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The Harmful Consequences of Judicial Error and Misjudgment
Engel v. Vitale was the Supreme Court decision that banned expressions of belief in God from American public schools and enforced a bizarrely expansive definition of religious establishment. But it was Everson v. Board of Education, fifteen years earlier in 1947, in which that expansive definition was first articulated. Everson v. Board of Education was the case that originally misconstrued and misapplied Jefferson’s wall metaphor. Everson concerned a New Jersey law that reimbursed from public money the cost of transporting children to “schools other than public schools.” Since most of the nonpublic schools in New Jersey in the 1940s were operated by the Roman Catholic Church, Arch Everson’s lawsuit raised the issue of whether a state government’s payment of transportation costs for students attending a religious school represented an establishment of religion. The Supreme Court decided it did not and so upheld the New Jersey law. In ruling against Everson, the Court found that state payment of transportation for children in religious schools was a public service similar to providing police and fire protection or sidewalks at public expense. It did not represent an endorsement of a particular religion by the state of New Jersey; therefore, it was not an establishment of religion.
In reaching this decision in Everson, however, the Court vigorously embraced the idea of separation of church and state and retailed a gross misunderstanding of the purpose of the First Amendment’s Establishment Clause. Crucial particulars of the Court’s opinion, written for the majority by Justice Hugo Black, were illogical and factually incorrect. Justice Black described an establishment of religion and separation of church and state in these terms:
The “establishment of religion” clause in 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. . . . 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.”1
Black was historically in error in declaring that the First Amendment prohibited states from having an establishment of religion: in fact, the First Amendment was ratified by states that had religious establishments. He was also factually incorrect and made a monumental blunder of reasoning in stating that an establishment of religion encompassed aid to “all religions.” If that were true, the very point of having religious establishments would be contradicted. Furthermore, in claiming that the definition of an establishment of religion included aid to all religions, Black contradicted the Court’s own ruling in Everson! For aid to all religions was precisely what the New Jersey law was providing in paying for the cost of transporting students to religious schools, regardless of the religion they professed. And that was why the Court had decided in Everson that the law did not represent a religious establishment. By defining an establishment of religion as aid to all religions, Justice Black was contradicting both history and the very ruling for which he was writing the majority opinion.
By relying in 1962, in Engel v. Vitale, on Hugo Black’s grossly inflated definition of religious establishment in his 1947 Everson decision, the Supreme Court was building its precedents on an illogical foundation. But the 1962 decision was unsound in other ways as well. For it is certainly unsound jurisprudence, even in the most freewheeling theory of constitutional interpretation, to use one provision of the Constitution to suppress another provision, as was done in Engel v. Vitale when the Establishment Clause was used to suppress the First Amendment’s Free-Exercise Clause. The provisions of the Constitution must be presumed, on principle, to be parts of the same coherent law, and interpreted as being consistent with each other and in no sense containing mutual contradictions.
This consideration of the principle of the consistency and coherence of the Constitution’s provisions leads to an interesting question. Can the Fourteenth Amendment’s Equal Protection Clause, which has been invoked to empower federal courts to decide religious matters in the states, be justly used to nullify the First Amendment’s prohibition against federal regulation of religion in the states? But the Fourteenth Amendment became part of the Constitution as a consequence of the need, following the Civil War, to protect the freed slaves from being deprived of their rights as citizens. Its purpose was not to empower the federal government to regulate religion.
In any event, the Engel v. Vitale decision makes a muddle of the constitutional principle of equal protection. The plaintiffs in Engel protested through their lawyers that their sensibilities were offended by the recitation in public schools of a prayer approved by the State of New York. In ruling to protect the plaintiffs’ feelings, the Supreme Court was choosing to safeguard the sensibilities of one group of citizens at the expense of other citizens, whose sensibilities were doubtless offended by the decision to curtail the free exercise of religion in public schools. In its verdict in Engel the Court was declaring that the plaintiffs’ sensibilities had greater legitimacy than those of the parents who felt their children should recite the prayer affirming belief in God. It is difficult to see how this outcome constitutes equal protection.
And when it comes to feelings, especially those touching upon religion, is it even possible to provide equal protection? In any large population, what gratifies the religious sensibilities of one person or group of persons is bound to offend the sensibilities of another person or group of persons. If we attempt to solve this problem by banning all offensive expressions of religious belief, we are in effect abolishing freedom of religion as a right. To permit in public places only the expression of religious beliefs that are inoffensive to everyone is to forbid all public expressions of religion, because there are no universally inoffensive religious beliefs. Nothing in the Constitution warrants suppressing public religious exercises because they will be offensive to someone. And if we restrict religious freedom to like-minded persons in homes, churches, and private schools, so that the free exercise of religion will give offense to no one, we emasculate this First Amendment freedom by restricting it in a way that none of the other First Amendment freedoms is restricted. Would we permit only the private circulation of petitions for the redress of grievances? How about allowing only private publication and distribution of books? Would we limit assemblies to private property only?
Legal arguments based on offended feelings have dubious constitutional legitimacy. No provision in the U.S. Constitution guarantees citizens immunity against having their religious or political sensibilities offended by the orderly, public expression of the political or religious beliefs of other citizens. To have meaningful rights with respect to freedom of religion, freedom of speech, freedom of the press, freedom of peaceable assembly, and freedom of petition, the equal protection of every citizen’s feelings is an inherently impossible goal. When it comes to exercising First Amendment rights, the equal protection of feelings is not something government can aim to accomplish.