitation of this police Act if applied and fire service. we sustain Could an Act that said the police protect pupils way shall on the from public to or and Catholic schools schools but and firemen schools, to and from other going coming while shall or Catholic school build- extinguish public blaze ings put but shall not a blaze in Protestant Church out That private operated profit? schools or schools is the I analogy true the case we have before us and should pretty plain think would that such scheme not be valid. holding griev-
The Court’s that this has taxpayer no ance because state has decided to make reimburse- ment a public purpose and therefore we are bound to re- gard I agree it as left, such. this Court has always leave state, great should to each latitude decid- ing itself, in light conditions, its own what shall be public purposes things. in its may scheme of It socialize utilities and economic enterprises make taxpayers’ business out what conventionally had been private It public business. make in- business of dividual welfare, health, education, entertainment or But it security. public cannot make religious business of worship or or instruction, of attendance at insti- tutions of character. There is propo- no answer sition, fully expounded by more Mr. Justice Rutledge, effect freedom Amendment our Constitution was every to take form of propagation religion things out the realm of which could directly indirectly made thereby business and be sup- ported in in part whole or at taxpayers’ expense. That is a difference up Constitution sets between religion and almost every subject other matter legis- *22 lation, a difference goes which to the root of very religious freedom and which the is overlooking today. Court This in freedom was first Bill of Rights it because was first minds; in the forefathers’ it was set forth absolute terms, strength and its is its It rigidity. was intended not only keep to the states’ hands out religion, but to keep and, all, above to state, hands off keep religion’s by denying life controversy public religious out bitter con- getting any advantage every denomination great Those public purse. or the policy of public trol immeasurably compromised I are cannot but think ends by today’s decision. has been
This
Federal
never
policy of our
Constitution
all are
wholly
groups. They
most
pleasing to
are
when
they
its
all
irked
quick
protections;
invoke
gone
long way,
a
its
This
has
they feel
restraints.
Court
way,
public
if
an
to hold that
business
unreasonable
maintenance
importance
public
paramount
of such
home, and taxation
order,
privacy
of the
protection
that even indi
may
way
not be
a state
pursued
dis
will
with
See
rectly
proselyting.
interfere
Jeannette,
Douglas
157, 166;
Mur
v.
319 U. S.
sent
319 U.
Martin v. Struth
Pennsylvania,
105;
dock v.
S.
ers,
Opelika,
v.
316 U. S.
reversed
141;
319 U. S.
Jones
rehearing,
But we cannot have it both
impose
seeks
private
cannot be a
affair when the state
regulations
infringe
indirectly,
on it
taxing
when
of one faith to aid
affair
it comes
citizens
If
another,
prin-
or those of no faith to aid all.
these
education,
ciples
prohibiting
seem harsh
aid to Catholic
forgotten
it must not be
it is the same Constitution
right
that alone assures Catholics the
to maintain these
predominant
at all when
sentiment
for-
schools
local
would
Sisters,
Society
bid them. Pierce v.
But of those depend approval do not on the or convenience struggle history restrain. I cannot read the they well separate political affairs, from ecclesiastical sum- Rutledge opinion marized of Mr. Justice I generally concur, without a conviction Court today unconsciously giving hands a backward clock’s turn. joins opinion. Justice Frankfurter
Mr. Rutledge, with whom Mr. Justice Justice Mr. Frankfurter, Justice Jackson Justice Mr. Mr. agree, dissenting. Burton
“Congress shall make no law an estab- respecting lishment of religion, prohibiting or the free exercise thereof . . . Const., .” U. S. Amend. I. Almighty
“Well aware that God hath created the mind free; . . . that to a man to furnish contributions compel money propagation opinions for the which he disbe lieves, is sinful and .... tyrannical;
“We, Assembly, enact, the General do That no man shall compelled or frequent support any worship, place, ministry whatsoever, enforced, or nor shall be re strained, molested, body goods, or burthened his nor opinions shall otherwise on his suffer, account of or belief . . . .” Establishing Religious Freedom,” “A Bill for enacted the Gen- Assembly Virginia, January eral Randall, Life See (1858) 219-220; Hening’s Thomas Jefferson XII Statutes Virginia (1823) 84. *24 words, great author of those
I cannot believe that the joined this could have law, the men who made them or today as high impregnable nor so decision. Neither so by and state wall between church is the raised yesterday First freedom and the Virginia’s great religious statute of the by to all the states Amendment, applicable now made first, is the Jersey’s statute sustained Fourteenth.2 New by if made this indeed it is not the second breach to be and still others third, fourth, Court’s action. That a and a just Cochran may will be we be sure. For attempted, Education, opened way v. Board has 370, 281 U. S. by oblique ruling3 for will the two make decision, so wider the breach for a third. with time the most Thus solid steadily gives continuing freedom before cor way rosive decision.
This case squarely forces us to determine for the first time4 what religion” was “an in the First establishment of conception; Amendment’s by that measure to decide whether New Jersey’s action violates command. The its facts shortly, give setting and color to stated problem. constitutional
By statute New Jersey has authorized local boards of education to provide for transportation of children “to and from school other than a public except school” one State, Schneider v. 147; Connecticut, 308 U. S. Cantwell v. 296; S. Pennsylvania, U. Murdock v. 105; 319 U. S. Prince v. Massa chusetts, 158; 321 U. Collins, S. Thomas v. 323 U. S. 3The briefs did not raise the First Amendment issue. The one- presented was whether public state’s action involved a or an exclusively private function process under the due clause of the Four- teenth Amendment. See Part facts, IV On the the cost of infra. transportation inseparable here is from both and secular teaching at school. In Cochran case the state furnished only. secular textbooks But see text at note 40 infra seq., et and Part IV. IV; Cf. note 3 and text Part see also note 35. established over part, inor wholly profit
operated the child when means other routes, school public ”5 board The school school. lives “remote “the trans resolution Township provided has Ewing Penning Trenton and Ewing pupils portation public by way Catholic Schools High Schools and ton ...”6 carrier . conveyance public the cost of have parents paid
Named public Ewing to three their homes of their children from the dist outside parochial schools and four high schools has reimbursed the Board Semiannually rict.7 taxa by general funds raised parents from school *25 each curriculum-in taught part as of the Religion tion. any are children in district there 5“The statute reads: “Whenever of the any schoolhouse, of education living the board remote from transportation of such for the and contracts district make rules school, except public from school . . . other than children to and part. profit in whole or in operated for such school as is public any transportation for any provides “When school district point any school, transportation from from school children to and any point in established other such established school route to such residing children in such school supplied to school school route shall be school, except public than going other district to and school part.” of profit in whole or in Laws operated for such school as is Jersey (1941) c. 191. New 6 given in note 59 The full text of the resolution is infra. School, High public were the Trenton Senior The schools attended High Pennington High and the School. the Trenton Junior School affording only high schools, Ewing Township provides public itself no eighth grade. The elementary public stop with the schools which Ewing transportation pupils pays both and tuitions of school board schools, high only private attending The all schools. Mary’s Catholic, application the resolution are St. covered in High School, High School, Boys Cathedral Trenton Catholic Hedwig’s elementary parochial schools, Parochial School and two St. Ewing pays only transportation St. Francis The board School. discloses, schools, to these not for tuitions. So far as the record transportation any pay provide ele- board does not for or other school, public 58, *26 merely The not to strike at purpose Amendment’s was single sect, religion, the official of a creed establishment or outlawing only prevailed a formal relation such as had England and Necessarily some of colonies. it was uproot all such object relationships. But was broader than separating church and narrow It state sense. was to create a complete permanent and separation of the Writings (ed. 1910) by Hunt,
8 IX Madison 288; Padover, James (1942) Jefferson 74. Madison’s characterization related to Jefferson’s Virginia Code, entire revision of the Bill Establishing of which the for Religious part. Freedom was See note 15.
32 by com- activity authority
spheres and civil sup- or prehensively forbidding every form aid and port religion. proof wording In the Amendment’s when- history unite with this Court’s consistent utterances upon has fixed directly question. ever attention been appears “Religion” only once the Amendment. But governs governs prohibitions the word two them alike. It meanings, does not have two one narrow to forbid another, “an broader, establishment” and much for secur- ing “the free brings exercise thereof.” “Thereof” down “religion” with content, its entire and exact no more no less, guaranty, first into the second so that Congress and now the states as broadly are restricted con- cerning they the one as regarding are the other.
No one would claim today that the Amendment
is con
stricted,
“prohibiting
free exercise”
religion,
to securing the free
exercise
some formal or creedal ob
servance, of
one sect
of many.
It secures all forms of
religious expression, creedal, sectarian or nonsectarian,
wherever
taking
and however
place, except conduct which
trenches upon the like freedoms of
clearly
others or
presently endangers the community’s good order and
security.9 For the protective purposes
phase
of this
freedom,
basic
street preaching, oral or by
distribution
Reynolds
States,
See
v.
145;
United
Beason,
U. S.
Davis v.
333;
U. S.
Mormon
v.
States,
Church United
1;
136 U. S.
Jacobson v.
Massachusetts,
11;
197 U. S.
Prince Massachusetts,
v.
158;
321 U. S.
also
States,
Cleveland v. United
principles against peace break out into overt acts good order.” Randall, (1858) Life 220; Thomas Jefferson Padover, Jef- (1942) ferson 81. For Madison’s effect, view to the same see note 28 infra.
33 estate under high “the same literature, given has been in the churches worship . . as . Amendment First parents this basis And on pulpits.”10 from the preaching re private, children their entitled to send been held have Sisters, 268 S. 510. U. Society v. Pierce schools. ligious commingled religious education Accordingly, daily comprehensive the guaranty’s within “religion” secular in teaching whatever religious training are scope. So deter content, The the broadest word connotes form. or teaching formality or by not the form mined regardless of nature its essential occurs, where but those details. in twin significance same broad
“Religion” has the The Amend- “an establishment.” prohibition concerning and “establish- duplicitous. “Religion” ment was not technical were formal or sense. ment” not used or support, financial prohibition broadly forbids state religion degree. form or It outlaws other, any guise, all use of funds purposes.
II.
provision
tied to
closely
No
of the Constitution is more
given
generating history
content
than the reli
its
gious clause of the First
It is at
Amendment.
once
product
refined
history.
and the terse
summation
The history
authorship
includes
Madison’s
proceedings
Congress,
before
First
but
also
long and
struggle
intensive
for religious freedom in Amer
ica, more especially in Virginia,11 of which the Amend
Pennsylvania,
Murdock v.
105, 109;
Martin
Struthers,
U.
v.
S.
141;
Texas,
319 U. S.
Jamison v.
413;
Alabama,
Marsh
U. S.
v.
501;
Texas,
326 U. S.
v.
Tucker
ment was the direct culmination.12 in the particularly Madison, who was leader times, spon Virginia became Amendment’s struggle before he sor, in the writings but also of Jefferson others engendered the issues which them is be found irrefuta confirmation sweeping ble of the content. Amendment’s religious For Madison, Jefferson, as also for freedom was general. struggle the crux of the freedom in Remon for strance, 15, Par. Appendix hereto. Madison was coauthor George Virginia’s religious Mason of the clause great of Rights Declaration of 1776. He is credited with changing it from principle a mere statement legislative tolerance to the first pronouncement official that freedom of and religion rights conscience are inherent of the sought individual.13 He also to have the Declara- wording. Cobb, content and Religious Liberty See Rise of in America (1902); Sweet, Story Religion (1939). The in America The 1663, Poore, Charter of II (1878) 1595, Rhode Island of Constitutions was the provide first colonial charter to freedom. period Virginia The struggle climactic covers the decade 1776-1786, adoption Rights of the Declaration of to enactment of Religious the Statute for Padover, Freedom. For short accounts see (1942) V; Brant, Jefferson c. Madison, Virginia James The Revolu- (1941) XII, James, tionist XV; Struggle cc. Religious Lib- erty Virginia (1900) XI; X, Eckenrode, Separation cc. of Church Virginia (1910). and State in Randall, These works and see note opinion by will be cited in this the names their authors. Cita- tions to (ed. “Jefferson” refer to The Works of Thomas Jefferson Ford, 1904-1905); Writings “Madison,” to The Madison James (ed. by 1901-1910). Hunt, 12Brant, XII, XV; James, X, XI; cc. cc. Eckenrode. 13See Brant, XII, particularly c. at 243. Cf. Madison’s Remon- strance, Appendix opinion. to this Jefferson of course held same view. See note 15. upon
“Madison freedom, looked . judge . . from the gave it, concentrated attention he as the fundamental freedom.” Brant, 243; Remonstrance, and see 1, 4, 15,Appendix. Par. establishm Virginia existing condemn expressly tion then too it were supporting the forces ent.14 But strong. not for phase but on this yielded Madison
Accordingly it before continuing fight, he resumed At once long. Gen member of As a sessions. succeeding legislative behind weight his full he threw Assembly eral *29 Free Establishing Religious Bill for Jefferson’s historic Jefferson’s broad of prime phase bill dom. That awas his return reform undertaken on democratic of program for submitted Congress in 1776 and from the Continental in his pro 1779 as Assembly’s consideration the General departure Virginia Jefferson’s posed revised code.15 With prime in the Bill’s for Madison became Europe 1784, liberally quoted the Brant, 245-246. Madison Declara- See quotations in his the use made of the indicates tion Remonstrance and prevailing the that he considered the Declaration to have outlawed technically. principle, in establishment if revising chief drafts- Jefferson was chairman of the committee and Wythe, Pendleton, The first were Mason and Lee. man. Corevisers portion revision, which became known as Jefferson’s enacted Primogeniture Code, barring soon fol- was the statute entailments. longer Bill was wait for enactment of the lowed. Much the author to Religious Freedom; corollary until his death the for and not after was important accepted principle in bill to he considered most expense. all, namely, provide for common education at See Jefferson, However, with V 153. he linked this disestablishment as corollary Jefferson, prime parts system in a of basic freedoms. I 78. sought give
Jefferson, sponsorship, his Bill and Madison the Religious Establishing nearly for Freedom as constitutional status as they Acknowledging legislature could at the time. that one could not succeeding “restrain the acts . . . Assemblies therefore law,” to declare act of no in irrevocable would be effect the concluding provision Bill’s as enacted nevertheless asserted: “Yet we declare, declare, rights hereby free to are do that the asserted are rights mankind, of the natural if act shall be hereafter present passed repeal operation, the or to narrow its such act will infringement right.” Randall, be an natural 220. legislatures
sponsor.16 Enactment failed in successive adoption its in until in June, from introduction its January, during fight 1786. But this time for re all ligious Virginia freedom moved forward on various with growing intensity. throughout, fronts Madison led against Henry’s powerful Patrick opposing leadership Henry governor November, until was elected legislative struggle climax came 1784-1785 Supplemental over Assessment Bill. See Appendix hereto. This nothing taxing was more nor less than a religion, designed measure to revive the payment suspended long of tithes since 1777. as it So singled out a sect particular preference incurred the and general active hostility of dissentient groups. It was them, broadened to include the result that some sub temporarily sided their opposition.17 altered, As gave taxpayer bill privilege designating each which church should receive his share of tax. In designation legislature default of applied pious it to *30 significance uses.18 But is of “in here, what the utmost Jefferson, 70-71; Jefferson, 447; I XII Padover, See regarded Madison this action as desertion. his letter See April 1785; 12, Madison, 129, 131-132; James, Monroe of II X, cc. Eckenrode, suggesting XI. But see 91, it was surrender to the inevitable. provided:
The bill every “That for paid, sum so the Sheriff or Col- give receipt, lector shall expressing society therein to what of person Christians the may from whom he receive the same shall direct money paid the to be . . .” . See also notes 43 infra. copyA of the among Assessment Bill is Washington to be found the manuscripts Library Congress. Papers the George of Washing of ton, Vol. 231. Virginia Because its struggle crucial role the and bearing upon the First meaning, Amendment’s the of the text Bill is set forth in Supplemental the Appendix opinion. to this 18Eckenrode, 99, 100. giving option the taxpayer the left the final form bill
its tax to education.”19 his with all times, opposing all at unyielding
Madison was had the as he nondiscriminatory general and vigor his pro discriminatory assessments particular earlier and Bill second read passed posed. The modified Assessment Madison was all but enacted. December, 1784, ing of final deferment followers, however, his maneuvered the As And before November, 1785. consideration until he his historic the fall issued sembly reconvened Memorial and Remonstrance.20 only, his inter though complete,
This is Madison’s not attack It is a broadside pretation religious liberty.21 general religion, both upon all of “establishment” forms Reflect or selective. nondiscriminatory particular, over the Assess conflicts ing many legislative Religious Freedom Establishing Bill for ment and the Bill incorpora also, struggles for example, but glebes, maintenance of tions and the continued the most concise and Remonstrance at once the most Amendment’s views the First accurate statement of the religion.” concerning author what is “an establishment time not dimming in the distance of Because it behooves us 19 Id., 100; Madison, pay II 113. The bill directed the sheriff appropriated person pay- . “all sums which . . not be public Treasury, disposed ing the . . . to be of under same into Assembly, encouragement the direction General learning such sums shall seminaries of within the Counties whence arise, Supplemental purpose no other use whatsoever.” Appendix. generally Eckenrode, V; Brant, James, and other authorities See c. *31 in
cited 11 note above. Eckenrode, Madison, 183; Appendix opinion. 21 II and the (1946) Fleet, ff. 100 See also Memoranda” Madison’s “Detached (3d Series) Mary Q. 534, 554-562. III William & sight to lose of what in mind he and his coworkers had when, by single sweeping stroke of the forbade pen, they an establishment religion exercise, and secured its free the text of the appended Remonstrance is at the end of this opinion for its wider reference, together current with a copy bill against of the which it was directed.
The Remonstrance, stirring up a popular pro storm of test, killed the Assessment Bill.22 It in collapsed com shortly mittee Christmas, this, before 1785. With way was cleared at last for enactment of Bill Jefferson’s Establishing Religious Freedom. promptly Madison through drove it in January years seven from the time it was first introduced. This dual victory substan tially fight ended the over establishments, settling the against issue them. See note 33. year
The next Madison became a member of the Con Convention. done, stitutional Its work fought he val iantly to secure the great ratification of its product Vir ginia as elsewhere, and nowhere else more effectively.23 Madison was certain his own mind that under the Constitution “there is right not a shadow of general government to intermeddle with religion” and that “this subject is, for the honor of America, perfectly free and major assigned causes for its defeat include the elevation Henry governorship 1784; of Patrick to the in November of proponents allowing blunder Incorporations the Bill for come to the floor and incur defeat before the Assessment Bill was on; acted leadership, taking advantage every Madison’s astute “break” minority majority, including to convert his initial into a reading fall; deferment of action on Remonstrance, the third to the bringing protesting petitions; general a flood poverty and the Eckenrode, V, time. See short, c. for an excellent detailed account. James, Brant, op. supra cit. See note 11. 24V Madison, 176. Cf. 33, 37.
39 over jurisdiction has no government unshackled. The work pledged that he would .” he it . . . Nevertheless re guaranty Rights, including specific Bill for a states, ratified other ligious freedom, Virginia, and the Constitution on assurance.26 was sent to the Madison accomplished, Ratification thus performing Congress. There he went at once about first had for the nation he to establish freedom pledge his Virginia. years little more than three Within a done proposed and legislative at home he had victory his of the First and ratification submission secured Rights.27 of our Bill of Amendment as the first article Virginia struggle great All the instruments of warp and woof of our con- religious liberty thus became history, tradition, simply by the course stitutional life, force of Madison’s unifying the common but the whole of epitomized He thought sponsorship. Amendment’s but nonethe- compact, tradition phrasing. comprehensive, less throughout, Madison discloses
As Remonstrance degree of official relation between form opposed every religion him was a authority. For religion civil of civil scope power wholly private beyond matter 25 Madison, 26Brant, V 132. made first his constituents was
250. assurance Virginia becoming responsible for Con Madison’s member James, 154-158. vention which ratified the Constitution. See respect religious read, as liberties Madison The amendment with abridged rights it: shall on introduced “The civil of none be account worship, any religion nor shall national belief or rights established, equal full nor shall the of conscience be manner, infringed.” Congress any pretext, or on 434. Annals present process debate this modified to its form. See In the was Congress 729-731, 765; especially 1 also note Annals of either to restrain or support.28 abridgment Denial or freedom was a rights violation of both of con science and of natural equality. State aid was no less *33 obnoxious or religion destructive to freedom and to itself than other forms of state interference. “Establishment” and “free exercise” were ideas, correlative and coextensive representing only single great different facets of the and fundamental freedom. The Remonstrance, following the Virginia statute’s example, history referred to the religious conflicts and the effects of all sorts of establish ments, current and historical, suppress religion’s free exercise. With Jefferson, Madison believed that to toler ate any fragment of establishment would be by so much to perpetuate restraint upon that freedom. Hence he sought to tear out the institution not partially but root and branch, and to bar its return forever.
In phase no was he more unrelentingly absolute than in opposing state or aid taxation. Not even pence” “three contribution was thus to be exacted from any citizen for such purpose. Remonstrance, Par. 3.29 28See text of Remonstrance, Appendix; 13, 24, also notes supra and text. exception Madison’s one concerning “preserving restraint was for public order.” private Thus he letter, declared in a Madison, 484, IX 487, written after the First adopted: Amendment tendency was “The usurpation to a other, on one side or the corrupting or to a coalition or them, alliance guarded between will agst. by be best an entire absti- Govt, nance of the any way beyond interference in whatever, necessity preserving public order, protecting & agst. each sect trespasses legal rights on its others.” Cf. note 9. ground The third of remonstrance, Appendix, see the repe- bears emphasis tition for here: “Because, proper to take alarm at the experiment first on our liberties . . . The freemen of America did usurped power not wait till strengthened had by exercise, itself and entangled question precedents. They consequences saw all the principle, in the they consequences by avoided the denying the principle. We revere much, lesson forget too soon to it. Who before of establishment lifeblood Tithes had been his Madison compulsions disappeared. other after com abridgments exceptions made no coworkers not to objection was Their created. separation they plete “If it tithes whatsoever. It tithes. was small admis religion, tax for small impose were lawful 30 Not way oppressive levies.” pave sion would wrong.” was of assessment principle but “the the amount interfer prevent “the as much to And the was principle interven restrain religion” of law as to ence field the authors of our political In this tion matters.31 on our experiment “the first freedom would not tolerate power strengthened had usurped liberties” or “wait till prece by exercise, entangled question itself *34 Nor we. Remonstrance, dents.” Par. 3. should In history view of this no further is needed that proof large small, any appropriation, the Amendment forbids support any aid or and all public from funds to if in for, But more called the debates the exercises. were Congress expressions, First consistent Court’s matter directly,32 whenever it has touched on the supply it. authority .
does not see that . . the same which can a citizen force pence only support any property contribute three of the of one his for establishment, may him to force conform other establishment 183, added.) (Emphasis in all II cases whatsoever?” Madison 185-186. 30Eckenrode, 105, summary in the of Remonstrance. implies Magistrate “Because the bill the is a com- either that Civil petent Judge Religious truth; may employ Religion of he or that engine policy. arrogant pretention an of Civil The first is an falsified contradictory throughout opinions ages, the of in all the Rulers perversion the of world: The second an unhallowed of means salva- 5; Remonstrance, Appendix, 183, tion.” Par. II Madison 187. pointed above, 3, infra, As is in out note IV Cochran v. Part Education, 370, Board was not a case. 281 U. S. such of congres Virginia history, the
By contrast the reveal on consideration of the Amendment sional debates reflecting fact that the essen only sparse discussion, the had had been settled.33 Indeed the matter tial issues well as to have been taken for so understood become only en phrasing. Hence, in but formal the granted all lightening concern, preserve any shows reference in religion, aid but prevent to use funds of power gifts outlawing private Amendment from inadvert the In ently wording.34 of the the by virtue breadth its supra 24, Madison, course, 25. text at notes was but one See many holding views, agreeing such but nevertheless to the common adoption Rights in understanding for a Bill of order to remove all explicit original engendered guaranties the doubt absence Constitution. great
By fight ended, although 1791 the over establishments had vestiges later, Virginia. glebes, remained then and even in some example, Eckenrode, until were not sold there 1802. Cf. Fixing impossible, date for an exact “disestablishment” is almost since piecemeal. Although process having was Madison failed in Rights explicitly against Virginia Bill declare establishment supra, levy Anglican in 1777 the note 14 and text cf. clergy suspended. was It was never resumed. Eckenrode states: effect, act, destroyed Many “This establishment. dates have end, really given January but 1, 1777, for its came on been when the suspending payment of tithes act became effective. This was not freeing . . . taxpayers at time. But almost half seen of the religion, religion the burden state state an was at end. *35 Nobody support it, attempt could forced to levy be an to tithes upon Anglicans would to recruit alone be the ranks of dissent.” P. 53. pp. 61, question also 64. The of assessment See however was revived ever, strength far than in the Id., “with more summer of 1784.” 64. would more factual to fix It seem therefore the time of disestablish 1785 January, December, 1786, large ment as of when the issue in was finally settled. 34 point wording proposed: the was religion At one “No shall be by law, equal rights nor the of established shall conscience be in- fringed.” Congress 1 Annals of 729. note Representative Cf. 27. Huntington might of be Connecticut feared prevent construed to
43 in which decisions margin principal are noted also the broad the Amendment’s of this Court confirm expressions prohibition.35 “that he private pledges. He stated
judicial
of
enforcement
might
as to be
be taken in such latitude
feared . . . that the words
extremely
religion.
the amend-
hurtful to
cause of
He understood
the
by
gentleman from Vir-
expressed
the
ment to mean what had been
put
to
ginia;
might
others
find it convenient
another construction
but
upon
congregations
the
were
it. The ministers of their
to
Eastward
society;
belonged
by the
who
to their
maintained
contributions of those
expense
building meeting-houses was
same
of
contributed
things
regulated
by-laws.
If
action was
manner. These
were
an
any
cases,
person
brought
Court
of
who
before a Federal
on
these
perform engagements
compelled
neglected to
his
not be
to do
had
could
might
it;
building
places worship
of
support
for
ministers
Congress
Annals of
730.
construed into a
establishment.”
any
possibility,
suggested inserting
To
such
Madison
avoid
thereby
only again disclaiming
“religion,”
word “national” before
Huntington
bring
showing
intent
about the result
feared but also
public “support”
religion
unmistakably
meant
that “establishment”
Congress
731.
also IX
in the financial sense.
Annals of
See
Madison, 484-487.
closely touching
question, where it was
The decision most
Quick
squarely raised,
Leupp,
is
Bear
v.
210 U. S.
The Court
distinguished
sharply
appropriations from
funds for
between
support
appropriations
from funds
education
essentially
private
held
in trust
the Government
as trustee
wards,
individuals,
ruling
was
Indian
as beneficial owners.
desig-
private, religious
be disbursed
schools at the
latter could
patrons
paying
But it
nation
those
the cost of their education.
public moneys
both
a use of
would violate
was stated also that such
involved,
statutory
specific
declaration
the First Amendment and
policy
hereby
“it
to be
namely, that
declared
the settled
appropriation
for edu-
no
whatever
Government to hereafter make
Cf. Ponce v. Roman
cation in
sectarian school.”
III. exercises went upon religious attendance Compulsory separating state, church and early process out together religious forced and observance of forms qualification Test and religious ceremonies.36 oaths things office later.37 These none to our followed devoted great religious liberty bringing think tradition would today, inject religious back. from efforts to apart Hence training public or exercises and sectarian issues into the schools, surviving maintaining to serious threat complete permanent separation religion power civil which the First Amendment commands is through taxing power support religion, use of the reli gious establishments, having religious or establishments special foundation whatever their form or function. Jersey’s support religion
Does New
action furnish
taxing
Certainly
use of
power?
does,
if the test
remains undiluted as
it,
Jefferson and Madison made
money
taken
is
taxation from one
not to be used or
given
support
religious training
belief,
another’s
or
or
indeed one’s
Today
furnishing
own.38
then the
“con-
36See text at
1.
note
Qualifica-
“. . .
required
but no
shall
Test
ever be
as a
Const.,
tion
Office or
Trust under the United States.”
VI,
prescribed
Art.
See also the
forms
two
for the President’s
§
Const.,
II,
parte
Oath
Garland,
Affirmation.
Art.
Ex
1. Cf.
§
333; Cummings Missouri,
277;
Wall.
v.
4 Wall.
United States v.
Lovett,
Court does not religious instruction. to encouragement in give fact aid and in law. “support” aid is not It concludes aid and were concerned Madison and Jefferson But in “entangled fact, legal not conclusion support pay Here Remonstrance, parents Par. 3. precedents.” funds schools and parochial to send their children to money This reimburse them. taxation are used to raised to parents to school and only helps get the children to get the way to It them a substantial send them. aids to particular school thing they are sent to the very religious training teaching. secure, namely, faiths, express do not of all and others who Believers of existence feeling their toward ultimate issues so money tax. When the form, pay Jersey creedal the New schools, religious pay transportation raised used to proportionate the extent of taxpayer Catholic his Jewish and pays transportation Lutheran, for the share affiliated children to receive their religiously otherwise Their likewise parents non-Catholic instruction. pay proportionately transportation for the Catholic children to receive Catholic instruction. Each thus con- propagation opinions tributes to “the which he disbe- religions differ, lieves” so far as their as do who others accept no without differences. Each regard creed those ceeding approbation personal conduct, from an of their are an addi unremitting tional incitement to earnest and labours for the instruc supra. 29, 30, tion of mankind . . . .” Cf. notes 31 and text his own teaching pays thus taxes also denies “the since equally forbidden an exaction religion, to the contribution giving one’s liberty” comfortable approves.39 instruction he particular agency type of exactly fits the therefore Jersey’s action New and Jeffer- which Madison and the kind of evil at exaction be said the test framed it cannot they Under son struck. the cost of part is no transportation the cost of That it is given. education or of the instruction most element is shown necessary a substantial *38 the plainly by continuing increasing the and demand for it relates pretense state to assume it. Nor is there religious to the secular schools or given instruction any attempt allocating is or could made toward proportional as the the reli- shares between secular and gious It precisely instruction. is because instruction the religious is and relates to a whether particular faith, one or another, that parents religious send their children to schools under Pierce very the doctrine. And purpose the of the state’s defray contribution is to the conveying cost of pupil the to place the where will not simply he receive secular, but and teaching also primarily religious, guidance.
Indeed the view is sincerely avowed of many various faiths,40that purpose the basic all of education is or should be religious, that the secular cannot be and should not be separated from religious phase the and emphasis. Hence, note See Bower, See Church and (1944) State in Education “. . . 58: the fundamental the division of education of the whole self into the secular religious justified and the grounds could not be on the of either a sound philosophy educational or a modern concept functional of the relation religion personal to experience.” social Vere, See also Elementary School, Essays on Catholic Education in the United (1942) 110-111; States Gabel, Public Funds for Church and Private (1937) Schools 737-739. secular education or inadequacy public religion where to a school sending the child
necessity for its philosophy be the But whatever taught. is religious undeniably an admixture of justification, there is the That in all institutions. teaching such with secular purposes being. Certainly very reason their the whole basis constitutionality we cannot contradict who people ethical and convictions educational religious schooling. believe in when what very
Yet admixture is was disestablished reli- “an the First Amendment forbade establishment teach- with the secular gion.” Commingling permeation of its ing does not divest whole if part, proportion or make them of minor emphasis view, on consti- Indeed, were other material. naught always brought prohibition tutional could be adding modicum of secular. treasury pay An from the appropriation weekday transportation school, Sunday cost of parish house, or to the special classes at the church or religious societies, such meetings young people’s various Y. H. A., the Y. M. the W. C. the M. A., A., C. Y. *39 Epworth League, could not withstand the constitu- true, This would be whether or not secular tional attack. religious. appro- If activities were mixed with the such an stand, it is hard to how one priation could not then see thing upon for extended becomes valid the same more does daily Surely constitutionality instruction. scale of teaching often the mixed not turn on where or how occurs. needed, it
Finally, transportation, where is is as essen- much tial to Its cost is as any education as other element. in amount, times as part expense, except of the total at equip- textbooks, lunches, of athletic cost of school indeed of all other ment, writing materials; and other always Now as the total burden. composing items rela- teacher-pupil process is the core of the educational and facili- equipment richest this the tionship. Without Education, Board Judd v. go naught. would for See ties prover- 582. But the 200, 212, 278 N. Y. N. E. 2d for the conception longer Mark no suffices Hopkins bial without country’s buildings, Without requirements. materials, equipment, library, without textbooks and other pupil to- transportation bring and without teacher environment, an can gether teaching such effective there require. Hardly be not even the of what our times skeleton transportation can be maintained that is the least essen- items, aid, encourage, tial of these or that it not in fact does just sustain and support, they do, very process purpose is its to accomplish. it, No less essential is or the payment cost, very of its than teaching the class- or payment room Many the teacher’s sustenance. types of equipment, now essential, considered better could be done without.
For me, therefore, the feat impossible to select so indispensable an item from the composite costs, of total and characterize it as aiding, contributing to, promot ing or sustaining the propagation of beliefs which it is the very end of all bring about. Unless this can be main tained, and the Court it, does not maintain thus aid given is Payment outlawed. transportation more, is no nor is it the less essential to education, whether reli gious secular, payment than tuitions, for teachers’ salaries, for buildings, equipment necessary materials. Nor is it any the less directly related, in a giving school religious instruction, to the primary religious objective all those essential items of cost are intended to achieve. No rational line can be drawn between payment for such larger, but not more necessary, items and payment *40 transportation. only line that can be so drawn is one between more dollars and less. in Certainly measure. valid constitutional can be no such a line realm v. Col Thomas 105; S. Pennsylvania, 319 U. Murdock v. time, lins, as in Madison’s Now, U. S. 516.41 Remon wrong. assessment is principle but the amount strance, Par. 3.
IV. in valid Jersey statute is that the New But we are told is for the appropriation because present application its promotion namely, private purpose, not a public, in the con- idea majority accept this education, and the legislation.” welfare “public we have here is clusion that all be thus de- force can and the Amendment’s If that is true pertinent. all the more said becomes stroyed, what has been tó more objection possible could be no For then there Jersey. by New education extensive schools that If the alone be determinative fact general education, promoting engaged are thus legislature’s with the welfare, together and individual for their public moneys payment decision I see function, then can public their work a aid makes legislative policy, dubious basis, except one of possible no sup- appropriation full state’s refusal to make for the just as is done for religious schools, private, port “reasonable,” is, pre ruling strange that a It would seem a upon small, placed the exercise sumably license fee cannot be yet correlative constitu religious instruction, that under the right of may be levied and guaranty against “an establishment” taxes tional only so religious instruction, if the amounts promote used to aid and supra 30-31 and text. are small. See notes used objection pence” and his stress “three contributions Madison’s “usurped power waiting upon “denying principle” without until 29, question precedents,” were rein- entangled note had . . . Bill: “Distant further characterization of Assessment forced his form, Inquisition it from it may be, present from the differs as it in its step, degree. first the other the last the career The one is the Remonstrance, 9; II Madison of intolerance.” Par. *41 be, basis, There on that valid
instruction. could objection.42 constitutional paying transportation promotes
Of course the cost of in- general cause of education and the welfare of the paying dividual. So does all other items of educational obviously, majority say, And as the it much expense. is urge legislation designed too late to that to facilitate the opportunities of children to secure a secular education public system pub- serves no Our nation-wide purpose. lic contrary view, grants education rests on the as do all religious aid education, public private, or is not character. things question. They
These are beside the real have no possible materiality except all-pervad- to obscure the ing, v. inescapable issue. Cochran Board Educa- Cf. tion, supra. Stripped religious phase, of its the case pre- question. sents no substantial federal public Ibid. The argument, casting function pro- the issue terms of moting general cause of education and the welfare individual, ignores factor and its essen- tial connection with the transportation, thereby leaving out the vital element the case. So of course do welfare” “public legislation” and “social for ideas, they thing. come to the same part supply If it is of the state’s function to schools patrons
or their expense, smaller items of educational because the legislature may say they perform public function, it is hard to see why larger paid. Indeed, ones also not be it would seem proper necessary even more for the state to do this. For if one expenditures justified ground supports class of is on the general individual, cause of education or benefits the or can be made by legislative declaration, certainly to do so so even more would be payment transportation the other. To sustain school, for for text- books, materials, perhaps lunches, for other essential for or school things not for what makes all these end, effective for their intended would be to make a function of the smaller items and their effect, wholly private larger cumulative but to make in character the things without which the smaller could have no meaning use. To not two. issue, then substantial We have here one her use of Jersey’s say appropriation that New are raising appropriated the funds power of taxation ends, say are private but public purposes not for religious teach- religion and are for the they *42 for public purposes are ing. Conversely, say they that religious is to that are for ones. say they not which that education precisely This is for the reason its religious teaching, support, and training includes function, not private right and have been made matters of That the very terms of First Amendment. public, by the religion’s of free exer- guaranty is effect not its the It was cise, prohibition also establishments. but in the of of function of private basis the character the on this of parents held entitled religious that this Court education Pierce religious schools. to send their children to private, Sisters, that it effect Society supra. v. Now declares of cost the public defray part of funds to appropriation so, If attending for public purpose. those schools is a go or I do the cannot farther why not understand state why verge case the of its approaches power. purpose
In view the whole truth this contradicts heretofore conceived. effect of the First Amendment as legisla function”—“public The welfare”—“social “public “employ argument words, tion” in Madison’s seeks, an here, religious engine as Religion is, [that education] is Remonstrance, piece Civil Par. 5. It of one policy.” although with the preamble, the Assessment Bill’s preamble it wholly ignores vital difference that what that explicitly states.43 general knowledge diffusion of Christian hath "Whereas men, vices, tendency restrain
natural to correct the morals their preserve peace society; without cannot be effected provision competent teachers, thereby learned who en- instructing duty abled devote their time and attention citizens, education, such as from their circumstances and can- want knowledge; judged pro- not otherwise attain such it is that such It exactly opposite. Our constitutional policy deny religious does train- necessity the value or the ing, teaching or their free observance. Rather it secures But to that it does the state can deny exercise. end that degree. or in any undertake sustain them form or For as sphere activity, distinguished this reason given secular intellectual has been liberties, protection and, forbid, the twofold the state cannot perform aid performing neither can prohibition function. dual makes function altogether private. public It cannot be made a one legislative act. very This was the heart of Madison’s Remonstrance, as it is of the Amendment itself. religious teaching because not promote
It is not does welfare, or the individual’s but because neither is promotes furthered when the religious education, state legisla- forbids it to Both the Constitution do so. *43 In by tures and courts are bound that distinction. failure it fallacy “public observe lies the function”— legislation” argument, “social fallacy by a facilitated easy argument’s transference of basing the from due process religious unrelated aspect to the First Amendment.
By
gift
no declaration
of public money to reli
gious
promote
general
will
uses
the
or individual welfare,
or the
of
legislative
cause
education generally, can
bodies
overcome the Amendment’s bar.
may
Nor
the courts sus
tain
attempts
by
their
finding
do so
consequences
such
for
appropriations
give
fact
promote
aid to or
religious
Alabama,
uses. Cf. Norris v.
54 Id., very thing Par. 11. It is Jefferson
groups. 8, guard against, experienced sought and Madison in Ibid. whether its blunt or in its more screened forms. destroy The end than of such strife cannot be other liberty. will dominating group cherished The achieve the benefit; will dominant or all embroil the state their Id., dissensions. Par. II.46
Exactly pro such conflicts have centered of late around viding transportation schools from funds.47 issue and the work typically, dissension “destroy Madison’s that and har phrase, moderation mony which laws the forbearance of our to intermeddle Religion, produced amongst with has its several sects.” Id., Par. This as occurs, knew, 11. he well over measures warning “At least let be at the fruits of taken first the threatened very appearance innovation. The of the Bill has transformed forbearance, charity,’ mutually ‘Christian love and which of late prevailed, jealousies, into animosities soon appeased.” 183, 189. II Madison 47In this case briefs amici curiae have been filed on behalf of various
organizations representing religious sects, union, one three labor Union, Civil Illinois, Indiana, American Liberties and the states of Louisiana, Massachusetts, Michigan and New York. All these states Jersey’s them, have laws similar to New and all one sect, support constitutionality Jersey’s of New action. The others oppose Marjdand Mississippi it. legisla have sustained similar tion. Note legislation No state without of this sort has infra. opposing an filed brief. at But least six states have held such invalid, namely, Delaware, action Oklahoma, York, New South Da kota, Washington and Wisconsin. Note 49 The New York infra. ruling was overturned amendment to the state constitution 1938. York, XI, Constitution of New 4. Art.
Furthermore, Jersey divided, in this case the New courts Supreme holding Court invalid, statute resolution N. J. L. 98, 75, 39 A. 2d Appeals reversing Court of Errors and decision, 133 N. J. L. A. 2d courts, here, both In judges split, dissenting Supreme Court, one of three in the three nine Appeals. the Court of typical. Errors and The division is See the cases cited in note 49.
55 principle. from the very departure threshold of at. Id., 3, 9, 11. Par. been obtained
In
conflicts wherever success has
these
trans
by providing the
upon
has been
the contention that
general
wel
general
education,
cause of
portation
forwarded;
will be
fare, and the welfare of the individual
public
func
within the realm
hence that the matter lies
have
State courts
tion,
legislative
determination.48
taking
view that
upon the
some
issue,
divided
individual,
the institution receives
others
recognized
dichotomy
A
benefit.49
few have
that both in fact are aided.50
false,
48
49;
and see note 54.
See the authorities cited
note
49
granting
transpor
statutes
free
Some state courts have sustained
attending denominational
tation or free school books to children
theory
rather than
on the
that the aid
a benefit to the child
schools
was
Henry,
930,
Ky. 434,
2d
to the school. See Nichols
v.
301
191 S. W.
Education,
County
Board
Sherrard
compare
v.
Jefferson
Education,
v. Board
Cochran
Ky. 469,
963;
168
171 W. 2d
294
S.
v. Board
Edu
1030,
Borden
aff’d,
370;
664,
S.
La.
123 So.
281 U.
Wheat,
cation,
v.
Board
Education
1005,
655;
174
La.
123 So.
168
Mary’s
County,
550,
628; Adams v. St.
Md.
26
314,
180
Md.
199 A.
Board,
453,
R.
P.
Chance v. State Textbook &
377;
190 Miss.
2d
A.
Baker,
653, 167
2d
also Bowker
App.
v.
2d
P.
706.
73 Cal.
200 So.
See
under
held such statutes unconstitutional
256. Other courts have
Education,
Judd Board of
v.
state constitutions as aid to the schools.
supra;
v. Dona
Smith
200,
576,
Y.
15 N. E. 2d
but see note 47
278 N.
Brown,
hue,
State ex rel. Traub
715;
v.
App.
656, 195 Y.
202
Div.
N.
S.
Gurney Ferguson,
254,
2d
181,
835;
v.
190
122 P.
36 Del.
172 A.
Okla.
District,
61,
Mitchell v. Consolidated School
1002;
2d
135
17 Wash.
Milquet,
109,
And
Van Straten
79;
v.
192 N.
P. 2d
Wis.
W.
Hlebanja Brewe,
many
351,
And since
v.
S. D.
Notwithstanding recognition the that two-way this aid given is and the absence of that religious denial teach- ing is thus furthered, the Court concludes that the aid given so is not “support” of religion. It is only rather support of education as such, without reference to its reli- gious content, and thus becomes legislation. welfare To this elision religious element from the case is gloss added in two respects, one that the aid extended partakes of the nature of a safety the other measure, provide failure to it wrould make the state unneutral religious matters, discriminating against hamper- ing such children concerning public benefits all others receive. 79, 82; P. 2d Smith v. Donahue, App. 656, 664, Div.
N. Y.
715,
S.
722; Board
Wheat,
Education v.
314,
174 Md.
dissenting opinion
at
This is therefore may it be in Madison, pres In distant as its paraphrase complete religion, ent establishment of form in that from it in and is the first only degree; step differs Id., in direction. 9.53 as his time “the same Today Par. authority which contribute three can force citizen to pence ... only any [religious] for the one es tablishment, him” to pay more; force or “to conform other in all And any establishment cases whatsoever.” then, now, as “either ... we that the will of say, must Legislature authority; is the measure of their plenitude authority, they may sweep of this away all our rights; or, they fundamental are bound particular right to leave this untouched and sacred.” Remonstrance, Par. 15.
The realm of religious training belief remains, it, kingdom Amendment made of the individual 52See Part V. supra also note 46 Remonstrance, See Par. 3. kept inviolately private,
man and his God. It should or confounded with precedents” ... “entangled may take over into legislatures legitimately what public domain.
V. religious unsympa- can be No one conscious of values separa- constitutional thetic toward the burden which our mixed puts parents tion on who desire instruction They pay their children. taxes for secular for others’ education, children’s at the same time added cost instruction own. one happily for their Nor can see bene- fits children receive, denied to which others because they parents conscience or their them desire a different kind training others do not demand. if feelings
But those prevail, should there an would be end to our policy historic constitutional and command. No unjust more in fact is it discriminatory deny attendants at schools cost of transpor- their tuitions, tation than it deny is to them sustenance for their teachers, or other expense educational which others receive at cost. Hardship fact there is none But, can blink. assuring undergo those who it the the most greater, comprehensive one freedom, it is *48 written by design and firm intent into our basic law.
Of course discrimination in the legal sense does not exist. The child attending religious right the has school the same as any other to attend the public school. But foregoes he exercising it because the guaranty same which assures this freedom public forbids the or any school the agency of by supporters Jersey’s Thus each brief filed here the of New action, 47, only see strongly note not relies on Cochran v. Board of Education, explicitly 281 U. S. but either or effect maintains it is present that in the case. controlling religious the securing him in aid give or state he seeks. instruction be the would he school, common accept he to the
Were faith or any creed teaching there of the protest first to their that the reason for precisely And it is his own. not sent are that children wholly is secular atmosphere But Pierce doctrine. the schools under public have staked we because necessity, a constitutional is com the faith country on of our very existence the best for religion is the state between plete separation Par. Remonstrance, religion. the state and best 8, 12. persons hardship upon entails policy necessarily
That advantages the state right to educational forego who precluded it is others supply can order to secure child parent giving. may hamper Indeed this not make But it does by forced conscience to that choice. for- the state unneutral to withhold what Constitution observing give. contrary bids it to On the is its neu- prohibition that the state can maintain rigidly in the dissensions inevitable trality partisanship avoid opposes moneys when sect sect demands for over training further religious teaching or education, form degree, indirectly. or Like St. Paul’s directly freedom, with a must be religious liberty great price bought. fully, who it most And those exercise mixed insisting upon religious for their children education with secular, by price terms of our Constitution greater than for others. problem legal then cannot be cast terms of dis-
crimination true, or its absence. would be even This though the in giving state all in- aid should treat struction alike. appli- if and its Thus, present statute were shown apply cation all schools equally to *49 faith,55 light tradition it could yet
of whatever of our would not For then the adherent of one creed still stand. pay taxpayer for the the childless with another, others more fortunate. Then too there would seem to making appropriations no bar to for transportation expenses attending other of children other public or secular schools, separate places after hours in and classes exclusively religious person their instruction. The who embraces no creed would pay teaching also be forced to he Again, what does not believe. furnishing it was the money “contributions of for the propagation opinions which he disbelieves” that the fathers outlawed. That consequence and effect are not by multiplying removed all-inclusiveness the sects for which support is exacted. requires, The Constitution comprehensive identifica tion religion, of state with complete separation. but
VI. dispose Short treatment will of what remains. What- might ever be said of some other application of New Jer- sey’s statute, the one made here has no semblance of bear- ing safety as a measure or, indeed, for securing expeditious conveyance. transportation supplied public is by conveyance, subject to all the hazards and delays of the highway and the streets incurred by public generally going about its multifarious business.
Nor is the case comparable to one of furnishing fire or police protection, or access to highways. These things are matters of common part right, general 55See text supra at notes 17-19 cited; authorities Foote, also Virginia Sketches (1850) c. XV. thesis, Madison’s entire as re throughout flected the Remonstrance and in his writings, other as well opposition his to the final form of the Bill, Assessment see altogether note was incompatible acceptance general “nondiscriminatory” support. Brant, See c. XII.
61 not must department fire Certainly safety.56 need reason Nor is this the church burns. idly by while stand transportation or pay expense the state should why religious education.57 of the cost of other items v. as case Green to we have no such add, Needless Co., Southern Coal Frazier, Carmichael 253 U. S. or v. wholly unrelated with matters 495, which dealt U. S. situations where Amendment, involving First to the issue was determinative. “public function” ground the broad my upon chosen place I have to dissent be strictly might the case decisive, though speaking I think Jersey New statute on issues. The decided narrower be held its the exclusion of chil- might invalid on face for require appropria- protections a nature which does not are of earmarked, public treasury as is specially from the tions made Jersey’s religious here, particularly for institutions or uses. New religious property or The First Amendment does not activities exclude against ordinary or protection disorder accidental inci- from protection community support, It forbids not dents of life. or destruction. interference frequently opposed
It is a matter not that President Grant recalled exemption religious property leading tax to a violation of the separation principle of church and See President state. Grant's Message Congress, 7, 1875, Annual December IX Seventh in Mes- Papers (1897) sages Garfield, Presidents of the 4288-4289. in a accepting presidency for the “. . letter the nomination said: . it would dangerous unjust institutions, apply people, be to our our any portion nation, States, of the revenues of the or of the support of separation sectarian schools. The and the Church everything relating State in to taxation be should absolute.” II The (ed. 1883) Hinsdale, Works of James Abram Garfield rate-making by do Neither we have here a case of which a utility children, including patrons extends reduced fares to all school legislative compulsion upon schools. Whether or not private utility advantage valid, to extend such an would be or its by municipally system, required extension owned we are not to con- instance, generally rate, always sider. In the former at if not latter, using taxing power in the vice of to raise for the funds religion present. would not be I can schools.58 private, profit-making
dren who attend Jersey the New assume, majority, as does the limitation from the explicit write off this courts would which the Moreover, statute. the resolution statute limits its expressly pub was benefits to students of applied showing lic and schools.59 There is no that there Catholic private in this populous are no other schools I do not think it can assumed there district.60 were *51 I But the have it is taken, unnecessary none.61 view matters. grounding to limit to these 58 doubtfully basis for seem at least a sufficient reasonable It would simply that some should be excluded because classification children only attend, geographic to fin of the school feasible for them view or might part situation, profit. or in other be one conducted whole Cf. note 5. 59 supra. follows, according 7 was See note The resolution as to the transportation proof: school board’s minutes read in “The committee transportation pupils Ewing recommended the of of to the Trenton and High way Pennington by public Schoolsand Catholic Schools of carrier years. Ryan Ralph as in recent On Mr. Motion of Mr. M. French adopted.” (Emphasis added.) the Jersey same was New The court’s authority holding the resolution within by was the conferred the binding Rock, 171, state statute on Reinman v. us. Little 237 U. S. 176; Sebastian, 394, Hadacheck v. 239 U. S. 414. population Ewing Township, The City near located the Trenton, 10,146according was the to census of 1940. Sixteenth Census States, Population, 1, of the United Vol. 674. Collins, Thomas v. 516, 530, In 323 U. S. it was said that the preferred place given great in our scheme to the democratic freedoms by gives secured First sanctity the Amendment them “a and a sanction permitting not dubious Remonstrance, intrusions.” Cf. 3, Par. 9. inAnd cases it presumption other has been held that the usual of con- stitutionality will not legislative work to such save excursions in this field. States Co., United v. Carolene 144, 152, Products 304 U. S. 4; Wechsler, note (1946) see Stone and the Constitution 46 Col. L. seq. Rev. et Apart Jersey’s present from Court’s admission that New action
approaches verge power, statute, of her it would seem ordi- singles nance resolution which on its face by out one sect name enjoyment advantages public same as schools or their stu- abridge, in motion to constantly drives are great Two religion complete division the name of education, to One is made. authority forefathers civil which our into and observances introduce education public funds for The obtain other, schools. religious schools. See aid private various Relationships Legal The of Church-State Johnson, Status in Public Thayer, Religion (1934); the United States In 50 Yale L. J. (1947); (1941) Education Note were closed the Constitu my by both avenues opinion mat tion. Neither should be Court. opened ter measured the amount quantity, is not one of to be one day in Madison’s it is money expended. Now as separate spheres principle, keep separate experi them; prevent the first First Amendment drew keep question our and to upon liberties; ment entangled in We should becoming precedents. corrosive the one strong and untarnished keep be less strict have been side the shield of freedom than we of the other. *52 be reversed. judgment should
APPENDIX. AND MEMORIAL REMONSTRANCE AGAINST ASSESSMENTS. RELIGIOUS Assembly To the Honorable General of Virginia. of Commonwealth
A Memorial Remonstrance. Commonwealth, subscribers, the said We, citizens by consideration, printed Bill having taken into serious a “A order Assembly, of the last Session entitled of General dents, discriminatory by be held on its face virtue of that fact should sought or alone, positively it were that no unless shown other sects advantages. were available to receive the same Christian provision establishing Bill for Teachers armed same, finally if Religion,” conceiving that the law, dangerous will abuse with the of a be a sanctions State, to are as faithful members of free power, bound against it, remonstrate and to declare reasons against are determined. remonstrate the said we We Bill,
1. Because we hold a fundamental and it for undeniable truth, Religion “that to duty which we owe our Creator and the Manner of discharging it, can be directed only by reason and conviction, not force or violence.” The Religion every then of man be left must to the con viction and every man; conscience of and it right is the every man to it as exercise these dictate. This right is in its right. nature an unalienable It is unalien ; able because the opinions men, depending on the evidence contemplated by their minds, own cannot fol low the dictates of men: other It is also; unalienable be cause what right is here a men, towards is a duty towards It duty every Creator. is the man render to the Creator homage, only, such such as he believes acceptable him. This duty precedent both in order of degree time and of obligation, to the claims of Civil Society. Before man can be considered as a member of Civil he Society, must be considered a sub ject of the Governor of if the Universe: And a member of Civil Society, who enters into any subordinate Associa tion, always must do it with a duty reservation of his general authority; much more must man every who becomes a any particular member of Society, Civil do it a saving allegiance his to the Universal Sovereign. maintain We therefore that Religion, matters no *53 right abridged man’s is by the institution of Society, Civil and that Religion wholly is exempt from its cognizance.
1Decl. Art: 16. Rights, the original.] [Note ques- which by any is, exists, it that rule True no other deter- Society, ultimately can be which divide a tion true, but it is also majority; the the mined, but will of rights the the may trespass the on majority that minority. authority of from the religion exempt
2. if be Because subject that of less it be Society large, at still can the the The are but creatures Legislative Body. latter is both jurisdiction former. vicegerents of the Their and regard the co- and it is with derivative limited: limited with necessarily more limited departments, ordinate a free preservation The regard to constituents. not metes government requires merely, power may which each separate department bounds invariably maintained; especially, but more be great Barrier overleap of them suffered to neither be The Rulers who rights people. which defends the the commission guilty encroachment, are of such an exceed are authority, Tyrants. their they from which derive by made governed to it are laws People who submit authority nor derived from by themselves, neither an and are them, slaves. Because, experi- alarm at the first proper it is take jealousy to prudent on our liberties. We hold this
ment citizens, and noblest char- duty the first one [the] The freemen of Amer- acteristics the late Revolution. strengthened had usurped power ica did not wait till entangled by exercise, question prec- itself in the They consequences principle, edents. saw all the consequences denying prin- they avoided the it. forget soon to ciple. much, We revere this lesson too Who which can estab- authority does see that same Religions, may lish Christianity, exclusion of all other establish the same ease sect of Chris- particular tians, in exclusion of all other Sects? That same au- thority can force a citizen pence to contribute three *54 66 any one establish- property of his
only other establishment any him ment, may force to conform in all cases whatsoever? ought which equality that Because, the bill violates which law, indispen
to be the basis of is more every law sible, proportion validity expediency as the or liable If “all men are na impeached. more to be equally independent,” ture free and all men are to be entering Society equal conditions; considered as into on as relinquishing more, retaining less, no and therefore no one another, than rights. they their natural Above all are to be considered retaining “equal an title to the free Religion according exercise of to the dictates of cons cience” Whilst we assert for ourselves a freedom to embrace, profess Religion to observe the we believe to be of origin, divine we cannot an deny equal freedom to those whose yet yielded minds have not to the evidence which has If convinced us. this freedom be abused, it is an against offence God, against man: God, To therefore, men, not to must an account of it be rendered. As the Bill equality by violates subjecting some peculiar burdens; so violates the same prin ciple, by granting to peculiar others exemptions. Are Quakers Menonists the sects who think a compulsive support of their religions unnecessary and un warantable? Can their piety alone be intrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others? We think too favorably justice good sense of these denominations, to believe they that either pre covet eminencies over their fellow citizens, or that will they seduced by them, from the common opposition to the measure. Rights, Decl. Art. 1. original.] [Note 2Art: 16. original.] [Note Magis- the Civil either implies the bill
5. Because he truth; Religious Judge competent trate is policy. of Civil engine Religion as an may employ *55 the contradic- by falsified arrogant pretension first is an the throughout ages, in and all of Rulers tory opinions the of perversion an unhallowed world: The second means of salvation. Bill is by the proposed
6. Because the establishment Religion. Christian requisite support for the not Reli- to the Christian it contradiction say is, To is a dependence disavows a of it itself; every page for gion fact; it is a contradiction this world: powers on the of and both existed flour- Religion this for it is known that but laws, of human support without ished, only not them; only and not dur- every opposition in of spite aid, long after it had but miraculous ing period evidence, ordinary and the care of been left to its own terms; in a contradiction for Nay, it is Providence: pre- must have policy, human invented Religion not been, it was before established supported, existed and to weaken in moreover those who It is policy. human in confidence innate ex- Religion pious its profess Author; its to foster patronage and the cellence, suspicion reject it, a its friends still in those who fallacies, to trust it of its to its own too conscious are merits. witnesseth that ecclesiastical experience Because maintaining purity and effi-
establishments, instead contrary operation. had a During have Religion, cacy legal has the centuries, establishment of fifteen almost What have trial. been its on fruits? Christianity been pride places, indolence in in all less More servility in the in laity; both, super- ignorance Clergy; Enquire of the persecution. Teachers bigotry stition, in ages which it appeared for Christianity its every point sect, to the lustre; ages those prior greatest Propose a restora- incorporation policy. Civil to its its Teachers de- primitive which tion of this state flocks; many of rewards of their pended voluntary on ought their tes- them its On side predict downfall. against when or when greatest weight, to have for timony their interest? is not neces- question
8. Because establishment If urged it be sary support for the of Civil Government. it necessary as of Civil Government necessary Religion, is a and it be supporting means necessary for the latter the former. purpose, cannot cognizance If be not within of Civil Gov- Religion [the] how can establishment be said to be ernment, legal its to civil influence fact necessary Government? What Society? have ecclesiastical establishments had on Civil *56 In spiritual some instances have been seen to erect a they in tyranny many on the Civil in- authority; ruins of they upholding stances have been seen the thrones of political they in tyranny; no instance have been seen the guardians liberties people. Rulers who subvert public liberty, wished to an may have found clergy A just established convenient govern- auxiliaries. ment, perpetuate instituted to secure & it, needs them not. a government Such will be best supported protecting in every enjoyment citizen Religion his with the hand equal protects same which person his prop- his by neither erty; invading equal rights Sect, nor any Sect to suffering invade those another.
9. the proposed Because establishment is a departure generous from that policy, which, offering an asylum to persecuted and oppressed of every Nation and Relig- ion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill sudden degeneracy? Instead of holding asylum forth an persecuted, it is itself signal rank of Citi- equal degrades from the It persecution. do not bend Religion in opinions whose all those zens may as it authority. Distant Legislative those of it differs Inquisition form, in from the be, present its the other step, is the first degree. in The one magnanimous The in intolerance. the last the career of Regions, must foreign scourge this cruel sufferer under him warning, Coast, our view the Bill as a Beacon on haven, liberty philanthrophy where to seek some other repose from a more certain their due extent offer his troubles. banish our tendency like Because,
10. it will have a situations allurements other presented Citizens. The fresh superadd To every day thinning are their number. they revoking liberty emigration, by motive to folly which has species would be the same enjoy, now flourishing kingdoms. depopulated dishonoured and har- destroy it will that moderation Because, to intermeddle which the forbearance of our laws mony sects. amongst its several Religion, produced has world, by vain spilt Torrents of blood have been the old dis- attempts extinguish Religious of the secular arm to Religious opinions. cord, by proscribing all difference re- length remedy. Every Time has at revealed the true wherever it has rigorous policy, laxation of narrow and tried, assuage been been found to the disease. has equal exhibited proofs, American Theatre has *57 it, if suf- compleat liberty, wholly it does not eradicate destroys malignant influence on the health ficiently its salutary If effects of
prosperity of the State. with the begin we to contract system eyes, this under our own name- that will Religious freedom, bonds of we know no severely reproach folly. warning too At least let be our taken innovation. The at the first fruits of threatened very appearance of Bill has transformed that “Chris- late mu charity,” which of forbearance,1
tian love and tually prevailed, jealousies, into animosities not be may appeased. may not soon be What mischiefs quiet be armed enemy dreaded should this to the with the force of a law?
12. Because, policy bill to the dif- of the is adverse fusion light Christianity. of the The first wish of those enjoy precious who gift, ought to be that it imparted Compare to the race mankind. whole number of those who have received it with yet the num- remaining ber still under Religions; the dominion of false and how small is the former! Bill policy Does the tend to disproportion? No; lessen the it at once dis- courages those strangers light who are to the of [revela- from coming the Region it; into and counte- tion] nances, by example the nations who in darkness, continue in shutting out might those who convey to them. In- levelling stead of as far as possible, every obstacle to the progress victorious Bill truth, ignoble with an unchristian timidity would circumscribe with it, a wall of defence, against the encroachments of error.
13. Because attempts by legal to enforce sanctions, acts obnoxious great to so proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute law which is not generally deemed necessary salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect striking of so example an impotency general on Government, its authority. 14. Because a measure of singular magnitude such delicacy ought not imposed, to be without the clearest evi- dence that it is called a majority of citizens: and no satisfactory method yet proposed by which the voice of majority this case may be determined, or in- its fluence secured. “The people of the respective counties
1Art. 16. in the [Note original.] *58 respecting indeed requested signify opinion are their Assembly.” adoption the Bill the of next Session the equal, must be made before representation But the Counties, Representatives voice either of the or of the will that the is that neither of people. hope be of Our the dan- consideration, espouse the former after will, due gerous disap- of Bill. the principle the Should event us, confidence, it will still that point leave us full fair appeal against to the the sentence latter will reverse our liberties. Because, finally, equal “the citizen to right every free Religion according exercise his to the dictates conscience” is held our other the same tenure all
rights. If we recur origin, gift to its it is equally nature; if weigh importance, we it its cannot less us; dear to if we rights consult the Declaration of those pertain good to the people Virginia, as “basis and foundation of Government,” enumerated with equal solemnity, emphasis. rather studied Either then, say, we must that the will of Legislature is the only measure their authority; plenitude that in of this authority, they may sweep away all our funda rights; or, mental they that are par bound to leave this right ticular untouched and sacred: Either must say, we they may that controul press, may freedom abolish trial jury, may up swallow the Executive and Judiciary Powers of the State; nay they may that us despoil of our very right of suffrage, and erect them an independent selves into and hereditary assembly: or we say, must they no authority have to enact into law the Bill under consideration. We the say, subscribers the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against dangerous so an usurpation, we oppose it, this remonstrance; earnestly praying, we are in duty Rights-title. Decl. original.] in the [Note
bound, Supreme Lawgiver Universe, that the illu- by of the minating addressed, may those to whom it is on the one hand, turn their which every councils from act would af- holy front his prerogative, or violate the trust committed to them: guide and on the other, every them into measure may worthy be of his [blessing, may reldound to their own praise, and may firmly establish more the liberties, the prosperity, and the Happiness of the Commonwealth. Madison,
II 183-191. SUPPLEMENTAL APPENDIX. BILL
A ESTABLISHING A PROVISION FOR OF TEACHERS
THE CHRISTIAN RELIGION. Whereas general knowledge diffusion of Christian hath a tendency natural men, to correct the morals of restrain their vices, preserve the peace society; which cannot be effected a competent provision without teachers, learned thereby who be enabled de- vote their time and duty attention to the instructing citizens, such as their circumstances and want of education, cannot otherwise knowledge; attain such judged it is that such provision may be by Legis- made lature, counteracting without principle the liberal here- adopted tofore and intended to preserved by abolishing be all pre-eminence distinctions of amongst the different so- cieties or of Christians; communities
Be it enacted the General Assembly, That therefore for the of Christian teachers, per centum on amount, pound on the sum payable for tax on the property within Commonwealth, hereby assessed, and shall paid by every person chargeable with the said tax at the time the same shall due; become and the Sheriffs of the several Counties power shall have levy collect the same same manner and under bemay pre- are or limitations, the like restrictions of this raising the Revenues the laws for scribed State. enacted, paid, so every That for sum
And be it therein give receipt, expressing shall Sheriff or Collector he from whom person society to what of Christians money paid, to be same direct the may receive the shall his books. a distinct account thereof keeping day before the every shall, on or County, Sheriff of Court, upon every year, return him made, payments oath, alphabetical two lists *60 the the names of distinguishing opposite in columns to which same, society the paid who shall have the persons and one by appropriated; them money paid the so was shall be appropriation names where no column for the in a book being which recorded lists, made. One of after the Clerk by for shall be filed kept purpose, to be in the up be fixed by his the shall the Sheriff office; other of all con- Court-house, inspection there to remain for the centum Sheriff, deducting per after five cerned. And the person such or collection, pay the shall forthwith for by the to receive the same persons appointed as shall be of each Elders, Directors, however denominated Vestry, or society; be due to that society, such the sum so stated to or thereof, person the motion of such upon or default any succeeding Court, execution to the next or persons and his against for the same the Sheriff shall be awarded administrators; pro- his and their executors or security, given of such mo- notice be days previous vided ten serving execution, Officer upon every tion. And such the estate to immediate sale of the proceed the same shall at the taken, accept security payment shall not for forthcoming goods the months, of three nor to have end wherein, better direction the day sale; the for his at no upon every such execution that Clerk shall endorse kind shall be taken. security raised enacted, money to be That the it
And be further Elders, or Vestries, by the Act, of this shall by virtue pro- to a appropriated society, of each Directors their Gospel of Minister Teacher of the for a or vision worship, denomination, providing places the of divine whatsoever; in the denomina- except and to none other use what is may who receive Quakers Menonists, tions of general it in their members, place from their collected think they shall fund, disposed to be a manner mode of particular their promote best calculated to worship. enacted, the time of That all which at
And be sums appropri- not be the or Collector Sheriff payment same, shall be accounted by person paying ated directed; and this Act is by manner as Court pay shall deducting collection, for his after Sheriff (upon account certified Court amount thereof Accounts, them to Auditors of Public Treasurer) Treasury, disposed to be into the the en- Assembly, the direction of the General under couragement learning within the Counties seminaries use or arise, such sums shall and to no other whence purpose whatsoever. *61 commence, force,
THIS Act shall and be from and day year after the A Copy Engrossed Bill. H. D. C. Beckley,
John Washington (Papers George Washington, Mss. Vol. Library Congress.* 281); copy Bill one of the
*This of the Assessment is from handbills reading 24, 1784, when the third the bill was which on December postponed, Virginia were ordered distributed to the counties Delegates. Virginia Delegates, House of See Journal of the House of 24, 1784; Eckenrode, December 102-103. The bill is therefore in its form, again final it never reached the floor House. Eckenrode, 113. notes 59 and text mentary private. See infra. by the affirmatively appears schools, private the four schools in parochial superintendent testimony of Trenton. Diocese revers- Jersey, of New Appeals The Court Errors 2d L. A. 98, N. J. decision, 132 Supreme Court’s ing the contravention board’s action Ewing has held 75, Con- the Federal or of or statutes the state constitution have to 333. We L. 44 A. 2d N. J. stitution. pro- with the ruling accords only whether consider in the due implied Amendment of the First hibition Fourteenth. clause process I. law re but church, simply an established Not religion is forbidden. an specting establishment It is loosely phrased. broadly was but not Amendment views of its author’s compact and exact summation In religious freedom. during long struggle for formed his Bill for characterizing own Jefferson’s Madison’s words Establishing guaranty put he Religious Freedom, the piloted through the charter, our national like the bill he Virginia precision, “a Model of technical Assembly, was could not have perspicuous brevity.”8 Madison or “an “religion,” confused “church” and established religion.” church” “an establishment of
Notes
notes