The Most Important Church-State Decision You Never Heard of

By Rob Boston, Church and State. Posted February 3, 2007.

Television preacher Pat Robertson can barely contain his anger when he talks about a 1947 Supreme Court decision calledEverson v. Board of Education.

Robertson attacked the ruling on his "700 Club" several times last year. Everson came out of anti-Catholicism, he sputtered in January of 2006. Four months later, he blasted the decision because in it the justices "relied on a letter written by Thomas Jefferson to the Danbury Baptists talking about a wall of separation that isn't in the Constitution."

Robertson is not the only one riled up over Everson. The case, considered a seminal ruling in modern church-state law, marks its 60th anniversary next month. Acknowledged as the most pivotal church-state ruling of the 20th century, Everson has become a magnet for both Religious Right broadsides and law review blasts from right-wing legal scholars.

Why is the far right so eager to discredit Everson? The case is crucial because in it the Supreme Court laid down a concise and wide-ranging definition of the First Amendment's religion provisions that have had a profound effect on church-state law. In addition, a unanimous court strongly endorsed Jefferson's assertion that the American people, through the First Amendment, have "erected a wall of separation between church and state." For anyone seeking to undermine that wall, discrediting Everson is job one.

The importance of Everson can hardly be overstated. Virtually every case that deals with the "establishment of religion" cites Everson. Federal judges use it as a touchstone when seeking guidance in contentious clashes over the proper role of religion in government. Its language appears in countless lower court rulings and legal briefs.

Yet for all of its importance, Everson is not as well known as high court cases over school prayer, displays of religious symbols or legal abortion. Everson v. Board of Education is hardly a household phrase -- but for anyone who labors to defend the separation of church and state, the ruling is a guiding principle.

"Everson was a seminal case," said J. Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty. "It set the tone for the Court's modern religion-clause jurisprudence and was significant because Supreme Court Justice Hugo Black, a former Baptist Sunday school teacher, popularized the 'wall of separation' metaphor that Roger Williams and Thomas Jefferson talked about in earlier days."

The Religious Right sees Everson in a different light. To "Christian nation" propagandist David Barton and other Religious Right revisionists, Everson was the vehicle the Supreme Court used to dredge up an obscure letter by Jefferson and make it the law of the land. Overnight, as this story goes, the justices created the wall of separation of between church and state -- motivated by their unrelenting hostility toward religion.

The Religious Right version is bunk, but that hasn't stopped it from being spread far and wide. As the nation marks the 60th anniversary of the decision this year -- Everson was handed down by the Supreme Court on Feb. 10, 1947 -- it's a good time to look at how the case came about, to examine what it really says and to ponder the legacy of the ruling.

Even a casual reading of the decision repudiates the Religious Right's pseudo-history. Far from being hostile to religion, the ruling in Everson actually upheld a form of tax subsidy to parochial schools. The case did not mark the first time the high court dealt with this issue, nor was it the product of a court full of rigid secularists. The justices were a diverse lot religiously, and there was a Roman Catholic among them.

By 1947, the court had already affirmed the right of private religious schools to exist in Pierce v. Society of Sisters and upheld a Louisiana law in which the state "loaned" secular textbooks to students in parochial schools (Cochran v. Board of Education).

Other church-state cases had come earlier. In the 19th century, the court had decided important controversies over the free exercise of religion in a series of legal clashes over Mormon polygamy and laid down parameters for government intervention in internal church disputes. A string of cases from the 1920s and '30s dealt with religiously based objections to compulsory military service.

Everson was not the first time the Supreme Court made note of Jefferson's wall, either. The Supreme Court cited the metaphor in one of the Mormon cases, Reynolds v. United States (1879). In this ruling, a unanimous high court mentioned Jefferson's wall-of-separation metaphor favorably, remarking, "Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the [First] amendment thus secured."

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Rob Boston is the editor of Church and State magazine.

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