Evening star., 1947-02-14
More Than Fares Involved

Supreme Court Justice Rutledge
was hardly exaggerating the situa-
ton when, in dissenting from the
majority decision in the New Jersey
parochial school controversy, he
commented that this is not just a
little case over bus fares" It may
have been scarcely more than that
to the township of Ewing, N. J.,
when it's school board decided to
pay the bus fares of pupils attend
ing Catholic as we'll as public schools
of the county, but the courts have
lifted the case from obscurity. 1t
has revived issues that 60 back to
the days of Madison, Jefferson and
other architects of the constitutional
wall between church and state.
The diversity and vigor of the
court opinions evoked during the
course of the litigation are indicative
of the explosiveness of the issues in
volved. The New Jersey Supreme
Court by a two-to-one vote ruled
that the statute and resolution per-
mitting payment of Catholic school
students fares are invalid. The
Court of Errors and Appeals, by
six-to-three vote, reversed that de-
cision. And now the Supreme Court,
by five-to-four division, has up
held the New Jersey law and the
township action under it.
The majority opinion, delivered by
Justice Black, was just as inSistent
as the dissenting opinions of Justices
Rutledge, Jackson, Frankfurter and
Burton in upholding the historic
American cornerstone" of separa-
ton of church and state. But JUS
tice Black and his group saw no con-
fiict between this concept and the
fare reimbursement granted pupils
of Catholic schools. (The township
resolution specified Catholic schools
and the State law prohibits fare
benefits to children attending pri-
vate schools operated for profit)
, The majority implicitly conceded,
however, that New jersey has neared
"the verge" of its power, just short
of infringing on the Constitutions
ban on legislation respecting an
establishment of religion"
In the view of the majority, New
Jersey, by using taxpayers money to
transport pupils of Catholic schools
(the only private schools in the State
so favored, is not aiding the Catho-
lie Church or it's schools but the chill
dren who attend them. Justice Black
held that this was in line with pro-
viding police and fire protection to
the children. But the dissenters
pointed out that Catholic schools
are bound to benefit by transporta-
ton aid. no less than they would by
any other form of State subsidy;
that Catholic schools are "the rock
on which the whole (church) struc-
ture rests" and that tax aid to a
Catholic church school is 'indistin-
guishable from rendering the same
aid to the church itself. AS for
police and fire protection, Justice
Jackson emphasized that these serv-
ices are rendered not only to Catho-
lie schools but to private schools of
all description, whether operated for
profit or not.
Much more was said by the Judges
on both sides of what is admittedly
a most debatable question. 1t is the
kind of issue that tends not only to
divide high tribunals but men and
women generally. AS Justice Jack
son ruefully remarked, it is an issue
that can stir up the very sort of
bitter religious controversy" which
our forefathers sought to end
through separating church from
state. And the unfortunate fact is
that the decision opens the way for
other claims against the State, not
only in New Jersey but elsewhere,
that inevitably will lead to further
legal disputes, ill-feeling between
religious groups and further action
by the Supreme Court.