330 U.S. 1; (1947)
MR. JUSTICE BLACK delivered the opinion of the Court.
A New Jersey statute authorizes its local school districts to
make rules and contracts for the transportation of children to
and from schools. The appellee, a township board of education,
acting pursuant to this statute, authorized reimbursement to
parents of money expended by them for the bus transportation of
their children on regular busses operated by the public
transportation system. Part of this money was for the payment of
transportation of some children in the community to Catholic
parochial schools. These church schools give their students, in
addition to secular education, regular religious instruction
conforming to the religious tenets and modes of worship of the
Catholic Faith....
The only contention here is that the state statute and the
resolution, insofar as they authorized reimbursement to parents
of children attending parochial schools, violate the Federal
Constitution [insofar as] the statute and the resolution forced
inhabitants to pay taxes to help support and maintain schools
which are dedicated to, and which regularly teach, the Catholic
Faith. This is alleged to be a use of state power to support
church schools contrary to the prohibition of the First Amendment
which the Fourteenth Amendment made applicable to the states....
The New Jersey statute is challenged as a "law respecting an
establishment of religion. " The First Amendment, as made
applicable to the states by the Fourteenth, commands that a state
"shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof . . . . " These
words of the First Amendment reflected in the minds of early
Americans a vivid mental picture of conditions and practices
which they fervently wished to stamp out in order to preserve
liberty for themselves and for their posterity. Doubtless their
goal has not been entirely reached; but so far has the Nation
moved toward it that the expression "law respecting an
establishment of religion, " probably does not so vividly
remind present-day Americans of the evils, fears, and political
problems that caused that expression to be written into our Bill
of Rights. Whether this New Jersey law is one respecting an
"establishment of religion " requires an understanding
of the meaning of that language, particularly with respect
to the imposition of taxes....
The "establishment of religion " clause of the First
Amendment means at least this: Neither a state nor the Federal
Government can set up a church. Neither can pass laws which aid
one religion, aid all religions, or prefer one religion over
another. Neither can force nor influence a person to go to or to
remain away from church against his will or force him to profess
a belief or disbelief in any religion. No person can be punished
for entertaining or professing religious beliefs or disbeliefs,
for church attendance or non-attendance. No tax in any amount,
large or small, can be levied to support any religious activities
or institutions, whatever they may be called, or whatever form
they may adopt to teach or practice religion. Neither a state nor
the Federal Government can, openly or secretly, participate in
the affairs of any religious organizations or groups and vice
versa . In the words of Jefferson, the clause against
establishment of religion by law was intended to erect "a
wall of separation between church and State. "
We must consider the New Jersey statute in accordance with the
foregoing limitations imposed by the First Amendment. But we must
not strike that state statute down if it is within the State's
constitutional power even though it approaches the verge of that
power. New Jersey cannot consistently with the
"establishment of religion " clause of the First
Amendment contribute tax-raised funds to the support of an
institution which teaches the tenets and faith of any church. On
the other hand, other language of the amendment commands that New
Jersey cannot hamper its citizens in the free exercise of their
own religion. Consequently, it cannot exclude individual
Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists,
Non-believers, Presbyterians, or the members of any other faith, because
of their faith, or lack of it, from receiving the benefits
of public welfare legislation. While we do not mean to intimate
that a state could not provide transportation only to children
attending public schools, we must be careful, in protecting the
citizens of New Jersey against state-established churches, to be
sure that we do not inadvertently prohibit New Jersey from
extending its general state law benefits to all its citizens
without regard to their religious belief.
Measured by these standards, we cannot say that the First
Amendment prohibits New Jersey from spending tax-raised funds to
pay the bus fares of parochial school pupils as a part of a
general program under which it pays the fares of pupils attending
public and other schools. It is undoubtedly true that children
are helped to get to church schools. There is even a possibility
that some of the children might not be sent to the church schools
if the parents were compelled to pay their children's bus fares
out of their own pockets when transportation to a public school
would have been paid for by the State. The same possibility
exists where the state requires a local transit company to
provide reduced fares to school children including those
attending parochial schools, or where a municipally owned
transportation system undertakes to carry all school children
free of charge. Moreover, state-paid policemen, detailed to
protect children going to and from church schools from the very
real hazards of traffic, would serve much the same purpose and
accomplish much the same result as state provisions intended to
guarantee free transportation of a kind which the state deems to
be best for the school children's welfare. And parents might
refuse to risk their children to the serious danger of traffic
accidents going to and from parochial schools, the approaches to
which were not protected by policemen. Similarly, parents might
be reluctant to permit their children to attend schools which the
state had cut off from such general government services as
ordinary police and fire protection, connections for sewage
disposal, public highways and sidewalks. Of course, cutting off
church schools from these services, so separate and so
indisputably marked off from the religious function, would make
it far more difficult for the schools to operate. But such is
obviously not the purpose of the First Amendment. That Amendment
requires the state to be a neutral in its relations with groups
of religious believers and non-believers; it does not require the
state to be their adversary. State power is no more to be used so
as to handicap religions than it is to favor them.
...The State contributes no money to the schools. It does not
support them. Its legislation, as applied, does no more than
provide a general program to help parents get their children,
regardless of their religion, safely and expeditiously 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
the 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 decision. I have a sympathy, though it is not ideological,
with Catholic citizens who are compelled by law to pay taxes for
public schools, and also feel constrained by conscience and
discipline to support other schools for their own children. Such
relief to them as this case involves is not in itself a serious
burden to taxpayers and I had assumed it to be as little serious
in principle. Study of this case convinces me otherwise. The
Court's opinion marshals every argument in favor of state aid and
puts the case in its most favorable light, but much of its
reasoning confirms my conclusions that there are no good grounds
upon which to support the present legislation. In fact, the
undertones of the opinion, advocating complete and uncompromising
separation of Church from State, seem utterly discordant with its
conclusion yielding support to their commingling in educational
matters. The case which irresistibly comes to mind as the most
fitting precedent is that of Julia who, according to Byron's
reports, "whispering 'I will ne'er consent,' -- consented.
"
I.
The Court sustains this legislation by assuming two deviations
from the facts of this particular case; first, it assumes a state
of facts the record does not support, and secondly, it refuses to
consider facts which are inescapable on the record.
The Court concludes that this "legislation, as applied, does
no more than provide a general program to help parents get their
children, regardless of their religion, safely and expeditiously
to and from accredited schools, " and it draws a comparison
between "state provisions intended to guarantee free
transportation " for school children with services such as
police and fire protection, and implies that we are here dealing
with "laws authorizing new types of public services . . . .
" This hypothesis permeates the opinion. The facts will not
bear that construction.
...The New Jersey Act in question makes the character of the
school, not the needs of the children, determine the eligibility
of parents to reimbursement. The Act permits payment for
transportation to parochial schools or public schools but
prohibits it to private schools operated in whole or in part for
profit...Thus, under the Act and resolution brought to us by this
case, children are classified according to the schools they
attend and are to be aided if they attend the public schools or
private Catholic schools, and they are not allowed to be aided if
they attend private secular schools or private religious schools
of other faiths....
If we are to decide this case on the facts before us, our
question is simply this: Is it constitutional to tax this
complainant to pay the cost of carrying pupils to Church schools
of one specified denomination?
II.
...One of our basic rights is to be free of taxation to support a
transgression of the constitutional command that the authorities
"shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof . . . . "
I should be surprised if any Catholic would deny that the
parochial school is a vital, if not the most vital, part of the
Roman Catholic Church. If put to the choice, that venerable
institution, I should expect, would forego its whole service for
mature persons before it would give up education of the young,
and it would be a wise choice. Its growth and cohesion,
discipline and loyalty, spring from its schools. Catholic
education is the rock on which the whole structure rests, and to
render tax aid to its Church school is indistinguishable to me
from rendering the same aid to the Church itself.
III.
This policy of our Federal Constitution has never been wholly
pleasing to most religious groups. They all are quick to invoke
its protections; they all are irked when they feel its
restraints....
But we cannot have it both ways. Religious teaching cannot be a
private affair when the state seeks to impose regulations which
infringe on it indirectly, and a public affair when it comes to
taxing citizens of one faith to aid another, or those of no faith
to aid all. If these principles seem harsh in prohibiting aid to
Catholic education, it must not be forgotten that it is the same
Constitution that alone assures Catholics the right to maintain
these schools at all when predominant local sentiment would
forbid them. Pierce v. Society of Sisters....
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE FRANKFURTER, MR.
JUSTICE JACKSON and MR. JUSTICE BURTON agree, dissenting.
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . . "
U.S. Const., Amend. I.
I cannot believe that the great author of those words, or
the men who made them law, could have joined in this decision.
Neither so high nor so impregnable today as yesterday is the wall
raised between church and state by...the First Amendment, now
made applicable to all the states by the Fourteenth. New Jersey's
statute sustained is the first, if indeed it is not the second
breach to be made by this Court's action. That a third, and a
fourth, and still others will be attempted, we may be sure....
This case forces us to determine squarely for the first time what
was "an establishment of religion " in the First
Amendment's conception; and by that measure to decide whether New
Jersey's action violates its command....
I.
Not simply an established church, but any law respecting an
establishment of religion is forbidden. The Amendment was broadly
but not loosely phrased.....
The Amendment's purpose was not to strike merely at the official
establishment of a single sect, creed or religion, outlawing only
a formal relation such as had prevailed in England and some of
the colonies. Necessarily it was to uproot all such
relationships. But the object was broader than separating church
and state in this narrow sense. It was to create a complete and
permanent separation of the spheres of religious activity and
civil authority by comprehensively forbidding every form of
public aid or support for religion. In proof the Amendment's
wording and history unite with this Court's consistent utterances
whenever attention has been fixed directly upon the question.
"Religion " appears only once in the Amendment. But the
word governs two prohibitions and governs them alike. It does not
have two meanings, one narrow to forbid "an establishment
" and another, much broader, for securing "the free
exercise thereof. " "Thereof " brings down
"religion " with its entire and exact content, no more
and no less, from the first into the second guaranty, so that
Congress and now the states are as broadly restricted concerning
the one as they are regarding the other.
No one would claim today that the Amendment is constricted, in
"prohibiting the free exercise " of religion, to
securing the free exercise of some formal or creedal observance,
of one sect or of many. It secures all forms of religious
expression, creedal, sectarian or nonsectarian, wherever and
however taking place, except conduct which trenches upon the like
freedoms of others or clearly and presently endangers the
community's good order and security. For the protective purposes
of this phase of the basic freedom, street preaching, oral or by
distribution of literature, has been given "the same high
estate under the First Amendment as . . . worship in the churches
and preaching from the pulpits." And on this basis parents
have been held entitled to send their children to private,
religious schools. Pierce v. Society of Sisters.
Accordingly, daily religious education commingled with secular is
"religion " within the guaranty's comprehensive scope.
So are religious training and teaching in whatever form. The word
connotes the broadest content, determined not by the form or
formality of the teaching or where it occurs, but by its
essential nature regardless of those details.
"Religion " has the same broad significance in the twin
prohibition concerning "an establishment. " The
Amendment was not duplicitous. "Religion " and
"establishment " were not used in any formal or
technical sense. The prohibition broadly forbids state support,
financial or other, of religion in any guise, form or degree. It
outlaws all use of public funds for religious purposes.
II.
No provision of the Constitution is more closely tied to or given
content by its generating history than the religious clause of
the First Amendment. It is at once the refined product and the
terse summation of that history. The history includes not only
Madison's authorship and the proceedings before the First
Congress, but also the long and intensive struggle for religious
freedom in America, more especially in Virginia, of which the
Amendment was the direct culmination. In the documents of the
times, particularly of Madison, who was leader in the Virginia
struggle before he became the Amendment's sponsor, but also in
the writings of Jefferson and others and in the issues which
engendered them is to be found irrefutable confirmation of the
Amendment's sweeping content....
Believers of all faiths, and others who do not express their
feeling toward ultimate issues of existence in any creedal form,
pay the New Jersey tax. When the money so raised is used to pay
for transportation to religious schools, the Catholic taxpayer to
the extent of his proportionate share pays for the transportation
of Lutheran, Jewish and otherwise religiously affiliated children
to receive their non-Catholic religious instruction. Their
parents likewise pay proportionately for the transportation of
Catholic children to receive Catholic instruction. Each thus
contributes to "the propagation of opinions which he
disbelieves " in so far as their religions differ, as do
others who accept no creed without regard to those differences.
Each thus pays taxes also to support the teaching of his own
religion, an exaction equally forbidden since it denies "the
comfortable liberty " of giving one's contribution to the
particular agency of instruction he approves....
Finally, transportation, where it is needed, is as essential to
education as any other element. Its cost is as much a part of the
total expense, except at times in amount, as the cost of
textbooks, of school lunches, of athletic equipment, of writing
and other materials; indeed of all other items composing the
total burden...Hardly can it be maintained that transportation is
the least essential of these items, or that it does not in fact
aid, encourage, sustain and support, just as they do, the very
process which is its purpose to accomplish. No less essential is
it, or the payment of its cost, than the very teaching in the
classroom or payment of the teacher's sustenance. Many types of
equipment, now considered essential, better could be done
without.
For me, therefore, the feat is impossible to select so
indispensable an item from the composite of total costs, and
characterize it as not aiding, contributing to, promoting or
sustaining the propagation of beliefs which it is the very end of
all to bring about. Unless this can be maintained, and the Court
does not maintain it, the aid thus given is outlawed. Payment of
transportation is no more, nor is it any the less essential to
education, whether religious or secular, than payment for
tuitions, for teachers' salaries, for buildings, equipment and
necessary materials....
This is precisely for the reason that education which includes
religious training and teaching, and its support, have been made
matters of private right and function, not public, by the very
terms of the First Amendment. That is the effect not only in its
guaranty of religion's free exercise, but also in the prohibition
of establishments. It was on this basis of the private character
of the function of religious education that this Court held
parents entitled to send their children to private, religious
schools. Pierce v. Society of Sisters, supra.
Now it declares in effect that the appropriation of public funds
to defray part of the cost of attending those schools is for a
public purpose....
Notwithstanding the recognition that this two-way aid is given
and the absence of any denial that religious teaching is thus
furthered, the Court concludes that the aid so given is not
"support "of religion. It is rather only support of
education as such, without reference to its religious content,
and thus becomes public welfare legislation. To this elision of
the religious element from the case is added gloss in two
respects, one that the aid extended partakes of the nature of a
safety measure, the other that failure to provide it would make
the state unneutral in religious matters, discriminating against
or hampering such children concerning public benefits all others
receive....
This is not therefore just a little case over bus fares. In
paraphrase of Madison, distant as it may be in its present form
from a complete establishment of religion, it differs from it
only in degree; and is the first step in that direction. Today as
in his time "the same authority which can force a citizen to
contribute three pence only . . . for the support of any one
[religious] establishment, may force him " to pay more; or
"to conform to any other establishment in all cases
whatsoever. " And now, as then, "either . . . we must
say, that the will of the Legislature is the only measure of
their authority; and that in the plenitude of this authority,
they may sweep away all our fundamental rights; or, that they are
bound to leave this particular right untouched and sacred. "
Remonstrance, Par. 15.
The realm of religious training and belief remains, as the
Amendment made it, the kingdom of the individual man and his God.
It should be kept inviolately private, not...confounded with what
legislatures legitimately may take over into the public domain.
V.
No one conscious of religious values can be unsympathetic toward
the burden which our constitutional separation puts on parents
who desire religious instruction mixed with secular for their
children. They pay taxes for others' children's education, at the
same time the added cost of instruction for their own. Nor can
one happily see benefits denied to children which others receive,
because in conscience they or their parents for them desire a
different kind of training others do not demand.
But if those feelings should prevail, there would be an end to
our historic constitutional policy and command. No more unjust or
discriminatory in fact is it to deny attendants at religious
schools the cost of their transportation than it is to deny them
tuitions, sustenance for their teachers, or any other educational
expense which others receive at public cost. Hardship in fact
there is which none can blink. But, for assuring to those who
undergo it the greater, the most comprehensive freedom, it is one
written by design and firm intent into our basic law.
Of course discrimination in the legal sense does not exist. The
child attending the religious school has the same right as any
other to attend the public school. But he foregoes exercising it
because the same guaranty which assures this freedom forbids the
public school or any agency of the state to give or aid him in
securing the religious instruction he seeks.
Were he to accept the common school, he would be the first to
protest the teaching there of any creed or faith not his own. And
it is precisely for the reason that their atmosphere is wholly
secular that children are not sent to public schools under the Pierce
doctrine. But that is a constitutional necessity, because we
have staked the very existence of our country on the faith that
complete separation between the state and religion is best for
the state and best for religion.
That policy necessarily entails hardship upon persons who forego
the right to educational advantages the state can supply in order
to secure others it is precluded from giving. Indeed this may
hamper the parent and the child forced by conscience to that
choice. But it does not make the state unneutral to withhold what
the Constitution forbids it to give. On the contrary it is only
by observing the prohibition rigidly that the state can maintain
its neutrality and avoid partisanship in the dissensions
inevitable when sect opposes sect over demands for public moneys
to further religious education, teaching or training in any form
or degree, directly or indirectly.
The judgment should be reversed.