a. No. Black, writing for the majority, first discusses the
origin of the religion clauses. The King of England gave the Brits,
when they came over to the U.S., charters to erect religious
establishments. These charters soon became oppressive. Americans
had to pay taxes to pay ministers’ salaries, build and maintain
churches, etc. It was the Americans’ feelings of oppression that led
them to ratify the First Am. They wanted to erect “a wall of
separation between the church and State.”
1. Dave says that ever since Everidge, the Court has relied on
Black’s analysis of history re the First Am. Rutledge’s dissent in
this case (see below) reinforces Black’s analysis. Recent Con Law
scholars have pointed out that this analysis is historically
inaccurate. These Con Law scholars argue that the Establishment
Clause was only originally intended to prevent a national religion
(but states could create their own religion). This seems consistent
with the “Congress shall make no law…” text of the First Am.
b. The Establishment Clause at least means that the government
may not do the following:
–Neither a state nor the feds may set up an official church.
–Government may not “force [or] 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 one may be “punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance.”
–Government may not prefer one religion over another. Also,
government may not prefer religion to non-religion.
–Government may not participate in the affairs of religious
organizations, and such orgs may not participate in the affairs of
c. The N.J. statute must be seen with the foregoing limitations
imposed by the First Am. There is a tension between the
Establishment Clause and the Free Exercise Clause. “N.J. cannot
consistently with the Establishment Clause 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 N.J. cannot hamper its citizens [the parents
of parochial students] in the free exercise of their religion.” But
“we must be careful…to be sure that we do not inadvertently prohibit
N.J. from extending its general state law benefits to all its
citizens without regard to their religious belief.” Because the
reimbursement scheme is part of a general program, it does not
establish religion and thus does not violate the First Am. “The
state contributes no money to the schools. It does not support them.
The state does no more than provide a general program to help
parents get their children, regardless of their religion, safely and
expeditiously to and from school.”
1. The Court does not come right out and say if not reimbursing the
parents would violate the Free Exercise Clause, but it does suggest
that preventing an Establishment Clause violation could very well
violate the Free Exercise Clause.
d. State-paid policemen, who protect parochial-school kids
crossing the streets from traffic (just like the cops do with kids at
public schools), serve the same purpose as reimbursing parents to bus
their kids to parochial schools. These are general services that
provide secular (non-religious) benefits that are completely neutral.
“The First Am. requires the state to be 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 that it is to favor them.”
1. Dave says the key here is neutrality. But he doesn’t
personally think the statute and ordinance were neutral, and does not
think they are analogous to general services like cops and firemen.
He would have struck down the statute and ordinance.
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