Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Supreme Court first recognized that the Establishment Clause applied to the states (through the Fourteenth Amendment) in 1947’s Everson v. Board of Education.1 Prior to Everson, the Court had issued only two decisions evaluating federal financial assistance to religious institutions.2 Both took a fact-specific approach to evaluating the constitutional challenges in those cases rather than attempting to articulate a broader test, and both rejected the Establishment Clause challenges. Accordingly, these early cases, along with Everson, demonstrated that not all forms of government aid to religion violate the Establishment Clause.3
Everson thus was the Supreme Court’s first significant modern attempt to elucidate the terms of the Establishment Clause.4 The Court upheld a state program that reimbursed parents for bus fare to send their children to school, including children who attended parochial schools.5 The Court largely declined to articulate a single test for courts to evaluate Establishment Clause challenges, although it did make some broad pronouncements about how to approach the Religion Clauses. For instance, in balancing the two Religion Clauses, the Court cautioned that in “protecting” citizens from “state-established churches,” it did not want to “inadvertently prohibit [the state] from extending its general state law benefits to all its citizens without regard to their religious belief.” 6 The Court said that the First Amendment “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.” 7
Applying these general principles, the Supreme Court said that the bus fare reimbursement program was constitutional.8 Although it used “tax-raised funds” to help some children “get to church schools,” this was only “as a part of a general program” that paid “the fares of pupils attending public and other schools.” 9 In the Court’s view, the Establishment Clause did not require the state to “cut off church schools” from “general government services.” 10
- Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947). See also infra Amdt14.S1.3.2 Early Doctrine.
- Quick Bear v. Leupp, 210 U.S. 50, 81–82 (1908) (concluding that a congressional appropriation of funds to religious schools did not violate the Establishment Clause where the appropriation involved the Rosebud Sioux Tribe’s decisions about the use of its own money); Bradfield v. Roberts, 175 U.S. 291, 297–99 (1899) (concluding that a federal appropriation to expand a hospital owned by a religious order did not violate the Establishment Clause given the secular legal character of the corporation and Congress’s secular goal to care for the sick).
- See, e.g., Tilton v. Richardson, 403 U.S. 672, 679 (1971) (plurality opinion) ( “The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago in Bradfield v. Roberts . . . .” (citation omitted)).
- See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947).
- Id. at 3.
- Id. at 16.
- Id. at 18.
- Id. at 17.
- Id. at 17–18. Somewhat similarly, the Supreme Court has held that states do not violate the Establishment Clause by providing unemployment benefits to individuals who are fired based on their unwillingness to work on the Sabbath, ruling instead that this accommodation of religious practices merely reflects government neutrality towards religion. Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144–45 (1987); Sherbert v. Verner, 374 U.S. 398, 409 (1963). See also Thomas v. Review Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 719–20 (1981) (reaching a similar conclusion with respect to an individual who was denied unemployment benefits after leaving his job because his newly assigned job responsibilities, producing armaments, violated his religious beliefs).