In Everson v. Board of Education, 330 U.S. 1 (1947), the Supreme Court did two things at once. It ruled 5–4 that a New Jersey township could reimburse parents for the cost of busing their children to Catholic schools without violating the First Amendment, and it held for the first time that the Establishment Clause applies to state and local governments, not just Congress. Justice Hugo Black’s majority opinion declared that the Constitution builds a “high and impregnable” wall between church and state, then concluded that paying bus fare across that wall did not breach it.1Justia. Everson v. Board of Education, 330 U.S. 1 (1947)
The New Jersey Program at the Center of the Case
A New Jersey statute, N.J. Rev. Stat. 18:14-8, let local school boards arrange transportation for children attending school. The Board of Education of Ewing Township used that authority to pass a resolution reimbursing parents who paid public transit fares to get their children to school. The reimbursement went to parents of public school students and to parents of children attending Catholic parochial schools, and the money came from local tax revenue.1Justia. Everson v. Board of Education, 330 U.S. 1 (1947)
Arch R. Everson, a local taxpayer, sued to stop the payments. His argument was simple: public tax dollars should not subsidize transportation to religious schools. After the case moved through New Jersey’s state courts, the U.S. Supreme Court took it up to decide whether the reimbursement violated the First Amendment’s prohibition on laws “respecting an establishment of religion.”
Applying the Establishment Clause to the States
Before the Court could reach the bus fare question, it had to answer a threshold one: did the Establishment Clause even apply to a local school board? The First Amendment opens with “Congress shall make no law,” and for more than a century the Court had treated the Bill of Rights as a restraint on the federal government alone. That principle traced back to Barron v. Baltimore (1833), where Chief Justice John Marshall held that the first ten amendments did not restrict state or local governments.
Everson changed that for religion. The Court held that the Fourteenth Amendment’s Due Process Clause incorporates the Establishment Clause and makes it binding on every level of government. It was the first time the Supreme Court explicitly applied the Establishment Clause to the states.2Legal Information Institute. U.S. Constitution Annotated – Early Cases and Everson v. Board of Education
The practical consequence was enormous. State legislatures, city councils, and school boards were suddenly subject to the same constitutional limits on religious establishment that had previously applied only to Congress. Every Establishment Clause case brought against a state or local government since traces its jurisdictional footing to this ruling.
The Child Benefit Theory
Justice Black wrote for the majority, joined by Chief Justice Vinson and Justices Reed, Murphy, and Douglas. The Court held that the reimbursement program did not violate the Establishment Clause because the money benefited children and their parents rather than the religious schools themselves.3Oyez. Everson v. Board of Education of the Township of Ewing
Black reasoned by analogy to ordinary public services. Police officers direct traffic near parochial schools just as they do near public schools. Parents would hesitate to send children to schools “cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks.” Denying bus fare reimbursement to families who chose religious schools, the majority wrote, would not be neutrality toward religion. It would be hostility.1Justia. Everson v. Board of Education, 330 U.S. 1 (1947)
That reasoning became known as the child benefit theory. When government money flows to parents for a general welfare purpose, and parents independently choose a religious school, the government is providing a neutral public service rather than sponsoring religion. The distinction between aiding children and aiding religious institutions became a recurring framework in decades of school-funding litigation that followed.
The Wall of Separation
Even while ruling for the township, Black used some of the most sweeping language about church-state separation the Court has ever produced. He borrowed the “wall of separation” phrase from an 1802 letter Thomas Jefferson sent to the Danbury Baptist Association, which described the First Amendment as “building a wall of separation between Church & State.”4Encyclopedia Virginia. Letter from Thomas Jefferson to the Danbury Baptist Association
Black gave the phrase constitutional weight. He wrote that the Establishment Clause “means at least this”: no government can set up a church, pass laws favoring one religion over another, or favor religion over non-religion. No government can force a person to attend or avoid church, or punish anyone for belief. “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 federal nor state government can meddle in the affairs of religious organizations, and vice versa. “That wall must be kept high and impregnable,” Black wrote. “We could not approve the slightest breach.”1Justia. Everson v. Board of Education, 330 U.S. 1 (1947)
Then the Court approved the payments. The gap between the opinion’s rhetoric and its result became the central target of the dissenters and has been debated ever since.
The Dissents
Four justices dissented: Jackson, Frankfurter, Rutledge, and Burton. They wrote two separate opinions attacking the majority from different angles.
Justice Robert Jackson pointed straight at the contradiction. The opinion’s language “advocating complete and uncompromising separation of Church from State,” he wrote, was “utterly discordant with its conclusion yielding support to their commingling in educational matters.” Jackson argued that bus fare was not a general service like police protection because the payment was tied specifically to getting children to religious schools. Transportation was a direct contribution to the school’s educational mission, he reasoned, because the school could not operate without students physically arriving.
Justice Wiley Rutledge wrote a longer, historically grounded dissent tracing the Establishment Clause to James Madison’s fight against a Virginia tax that would have funded religious teachers. Rutledge rejected the majority’s line between funding the school and funding the child’s transportation. Transportation costs, he argued, are as much a part of the total expense of education as textbooks or teacher salaries. Reimbursing bus fare “not only helps the children to get to school and the parents to send them. It aids them in a substantial way to get the very thing which they are sent to the particular school to secure, namely, religious training and teaching.”1Justia. Everson v. Board of Education, 330 U.S. 1 (1947)
How Later Cases Built on Everson
Everson‘s reach extends well past a bus fare dispute in 1940s New Jersey. Two foundational principles from the case shaped every church-state ruling that followed: the Establishment Clause binds state and local governments, and benefits that reach religious institutions through the independent choices of private individuals do not automatically violate the Constitution.
The Lemon Test
In Lemon v. Kurtzman (1971), the Court built on Everson by adopting a three-part test for Establishment Clause challenges. A law needs a secular legislative purpose, its primary effect must neither advance nor inhibit religion, and it must not foster excessive government entanglement with religion. The Lemon test dominated Establishment Clause litigation for decades, though later Courts questioned and narrowed its use.
Vouchers and Private Choice
The child benefit theory evolved into what the Court later called the “private choice” doctrine. In Zelman v. Simmons-Harris (2002), the Court upheld an Ohio school voucher program that let parents spend public funds at religious schools. When a program has a valid secular purpose, covers a broad class of beneficiaries, sends money to parents rather than schools, and leaves the school choice to families, the majority held, the Establishment Clause is not offended. The ruling built explicitly on Everson‘s reasoning that neutrally available benefits do not become unconstitutional because some recipients choose religious options.5Justia. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
From Permitting Aid to Requiring Inclusion
The sharpest shift came in Carson v. Makin (2022). Maine ran a tuition assistance program for students in rural areas without public high schools but excluded religious schools from taking part. The Court struck down that exclusion, holding that once a state decides to subsidize private education, it “cannot disqualify some private schools solely because they are religious.” The constitutional question had flipped: no longer whether states could include religious schools in public benefit programs, but whether they could exclude them.6Supreme Court of the United States. Carson v. Makin (2022)
The distance from Everson to Carson tracks how much the ground has moved. In 1947 the question was whether the Constitution permitted New Jersey to reimburse bus fare to parochial schools. By 2022 the question was whether the Constitution required Maine to include religious schools in its tuition program. Black’s “high and impregnable” wall still stands in constitutional text; its practical shape looks very different than it did when the phrase was written.