American Civil Liberties Union of New Jersey, Unitarian

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4399-13T2
AMERICAN CIVIL LIBERTIES UNION
OF NEW JERSEY, UNITARIAN
UNIVERSALIST LEGISLATIVE MINISTRY
OF NEW JERSEY, GLORIA SCHOR APPROVED FOR PUBLICATION
ANDERSEN, PENNY POSTEL, and
WILLIAM FLYNN, May 26, 2016
APPELLATE DIVISION
Appellants,
v.
ROCHELLE HENDRICKS, Secretary of
Higher Education for the State of
New Jersey, in her official
capacity; and ANDREW P.
SIDAMON-ERISTOFF, State Treasurer,
State of New Jersey, in his
official capacity,
Respondents.
_____________________________________
Argued April 11, 2016 – Decided May 26, 2016
Before Judges Sabatino, Accurso and Suter.
On appeal from New Jersey Department of
Education, Office of the Secretary of Higher
Education.
Edward L. Barocas (American Civil Liberties
Union of New Jersey Foundation) argued the
cause for appellants (Barry, Corrado &
Grassi, P.C.; Lenora Lapidus (American Civil
Liberties Union Women's Rights Project);
Galen Sherwin (American Civil Liberties
Union - Women's Rights Project) of the New
York Bar, admitted pro hac vice; Daniel Mach
(American Civil Liberties Union Program on
Freedom of Religion and Belief) of the
District of Columbia bar, admitted pro hac
vice; Ayesha Khan (Americans United for
Separation of Church and State) of the
District of Columbia bar, admitted pro hac
vice, and Alex Luchenitser (Americans United
for Separation of Church and State) of the
District of Columbia bar, admitted pro hac
vice, attorneys; Mr. Barocas, Jeanne M.
LoCicero, Frank L. Corrado, Ms. Lapidus, Ms.
Sherwin, Mr. Mach, Ms. Khan, Mr.
Luchenitser, on the briefs).
Stuart M. Feinblatt, Assistant Attorney
General, argued the cause for respondents
(Robert Lougy, Acting Attorney General,
attorney; Mr. Feinblatt, of counsel and on
the brief; Jennifer J. McGruther, Deputy
Attorney General, and Laura M. Console,
Deputy Attorney General, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
Appellants, the American Civil Liberties Union of New
Jersey ("ACLU-NJ"), the Unitarian Universalist Legislative
Ministry of New Jersey ("UULM-NJ"), and three individuals
challenge the Department of Higher Education's award of public
grants to two sectarian institutions of higher education.
Specifically, appellants contest two grants for capital
improvements totaling over $10 million the Department awarded to
Beth Medrash Govoha ("the Yeshiva"), and three grants totaling
$645,323 it awarded to Princeton Theological Seminary ("the
Seminary").
2 A-4399-13T2
Appellants contend the grants violate Article I, Paragraph
3 of the New Jersey Constitution because the recipients will use
the grant funds to support religious instruction, including the
preparation of candidates for ministries respectively in the
Jewish and Christian faiths. Appellants further contend that
the grants violate other provisions in the State Constitution.
Lastly, they argue the grants violate the Law Against
Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, because the
recipient institutions engage in gender-based or religion-based
discriminatory practices.
As we explain in this opinion, the constitutional analysis
under Article I, Paragraph 3 is controlled by the New Jersey
Supreme Court's opinion in Resnick v. East Brunswick Township
Board of Education, 77 N.J. 88 (1978) (construing Article I,
Paragraph 3 to bar public schools from allowing religious
organizations to use their school facilities in the evenings and
on weekends for religious instruction unless the users fully
reimburse the public for the costs of providing such access).
Applying that binding precedent here, we conclude that Resnick
compels the invalidation of these grants of public funds to the
Yeshiva and the Seminary.
In doing so, we acknowledge that the intended meaning of
Article I, Paragraph 3 of the Constitution – a provision
3 A-4399-13T2
included in our State's first Constitution in 1776 and readopted
in the 1844 and 1947 Constitutions – is not entirely clear. We
also are mindful that the Court did not discuss the provision's
history at length in Resnick. Nevertheless, we do no more than
acknowledge the debatable lineage of the provision, leaving it
to the Supreme Court to consider, if it so chooses, whether the
arguments presented by the parties as to the meaning and history
of the clause warrant a reexamination of Resnick.
I.
The Bond Act and the Grant Process
On August 7, 2012, the Governor signed into law the
"Building Our Future Bond Act" ("GO Bond Act"), L. 2012, c. 41,
a measure dedicated to capital improvement projects for New
Jersey institutions of higher education. Pursuant to that
initiative, a $750 million public referendum in November 2012
authorized the State to issue and direct bond proceeds for
capital improvements to the higher education sectors.
The Governor thereafter authorized the Secretary of the
Department of Higher Education to promulgate rules and approve
grants that would make use of GO Bond Act funds, along with four
other State-supported bond programs administered by the New
Jersey Educational Facilities Authority ("NJEFA"). The State's
commitment to capital investment in higher education through
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these initiatives totaled $1,316,905,000. That amount was
comprised of $750 million under the GO Bond Act Fund;
$191,905,000 under the Higher Education Capital Improvement Fund
("CIF"); $220 million under the Higher Education Facilities
Trust Fund ("HEFT"); $55 million under the Higher Education
Technology Infrastructure Fund ("HETI"); and $100 million under
the Higher Education Equipment Leasing Fund ("ELF").1
A "Solicitation for Grant Applications" for these programs
was issued by the Secretary for what was known as the "Spring
2013 Cycle." The Solicitation explained that GO Bond Act funds
would provide grants for projects to construct and equip
academic facilities, and would be allocated by sector as
follows: $300 million for public research universities; $247.5
million for state colleges and universities; $150 million for
county colleges; and $52.5 million for private nonprofit
institutions with endowments less than $1 billion. Institutions
receiving GO Bond Act funds would be required to provide
matching funds equal to twenty-five percent of the cost of the
proposed project. See N.J.A.C. 9A:18-1.3(c).
1
Because the issues raised in this appeal involve grants made
only under the GO Bond Act and the HETI Act, those are the only
programs that we discuss in any detail.
5 A-4399-13T2
The Solicitation announced that applications for GO Bond
Act funds would be reviewed and compared with others within each
sector pursuant to the following criteria:
1. the advancement of student education in
the State of New Jersey;
2. the improvement and expansion of
educational opportunities for students;
3. the promotion of academic research
excellence, workforce readiness and the
enhancement of the State's academic and
economic competitiveness and prosperity by
assisting in the production of a highly
skilled workforce;
4. the promotion of innovation and
improvement in the delivery of higher
education;
5. the advancement of study at all levels
in science, technology, engineering and
mathematics education;
6. consistency with the institution's
educational mission;
7. consistency with the institution's
long-range facilities plan;
8. the cost-effectiveness of the Project;
9. consistency of the Project with the
State's goals and priorities for development
and redevelopment, including the promotion
of industry clusters, job and business
opportunities in areas designated by the
State for growth, transportation choice and
efficient mobility of goods and people, and
promotion of access to opportunity for all
New Jersey residents;
6 A-4399-13T2
10. the demonstrated commitment of the
institution over the past ten years to
appropriate maintenance of facilities
previously funded by the State of New Jersey
grant programs; and
11. serving the best interests of higher
education in the State as a whole.
These criteria mirror those enumerated under N.J.A.C. 9A:18-
1.6(b).
The Solicitation explained that HETI funds were available
to public or private nonprofit institutions of higher education
eligible to receive State aid. Grants would be awarded for
technology infrastructure projects that "advance the institution
toward the next level in establishing integrated voice, video
and data networks." See N.J.A.C. 9A:13-1.3(a)(4). Applications
for HETI funds would be reviewed under the same criteria as
those considered under the GO Bond Act, with the exception that
"the demonstrated commitment of the institution over the past
ten years to appropriate maintenance of facilities previously
funded by the State of New Jersey grant programs" was not a
factor. See N.J.A.C. 9A:13-1.5(b). Institutions receiving HETI
funds would be required to provide matching funds equal to the
amount of the grant requested. See N.J.A.C. 9A:13-1.3(a)(6).
In response to the Solicitation, forty-six higher education
institutions submitted applications proposing more than 250
capital improvement projects totaling $2.1 billion. On April
7 A-4399-13T2
29, 2013, the Governor announced that the Secretary had
transmitted to the Legislature a list of 176 projects that were
recommended for awards. Because the Legislature failed to take
action to preclude the grants within the prescribed time limits,
the list was deemed approved and authorized. See N.J.A.C.
9A:13-1.6(c) (as to HETI); N.J.A.C. 9A:18-1.7(d) (as to GO Bond
Act).
Beth Medrash Govoha ("the Yeshiva")
The Yeshiva is a private institution of higher education
located in Lakewood that specializes in advanced Talmudic
scholarship. According to its grant applications, the Yeshiva
"is an independent institution rooted in Jewish tradition. It
has no formal affiliation to any hierarchical religious
organization."
The Yeshiva has over 6000 undergraduate and graduate
students. According to its applications, the Yeshiva
"represents 59% of Lakewood's families and 74% of Lakewood's
married couples." The Yeshiva asserts that its emergence in the
Lakewood community and the jobs it has provided have contributed
significantly to the area's economic and demographic growth over
the last twenty years.
The Yeshiva offers an undergraduate program culminating in
a Bachelor of Talmudic Studies degree. The twelve required
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courses in the undergraduate curriculum all involve the study of
the Talmud. The Yeshiva describes the Talmud as "a broad
compendium of scholarship that draws on knowledge from a wide
array of sources and disciplines, among which are references to
religious texts such as the Bible."
The Yeshiva acknowledged that its curriculum includes
"religious study." Its grant applications defined the term as
"the study of religious beliefs, behaviors, texts, [and]
institutions" because "portions of the curriculum may utilize
texts with religious origins." Undergraduates at the Yeshiva
may take elective courses in Ethics and Hebrew Language and
Literature. The Yeshiva offers graduate programs conferring a
Master of Talmudic Studies, a Graduate Talmudic Diploma, or an
Advanced Graduate Talmudic Diploma. There is also what the
Yeshiva characterizes as a "small program available to advanced
students" that leads to ordination as a rabbi. According to the
Yeshiva, fewer than 5% of its enrolled students participate in
its ordination program.
Admission to the Yeshiva is limited to qualified men,
regardless of their religious affiliation, national or ethnic
origin, age, race, color, or disability. The faculty are all of
the Jewish faith, although that is not a formal requirement.
The Yeshiva staff are not all of the Jewish faith, however, and
9 A-4399-13T2
the Yeshiva's employment policy asserts that it "does not
discriminate on the basis of race, color, creed, religion,
gender, pregnancy, marital status, age, national origin,
ethnicity, ancestry, handicap or disability, atypical hereditary
cellular or blood trait, or service in the Armed Forces of the
United States or status as a veteran of the Vietnam Era."
The Secretary recommended awarding two grants to the
Yeshiva from GO Bond Act funds totaling $10,635,747. The first
grant was for the construction of a new library and research
center that would also house the Department of Hebrew Studies,
the Department of Adult and Continuing Education, internship
advisors, career and academic counselors, and a writing resource
center. The second grant was for the renovation of an existing
building to create fourteen new classrooms, a reference library,
a computer room, faculty offices, and academic support space.
In July 2013, the Secretary formally notified the Yeshiva
that its applications for grant funding had been approved. A
corresponding grant agreement was ultimately executed between
the Yeshiva and the NJEFA in June 2015 while this case was
pending.
Princeton Theological Seminary ("the Seminary")
The Seminary is a private institution of higher education
in Princeton, having what it describes as "an historical and
10 A-4399-13T2
continuing relationship with the Presbyterian Church (USA)."
The Seminary's stated mission is to "prepare[] women and men to
serve Jesus Christ in ministries marked by faith, integrity,
scholarship, competence, compassion, and joy, equipping them for
leadership worldwide in congregations and the larger church, in
classrooms and the academy, and in the public arena." According
to its Mission Statement, the Seminary
stands within the Reformed tradition,
affirming the sovereignty of the triune God
over all creation, the gospel of Jesus
Christ as God's saving word for all people,
the renewing power of the word and Spirit in
all of life, and the unity of Christ's
servant church throughout the world. This
tradition shapes the instruction, research,
practical training, and continuing education
provided by the Seminary, as well as the
theological scholarship it promotes.
As a professional and graduate school, the Seminary offers
degrees in Master of Divinity; Master of Arts (Christian
Education); Master of Theology; and Doctor of Philosophy
(Biblical Studies, History and Ecumenics, Theology, Practical
Theology, or Religion and Society). The school also offers
continuing education programs through conferences, initiatives,
institutes, summer courses, and inter-institutional agreements.
The Seminary acknowledges that "[r]eligious instruction is
a mandatory component of [its] Master of Divinity program;
students in the other Masters programs and the Ph.D. program can
11 A-4399-13T2
arrange their course work and may opt out of religious
instruction altogether." A review of the Seminary's course
catalog reveals comparatively few offerings that do not entail
study of the Bible; religious literature; hymns; art or poems;
religious philosophy; spirituality; the ecumenical movement;
Christian ethics; evangelism; pastoral care; ministry; or
denominational doctrines.
According to the Seminary, it "does not discriminate on the
basis of race, color, ancestry, sex, age, marital status,
national or ethnic origin, sexual orientation, gender identity,
or disability in its admissions policies." As to religion, all
degree students and faculty at the Seminary are expected to be
of the Christian faith. However, staff and participants in non-
degree programs at the Seminary are not required to be
Christians.
The Secretary recommended awarding the Seminary three
grants from HETI funds totaling $645,323. The proposed projects
would (1) upgrade the IT infrastructure of the Luce Library to
allow for expanded historical and theological research; (2)
install technology in a training room to allow for on-site and
distance training of students and staff; and (3) equip a
conference room with multimedia functionality to expand online
education and strengthen interaction with other universities.
12 A-4399-13T2
The Seminary indicated in its grant application that the
Luce Library is open to any member of the public, whether or not
he or she is affiliated with the Seminary. Such persons may
access the library's collections for educational, religious,
historical, or other purposes. According to the Seminary, the
enhancement of the library's IT infrastructure would "make
available sizeable portions of the Library collection in digital
form to users located anywhere in the world via the internet."
The Seminary planned to use the proposed corporate-style
computer training room to train employees on commercial software
programs such as Microsoft applications, although the room
potentially could be used for software programs in both
religious instruction and religious study. The upgrades to the
"Cooper" conference room were intended "to facilitate remote
learning as part of [the Seminary's] continuing education
programming, which includes religious instruction and religious
study . . . as well as non-religious subjects."2
In July 2013, the Secretary notified the Seminary that its
application for grant funding had been approved. A related
grant agreement was executed between the Seminary and the NJEFA
in June 2015.
2
The State asserts in its brief that the Seminary withdrew its
application to upgrade the conference room after it had been
approved, and only pursued its other two projects.
13 A-4399-13T2
Other Grant Recipients
The record indicates that several other higher education
institutions with religious affiliations received grants from
the Secretary as part of the 2013 Solicitation, including
approximately $11.7 million to Seton Hall University, $2.8
million to St. Peter's University, and $2.4 million to the
College of St. Elizabeth. Appellants have not challenged those
other grants. Their counsel acknowledged at oral argument that
the constitutional analysis as to those institutions might
differ from the analysis of the present case, which solely
concerns the Yeshiva and the Seminary.
This Litigation
The ACLU-NJ, UULM-NJ, and Gloria Schor Andersen filed in
the Chancery Division a verified complaint for injunctive and
declaratory relief in June 2013, along with a request for a
temporary restraining order in July 2013, against the Secretary
and the State Treasurer. The complaint sought a declaration
that the State's grants to the Yeshiva and the Seminary, which
had been approved by the Secretary and were then pending before
the Legislature, violated Article I, Paragraph 3 and Paragraph 4
(what is known as the State "Establishment Clause"), and Article
VIII, Section 3, Paragraph 3 (what is known as the "Public
14 A-4399-13T2
Purpose Clause") of the New Jersey Constitution, as well as the
LAD. No federal claims were asserted.
The complaint sought to enjoin defendants from issuing any
check or otherwise providing the challenged funding to the grant
recipients. The complaint did not name the Yeshiva or the
Seminary as co-defendants, and they have not sought to intervene
in this matter.3 The State denied that the grants violated the
New Jersey Constitution or the LAD.4
3
At oral argument on the appeal, counsel represented that the
Yeshiva and the Seminary are aware of this challenge to their
respective grants, and have nonetheless chosen not to seek to
intervene. All counsel agree that the recipients are not
indispensable parties because the funds have not been disbursed,
and the Attorney General as counsel to the Secretary and State
Treasurer is advocating the propriety of the grants consistent
with the interests of the Yeshiva and the Seminary. See R.
4:28-1(a).
4
In defense to the LAD claim, the State relies on the LAD's
religious exemption in N.J.S.A. 10:5-5(l) ("Nothing herein
contained shall be construed to include or apply to . . . any
educational facility operated or maintained by a bona fide
religious or sectarian institution[.]"). Appellants, meanwhile,
contend that the religious exemption is unavailing to authorize
grants of public funds to private institutions that practice
discrimination, pointing to footnote seven of the New Jersey
Supreme Court's opinion in Dale v. Boy Scouts of America, 160
N.J. 562, 593 n.7 (1999), rev'd on other grounds, 530 U.S. 640,
120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000), which observes that
"New Jersey governmental entities are . . . bound by the LAD,"
and that "[t]heir sponsorship of, or conferring of special
benefits on, an organization that practices discrimination would
be prohibited." We do not reach this statutory issue of first
impression because we nullify the grants in this case on another
legal basis.
15 A-4399-13T2
In July 2013, the trial court entered a consent order
memorializing the parties' agreement that appellants would
withdraw their request for a temporary restraining order in
consideration for the State's promise to provide appellants'
counsel with fourteen days' advance written notice prior to
disbursing any funds under the challenged grants. Appellants
thereafter filed an amended verified complaint adding Penny
Postel and William Flynn as plaintiffs.
Subsequently, the trial court transferred this dispute to
the jurisdiction of this court pursuant to Rule 2:2-3(a)(2).
During the briefing stages of this transferred appeal, a panel
of this court denied appellants' motion to remand this matter
for additional fact-finding to explore more fully certain
details of the grant review process and the programs and
activities at the two recipient institutions. Meanwhile, as was
confirmed at oral argument, the disbursement of the grant funds
continues to be held in abeyance.5
5
It has come to our attention that the Secretary had issued
another solicitation that closed in January 2016, which appears
to be essentially identical to the content of the Spring 2013
Solicitation. The 2016 solicitation is not before us.
16 A-4399-13T2
II.
A.
As their primary argument, appellants contend that the GO
Bond and HETI grants violate Article I, Paragraph 3 of the New
Jersey Constitution because the funds will be used to support
the "ministries" of the Yeshiva and the Seminary. They assert
that both the Yeshiva and the Seminary are, fundamentally,
religious schools because they train ministers of their
particular sects, and provide religious instruction to all
degree students. They contend that if properly construed and
applied, Article I, Paragraph 3 prohibits the use of New Jersey
tax revenues for the maintenance of a religious group,
regardless of whether such subsidies are provided on an equal
basis to other organizations. To support that contention, they
rely on the Supreme Court's decision in Resnick, supra, 77 N.J.
88, as well as the history of Article I, Paragraph 3 itself.
The State responds that the grants do not violate Article
I, Paragraph 3 because they will be used to fund classrooms,
libraries, and computer and audio-visual equipment, not places
of worship or "ministries." Presenting its own review of the
history of the New Jersey Constitution's religion clauses, the
State maintains that the government is not precluded from
providing funds for religious instruction or to sectarian
17 A-4399-13T2
schools. Further, the State contends that appellants read
Resnick too broadly, and that the Court's decision in that case
must be interpreted in light of the generally more stringent
judicial approach to evaluating public aid to religious
organizations that existed at the time thirty-eight years ago.
B.
We begin our examination by focusing upon the text of
Article I, Paragraph 3:
No person shall be deprived of the
inestimable privilege of worshipping
Almighty God in a manner agreeable to the
dictates of his own conscience; nor under
any pretense whatever be compelled to attend
any place of worship contrary to his faith
and judgment; nor shall any person be
obliged to pay tithes, taxes, or other rates
for building or repairing any church or
churches, place or places of worship, or for
the maintenance of any minister or ministry,
contrary to what he believes to be right or
has deliberately and voluntarily engaged to
perform.
[N.J. Const. art. I, ¶ 3 (emphasis added).]
"This paragraph is nearly verbatim from Article XVIII of the
1776 Constitution. It appeared as Article I, Section 3, in the
1844 Constitution and was carried over in the 1947
Constitution." Robert F. Williams, The New Jersey State
Constitution, A Reference Guide 32 (1997).
Given the haste and informality surrounding the adoption of
the 1776 Constitution while British warships were gathering off
18 A-4399-13T2
the coast of Sandy Hook,6 little is known of the intent of its
drafters. Id. at 1-5; John Bebout, Introduction to Proceedings
of the New Jersey State Constitutional Convention of 1844, at
xvi (N.J. Writers' Project, Work Projects Admin. ed., 1942)
("1844 Proceedings"); 1 Proceedings of the New Jersey
Constitutional Convention of 1947, at v ("1947 Proceedings").
Although the 1776 Constitution contained no separate Bill of
Rights, it included important rights within its structural
provisions. Williams, supra, at 2. In particular, Articles
XVIII and XIX of the 1776 Constitution "reflected early notions
of religious freedom." Id. at 3; see also 1844 Proceedings,
supra, at xv (noting that "religious liberty was guaranteed,
except to papists").
Article XVIII was incorporated into the Bill of Rights of
the State Constitution of 1844 after amendments proposing to
place limits on individuals' "dictates of conscience" were
briefly debated and then rejected. 1844 Proceedings, supra, at
52, 141-42. No other discussion of the provision, which became
6
See John Bebout, Introduction to Proceedings of the New Jersey
State Constitutional Convention of 1844, at xvi (N.J. Writers'
Project, Work Projects Admin. ed., 1942) (citing Charles R.
Erdman, Jr., The New Jersey Constitution of 1776, at 49
(Princeton Univ. Press, 1929)).
19 A-4399-13T2
Article I, Section 3, was apparently preserved in the 1844
record.7
However, there was considerable discussion in 1844 about
drafting a constitutional article to create "common schools"
that would be free for all classes and sects. Id. at 345-47,
405. Amendments were proposed that would prohibit the School
Fund8 from being used to promote sectarian views of religion.
Debate focused on the sectarian strife that might arise from the
creation of such common schools. Id. at 345-47, 400-05, 550.
Even though no article was ultimately adopted to create common
schools, these discussions are significant because they arguably
support the State's contention that the framers of the 1844
Constitution did not interpret Article I, Section 3, as barring
the State from providing public funds to sectarian schools.
Rather, it is at least some evidence that the 1844 framers
7
The 1942 publication, sponsored by the New Jersey State House
Commission, summarized the 1844 proceedings after a gap of
almost a full century. The volume is derived from stenographic
reporters' notes of the debates that were published daily in
newspapers during the 1844 Convention. Williams, supra, at 143.
8
The State School Fund was established by the Legislature in
1818. L. 1817, c. 26, as amended by L. 1818, c. 100; see
Everson v. Bd. of Educ., 133 N.J.L. 350, 353 (E. & A. 1945)
(discussing history of the School Fund), aff'd, 330 U.S. 1, 67
S. Ct. 504, 91 L. Ed. 711 (1947). The permanency, proper use,
and administration of the School Fund was ensured through the
adoption of a constitutional provision in 1844. N.J. Const. of
1844, art. IV, § 7, ¶ 6.
20 A-4399-13T2
believed a specific constitutional amendment was required to
prevent such a result.
Free public schools were once again a topic of deliberation
by the 1873 New Jersey Constitutional Commission. See Peter J.
Mazzei & Robert F. Williams, "Traces of Its Labors": The
Constitutional Commission, The Legislature, and Their Influence
on the New Jersey Constitution, 1873-1875, at 117-74 (2012).9
The 1873 Commission considered an amendment to the 1844
Constitution that would provide for free, public schools, and
debated the inclusion of a prohibition that "'[n]o money . . .
be paid to any creed, religion, church or sectarian association
. . . .'" Id. at 145 (quoting The Constitutional Commission,
Daily St. Gazette, Oct. 30, 1873). Further, the 1873 Commission
discussed amendments defining "free schools" or "public schools"
as excluding "schools controlled by or under the influence of
any creed or religious society, or denomination whatever," and
prohibiting the appropriation of money for the use of any
seminary or other institution of learning "when the said
institution is controlled by any creed, sect or religious
society." Id. at 148 (quoting The Constitutional Commission,
Daily St. Gazette, Nov. 14, 1873).
9
Available at https://statecon.camden.rutgers.edu/books.
21 A-4399-13T2
As Mazzei and Professor Williams have commented: "It is
absolutely clear, based on the [1873] Commission's proceedings
and report, that the Commission ultimately agreed with
[Commissioner Jacob L.] Swayze's original intent that public
schools were free and that religious, private or college
preparatory schools would not be eligible for state funds." Id.
at 154 (emphasis added). Hence, the Commission's report to the
1874 Legislature proposed adding text to the School Fund
provision, N.J. Const. of 1844, art. IV, § 7, ¶ 6, establishing
public schools and defining "free schools" as not including
religious schools. Mazzei & Williams, supra, at 159.
Senators took issue with various aspects of the proposed
amendment, but there appeared to be no recorded objection to the
exclusion of sectarian schools from receiving school funds. Id.
at 161, 166, 168. However, the amendment that ultimately passed
in 1874 by the Legislature, which provided for a thorough and
efficient system of "free public schools," contained no specific
reference to sectarian schools.10 Id. at 171. The Catholic
Church nevertheless interpreted the amendment as barring the
10
The "thorough and efficient" clause that was passed by the
Legislature and adopted after a special election remains a vital
part of the current constitution. N.J. Const., art. VIII, § 4,
¶ 1. See generally Abbott v. Burke, 100 N.J. 269 (1985);
Robinson v. Cahill, 69 N.J. 133 (1975).
22 A-4399-13T2
diversion of public funds to parochial schools and strenuously
opposed its adoption in the 1875 election. Id. at 211-213.
Like the drafters of the Constitution of 1844, the members
of the 1873 Constitutional Commission never conclusively
resolved whether Article I, Section 3 prevented the State from
providing funds to religious schools. Rather, they sought to
attain that result by limiting the fund recipients to "free
public schools."
A century later, the delegates at the Constitutional
Convention of 1947 incorporated Article I, Section 3 of the
Constitution of 1844 into the 1947 Constitution's final draft,
doing so with little discussion. 3 Proceedings of the
Constitutional Convention of 1947, at 167. Similar to the 1844
convention, however, there were deliberations in 1947 concerning
state funding of religious educational institutions,
particularly with regard to busing students to parochial school.
5 Proceedings of the Constitutional Convention of 1947, at 791-
807. As at the prior convention, these deliberations in 1947
focused on financial matters rather than on fundamental
religious liberties.
A proposal to bar the State from expending public money to
aid any school or institution under the control of any religious
denomination was originally submitted at the 1947 Convention by
23 A-4399-13T2
a citizens' group to the Bill of Rights Committee. However,
that proposal was transferred to the Taxation and Finance
Committee. Id. at 791-92. During public comment over the
proposal, a representative of the Presbyterian Church, William
E. Dickey, asserted that Article I, Paragraph 3 prohibited the
use of public funds to support the Catholic Church. Id. at 799.
His argument apparently provoked no action, however, and efforts
to include language expressly prohibiting the State from paying
public funds to assist religious schools died in committee. Id.
at 800-06.
The State argues that "[i]t is clear that the framers of
the 1947 [C]onstitution did not interpret [Article I, Paragraph
3] to prohibit aid to sectarian schools. Had that been the
case, there would have been no need for Committee discussion on
whether to include such a new provision in the 1947
Constitution." Appellants respond that the 1947 proposed
amendment to prohibit funding of religious schools was "rejected
because it was not deemed necessary, as aid to religious schools
was already prohibited" by Article I, Paragraph 3. Appellants
partly base that contention on a statement of the Committee
Secretary recorded in the 1947 proceedings, noting that "[t]he
parochial school system [had] developed without any public aid
24 A-4399-13T2
whatsoever and it will continue to develop without any public
aid." Id. at 805.
This mixed constitutional history does not easily reveal
whether Article I, Paragraph 3 was or was not intended to
prohibit public aid to religious organizations to support their
activities in religious instruction and the training of future
clerics. The parties have each asserted substantial competing
interpretations.
The State presents a plausible argument that the provision
was not intended to ban such public grants and expenditures
because the 1844 Delegates and 1873 Commissioners were concerned
that funds could still be diverted to sectarian schools, and
therefore took care to define "public schools" in such a way as
to exclude institutions controlled by religious sects. Later,
the 1947 Delegates seemingly rejected the notion that Article I,
Paragraph 3 prohibited public funding of sectarian schools,
first by transferring the proposed amendment barring religious-
school aid from the Bill of Rights Committee to the Tax and
Finance Committee, and then by discussing the merits of the
proposed amendment without ever expressing an opinion in the
record that it was unnecessary.
The Committee Secretary's remarks in 1947 are open to
differing reasonable interpretations. The Committee Secretary,
25 A-4399-13T2
who was a Catholic, listened to several commentators condemn the
Catholic Church and accuse parochial schools of invading the
public purse. When a speaker asked the Committee Secretary "why
is your church asking for [transportation aid]?" the Committee
Secretary responded that the parochial schools were doing fine
and the Catholic Church wanted no public control or supervision.
Id. at 805-06. The Committee Secretary added that the Catholic
people simply believed that their children were entitled to free
public-funded bus transportation. Id. at 806. His statements
could reasonably be construed to signify a belief that public
funding of sectarian schools was not already prohibited by
Article I, Paragraph 3. Such an interpretation is consistent
with the Committee Secretary's assertion that students were
entitled to free transportation to parochial schools.
On the other hand, appellants have presented substantial
arguments in favor of the hypothesis that the 1844 Delegates,
the 1873 Commissioners, and the 1947 Delegates did not adopt any
proposals to explicitly ban public aid to religious schools
because those respective drafters implicitly were satisfied that
Article I, Paragraph 3, as originally drafted by the 1776
framers, already prohibited such financial support. Although
the Committee Secretary in 1947 was in favor of free
transportation to parochial schools, he repeatedly responded to
26 A-4399-13T2
constitutional criticisms raised by various speakers by
questioning whether such transportation could even be considered
public "aid" or "support" of those schools or their affiliated
religions. Id. at 797-98, 800-01, 804, 806. In essence,
appellants contend that years later the Court in Resnick, which
we discuss infra, appropriately enforced the intended
prohibition of Article I, Paragraph 3 by striking down the
public subsidy afforded to sectarian groups in that case.
We do not resolve this historical dispute here. Our
reluctance to do so is founded in part by principles of
statutory construction. Generally, courts should exercise
caution when considering the import of a legislative body's
rejection of proposed amendments to a codified scheme. Although
the failure to adopt an amendment can, at times, indicate a
conscious decision to reject the amendment's provisions, see,
e.g., State v. Crawley, 90 N.J. 241, 246 (1982) (finding that
the Legislature's rejection of a proposed amendment to the
criminal code indicated "a conscious decision" not to include
the provision), such inaction conversely may signal that the law
as written already achieves the sought-after objective. See
generally 2A Norman J. Singer & J.D. Shambie Singer, Sutherland
Statutory Construction § 48:18 at 633-37 (7th ed. 2014). We
need not decide which side's historical argument concerning
27 A-4399-13T2
Article I, Paragraph 3 is more persuasive because the Supreme
Court has already adopted a dispositive construction of the
provision in Resnick.
The relevant circumstances in Resnick were as follows.
Defendant, the East Brunswick Township School Board, had a long-
standing policy of allowing local groups, including religious
organizations, to rent its school facilities during non-school
hours at below cost. Resnick, supra, 77 N.J. at 93-94. Various
religious organizations used the facilities for worship,
religious instruction, prayer meetings, social gatherings, and
Hebrew language classes. Id. at 94-95. Some religious
artifacts and Sunday School materials were stored at the
schools. Id. at 95.
The plaintiff in Resnick filed suit to enjoin the school
board's practice of allowing the religious organizations to use
the public school facilities below cost. The plaintiff argued
that such action violated Article I, Paragraph 3's prohibition
against public expenditures in support of religion. The
plaintiff also alleged violations of the Establishment Clause of
the First Amendment of the United States Constitution and that a
statutory provision, N.J.S.A. 18A:20-34, did not authorize
public school buildings to be used for such religious
activities.
28 A-4399-13T2
The trial judge in Resnick found that N.J.S.A. 18A:20-34
neither contemplated nor allowed the public schools to be used
by religious groups for worship services. Id. at 96; see also
Resnick v. E. Brunswick Twp. Bd. of Educ., 135 N.J. Super. 257,
262 (Ch. Div. 1975). However, the judge did find that the
statute permitted the schools to be used for Hebrew instruction
and Sunday School. Resnick, supra, 77 N.J. at 96. With respect
to the latter, the judge concluded that even such a limited
instructional activity involved an outlay of taxpayer funds for
utilities, and thereby violated the constitutional prohibition
in Article I, Paragraph 3. Ibid. To cure the statute's
constitutional infirmity, the judge ruled that the religious
organizations were obligated to pay rent commensurate with the
school district's actual costs for utilities, administrative and
janitorial services.
The trial judge further concluded that the religious
organizations use of the schools also violated the First
Amendment. Id. at 97; see also Resnick, supra, 135 N.J. Super.
at 268. On this issue, the judge found the federal constitution
more restrictive than the state constitution and required the
board's program, even at rental rates equaling costs, to cease
within a year. As a caveat, the judge noted that his decision
did not nullify leases of public school facilities to religious
29 A-4399-13T2
bodies at competitive market rates, nor did it bar the temporary
use of school facilities by religious groups during emergencies,
such as after a fire or flood. Resnick, supra, 77 N.J. at 97.
This court affirmed the trial judge's decision, substantially
for the reasons he expressed in his published opinion. Ibid.;
see also Resnick v. E. Brunswick Twp. Bd. of Educ., 144 N.J.
Super. 474 (App. Div. 1976).
The Supreme Court largely upheld the trial judge's decision
in Resnick, although a majority of the Justices voted to modify
the court's ruling to allow religious organizations to continue
to use the school district's facilities on a temporary basis so
long as those groups "fully reimburse school boards for related
out-of-pocket expenses[.]" Resnick, supra, 77 N.J. at 120. The
majority found that the trial court had gone too far in
requiring the sectarian groups to pay a commercial rental rate
and in placing a one-year limit on their continued use of the
school premises. Ibid.
Although Justice Clifford and Judge Conford dissented from
certain facets of the majority's analysis in Resnick, the
members of the Court were unanimous in striking down the school
board's existing leasing arrangement. Justice Clifford stated
that the trial court's ruling, which this court had upheld,
should be affirmed without modification, reinstating the market-
30 A-4399-13T2
value rental charge requirement because he considered the charge
mandated by the federal Establishment Clause to avoid improper
entanglement of church and state. Id. at 121-36 (Clifford, J.,
dissenting). Judge Conford, sitting on the Court by temporary
designation, went even further, opining that "any use of
publicly built and maintained buildings, especially public
schools, for the [religious groups'] stated purposes is
antithetical to the fundamental principle of separation between
church and state embedded in both the federal and State
constitutions." Id. at 137 (Conford, J., dissenting).
The majority opinion in Resnick ruled that Article I,
Paragraph 3, when "fairly read, specifically prohibits the use
of tax revenues for the maintenance or support of a religious
group." Id. at 102. The majority cautioned that the provision
should not be carried to "an extreme," and the State need not
withhold police or fire protection because of a property's
sectarian use. Id. at 103 (citing Clayton v. Kervick, 56 N.J.
523, 529 (1970), vacated on other grounds, 403 U.S. 945, 91 S.
Ct. 2274, 29 L. Ed. 2d 854 (1971)). The majority provided no
further analysis of the issues under Article I, Paragraph 3,
other than to repeat its holding under the provision as
signifying that "the state constitution does require that
religious organizations be singled out among nonprofit groups in
31 A-4399-13T2
general as being ineligible for certain benefits which are
partly subsidized by tax-generated funds[.]" Id. at 103-04
(emphasis added).11
No reported New Jersey cases since Resnick have interpreted
the "religious aid" prohibition of Article I, Paragraph 3.
Other reported state decisions discussing Article I, Paragraph 3
have arisen instead in the context of claimed violations of free
exercise of religion and, when doing so, interpreted it co-
extensively with the Federal Free Exercise Clause, U.S. Const.
amend. I. See, e.g., S. Jersey Catholic Sch. Teachers. Org. v.
St. Teresa of the Infant Jesus Church Elementary Sch., 150 N.J.
575, 593-94 (1997) (finding that allowing lay teachers to
unionize did not infringe on a parochial school's free exercise
of religion); State v. Perricone, 37 N.J. 463, 471-74 (finding
that the administration of a blood transfusion to a child in
contradiction to the parents' deeply held religious beliefs did
not infringe on the parents' free exercise of religion), cert.
11
In the portion of the majority's opinion that followed, the
Court noted that the State Constitution's version of the
Establishment Clause in Article I, Paragraph 4 is "less
pervasive" than the federal counterpart provision, and ruled
that the school board's leasing arrangements did not "appear to"
violate that provision, "since no one religious sect was
preferred over other sects." Id. at 104. Because our decision
concludes that the grants to the Yeshiva and the Seminary
violate Article I, Paragraph 3, we need not address the separate
issues posed by appellants under Article I, Paragraph 4.
32 A-4399-13T2
denied, 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962);
Bethany Baptist Church v. Deptford Twp., 225 N.J. Super. 355,
362-63 (App. Div. 1988) (finding that requiring a church to pay
tax on property acquired after the yearly assessment date did
not impede its free exercise of religion); see generally William
F. Cook, Note, The New Jersey Bill of Rights and a "Similarity
Factors" Analysis, 34 Rutgers L.J. 1125, 1137-41 (2003)
(suggesting that Article I, Paragraph 3 may be more pervasive
than its federal counterpart and thus deserving of distinct
analysis).
The federal court had occasion to discuss Resnick and
Article I, Paragraph 3 in Pope v. East Brunswick Board of
Education, 12 F.3d 1244 (3d Cir. 1993). In Pope, a student
challenged a school board's refusal to certify her Bible Club as
a student organization. Id. at 1245. After concluding that the
board's action violated the Federal Equal Access Act, 20
U.S.C.A. §§ 4071-74, the Third Circuit briefly addressed the
board's argument that the costs it would incur from recognizing
the Bible Club would violate Article I, Paragraph 3 of the New
Jersey Constitution. Id. at 1256. Relying on the holding in
Resnick, the Circuit noted that New Jersey courts have held that
"off-hours use of school facilities by church groups did not
offend the state constitution." Ibid. The Circuit then found
33 A-4399-13T2
that the incidental cost of providing space for student meetings
was a de minimis expenditure of public funds.12 Ibid.
Because the millions of dollars collectively involved in
the present case are surely not "de minimis," the reasoning in
Pope is not instructive. Pope does reflect, however, that the
federal court recognized our Supreme Court's opinion in Resnick
as setting forth the authoritative interpretation of Article I,
Paragraph 3.
The State attempts to distinguish Resnick from this case by
arguing that the grants to the Yeshiva and the Seminary would
benefit college and graduate students, who it asserts are not as
susceptible to religious indoctrination as the elementary school
students who used the East Brunswick public school facilities.
The State also argues that providing money for capital
improvements does not equate to "maintaining a minister or
ministry" as those terms are commonly understood in our
contemporary times. But neither of these considerations was a
factor in Resnick, where the facilities were used both for the
religious instruction of children and for adult worship, prayer
meetings, and social gatherings. Resnick, supra, 77 N.J. at 94-
12
It is questionable whether the holding in Resnick truly
supports the Pope court's conclusion, since the difference
between the hourly rent charged and actual out-of-pocket costs
in Resnick was only about $2.25, which is arguably a de minimis
expense. Resnick, supra, 77 N.J. at 94 n.1.
34 A-4399-13T2
95. Moreover, the Court made no analytic distinction in Resnick
that hinged upon the ages of the users, even if we were to agree
with the debatable proposition that college and graduate
students are not particularly susceptible to religious
indoctrination.
The school classrooms in Resnick did not lose their non-
sectarian character simply because they were used after hours at
times for religious purposes. At least one of the uses the Court
identified in Resnick — Hebrew language instruction — was
arguably non-religious in nature. However, it was the sectarian
nature of the groups renting the space for such instruction that
was of primary concern to the Court in striking down the
subsidized arrangement.
Here, unlike other broad-based liberal arts colleges that
received grants, both the Yeshiva and the Seminary are sectarian
institutions. Their facilities funded by the Department's
grants indisputably will be used substantially if not
exclusively for religious instruction. The planned uses by
these sectarian institutions clearly fall within the prohibitory
ambit of Resnick.
We discern no principled distinction between the
consumption of public resources that was invalidated under
Article I, Paragraph 3 in Resnick and the payment of taxpayer-
35 A-4399-13T2
funded grants to the Yeshiva and the Seminary. The fact that
most or many of the students at the Yeshiva and the Seminary do
not eventually become "ministers," rabbis, or other clergy does
not cure the constitutional infirmity, just as the fact that the
adults and children who received religious instruction in
Resnick were laypeople did not alter the Court's analysis. Nor
does the fact that the Department's awards to these sectarian
schools were part of a larger competitive grant process
involving non-sectarian recipients solve the problem. The
public school buildings in Resnick were also used by non-
religious groups, but that did not eliminate the district's
constitutional violation in allowing religious groups to use
them on a subsidized basis.
As an alternative to its attempt to distinguish Resnick,
the State argues that the Court's 1978 opinion is out of step
with more recent national trends in constitutional jurisprudence
concerning religion, particularly case law involving the
Establishment Clause. More specifically, the State submits that
First Amendment jurisprudence has shifted over the years to
relax the circumstances under which government aid for religious
schools is permitted. See generally, Ira C. Lupu et al., Pew
Research Ctr., Shifting Boundaries: The Establishment Clause
36 A-4399-13T2
and Government Funding of Religious Schools and Other Faith-
Based Organizations (2009).13
We will not speculate as to whether this asserted shift in
federal Establishment Clause jurisprudence, assuming there is
truly such a shift, affects the independent meaning and force of
the New Jersey Constitution. Indeed, our state has a rich
tradition of sometimes construing our own state constitutional
protections of individual rights more broadly than cognate
provisions in the United States Constitution. See Williams,
supra, xix (noting that the New Jersey Supreme Court "has
continued to consider interpretations of the state
constitutional rights provisions that are broader, or more
protective of citizens, than the decisions of the United States
Supreme Court interpreting the federal Constitution"); see also
State v. Hunt, 91 N.J. 338, 363-68 (1982) (Handler, J.,
concurring) (identifying "divergence factors" for determining
whether a provision within the State Constitution should be
interpreted more broadly than its federal counterpart).
Moreover, the differences of viewpoint between the majority of
13
Available at http://www.pewforum.org/files/2009/05/funding.
pdf.
37 A-4399-13T2
the Justices and Justice Clifford's dissent14 in Resnick hinged
only upon the analysis under the federal Establishment Clause
and not over Article I, Paragraph 3, indicating that a proper
interpretation of the latter is not to be affected by the
federal jurisprudence. See Resnick, supra, 77 N.J. at 121-36
(Clifford, J., dissenting) (disagreeing only with the majority's
interpretation of the statute regarding boards of education and
the federal Establishment Clause).
We acknowledge that the Court's discussion of Article I,
Paragraph 3 in Resnick was rather abbreviated. Resnick did not
delve into the extensive constitutional history that has been
presented to us by the parties and which we have canvassed in
this opinion. We have set that history out at some length for
the sake of completeness. We stop there, however, because
Resnick remains the controlling Supreme Court precedent.
Resnick has never been overruled or called into question by
the Court. As an intermediate appellate court, we are bound by
the Court's holding. See N. Jersey Media Grp., Inc. v. Twp. of
Lyndhurst, 441 N.J. Super. 70, 101 (App. Div. 2015) (citing
White v. Twp. of N. Bergen, 77 N.J. 538, 549-50 (1978)) (noting
14
As we have noted, Judge Conford's more stringent approach in
his own dissent rested upon both the federal and state
constitutions. Resnick, supra, 77 N.J. at 137-38 (Conford, J.,
dissenting).
38 A-4399-13T2
that "intermediate appellate courts are 'bound, under the
principle of stare decisis, by formidable precedent'").
For these reasons, we conclude that Resnick compels
invalidation of the grants to the Yeshiva and the Seminary under
Article I, Paragraph 3 of the New Jersey Constitution. In light
of that disposition, we need not and do not reach appellants'
separate claims of invalidity under Article I, Paragraph 4;
Article VIII, Section 3, Paragraph 3; and the LAD. We also
caution that our opinion should not be construed to adjudicate
fact patterns involving public grants to different religiously
affiliated institutions of higher education which have a broader
non-sectarian scope and thereby may be distinguishable from the
Yeshiva and the Seminary, including the other recipients of
grants from the 2013 Solicitation.15
Reversed.
15
As just one example of the limited scope of our opinion, it
should not be read to nullify under Article I, Paragraph 3
public grants to broad-based liberal arts colleges and
universities just because they happen to have a Religious
Studies Department or a chapel on campus.
39 A-4399-13T2