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330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711

Argued November 20, 1946

Decided February 10, 1947

Rehearing Denied March 10, 1947

The Township of Ewing, County of Mercer, New Jersey, provided local public schools through eighth grade only. The children had to attend high school outside the community, and parents chose between three public high schools and four Catholic parochial schools in nearby areas. There was a state law that authorized local school districts to contract for the transportation of students to and from schools. Ewing Township reimbursed parents the money they spent for public bus transportation, even to parents of children attending Catholic parochial schools. Religion was part of the curriculum in the parochial schools.

The law, which was intended to facilitate the opportunity of children to receive a secular education by providing repayment of fares for public transportation, stated:
Whenever in any district there are children living remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and from school other than a public school, except such school as is operated for profit....
When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school; except such school as is operated for profit ....
Mr. Arch R. Everson, a district taxpayer, filed suit in a state court challenging the right of the school board to reimburse parents of parochial school students. He felt the statute violated both the New Jersey and United States Constitutions. The state trial court decided that the legislature did not have the power to make such payments under the State constitution. The New Jersey Court of Errors and Appeals reversed, stating that the statute was not in conflict with the State constitution or the provisions at issue in the federal constitution.
The case was then taken to the U.S. Supreme Court.

  • ISSUE: Does the New Jersey statute allowing the reimbursement of transportation costs to parents of students in parochial schools violate the First Amendment Establishment Clause and the Fourteenth Amendment Due Process Clause?



This was the first case in which the Supreme Court was called upon to determine what constitutes an establishment of religion. All nine Justices agreed with Thomas Jefferson that the First Amendment clause "against establishment of religion by law was intended to erect 'a wall of separation between church and state.'" However, the Court split five-to-four in deciding whether this clause allows a government to reimburse the costs of transporting students to religious schools.
Justice Black wrote for the majority, beginning with a history of the events leading to the Establishment Clause in the First Amendment:
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 non-attendance. 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." ...
Justice Black discussed old world practices and persecutions where Catholics were hounded because of their faith, Quakers went to jail for following their conscience, and those of other religious faiths were persecuted just because they were in the minority in a particular locality. All the members of these various religious sects were forced to pay tithes and taxes to support government-sponsored churches.
It might appear by reading the above that Justice Black and the majority were going to declare unconstitutional the New Jersey practice of paying out of public funds the cost of busing students to parochial schools. The Court acknowledged that children were aided in getting to church schools, and some of these children might not attend those church schools if the state did not allow for transportation reimbursement. However, the Court noted that state-paid policemen protect all school children, serving much the same purpose as the state provision providing free transportation to schools.
Black and his colleagues agreed that the wall of separation must be respected, but they saw the issue in this case as assistance to the child, not to religion. This idea has become known as the "Child Benefit Theory." Black wrote:
... 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 a part of a general program under which it pays the fares of pupils attending public and other schools .... parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. 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. This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious rather than a public school if the school meets the secular educational requirements which the state has power to impose (Pierce V. Society of Sisters [1925]) .... It appears that these parochial schools meet New Jersey's requirements. The State contributes no money to the schools. It does not support them. Its legislation, 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.
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.
With that, the Court found that the New Jersey statute authorizing school boards to provide for transportation of pupils to and from schools, including parochial schools, does not violate the First or Fourteenth Amendments.
Justice Jackson wrote a dissenting opinion, which Justice Frankfurter joined. Jackson reasoned that Catholic education is a vital part of the Catholic religion, and to support the one is to aid the other. He stated that this violates both the First and Fourteenth Amendments, partially because students who attended parochial schools other than Catholic or private schools were not entitled to receive the transportation reimbursement. Jackson stated that:
... 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...
Justice Rutledge wrote another dissent, with which Justices Jackson, Frankfurter, and Burton agreed. He indicated that parents pay to send students to parochial schools, which provided religious training and teaching. Therefore, when the state reimburses parents for the cost of transporting their children to parochial schools, the state is establishing religion, which is forbidden by the First Amendment. Rutledge felt that religion is a private matter and should be supported by private means. This group of dissenting Justices felt that "In view of ... history no further proof is needed that the Amendment forbids any appropriation, large or small, from public funds to aid or support any and all religious exercises ...." They were in agreement that the New Jersey tax money was being used not for public purposes but for private ones, such as religion and religious teaching. Rutledge said, "This is not ... just a little case over bus fares ...." but a step in the direction of establishment of religion.



370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601, 86 A.L.R.2d 1285

Argued April 3, 1962

Decided June 25, 1962

Schools in New Hyde Park, New York were required to begin each school day with the following prayer:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.
The prayer was recited immediately following the Pledge of Allegiance to the flag. A teacher either led the prayer or selected a student to do so.
Parents of ten New Hyde Park students brought action in state court challenging the constitutionality of the use of the prayer because it was contrary to their religious beliefs and those of their children. The trial court decided that the school could use the prayer as a part of the daily procedures, so long no student was forced to join in the prayer over his or her parents' objections.
As recommended by the trial court, a policy was passed by the Hyde Park Board of Education allowing students to not participate in the prayer. Students could either remain silent during the exercise or be excused entirely. A letter explaining this choice was sent to each taxpayer in the school district.
The New York appellate court agreed with this decision, and the case was then appealed to the U.S. Supreme Court.

  • ISSUE: Does a public school requirement that students participate in a nondenominational prayer violate the First Amendment Establishment Clause, as applied to states by the Fourteenth Amendment?

ENGEL v. VITALE (1962)


The Supreme Court ruled that requiring public school students to participate in a religious prayer is unconstitutional.
Justice Black wrote the majority opinion in the six-to-one decision (Justices Frankfurter and White did not take part). The Court felt that, "It is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government." Black continued:
The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support, or influence the kinds of prayer the American people can say ...
When examining the policy addition that allowed students to remain silent or leave the room, the Court indicated that this still did not free the law from violating the First Amendment. Black wrote that some might find this ruling an indication of hostility toward religion or prayer and explained that if there were no law requiring a certain prayer to be used, those who wanted to could still "find a place in which (they) could pray when (they) pleased to the God of (their) faith in the language (they) chose." Black went on to explain that the Bill of Rights "tried to put an end to governmental control of religion and of prayer (but) was not written to destroy either."
Justice Stewart wrote in his dissent that "the Court (majority opinion) has misapplied a great constitutional principle ... [and] to deny (school children) the opportunity of sharing in the spiritual heritage of our nation" would be wrong. Stewart went on to give examples of how government already fosters religion: all presidents, from Washington to Kennedy, had asked the protection and help of God; in 1954, Congress added a phrase to the Pledge of Allegiance to include "one Nation under God;" in 1952, Congress enacted legislation proclaiming a National Day of Prayer each year; and since 1865, the words "IN GOD WE TRUST" have appeared on our coins. Stewart summed up this argument by quoting the words of Justice Douglas from Zorach v. Clauson (1952), "We are a religious people whose institutions presuppose a Supreme Being."




406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed. 2d 15

Argued December 8, 1971

Decided May 15, 1972

Jonas Yoder and Wallace Miller were members of the Old Order Amish religion, and Adin Yutzy was a member of the Conservative Amish Mennonite Church. The Old Order Amish communities believed that salvation required life in a church community separate and apart from the world. Amish beliefs required members of the community to make their living by farming or closely related activities.
Yoder and Miller and their families were residents of Green County, Wisconsin. Wisconsin's compulsory school attendance law required them to see that their children attend public or private school until reaching sixteen-years-of-age. The children--Frieda Yoder (age fifteen), Barbara Miller (age fifteen), and Vernon Yutzy (age fourteen)--were all graduates of the eighth grade of public school and had not attended private or public school thereafter.
Wisconsin's Statute ' 118.16 (1969) provided that:
Unless the child has a legal excuse or has graduated from high school, any person having under his control a child who is between the ages of 7 and 16 years shall cause such child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which such child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which he becomes 16 years of age.
This section does not apply to any child who is not in proper physical or mental condition to attend school, to any child exempted for good cause by the school board of the district in which the child resides or to any child who has completed the full 4-year high school course. The certificate of a reputable physician in general practice shall be sufficient proof that a child is unable to attend school.
Instruction during the required period elsewhere than at school may be substituted for school attendance. Such instruction must be approved by the state superintendent as substantially equivalent to instruction given to children of like ages in the public or private schools where such children reside.
Whoever violates this section ... may be fined not less than $5 nor more than $50 or imprisoned not more than 3 months or both.
The Amish objected to high school because the values taught there were very different from Amish values and way of life. They objected to their children being exposed to a worldly influence in conflict with their beliefs. High school, in the parents' opinion, tended to emphasize worldly success and social life with other students. The Amish also believed that formal high school education took the children away from their community during the crucial and formative adolescent period of life. They felt that during this time the children should be

acquiring Amish attitudes toward manual work and attaining specific skills needed to perform the adult role of an Amish farmer or housewife.

The Amish did not object to elementary education because they wanted their children to acquire basic skills in the "three R's" in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary. However, they had established their own elementary schools whenever possible.

On complaint of the school district, respondents were charged with violating the compulsory attendance law. The respondents defended on the grounds that the law violated their First and Fourteenth Amendments rights. Trial testimony showed that the respondents believed, in accordance with the tenets of Old Order Amish communities, that their children's attendance at high school was contrary to the Amish religion and way of life. They believed that by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but also endanger their own salvation and that of their children.
Prior to the trial, the attorney for the respondents wrote the State Superintendent of Public Instruction, exploring the possibilities of a compromise. It was suggested that the Amish children could satisfy the compulsory attendance law by establishing their own vocational training plan similar to one that had been established in Pennsylvania. In Pennsylvania, Amish children of high school age were required to attend an Amish vocational school for three hours a week, during which time they were taught such subjects as English, mathematics, health, and social studies by an Amish teacher. During the rest of the week, the children would perform farm and household duties under parental supervision. The superintendent rejected this suggestion on the ground that it would not provide an equivalent education to that offered in the schools.
The trial court determined that the Wisconsin compulsory school attendance law "does interfere with the freedom ... to act in accordance with their sincere religious belief," but that the requirement of high school attendance until age sixteen was a "reasonable and constitutional" exercise of governmental power. The parents were convicted and fined $5 each. They appealed to the Wisconsin Circuit Court, which affirmed the convictions. The Wisconsin Supreme Court, however, sustained the parents' claim under the Free Exercise Clause of the First Amendment and reversed the convictions. This court indicated that the state had failed to make an adequate showing that its interest in "establishing and maintaining an educational system overrides the defendants' right to the free exercise of their religion."
The case was then appealed to the U. S. Supreme Court. Arguments presented on behalf of the Amish were based on the religion clauses of the First Amendment, as applied to the states by the Fourteenth Amendment. The Amish religion traced its roots to the Sixteenth Century, and a basic tenet of their faith was that religion pervades all of life and that salvation required living in a church community apart from worldly influences. Wisconsin's arguments were based on the fact that some Amish children might decide to leave their religious sanctuaries and venture out into the world at large, where they would be ill equipped for life. The state also based its case on its police power to protect the lives, health, morals, safety, and welfare of all the people.

  • ISSUE: Does Wisconsin's compulsory school attendance law beyond eighth grade violate Amish parents' rights under the Free Exercise Clause of the First and Fourteenth Amendment?



The Supreme Court held that the First and Fourteenth Amendments prevent a state from compelling Amish parents to see that their children, who have graduated from the eighth grade, attend formal high school to age sixteen. Chief Justice Burger wrote the six-to-one opinion. Justices Powell and Rehnquist did not take part in the case, and Justice Douglas dissented only in part. Justices Stewart and White wrote concurring opinions.
The Amish objection to the public secondary schools was stated in the Court's opinion:
The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through-doing; a life of "goodness," rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.
According to an expert who testified at the trial, if the Amish children were required to attend public high schools, the conflict between the worldly values of a secular society and the nonworldly values of a religious society would do psychological harm to the Amish children. The experts felt that, torn between the requirements of the school and the demands of their religion, the children might leave their church. This could mean the end of the Amish Community.
A second expert testified that the Amish way of raising their children by "learning through doing" farm and vocational work was superior to the ordinary high school education. Records showed that most Amish children became self-sufficient members of society with excellent records as law-abiding citizens.
Using the Pierce v. Society of Sisters (1925) case as a precedent, these arguments led to the conclusion that freedom of religion sanctioned exceptions to compulsory public school attendance.
The Chief Justice began his opinion with the observation that this case dealt with a 300-year-old religion, asking that it be remembered that religious sects, like the Amish, have played an important role in history:
We must not forget that in the Middle Ages important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles. There can be no assumption that today's majority is "right" and the Amish and others like them are "wrong." A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.

Burger answered the state's argument that some Amish children may leave the sect, saying that this had no merit because the Amish offered their children an "ideal" vocational education during adolescent years. Skills in farming and manual labor were developed, as were qualities of reliability, self-reliance, and dedication to work. The Amish instilled social and political responsibilities of citizenship in their children. The record in this case disclosed that the Amish in Green County had never been known to commit crimes, to receive public assistance, or to be unemployed. One or two years of high school would not necessarily match this type of education.

The Court had to answer two other lines of argument. The first was based on the state's police power to protect the lives, health, morals, safety, and welfare of all the people. Under this power, argued the State of Wisconsin, the state stood in parens patriae (parent of the country) when it became necessary to take care of minors and others who could not take care of themselves. Chief Justice Burger responded that there was nothing in the record to show that the health, safety, or welfare of the children was endangered by the actions of the parents.
Chief Justice Burger responded to Justice Douglas, in his dissenting opinion, that the case disregarded the wishes of the children. Douglas' argument was based on the fact that only Frieda Yoder was called on to testify (she agreed with her parents), and the other two children's thoughts and feelings were unknown. Burger replied that the children were not parties in the case, and furthermore, the State of Wisconsin never raised this point.
The opinion concluded with a summary of the findings and with the following instruction to the State:
Nothing we hold is intended to undermine the general applicability of the State's compulsory school-attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion.
Justice Douglas' opinion agreed with the judgment of the Court concerning Frieda Yoder, since she had testified as to her opinion. He dissented from their opinion concerning Vernon Yutzy or Barbara Miller because they had not testified as to their views. He states that:

These children are "persons" within the meaning of the Bill of Rights. We have so held over and over again .... It is the future of the student, not the future of the parents, that is imperiled by today's decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that is the preferred course, or he may rebel. It is the student's judgment, not his parents', that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the rights of students to be masters of their own destiny. If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.
Justice Douglas then directed his attention to other aspects of the Court's opinion. Chief Justice Burger had made reference to "the law and order" record of the Amish people:
I think the emphasis of the Court on the "law and order" record of this Amish group of people is quite irrelevant. A religion is a religion irrespective of what the misdemeanor or felony records of its members might be. I am not at all sure how the Catholics, Episcopalians, the Baptists, Jehovah's Witnesses, the Unitarians, and my own Presbyterians would make out if subjected to such a test. It is, of course, true that if a group or society was organized to perpetuate crime and if that is its motive, we would have rather startling problems akin to those that were raised when some years back a particular sect was challenged here as operating on a fraudulent basis .... But no such factors are present here, and the Amish, whether with a high or low criminal record, certainly qualify by all historic standards as a religion within the meaning of the First Amendment.
In its opinion, the Court had cited Reynolds v. U. S. (1878), often referred to as the Mormon Polygamy Case. In that case, the judgment against the Mormons was based on a distinction between belief and action growing out of the principle of freedom of religion. Belief was permitted, but action regarded as antisocial by the state was prohibited. The Court's ruling in the Amish case seemed to contradict the precedent of the Reynolds case. Justice Douglas stated in his dissent that this contradiction was a good thing and that hopefully the Reynolds precedent would be overruled in time.
It would appear that this case was decided in favor of the Amish in large part because it is a religious denomination highly respected for its moral and ethical values. The outcome may have been different if another religious group had been the party.

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