“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”
That's everything the constitution has to say about religion. In common parlance we often hear about the “separation of church and state”. This one line is the support for the concept of “separation of church and state”. How did we get from the one set of words to the other? And what by the way does “establishment of religion” actually mean? The same can be asked with respect to “prohibiting the free exercise”.
Here is what Justice Hugo Black said in 1947 as part of his opinion in Everson v. Board of Education. Please try hard to plow your way through it. It makes a very important point.
“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.”
Justice Black got all that out of “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” That is the job he is in. He has to decide a particular fact pattern based on the words he has been given. If they don't help he has to come up with words that will.
That may be a good logical explanation, but this case is about a school board paying for bus fare for parochial school students. How does all that help? It doesn't. The real decision was that educating our youth is a social responsibility. In order to get education they need to get to the school. That cost has really got nothing to do with religion, it is based on the need for education. Hence the suit is thrown out.
So why all the other words?
This decision was made in 1947. In 1900, the decision would probably have gone the other way. In 1900, "separation of church and state" was enough to make the decision. Paying for parochial school bus fares is certainly NOT a seperation of church and state. In Justice Black's long definition, he uses the words "aid religion" and as already said above, in his mind, this is in aid of education and hence there is nothing wrong with it. He has changed the bar, and the long definition is to help future litigants understand where the new bar is. In the process he answered some questions. Apparently establishment of religion is a lot more expansive than establishing a religion. It includes aid to and preferential treatment of. In addition he has thrown in a prohibition on any participation in each others affairs. So, separation of church and state is still there, but Justice Black has made the line a little less solid than it used to be.
Bottom line, if someone asks you what the first amendment says concerning religion, as of 1947, you can quote them Justice Black's exact set of words, and you will be right. The Judge said so.