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Vail Valley Voices: The wall between church and state

Henry Bornstein
valleyvoices@vaildaily.com
Vail, CO Colorado

Editor’s note: Henry Bornstein, a retired attorney who handled constitutional cases and studies the Constitution from a historical as well as legal perspective, replies in several parts to a recent Valley Voices column by Dick Gustafson addressing the separation of church and state. This is the seventh part.

There is one other case (Everson) that I believe is worthy of discussion and is cited in my prior part by Justice O’Connor, whom I might add was appointed to the Supreme Court by Ronald Reagan. I doubt that she was selected because of her “progressive,” liberal secular ideas and beliefs. Her opinion is quite clear in which she accepts the doctrine of separation of church not as a myth but as a foundational principle of the Constitution.

Everson v. Board Education Township Ewing Et Al., 330 U.S. 1 (Feb. 10, 1947):



The majority opinion (5-4) was also given by Black. In this case, Black cited much of the same law and history as he did in the Engel case as Jackson did in his dissent in this case. This case does not change the settled law; it carves out an exception. Each side has accepted without equivocation the principle of the separation of church and state and cited and quoted Jefferson and Madison, but they came to different conclusions as to whether or not the specific act complained of violated the First and 14th Amendments. As one might guess, I believe the dissent was correct. The majority and the dissent each refer to and cite Jefferson’s principles of separation and Madison’s Memorial and Remonstrance.

The facts: “A New Jersey statute authorized its local school districts to make rules and contracts for the transportation of children to and from schools. The appellee 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 superintendent of these schools is a Catholic priest.



“The appellant, in his capacity as a district taxpayer, filed suit in a state court challenging the right of the board to reimburse parents of parochial school students. He contended that the statute and the resolution passed pursuant to it violated both the state and the federal constitutions.

” … 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 14th Amendment made applicable to the states.”

I have selected those portions that I believe are relevant to the issues presented in my response. As stated earlier, please read the entire case.



The majority decision by Black:

” … The imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.

“The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the Virginia legislative body was about to renew Virginia’s tax levy for the support of the established church. Thomas Jefferson and James Madison led the fight against this tax. Madison wrote his great Memorial and Remonstrance against the law. In it, he eloquently argued that a true religion did not need the support of law; that no person, either believer or nonbeliever, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result of government-established religions. Madison’s Remonstrance received strong support throughout Virginia, and the Assembly postponed consideration of the proposed tax measure until its next session. When the proposal came up for consideration at that session, it not only died in committee, but the Assembly enacted the famous ‘Virginia Bill for Religious Liberty’ originally written by Thomas Jefferson.

“And the statute itself enacted ‘That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief … ‘

“This court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute. Reynolds v. United States, supra at 164.

“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 nonattendance. 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.’ Reynolds v. United States, supra at 164.”

In spite of these holdings, the majority upheld the New Jersey contribution to the Catholic schools for bus transportation.

The dissent

Here, I will present the dissent by Justice Jackson:

“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. …

“Of course, this case is not one of a Baptist or a Jew or an Episcopalian or a pupil of a private school complaining of discrimination. It is one of a taxpayer urging that he is being taxed for an unconstitutional purpose. I think he is entitled to have us consider the Act just as it is written. …

“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 …’ U.S. Constitution, Amendment I; Cantwell v. Connecticut, 310 U.S. 296. …

” … There is no answer to the proposition, more fully expounded by Mr. Justice Rutledge, that the effect of the religious freedom amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at taxpayers’ expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom and which the court is overlooking today. This freedom was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states’ hands out of religion but to keep religion’s hands off the state *and, above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse. Those great ends I cannot but think are immeasurably compromised by today’s decision. …

” … 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, 268 U.S. 510. Nor should I think that those who have done so well without this aid would want to see this separation between church and state broken down. If the state may aid these religious schools, it may therefore regulate them. Many groups have sought aid from tax funds only to find that it carried political controls with it. Indeed, this court has declared that ‘it is hardly lack of due process for the government to regulate that which it subsidizes.’ Wickard v. Filburn, 317 U.S. 111, 131. …”

*Please note that this holding completely contradicts and negates Mr. Gustafson’s (and Mr. Barton’s?) claim that: “This (wall of separation) is a clear indication that religion was to be protected from government, not the other way around.”

Since the ratification of the First Amendment, there is no question that the history and the law of same was and is that the first clause of the First Amendment was intended to separate church and state and that such a separation would create a greater freedom for both religion and government.

My last issue to respond to is contained in Mr. Gustafson’s final paragraph:

“They (the progressives?) are taxing and spending America into bankruptcy, dismantling and avoiding the Constitution and even considering selling our sovereign wildlife areas and national parks to the United Nations, a morally and monetarily bankrupt and progressive organization.

This paragraph is a nonsequitur. These claims have little to do with the alleged “myth of separation/history of church and state”. Mr. Gustafson moves from ignorance to absurdity. I researched the last claim and was amazed at the enormous number of right-wing blogs alleging this conspiracy – secret agreement. I looked at many of the blogs and no one (including Mr. Gustafson) identified a single square foot of any sovereign wildlife areas and/or national parks that were sold or are being considered to be sold to the United Nations. I am surprised that Glenn Beck has not picked up this issue as his next conspiratorial rave and rant to expound upon.

Many of the blogs also claimed that the liberals (i.e., the Obama administration) are going to use our sovereign wildlife areas and/or national parks as security for our existing debt to China or to the World Bank or to a new bank not yet established and also to enable the U.S. to borrow more money. In fact, one blog claimed that during Ms. Clinton’s recent trip to China, she executed an agreement with China to use millions of acres of U.S. land to collateralize our existing debt to them and also secured a promise that China will continue to loan the U.S. money.

Of course, no one has seen this agreement nor have any of the bloggers identified any of the sovereign wildlife areas and/or national parks to be used as collateral.

This claim is even more ludicrous than Dan Maes claim against Mr. Hickenlooper that the Denver’s B-cycle Bike Sharing Program is a secret plan which is ” … converting Denver into a United Nations community.” Mr. Maes continued: “This is bigger than it looks on the surface, and it could threaten our personal freedoms.” The fact is that Denver has been a member of this innocuous program that he later identified as the ICLEI since 1992, more than 10 years prior to Mr. Hickenlooper becoming mayor.

To quote Mr. Gustafson: “Think about it.”

In addition to those named above, I wish to thank the following for their information and research: the Jefferson Library, Rob Boston, Richard S. Russell, Theocracy Watch, Denver Post, Wikipedia, Ed Buckner, Jim Walker, Tom Peters, Constitution.org, and the Baptist Committee on Public Affairs.


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