AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, UNITARIAN UNIVERSALIST LEGISLATIVE MINISTRY OF NEW JERSEY, GLORIA SCHOR ANDERSEN, PENNY POSTEL, and WILLIAM FLYNN, 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.
DOCKET NO. A-4399-13T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Decided May 26, 2016
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. APPROVED FOR PUBLICATION May 26, 2016. Argued April 11, 2016.
Before Judges Sabatino, Accurso and Suter.
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 аnd 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
Appellants contend the grants violate
As we explain in this opinion, the constitutional analysis under
In doing so, we acknowledge that the intended meaning of
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 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
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 twеnty-five percent of the cost of the proposed project. See
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:
- the advancement of student education in the State of New Jersey;
- the improvement and expansion of educational opportunities for students;
- 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;
- the promotion of innovation and improvement in the delivery of higher education;
- the advancement of study at all levels in science, technology, engineering and mathematics education;
- consistency with the institution‘s educational mission;
- consistency with the institution‘s long-range facilities plan;
- the cost-effectiveness of the Project;
- 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;
- 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
- serving the best interests of higher education in the State as a whole.
These criteria mirror those enumerated under
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 integratеd voice, video and data networks.” See
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 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 аnd authorized. See
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 courses in the undergraduate curriculum all involve the study of the Talmud. The Yeshiva describes the Tаlmud 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 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
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 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.” Aсcording 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 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 awаrding 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.
The Seminary indicated in its grant application that the Luce Library is
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.
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 Univеrsity, $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
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
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 еxplore 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
II.
A.
As their primary argument, appellants contend that the GO Bond and HETI grants violate
The State responds that the grants do not violate
We begin our examination by focusing upon the text of
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.
[
“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 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 thаt “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 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
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
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,
Senators took issue with various aspects of the proposed аmendment, 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
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
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
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 сommittee. 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
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,
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
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
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, appellаnts 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
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
The trial judge in Resnick found that
The trial judge further concluded that the religious organizations use of the schools also violated the
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-
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 fundаmental 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
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 disсussing 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
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
that the incidental cost of providing space for student meetings
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 сollege 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 94-95.
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-
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 rеligious 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
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
the Justices and Justice Clifford‘s dissent14 in Resnick hinged only uрon 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
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
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION