Board of Education v. Allen, 392 U.S. 236 (1968)

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Author: Justice Black

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Board of Education v. Allen, 392 U.S. 236 (1968)

MR. JUSTICE BLACK, dissenting.

The Court here affirms a judgment of the New York Court of Appeals which sustained the constitutionality of a New York law providing state tax raised funds to supply school books for use by pupils in schools owned and operated by religious sects. I believe the New York law held valid is a flat, flagrant, open violation of the First and Fourteenth Amendments which, together, forbid Congress or state legislatures to enact any law "respecting an establishment of religion." For that reason I would reverse the New York Court of Appeals’ judgment. This, I am confident, would be in keeping with the deliberate statement we made in Everson v. Board of Education, 330 U.S. 1, 15-16 (1947), and repeated in McCollum v. Board of Education, 333 U.S. 203, 210-211 (1948), that:

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."

The Everson and McCollum cases plainly interpret the First and Fourteenth Amendments as protecting the taxpayers of a State from being compelled to pay taxes to their government to support the agencies of private religious organizations the taxpayers oppose. To authorize a State to tax its residents for such church purposes is to put the State squarely in the religious activities of certain religious groups that happen to be strong enough politically to write their own religious preferences and prejudices into the laws. This links state and churches together in controlling the lives and destinies of our citizenship -- a citizenship composed of people of myriad religious faiths, some of them bitterly hostile to and completely intolerant of the others. It was to escape laws precisely like this that a large part of the Nation’s early immigrants fled to this country. It was also to escape such laws and such consequences that the First Amendment was written in language strong and clear barring passage of any law "respecting an establishment of religion."

It is true, of course, that the New York law does not, as yet, formally adopt or establish a state religion. But it takes a great stride in that direction, and coming events cast their shadows before them. The same powerful sectarian religious propagandists who have succeeded in securing passage of the present law to help religious schools carry on their sectarian religious purposes can, and doubtless will, continue their propaganda, looking toward complete domination and supremacy of their particular brand of religion.{1} And it nearly always is by insidious approaches that the citadels of liberty are most successfully attacked.{2}

I know of no prior opinion of this Court upon which the majority here can rightfully rely to support its holding this New York law constitutional. In saying this, I am not unmindful of the fact that the New York Court of Appeals purported to follow Everson v. Board of Education, supra, in which this Court, in an opinion written by me, upheld a New Jersey law authorizing reimbursement to parents for the transportation of children attending sectarian schools. That law did not attempt to deny the benefit of its general terms to children of any faith going to any legally authorized school. Thus, it was treated in the same way as a general law paying the streetcar fare of all school children, or a law providing midday lunches for all children or all school children, or a law to provide police protection for children going to and from school, or general laws to provide police and fire protection for buildings, including, of course, churches and church school buildings as well as others.

As my Brother DOUGLAS so forcefully shows, in an argument with which I fully agree, upholding a State’s power to pay bus or streetcar fares for school children cannot provide support for the validity of a state law using tax raised funds to buy school books for a religious school. The First Amendment’s bar to establishment of religion must preclude a State from using funds levied from all of its citizens to purchase books for use by sectarian schools, which, although "secular," realistically will in some way inevitably tend to propagate the religious views of the favored sect. Books are the most essential tool of education, since they contain the resources of knowledge which the educational process is designed to exploit. In this sense, it is not difficult to distinguish books, which are the heart of any school, from bus fares, which provide a convenient and helpful general public transportation service. With respect to the former, state financial support actively and directly assists the teaching and propagation of sectarian religious viewpoints in clear conflict with the First Amendment’s establishment bar; with respect to the latter, the State merely provides a general and nondiscriminatory transportation service in no way related to substantive religious views and beliefs.

This New York law, it may be said by some, makes but a small inroad, and does not amount to complete state establishment of religion. But that is no excuse for upholding it. It requires no prophet to foresee that, on the argument used to support this law, others could be upheld providing for state or federal government funds to buy property on which to erect religious school buildings or to erect the buildings themselves, to pay the salaries of the religious school teachers, and finally to have the sectarian religious groups cease to rely on voluntary contributions of members of their sects while waiting for the Government to pick up all the bills for the religious schools. Arguments made in favor of this New York law point squarely in this direction, namely, that the fact that government has not heretofore aided religious schools with tax raised funds amounts to a discrimination against those schools and against religion. And that there are already efforts to have government supply the money to erect buildings for sectarian religious schools is shown by a recent Act of Congress which apparently allows for precisely that. See Higher Education Facilities Act of 1963, 77 Stat. 363, 20 U.S.C. § 701 et seq.

I still subscribe to the belief that tax raised funds cannot constitutionally be used to support religious schools, buy their school books, erect their buildings, pay their teachers, or pay any other of their maintenance expenses, even to the extent of one penny. The First Amendment’s prohibition against governmental establishment of religion was written on the assumption that state aid to religion and religious schools generates discord, disharmony, hatred, and strife among our people, and that any government that supplies such aids is, to that extent, a tyranny. And I still believe that the only way to protect minority religious groups from majority groups in this country is to keep the wall of separation between church and state high and impregnable as the First and Fourteenth Amendments provide. The Court’s affirmance here bodes nothing but evil to religious peace in this country.

* One parochial school lobbyist group has urged Congress that, in order to avoid an establishment of secularism in education, federal monies must be distributed to all the various sects which operate parochial schools.

"[T]here is no valueless or neutral school," it is argued, and education and religion cannot be separated from each other. Hearings on S. 3 and H.R. 1198 before Subcommittee No. 3 of the House Committee on the Judiciary, 90th Cong., 2d Sess., at ___ (1968) (statement of Dr. Francis J. Brown, chairman, National Association for Personal Rights in Education).

The views expressed by my Brother HARLAN in his concurring opinion are somewhat similar. His approval, on a constitutional basis, of government aid to our country’s churches "calculated to achieve nonreligious purposes otherwise within the competence of the State" and not involving the state "`significantly and directly in the realm of the sectarian’" would seem to permit considerable diversion of public funds to the various sects. The state’s "competence" in the areas of health, safety, and welfare of the people would, under that view, permit it to fund a church’s charity programs, pay for renovating dilapidated church buildings, and pay for the services and upkeep, such as janitors’ salaries and utility bills, necessary to maintain church buildings in safe and healthful condition. Indeed, short of state-provided prayer books, sacramental wine, and the like, churches could, apparently, become virtual state dependencies.

Should that, unhappily, come to pass, then perhaps the church would in time become an administrative arm of the state, a goal predicted by J. Galbraith for "the mature corporation." The New Industrial State 393 (1967).

Then the circle would be completed, and we would return to the point where the long struggle to keep church and state separate first started.

Such a constitutional form of government is conceivable. But proposals for putting each of the Nation’s religious sects on the public payroll should be addressed to a federal constitutional convention, since, as my Brother BLACK shows, such a scheme was thoroughly rejected in 1791 with the adoption of the First Amendment.

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Chicago: Black, "Black, J., Dissenting," Board of Education v. Allen, 392 U.S. 236 (1968) in 392 U.S. 236 392 U.S. 251–392 U.S. 254. Original Sources, accessed May 30, 2024, http://www.originalsources.com/Document.aspx?DocID=UJ6XX42ZFZDU9C3.

MLA: Black. "Black, J., Dissenting." Board of Education v. Allen, 392 U.S. 236 (1968), in 392 U.S. 236, pp. 392 U.S. 251–392 U.S. 254. Original Sources. 30 May. 2024. http://www.originalsources.com/Document.aspx?DocID=UJ6XX42ZFZDU9C3.

Harvard: Black, 'Black, J., Dissenting' in Board of Education v. Allen, 392 U.S. 236 (1968). cited in 1968, 392 U.S. 236, pp.392 U.S. 251–392 U.S. 254. Original Sources, retrieved 30 May 2024, from http://www.originalsources.com/Document.aspx?DocID=UJ6XX42ZFZDU9C3.