Works By John Courtney Murray, S.J.

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The Court Upholds Religious Freedom

John Courtney Murray

It may seem presumptuous for a layman in the law to write about Supreme Court decisions. However, the recently decided Everson case is rather special. As Mr. Justice Rutledge said in his dissenting opinion, "This is not just a little case about bus fares." That was the immediate issue—whether the State of New Jersey was constitutionally authorized to reimburse parents for their children's bus transportation to schools "other than a public school," in the case, to Catholic parochial schools. But the ultimate issues were the universally vital ones of religious freedom, parental rights and civic equality. These concern every citizen. I may therefore undertake to say how the Court's decision looks to a citizen, who is not a lawyer, but who has his proper share of civic concern.

The Court's opinion, deciding the case in favor of the constitutionality of New Jersey's legislation, was written by Mr. Justice Black. It immediately impresses the lay-man as the work of a learned, incisive-minded, conscientious jurist, who has honestly faced a complicated set of issues, regarded the concrete situation in which they arise, and given a decision in the true spirit of American constitutional law. In contrast, the minority opinion, written by Mr. Justice Rutledge, for all the learned legal apparatus with which it is weighted, has to the layman the flavor of a more than faintly doctrinaire piece of historicism. Risking a general characterization of emphasis, one might say that Mr. Justice Rutledge centers on James Madison's philosophy of religious liberty, as set forth in the context of the eighteenth-century problem—government's relation to religion; whereas Mr. Justice Black centers on the religious and civic equality of the American parent and child, as they are to be conceived in the context of the twentieth-century problem—government's furtherance of the public welfare through education.

The realism of the Court's decision shows initially in its structure. After viewing a somewhat obscure scene, the Court seizes on two essential points that are fixed and clear, and builds its case on them. The first is the fact that the New Jersey legislation is public-welfare legislation; the second is the principle that no citizen should be excluded, on grounds of religion, from the benefits of public-welfare legislation.

"It is," says the Court, "much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose." Furthermore, the public-purpose character of the particular legislation in question enjoys a presumption in law: "The New Jersey legislature [sustained by the highest Court in New Jersey] has decided that a public purpose will be served by using tax-raised funds to pay the attend parochial schools." And no valid argument, framed on grounds of the Fourteenth Amendment, challenges this act of State sovereignty in a matter of the public welfare. The Court explicitly rejects the one argument advanced—that the due process clause of the Fourteenth Amendment is violated, "because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public's interest in the general education of all children." It says: "The fact that a State law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that the legislature has erroneously appraised the public need."

The intelligent layman will be rather glad to see this sophism thus legally rejected—once for all, one hopes; for the way it stupidly blunders into a serious argument has gotten rather tiresome. Actually, it could only be put forward by one who held a) the fundamental dogma that only the public schools promote the public interest, and b) the corollary that the parochial school, not being a public school, promotes only a private interest, and c) the further corollary that only those parents whose "personal desires" impel them to send their children to public schools really share the State's interest in education, and therefore merit the State's interest in them. This pile of sophisms can have a logical basis only on the deeply hidden premise that primary rights in education fall to the State, not to the parent —a premise flatly in contradiction with American doctrine, enunciated in the Pierce decision (the Oregon school case). As an aside, I would remark here that there will be no sanely democratic developments in the whole matter of government aid to education until the parent is moved into the center of the problem, and people stop debating the question in terms of "State" and "Church."

Having disposed rather summarily of the first challenge to the New Jersey legislation, made under the due-process clause of the Fourteenth Amendment, the Court turns to the real challenge, that the legislation "violates the First Amendment's prohibition against the establishment of a religion by law."

The layman should find realism and balance in the Court's handling of this issue. There is the initial merit (not obvious in the minority opinion) of a frank recognition of the very real "difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion." There is the further difficulty of giving an historically just, enduringly equitable and intrinsically harmonious meaning to the first two clauses of the First Amendment.

The lineage of the First Amendment is first traced: "This Court has previously recognized that the provisions of the First Amendment, in the drafting 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" of 1786. Secondly, the Court recalls previous decisions that gave a “broad meaning" to the "free exercise of religion" clause; and adds: "There is every reason to give the same application and broad interpretation to the `establishment of religion' clause." (Here the layman stumbles: even he knows that the phrase "establishment of religion," unlike "free exercise," is not, in Learned Hand's words, one of those "empty vessels into which [the judge] can pour nearly anything he will." But let us go on.) Thirdly, the Court emphasizes that the two clauses are interrelated in terms of a common purpose—the preservation of the freedom and equality of American citizens in both spheres of life, civic and religious. This purpose is ex-pressed in language of the South Carolina Court of Appeals, subsequently quoted with approval by the U. S. Supreme Court: "The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of civil authority." (In a previous article, I developed this dual purpose of the First Amendment; cf. AMERICA, Dec. 7, 1946.)

The layman would have found the Court's argument more satisfactory, and more conformed to the realities of history and good thought, if it had paused at this point explicitly to say that the two clauses of the First Amendment are interrelated indeed, but not coordinate; there is a hierarchy of purpose and statement in them. The dominant one is the "free exercise" clause. It is primarily and precisely in order that there may be no restriction on the free exercise of religion that the Amendment forbids the establishment of a religion. In other words, in the American scheme, "separation of Church and State" is not an ultimate, an end-in-itself: it is subordinate to, and a means toward, the effective realization of religious freedom and civic equality in our particular religio-social context. In the world that Jefferson and Madison knew, the establishment of one religion essentially meant restrictions on the religious freedom of dissidents. Moreover, these restrictions took the predominant form of civic disabilities imposed on religious grounds. The "evil" of establishment that Madison and Jefferson wished to outlaw was an evil in the political order—violation of the principle of civic equality. As statesmen, their problem was in the political order; the essential thing they did not want was the political establishment of a category of second-class citizens. (Note here that possible "evils" for the established religion itself were strictly none of their business, as statesmen. True, they did meddle ideologically in the business, but their thought on this particular matter—whatever one may think of it—is quite extraneous to the First Amendment, which is a political document guaranteeing political rights, and religious rights in the political order.) Consequently, in saying, "no establishment of religion," the First Amendment above all says, "no inequality of citizenship on grounds of religion, with consequent restriction of religious liberty."

The Court does not make this further point. But its validity would seem to be implicit in the deciding argument. There is first a statement of the content of the"establishment of religion" clause (rather too abstract a statement, a layman would say, because not made in function of the asserted interrelation of this clause with the "free exercise" clause, nor in function of the total purpose of the Amendment, as stated). The Court then goes on:

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.

I think any American layman would instinctively recognize this statement as a faithful echo of his own understanding of the First Amendment. The Court continues:

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 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 part of a general program under which it pays the fares of pupils attending public and other schools.

At this point, the American layman will be rather relieved that the Supreme Court was "careful" not "inadvertently" to sanction, in the name of the First Amendment, a practice entirely opposed to the whole idea of the First Amendment—the practice of denying civic equality on grounds of religion. The minority opinion was not so careful to guard against this "inadvertence."

Moreover, the layman rather readily grasps the fact that the Court goes on to mention—that exclusion from public services decreed in the interests of the general welfare "would make it far more difficult for the [church] schools to operate." And he would say instantly, with the Court: "But such is obviously not the purpose of the First Amendment." And he would have the same reason: "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."

Had the Supreme Court decision fallen the other way, the ordinary father of a Catholic child in the township of Ewing, N. J., would unquestionably have felt that his religion was indeed a handicap to him, and that he was being hampered in its free exercise. He would have felt that the State of New Jersey, pretending to be "for" all its citizens, but not actually being "for" him, was definitely "against" him. I hardly think that all the legal learning of Mr. Justice Rutledge would have convinced him that the State was anything but his "adversary" in the matter.

Moreover, I feel rather sure that any parent anywhere in the U. S., whatever his religious belief, after a square look at the New Jersey statute and resolution, would undoubtedly say of it exactly what the Supreme Court has said—that it is legislation which, "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 he would likewise regard this as an entirely American thing for New Jersey to do—exactly the thing that the First Amendment, as he understands it, would want the State to do.

Political majorities do not decide legal cases. But at least it is surely no argument against the validity of this one that it should thus win the ready assent of the civic conscience of the ordinary American layman.

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