Resnick v. East Brunswick Township Board of Education

PLAINTIFF-RESPONDENT, RESNICK, v. EAST ABRAHAM EDUCATION, DE BOARD OF BRUNSWICK TOWNSHIP FENDANT-APPELLANT, OF TEMPLE AND REFORM BRUNSWICK, BAPTIST EAST EAST BRUNSWICK CHURCH, LUTHERAN EVANGELICAL NATIVITY DEFENDANTS, BRUNSWICK, AND OF EAST CHURCH CHURCHES, INTERVENORS. OF NEW JERSEY COUNCIL PLAINTIFF-RESPONDENT, RESNICK, RE ABRAHAM BRUNSWICK, TEMPLE DEFENDANT- OF EAST FORM APPELLANT, AND BRUNSWICK TOWNSHIP EAST EDUCATION, BAPTIST EAST BRUNSWICK BOARD OF CHURCH, EVANGELICAL LUTHERAN NATIVITY BRUNSWICK, DEFENDANTS, AND OF EAST CHURCH CHURCHES, JERSEY COUNCIL OF NEW INTERVENORS. January July 11, Argued 1978. 1978 Decided Mr. East David B. Rubin for appellant the cause argued Rubin Brunswick (Messrs. Education Township Lerner, Frank Mr. J. Rubin on attorneys; brief). Mr. H. Davis Re Samuel the cause argued appellant form of East Brunswick Dubowsky Temple (Messrs. Davis, attorneys). Brennan, III,

Mr. William J. for inter- argued cause Smith, Stratton, Heher, Wise and venor-appellant (Messrs. Mr. Brennan attorneys; and Ms. Ann Reicheldfer, on the brief). Mr. Rader for cause argued respondent Sanford Kovacs, Anderson, Rader, Horowitz and

(Messrs. attorneys).

The opinion of the court was delivered Pashman, J. The of church and state relationship has one of the sensitive in the law. Permitting become most areas school place property observances to take raises issues. To some and constitutional important vexing car- necessarily use of persons, school premises by group of that ries with approval it appearance government body involving an issue Thus, its whenever and activities. our arises, the use of purposes school for property The con- inquiry searching. specific must be particularly troversy this extent to appeal concerns the school instruction and used for may be educational services when used they regular being purposes. East Brunswick School Township 1962 defendant

Since school local to use its a number of allowed Board has The lessees of non-school hours. facilities during well as religious groups various have included premises civic, recreational and charitable social, nonprofit other of the organizations and diversity plenitude groups. related in its policy, of Board are reflective using Brunswick Use of East Governing Regulations “Rules Facilities.” School Philosophy Statement

I. feeling It is the this of Education that each of the East Schools, through Public Brunswick build [sic] and maintained expenditure public funds, should be utilized to the fullest extent possible by community groups agencies. East Brunswick Pro- protection for the control and visions these facilities as hereafter position responsible from the established emanate Board’s as the body upkeep maintenance such facilities. cost of approximates A rental is assessed the a the facilities using services.1 Where janitorial group a if is charged, for fund admission raising purposes a with rental is assessed accordance substantially higher Board’s policy provides rental schedule.2 The published the school be made to for use of premises that applications the such as the school involved. principal Groups religious for steady on a basis which use organizations This make annual reapplications. an indeterminate period discussed all of the religions organizations done herein. had the East Church Brunswick

Starting Baptist for rented an room in an school all-purpose elementary instruction and ten classrooms for religious religious services for on rented Sundays. The room was also all-purpose and a Bibles, Wednesday evening prayer meetings. hymnals with a off wooden a cross were stored in closet pulpit room, with school recreational all-purpose along equipment. a in the The Church owned five-acre site building township architect, of the trial date had retained an an as had for site plan engineer applied approval the time of board. At oral township planning argument Court, the Brunswick before East Church no Baptist this used the school.3 longer Lutheran Church

Nativity Evangelical began, renting facilities in school in elementary an 1968. It September regulations hourly of the $4.50 Board set as the rate for 1The extra conjunction janitorial required in services with use of school pocket community group. premises actual The out of cost to the per approximately for services is $6.75 those hour. 2Apparently raising during does not include collections fund taken activity religious services, higher for such rental was not religious organizations. charged the argument congregation 3At we oral were informed that the small Baptist building was unable Church to afford construction of a plot. Instead, purchased facility on the five-acre it has a smaller community. for on Sundays, used the school instruction occupy- room some classrooms. ten all-purpose Sunday ing were locked in cabinet. literature and materials Church for At the worship. has separate building trial had an architect time Church employed of having addition to its for plan building purposes classrooms Lutheran for education. At present, Church is not use of school facilities. making

Since March 1973 Brunswick the Reform East Temple has rented of an for most services elementary building and instruction for five hours It also rents Sundays. gymnasium gatherings services and social on Friday evenings language and five classrooms Hebrew instruction for Thursday children on and Tuesday evenings. A few artifacts were in the The religious stored schools. Reform had an Temple option site at purchase building the time of the trial had and also retained an architect. However, the not and building completed, has been use of the school continued as of the date of argument.4 oral 4 argument oral At Temple counsel for defendant Jewish in Reform pursuant formed the granted by Court that to an extension trial the group judge, the would school use the until June 1978. Construction Temple nearly completed expected of the occupied is it is by September 1978. opinion, of the of Temple As this date the Jewish Reform is no longer using premises. However, school groups three other using Despite in Bast Brunswick facilities. original using none fact that of defendants the schools at present time, we do not deem this case be moot. We have de question public importance is a termined this of and thus will Mayor Clifton, See Sente address v. and Mun. merits. Coun. 66 Dunellen, 204, (1975) (Pashman, J., dissenting) ; N. 209-211 J. Bd. Ass’n, 17, (1972) ; Dunellen Ed. Levine, Ed. v. 64 N. J. 21 Busik v. 351, (1973), appeal 1106, J. 63 N. 364 dismissed 414 U. S. 94 S. Ct. (1973) ; 831, Kennedy Hospital L. 2d 733 John F. 38 Ed. Memorial Heston, 576, ; (1971) Tp. N. v. 58 J. 578 Ed. Bd. E. Brunswick Brunswick, 94, Coun., (1966) ; E. Perricone, 48 N. J. 109 State v. 37 463, (1962), N. cert. den. J. 371 U. S. 83 S. Ct. ; (1962) Annotation, ground L. 2d 124 Ed. “Public interest as a for for schools East Brunswick

Upon learning complained Resnick Abraham plaintiff religious purposes, not take did Board Education. When to the using from groups action prevent Division Chancery schools, Resnick filed complaint schools by use of the He in October 1974. alleged A. the statute J. S. violated N. religious groups 18A.20— and the facilities, of public governing operation groups All three religious federal and state constitutions. party intervened as third defendants. J. in an 135 N. trial judge, opinion reported J. 18A:20-

Super. 257 Div. held that N. S. A. (Ch. 1975), use of public 34 neither nor contemplated permitted but worship schools services within the School and Hebrew instruction were Sunday However, judge uses. permitted statute’s purview the limited to involved went on to hold that even use education some funds utilities thus outlay taxpayer small sup- against expenditures violated the prohibition I, in N. J. Const. Art. 3. par. found port religion (1947), a rent based on he indicated that schedule Nevertheless, services utilities, costs of administrative janitorial actual cure constitutional difficulty. would that state appeal, moot, question refusal to dismiss an has become where (1941). sought by parties,” A. L. R. dismissal one or both recently As we have observed: * * ** [T]here is no constitutional mandate that a court beyond necessary go what is a case decide at hand. Whether an narrowly expansively judge’s issue will be dealt with or for a calls many things, including guidance of the need evaluation for the * *** agencies government general public. or or bar though litigation a decide issue even So court has * * moot, again in the interest become *. Levine, supra, [Busik 63 N. J. at 363-364; omitted] citations perils Moreover, deciding faced with the the Court an ab- couching opinion question or its in terms of an stract unrealistic displays The record factual situation. real set of artificial or sharply arguments facts, the constitutional one which focuses parties have made. The also judge held that the use of schools for religious worship instruction violated the First and Fourteenth Amendments of the United States Constitution. He alluded to the significant financial benefit provided to the religious which groups used schools indefinitely which were thus enabled to avoid making expenditures other facilities rental commercial or for rates their own constructing The buildings. also judge found administrative entanglement in record keeping scheduling by Board, employees and political in entanglement Board’s subjecting defendant members to pressures by those in favor of and those opposed facilities. The court also found excessive entanglement storage artifacts and books in school where buildings they were accessible to children during hours.

The court limited its decision by that its indicating ruling did not deal with the rental of public school rental rates approximating that would be charged open market for comparable private facilities. Hor did it cover temporary use public school facilities during emergencies such as after fire or flood. given days which to submit proposal for continued use of the facilities for a fixed time in order to allow the defendant religious organizations secure other accommodations. The Board’s proposal slightly modified was included in the Final court’s Judgment and Order of December 1975. In essence, the religious groups5 were permitted to continue using public school facilities for a at a year one rate period the cost approximating paid by religious organization, Young Brunswick, 5A fourth Israel of East petitioned to intervene as a defendant in late November That 1975. group using public had started school facilities on June but paying a had been rental as well as fees for custodial It services. plan temporary sought to be included in the for continued use. No petition Young in the Final Order mention this Israel made part group and that took further the ease. no for the classroom in a local the Board rental of church space handle No reli- used to overflow. building pupil artifacts be stored schools. were to gious Upon Both the Reform and Board Temple appealed. heard Division consolidating these appeals Appellate and the same reasons” arguments affirmed for “substantially 144 N. J. by Super. c(App. the trial court. expressed Div. The as of 1976). Board Reform Temple appealed and Of R. Plaintiff right pursuant cross-appeals. 2:2-1. and Reform defendants, original only the New this Court. We Temple appeared granted before Council as a Jersey to intervene petition party Churches’ defendant on appeal.

I Nonconstitutional Grounds N. Pursuant J. education 18A:20-34, S. A. boards of. rules which permitted adopt school properties used when not in use That statute for school purposes. provides pertinent part: board instruction in entertainments adopted the science and for school c. The board of education of a. The ;***(cid:127). grounds holding assembly purposes, it, permit agriculture, and other branch of $ such such persons the use of any other social, property horticulture, education, $ any purposes civic, any following purposes: district purpose schoolhouse $ learning, as and recreational district, may be may, pursuant floriculture; or the $ giving and when approved by arts, rooms and meetings # including receiving therein, in use rules ^[**] of the courts below in the view We concur fully A. educa contemplates religious N. 18A:20-34(a) J. Lewis New ones. See well as secular programs tional Ed., N. Y. S. 164, Misc. 520, Bd. York City with the However, we 1935). disagree Ct. (Sup. 169-170 trial S. N. A. 18A:20-34 not conclusion that J. does judge’s a uses of school contemplate, myriad among possible services non-school property, during holding religious for this are unpersua hours. The reasons conclusion given est exclusio expressio sive. The maxim unius alterim invoked for the religious purposes that since proposition the only not listed in N. J. S. A. section 18A:20-34(c), services, which use for religious authorizes school arguably such use is impliedly However, excluded. this maxim Ozzard, merely an aid J. in construction. v. 33 Reilly N. 529, 539 (1960). “The final in a is whether question given context an express with provision respect to portion an area reveals by implication decision with respect the remainder. The issue is one of intention. The answer Id., resides in common sense of the situation.” see 2A Construction, Sutherland, 47.24 at 127 Statutory (Sands, § ed. As we held J. 1973). Gangemi Berry, N. the maxim not

(1957), carry does of a rule of weight law and is to be with caution, and not arbi applied great or in a trarily manner variance with its true purpose.

Had N. A. J. S. 18A:20-34(c) provided for merely “civic, use, and recreational” legislative educational intent be the use might aptly termed of school limiting premises However, to those listed. such exclusively items a con struction would render “and following phrase, such other board,” uses as approved by meaningless. More over, the absence of qualifying “like,” term such as with “related,” “similar” to the above respect phrase, indicates that the legislature intended to wide discre grant tion to boards education in Thus, such matters. additional civic, uses are limited to strictly social and recreational uses.

The trial also concluded judge that religious services not have been contemplated could under J.N. S. A. 18A:20- because absence of mention such uses therein, while religious purposes were specifically listed 135 N. J. other statutes. at 161. Super, However, those trial do mention judge statutes considered rights specific their the creation purpose have as religion J. A. 15:14-6 (granting N. See S. bodies. religious own, the power other charitable A. 45:24-7 (exemp N. S. J. and convey manage property); requirements); licensing from tion of religious groups civil N. A. N. A. 18A:38-5.1 (the J. S. 10:1-3 and J. S. (1947), N. Const. J. rights groups); and other VIII, exemption tax Art. constitutional par. (the § 18A:20-34 J. A. contrast, In bodies).6 N. to privilege right never as a of specific grant intended was Rather, object of enactment the religious groups. certain boards, within to entrust local school merely to the purely uses beyond of the determination guidelines, the devoted. might which school property educational trial the by utilized approach Literal application aas considered from .being entail would judge prohibiting in an specifically item addressed permissible A. N. S. 18A:20-34. J. addressed in other statute and not so with the dis odds Such an would be greatly interpretation by wording plain of education the cretion boards granted N. J. of S. A. 18A :20-34. of us to apply principle

Plaintiff also invites genei'is, general a maxim to effect that where ejusdem are words enumeration, follow specific general words already of things to the same class only general applicable Suther d, in See ment’’one statute. construing specifically maxim 103. that this land, 47.17 at Even supra, assuming § we it would preclude do not find that is properly applicable, schools. in the statutory authorization services religion 6Additionally, the mention of in the two other statutes merely by :V-139, trial cited court incidental. N. J. S. 39A. statute, regulation only many a traffic mentions “church” as one passenger loading public places Similarly, N. where is restricted. J. “places 18A:72A-3, only worship” mentions A. “sectarian clarify facility.” the definition of. “educational schools” order social, listed activities include civic and recreational Common meetings entertainments. denominators all interaction, emotional these activities include group community release, regular participation portion certainly would character services building. Religious seem to Plain include all characteristics. of these beneficial tiff the schools complains that sects only using those admittedly benefited by this While these ceremonies policy. involved, benefit observa only sect the same particular tion a basketball holds true with use of respect gym If every or use of league by any group. other premises each activity directly school had to be shown to benefit education little other than community, in the entire person the basic thus defeating buildings, would on in school go N. J. aim S. A. 18A :20-34. on a temporary use of schools

More importantly, New tradition in a long-standing basis use of itself, Township In East Brunswick Jersey. services and meetings for religious school buildings In that Century. period in the Nineteenth common Washington, Washington Holy Trinity Church and the Methodist Simpson Church Methodist Episcopal W. use of sehoolhouses. all made Bridge Old Church of and Middlesex Union History Woodford Clayton, Counties, 771-774. Peck, pp. & Philadelphia, Everts not with exhaustive certainly respect This list of users to other towns. the in having

Since services school practice worship was not uncommon in the years passage houses preceding N. 18A:20-34, L. c. the forerunner J. A. it the of an reasonably be that absence presumed express that the contrary is strong declaration evidence did not intend to prohibit this Legislature long-standing of the Act. In has continued since practice. passage This in fact, a instances the defendant this case lists dozen within wherein years used school past groups hours. temporary basis non-school during premises We conclude that there is no bar to statutory services or instruction out schools carried being where for during periods those facilities are required regular educational activities.

II State Constitutional Grounds In order to case issues in instant put the remaining by the schools proper we note the use of perspective, that these and at was on same terms groups rates Nothing same the other non-profit groups. the record indicates use of facili- the religious groups’ other effectively prevent ties was as to so time consuming non- schools at from groups the use and enjoyment counsel fact, instructional In oral argument times. de- had indicated the New of Churches Jersey Council their outstripped mand for school various by groups slots of available time availability, an distribution equal superior would was deemed been This method proper. have all time they churches or other granting other while use of facilities totally wanted precluding occa- Moreover, that on the record indicates organizations. de- or preempted, sion several of were religious groups so that school- nied of the school in question, building Rabbi for the Reform on. The could go activities related his group more than one occasion that on indicated Temple No school-related hours’ notice. on less than 24 was ousted with by religious groups. been interfered has ever activity federal consti- state or whether Thus, real issue is such groups, for religious treatment require special tutions affili- those' only religiously non-profit groups that out of all of school from the use constitutionally prohibited ated constitution our state noting We start premises. read, prohibits which, fairly specifically a provision contains support maintenance for the revenues the use of tax religious group.

103 person deprived privilege No shall be of wor- the inestimable of shiping Almighty agreeable in God to of his own manner the dictates any conscience; pretense compelled nor under attend whatever be to any place worship contrary judgment; faith and nor his shall to any obliged person pay taxes, building tithes, be to or for other rates repairing any places worship, place churches, or church or or any ministry, contrary the maintenance minister or what he right engaged deliberately voluntarily believes to or has perform. I, par. (1947),

[N. 3] J. Const. Art. This carried constitutional to an extreme. In position Kervick, 523, 56 N. 529 Clayton J. vacated and (1970), 2d 945, 2274, remanded 403 U. S. L. Ed. 854 91 S. Ct. 29 (1971), on remand 59 N. J. 583 Chief Justice (1971), Weintraub State observed that suggests one “[n]o protec must such as or fire police withhold services general tion, from general even though exempted property v. Tax use,” taxation Walz because of its citing sectarian Commission, Ed. 1409, Ct. L. 2d 664, U. S. 25 90 S. No. 697, School District Bd. Ed. Central (1970); Allen, 1 v. Ed. U. S. Ct. L. 2d 236, 1923, of fire However, 1065 (1968). obligation protection is school board’s distinguishable permitting from religious rent hours. group free property during We that N. conclude J. Const. I, par. Art. (1947), prohibits lease between a school arrangement board under groups which out-of-pocket expenses directly board attributable to the body not fully reimbursed. affirm We below holding this constitutional may be infirmity by an remedied upward adjustment rentals which groups fully would cover extra utility, heating, administrative and janitorial costs result from the leasing these groups.

In view of our holding state constitution does require that religious organizations be out singled nonprofit among general being ineligible 104

certain benefits which are partly by subsidized tax-generated funds, we must on to determine go whether are further they singled by out total their use of school prohibition premises. constitutional provisions are relevant following: (1947), par. I,

N. J. Const. Art. religious sect; religious 4. Establishment or racial test office. preference There shall be no sect establishment one another; required qualifica- to no racial as a or test shall be tion for office or trust. Const., U. Amend. I. S. Congress respecting religion, shall make no law an establishment of prohibiting thereof; abridging or the free exercise the freedom speech, press; right people peaceably or of the or the of the assemble, petition grievances. and to Government a redress of The East Brunswick schools were open to any religious group which wished to use them. No allegation preference of one over another group has been made. In Clayton v. Ker vick, 56 N. supra, J. at Chief Justice Weintraub, these comparing two indicated provisions, State “[o]ur is less provision literally, pervasive, than the federal provi sion.” He limited discussion of the constitutionality of Educational N. Law, J. S. A. Authority Facilities 18A:72A- 1 et to the federal seq. the United provision interpreted States conclusion, Court. We as N. J. Supreme his adopt Const. Art. I, to cover the (1947), par. does appear instant fact situation since no one sect was pre over our Thus, ferred other sects. the remainder of discus sion directed to the validity, under the First Amendment Constitution, Federal made the states applicable Connecticut, Amendment, the Fourteenth Cantwell U. L. 296, 303, 900, 903, Ct. Ed. 60 S. for religious (1940), religious groups using property instruction and services.

Ill Federal Constitutional Grounds strict govern Amendment requires The First is applica Since it mental neutrality respect religion. with amendment directs states, ble scope to the the broad law respecting "... shall make no government free exercise of a or establishment religion, prohibiting “Where the in tension. thereof.” These two provisions clause,’ the ‘free exercise clause’ confronts the ‘establishment in provision who drew this constitutional fathers founding Valent exercise clause’ be dominant.” tended that the ‘free als., 63, et. N. Ed. 114 J. 72 Super. v. N. J. State Bd. of However, is not a free case. Div. this exercise 1971). (Ch. necessary for one show is exercise case [I]t ... in a free against operates Mm in the as it coercive effect of the enactment practice religion. is two clauses between the of his The distinction — predicated on apparent Free Exercise violation of the Clause a not be so at- need Establishment violation coercion while the Clause tended. 203, 223, Schempp, [Abington 374 U. S. District School 844, (1963)] 1560, 1572, L. Ed. 2d 858 10 S. Ct. 83 reli- whether permitting to us is issue of concern only The a reflec- at school facilities rate to rent public gious groups board a result of as the school incurred of cost tive clause.” “establishment afoul such runs religion’ means clause of the First Amendment ‘establishment The can a nor Federal Government Neither state this: least pass religion, up aid laws which aid one Neither can set church. any prefer religion . religions, No tax over another. . one all or . any support small, amount, large be levied to can or they may called, institutions, he or what- whatever or activities practice religion. may adopt they to teach form ever requires relations neutral its state to be That Amendment non-believers; not re- it does believers with adversary. quire be their state to 16, 18, Education, 67 U. S. v. Bd. 330 [Everson 15 — (1947)] 711, 723, 511-512, 513, L. Ed. 724-5 S. Ct. While jurisdictions there is to whether split among as is constitutionally it permissible premises — to be used for see Anno: “Schools religious purposes, 79 A. L. R. Use 2d Religious Purposes”, § (1961), only case within the last 35 years addressed federal constitutional issue the use. upheld Trustees, In Southside Estates Church v. Bd. Bapt. So. 2d 697 (Fla. Ct. Court of Sup. 1959) Supreme Florida held that schools be used could temporarily did non-school The record place worship hours. during not indicate whether rent was the users or expenses paid by were incurred school trustees. The relevant Florida by the statute, Fla. 235.02, Stat. Ann. use of school permitted § “for buildings assembly.” non-school hours during legal rejected imper court the view that the public missibly subsidizing religion. Taking appellant’s building note insistence that the use of the something value the wear and tear is indirect con- public treasury, appears might tribution from the it to us that we

properly apply the maxim De minimis non curat lex.

[115 699] So. 2d at court also found that no impermissible preference for one sect over another existed since four or five religious However, had been accorded the same treatment. court indicated that its decision have been different might had the a where a church contem- ease involved situation plated use of facilities. permanent school interpolate by way [W]e (cid:127) (cid:127) . of dictum that it is conceivable that power granted by this statute could so be abused that would it example, result a violation of the Constitution. For if the use of the buildings permitted prolonged periods time, were of absent part evidence of an immediate intent on the of the church to con- building, hardly contemplated its struct own we think it could be system property employed or its could be in the permanent promotion particular any Such, of or sect denomination. however, is not the case here. 700] 2d [115 So. No outer was how boundary set as to use of the schools long Instead, could continue. local boards were reasonable given discretion as to the use determining of school buildings, .“. . subject course, of to judicial review should such discretion be it abused to could be construed the point as a contribution of funds a particular or as group a promotion of particular establishment religion.” Id.

In the absence of this subsequent developments area, we would here stop and reverse those parts in Southside below judgment which conflict with the analysis Estates Bapt. Church Trustees, Bd. supra. However, several recent Court opinions by Supreme the United States have further refined the to be determin analysis applied whether a ing given between church and state is relationship permissible

In Abington School District v. Schempp, supra, Su- preme Court announced a test following measuring joined by Clifford, Judge Conford, 7The post dissent of Justice see Estates, supra. opinion pro misreads Southside That did not pose finding problems that mechanistic of Establishment Clause required every group long time church used school for a period Rather, two-part Estates, time. it set out a Southside test. supra, indicated, “by way dictum,” buildings by that use of school religious groups would run afoul the Establishment if Clause it (1) prolonged (2) were both with no “immediate intent part building.” every single of the church to construct its own Here religious group using actively pursued East Brunswick schools has worship. point plans to build own its house of The whole South- require weighing side Estates was to sensitive of the facts in each surely preferable approach case. This to one which would auto every matically period deem use over a considerable time promotion” “permanent problem, of a sect “The State. like many problems law, degree.” in constitutional is one of Zorach v. Clauson, 306, 314, 679, 684, 954, S. Ct. L. 343 U. 72 S. 96 Ed. 962 (1951). 108 pro- clause” “establishment against enactment

governmental hibitions. purpose and the are the test stated as follows: what The in- primary is the advancement enactment? If either effect of the legisla- scope religion exceeds hibition of then the enactment say by power to That tive the Constitution. as circumscribed must be there Clause Establishment to withstand the strictures ad- primary neither purpose effect legislative and a a secular religion. nor

vances inhibits 1571, 858] 222, 2d 10 L. Ed. at at 83 S. [374 U. S. at Ct. Commission, Walz Tax 674, In 397 U. supra, S. Ct. Ed. 1414, 704, S. 25 L. Court 2d at Supreme test; a added third must not foster “an excessive statute with these tests entanglement religion.” objective of has been against well summarized protection “sponsorship, financial and active involvement of the sovereign support, Commission, Walz v. Tax activity.” supra, U. S. at Ct. at 25 L. Ed. 701. To 668, 90 S. 2d at use of school uphold premises religious groups must itself that instruction and this Court assure worship, all these are met. tests

For an to pass enactment the test of a secular having little more a purpose, than required reasonable legislative statement Thus, colorable announcing secular design. Kurtzman, Lemon v. 602, 609, U. Ct. S. 2109, 29 Ed. L. 2d Court (1971), Supreme found aid purpose valid secular in state statutes providing elementary secondary church-related schools teachers with therein, regard to instruction in secular matters. clearly they . the . statutes themselves state that are intended to en- . quality hance the of the secular in all education schools covered compulsory attendance no There is reason believe the laws.

legislatures anything always legitimate meant else. A State has maintaining concern for minimum standards all schools it allows operate. [Id.]

109 Lemon, 825, in Sloan v. 413 S. 899-30, Likewise U. 93 2985, S. Ct. 37 L. Ed. 943-44 2982, 939, 2d (1973), a Court found secular Parent purpose Pennsylvania’s behind Act for Education, Reimbursement Non-Public which per $75 mitted reimbursement of to who $150 and parents pay tuition for their children to attend nonpublic elementary secondary and schools. The had Legislature specifically found that who maintain “parents students in nonpublic a vital schools service” and were least provide of at deserving reimbursement partial “intoler alleviating otherwise burden.” Id. The Court finding. able deferred to this Meek v. In 421 U. Pittinger, 349, 363, 1753, S. S. Ct. 1762, 217, 230, Ed. 2d 1049, L. reh. den. 422 U. S. S. Ct. 45 L. Ed. 2d 702 2668, (1975), statute providing textbooks, for the loaning instructional materials staff to professional was found have a nonpublic schools to secular purpose. as Justice

Moreover, Brennan’s in Walz concurring opinion Commission, v. Tax supra, points out, there is a secular valid — tax purpose exemptions to nonprofit organizations religious ones. including * * * exemptions grants religious organizations [Government to be- uniquely they pluralism society cause contribute of American their activities. *(cid:127)****# nn **

They exemptions] merely [the facilitate existence of broad private, nonprofit range organizations, among them groups, by leaving existence, each free to come into then to flourish wither, being without property burdened real taxes. U. S. [397 Ct. at 25 L. Ed. 712] 2d at these

Considering precedents, we find that unequivocally N. J. S. A. pursuant 18A:20-34(a) (c) under the Board’s “Statement of ante Philosophy,” there awas secular purpose leasing school facilities. That purpose was enhance of these for the properties common benefit of the residents of East There Brunswick. was allegation no lack of faith good on the part of Thus, we the regulations. in adopting

the School Roard purposes. its stated to doubt have no reason under schemes found statutory permissible Many when have nevertheless foundered test a secular purpose effect their primary Court determined the Supreme Walter, 433 U. S. Wolman See religion. to advance v. Meeks Ed. 2d 714 2593, (1977); 53 L. Ct. 229, 97 S. Lemon, Committee supra; v. Sloan Pittinger, supra; for 756, 413 U. S. Nyquist, v. Liberty Religious Public Ed. v. Richard Tilton 948 (1973); L. Ed. 2d 2955, Ct. 37 93 S. (1971). Ed. 2d 790 29 son, 2091, L. Ct. 672, 91 S. 403 U. S. question re- to a is not whether some benefit accrues crucial The program, legislative consequence but ligious as a institution religion. primary principal advances whether or effect its 679, supra, Richardson, U. S. at 403 v. [Tilton 2096, 799] L. Ed. 2d at S. at 29 91 Ct. provide programs legislative indirect clear that not all [I]t is prohibited institution benefit to incidental 306, 312, Clauson, 72 S. Ct. S. v. 343 U. Zorach See Constitution. 614, Kurtzman, supra, 954; 91 679, 403 U. atS. Lemon v. L. Ed. 96 problems many problem, 2105, like “The Ed. 2d 745. Ct. 29 L. S. Clauson, supra, degree.” law, v. Zorach 343 is one in constitutional 679, 314, L. 954. S. 96 Ed. U. S. at Ct. Pittinger, supra, 421 U. S. [Meek 228] Ed. 2d at 44 L. S. Ct. at Tilton For in example, the Court upheld Higher Education Act 1963 insofar Facilities as it funds granted church-related colleges to for construction universities and facilities secular buildings exclusively educational However, purposes. Act provisions limiting interest in these to government’s buildings years had the effect of their sectarian allowing purposes use. thereafter were found to be of the First Amend violative ment. The indicated that “unrestricted plurality opinion of a valuable effect a some use contribution of property Ct. body.” value to U. S. Ed. 2098, 29 L. 2d at 802.

Ill The intent primary of N. J. 18A S. A. :20-34 is grant school boards wide discretion in use of school permitting when property schools are in session. The effect primary “Rules Use of East Regulations Governing Brunswick School Facilities” to benefit nonprofit com munity note groups. be naive While we would refusing the obvious in the advantages tempo young congregations use rary of school hold this premises, primarily scheme benefits would as a whole religion community be absurd. is benefitted its interest/to nonprofit when organizations members prosper.

Moreover, the not have unrestrained do use of Tilton. They valuable as was the case in property, related activities ony the facilities when school are not has not scheduled, and where organization another have already Religious groups claimed time slot. given heretofore received treatment requesting evenhanded will in the facilities and we trust that continue practice this future.

The regulations by the promulgated East Brunswick to N. J. S. pursuant A. 18A:20-34 aid (a) (c) nonprofit organizations general only and religious groups The record incidently. shows that such as the Parent- groups Association, clubs, Teacher drama Scouts, Girl Scouts, Boy Scouts, Cub Brownies, dancing, clubs, a drum square garden and bugle corps, St. Bartholomews’ basketball team, civic associations, and recreation Township have used schools. are They also used for election and for purposes health A Township Chinese testing. school uses language facilities, Thus, too. the fact that school are by also used groups does not render the regulations invalid primarily as advancing religion. Education, We also note Everson v. Bd. 330 1, 504,

U. S. 67 S. Ct. Ed. 711 (1946), L. Supreme a New upheld Jersey Court statute which provided funds for — busing students to schools including parochial schools. clauses,” “establishment exercise” and the “free Comparing the Court concluded that say standards, First Amend- Measured we cannot these pay prohibits Jersey spending funds to ment from tax-raised New general program parochial part pupils a as a bus fares of attending public pays pupils and other under it the fares helped get undoubtedly to- children It is true that schools. possibility children that some There even church schools. is compelled parents

might were not sent to the church schools if pockets pay when of their own bus out their children’s fares paid transportation been for school would have to a State. Education, supra, [Everson at 330 U. S. Bd. of 512, S. Ct. at L. 725] Ed. at how sectarian receive noting After a discussion schools short services, and other incidental the Court fire protection comment: following made course, cutting services, so Of off schools from these church function, separate indisputably marked off from the so operate. it far difficult But such would make more for the schools obviously purpose First Amendment. 725] S. Ct. at 91 L. Ed. [330 U. S. their the newer with Everson cases Although preceded nonpublic tests, busing three-part practice Thus, continues. Everson's expense children at taxpayer if actual taxpayer We conclude that result still valid. schools are per- children to bus denominational outlays incidental missible, expenses there is no question non- when used wear and tear on school property during well religious worship instructional hours as teaching other are not public expense activities myriad religion. the benefit of primarily Ed. Bd. Central School is Of further significance of of Allen, a the No. Court supra, upheld District where of textbooks secular authorizing provision New York law public in through attending children grades for all This, too, strikes us being schools. as nonpublic and with the of danger being more fraught primarily scheme bar. to than that at religion beneficial Committee supra, Public Education v. Nyquist, In Court New York insofar it invalidated statute Supreme provided for from the state to money direct grants quali- to tuition schools and fying nonpublic purported grant reimbursement to nonpublic of children parents attending schools. enjoined parents Also were tax relief provisions of Nyquist, in nonpublic However, school children. Allen, Everson, Tilton Walz were Court indicated since not differentiate sectarian distinguishable they did schools as the sole beneficiaries of aid. present litigation Allen Everson differ from the in a second

important respect. In both cases the class of beneficiaries included public children, all private those in as well as in those schools. Richardson, supra, See also Tilton v. in which aid was federal made higher learning, available to all of institutions v. Tax Walz Comm’n, supra, exemptions in which tax were accorded all to edu nonprofit agree cational and charitable institutions. We do not with suggestion grants dissent The Chief Justice that tuition analogous provide comparable to endeavor to benefits all parents public nonpublic school children whether enrolled in or Post, 801-803, 2955, schools. at 93 S. Ct. 37 L. Ed. 2d grants parents private 980. The school children are given right they addition have to send their children “totally expense.” any event, schools at state And in the ap argument proves much, provide too for it also would a basis for proving through grants complete tuition subsidization of all ground necessary on the schools that such action is if the fully equalize position parents State who elect such — wholly schools result with variance the Establishment Clause. manner Because which we have resolved the tuition issue, grant significantly religious we need not decide whether might present character statute’s beneficiaries differentiate the involving (e. from a case g., cases some form of assistance scholarships) generally regard made available without to the sec tarian-nonsectarian, public-nonpublic nature the institution benefitted. U. [413 at 782 n. 93 S. Ct. at L. Ed. 2d n. 38] at 968 114 analogous more this case is

We conclude and Everson, Nyquist is to Allen, Walz it Tilion and than by religious of public use temporary legis against afoul of the prohibition not run does groups no essentially Where religion. benefitting lation primarily received benefit a result of incurred as is expense “significantly that the not believe we do by religious groups, their preclude should of those groups character religious” other do terms as the same a benefit on such receipt e., i. class, organizations. nonprofit of the same trial to school judge’s primary objection The basis of the concerned the entanglement use excessive by religious groups East Bruns- caused government religion between He found of administrative proscribed wick scheme. degree The former involved record entanglement. and political by employees keeping scheduling pursuant The also premises. of school regulating judge storage concluded artifacts and books which were also used to house school materials closets Finally, he concluded that entanglement. poli- constituted was in that would be entanglement possible pressures tical exerted Board members in favor of by groups and opposed to this use of school facilities by religious groups. excessive test first entanglement announced Commission, Tax Walz v. supra, where Chief Justice Burger it framed as follows: excessive, continuing

Whether the involvement it whether is a calling continuing leading one official and surveillance to an im- permissible degree entanglement. 675, [397 S.U. at S. Ct. at L. 2d 705] Ed. at Walz, In Court Supreme upheld tax state exemption even religious groups it though them afforded an indirect economic benefit and occasioned some degree state involve ment. The Court reasoned that eliminating exemption would expand government’s involvement since it would other require, valuation among things, of church properties, U. S. Ct. tax liens and tax foreclosures. Ed. 70A-705. 25 L. 2d at the United case analogous This precisely entanglement. with States Court decisions Supreme dealing of direct type grant cases all involved some of Those tax or involved schools, materials or sectarian money to parents to the aid of or rebates directed specifically credits also Public Funds with children in See such institutions. for 444 F. 1228 Supp. (D. Public Schools N. v. Byrne, J. J.N. Public Public N. J. Funds Schools 1978); for er, Marburg short, F. N. In J. Supp. (D. 1973). there was some on the public purse. effect significant the East Conversely, only expense in public conceivable scheme, it, Brunswick as we have is a degree modified wear and tear school Another common factor on properties. in the federal cases was the continued charge entangle ment tend to government between would religion verge government sponsorship religion.

In Meek v. Pittinger, supra, a authoriz statutory provision ing schools to loan teachers, ma equipment and terials for special services to schools was invali parochial dated. Since the sectarian schools were not to reimburse for the system value of aid, this an expendi ture of taxpayer funds was involved. Further entanglement engendered in the continued surveillance required of the State insure that religion would not become inter twined with the secular instruction. This result was found to constitute impermissible administrative entanglement. S. 421 U. 369-372; at 95 S. Ct. at 1765-1766, 44 L. Ed. 2d at 234 — 236. The Court also found entanglement which appropriation process, entailed an annual reconsider ation the Act. The Court concluded that provides opportunities political [t]he Act thus fragmen successive along lines, principal division tation one of the evils against protect. which the Establishment Clause was intended to See 622-623, Kurtzman, Lemon v. S. U. Ct. 29 L. Ed. political potential entanglement, together 2d This 745. with the entanglement necessary administrative which would to ensure that auxiliary-services strictly personnel remain neutral and nonideo- logical functioning schools, compels when con- church-related against prohibition clusion that Act 194 violates constitutional “respecting religion.” laws an establishment of 236] 2d [421 U. S. at 95 S. Ct. at 44 L. Ed. No case distinguishable. significant The instant is of an administrative function is involved. processing application entangle by a clerk an act excessive is hardly ment. Moreover, premises inasmuch no use of school as made need of during hours, super there is no regular vision insure no secular instruc into religion seeps miniscule, tion. The of political danger fragmentation fact some are not involved. The mere appropriations persons of the schools community oppose the sectarian from en should not these groups prevent tax dollars joying benefits of the premises of their many members to construct. helped dissent, Brother Clifford’s The scene our by envisioned beseiged official harried local 134-135, of some see at post of their leases for renewal when time by dissent’s cite inapposite is Equally arrives is imaginary. Kurtzman, The for Chief Jus basis supra. from Lemon v. Lemon in fragmentation of tice fear Burger’s political U. S. at appropriations.” ". need for annual . . the The in at 762. situation L. Ed. 2d 2116, 29 91 S. Ct. whatsoever to the relationship no bears East Brunswick In Brunswick the East Burger. Justice of Chief concern long so largely pro is application a lease of granting forma time does a slot which has requested involved as the group not activities and which is school-related with not conflict more is minis nonprofit It a groups. other by filled already dissent, In his determination. discretionary terial than much, see 132-135. There post as admits Clifford Justice so much implies in record evidence is no when are not the buildings of school allocation matters has caused divi any educational regular in use siveness in East Brunswick. While Court this is well advised decisions, examine the its it is implications of war not ranted sua conceivable assuming, sponte, worst state of facts for every it encounters. problem of artifacts and in school books storage closets would seem to be a minimal accommodation by school district. It of extensive en certainly not type which was Court in tanglement Supreme condemned Meek. course, Of if it of were shown that these storage materials caused for school ma shortage space closet terials, such would interfer storage impermissible as ence with school education With groups. out such a indication these artifacts showing, are on prominent no display school is open, while there constitutional infirmity some school closet using space to store them.

Our real under the test only entanglement concern is with the premises by some lengthy these At such continuous use religious groups. point, some will Board in the surely implicate promotion religion. However, the fact that several notwithstanding congrega tions have time, used for a premises period lengthy we do intend to place strict limitation temporal use. In instance, these every have been religious groups toward the diligently striving of their procurement own houses However, and instruction. worship we with agree the sentiments expressed by Court Supreme of Florida Trustees, Southside Estates Bapt. Church Bd. supra, use of truly prolonged school facilities aby congrega tion without evidence of immediate intent construct or its own purchase would be building impermissible.8 We implication 8The dissent, post of Justice Clifford's see at 122 buildings is period that the lease of school for an indefinite of time opposed ato fixed time is tantamount ato lease for all time. This Permitting is period incorrect. the lease to run for an indefinite merely a sensible accommodation to the well-known fact that a leave area, to our able trial courts to the line in it draw this of Bruns- with the caveat that East continued leasing Reform by wick facilities from 1973 to the present time outer of reasonable Temple is bounds approaching point entanglement. nearing ¡prohibited of no case indicates intention fact of this pattern The all In on part group. permanent aon the fear schools congregations using probability, record, oral will hollow one. permanent basis be argument, religious groups indicate that past practice worship. own seek in their place to be housed actively direction, we Unless embark on a they startling change striving will continue assume such groups safely moment first practicable and save that at the grow so own. they will have their home this do not case We facts can only conclude Concededly, entanglement. a claim of excessive support no secular has use of sectarian schools no sectarian However, purpose on their there part. in- not revenues are purpose on Public the Board’s part. way in no volved; are tire secular aims of education unnecessary. inhibited; is quite and government supervision Thus, of school the use we discern no reason prohibit use indicates While such religious groups. Board respect- the part disapproval least lack of way no constitutes init groups, the activities these ing of their creed. endorsement con- fact to remember is that the most Perhaps important Clause literal the Establishment trary to the approach of historical reality, in total by plaintiff, disregard advocated has never required government Court Supreme problems routinely pur- multitude of when land is occur unforeseeable plans drawn, building chased, of a commences. construction simply The Establishment is not offended because a lease Clause circumstances, term, impracticable under a fixed which would these required.

119 In toward adopt religion.9 total posture indifference accurate, fact, a more of the requirements assessment First stance is that the governmental Amendment preferred in one Clause Note, Establishment neutrality. benevolent 74 Colum. L. Rev. Analysis Aid to Legislative Religion, 1175, 1176 n. 7 Court has echoed (1974). Supreme The this point: neutrality The course of constitutional in this area cannot be absolutely straight line; purpose rigidity well basic could defeat the provisions, religion sponsored of these be which is to insure that no favored, commanded, general principle or none none inhibited. from and all that has been said deducible the First Amendment governmentally es- Court is this: that we will tolerate either not religion. religion governmental with Short

tablished interference proscribed governmental play expressly there is room those acts productive neutrality permit joints ivill in the a benevolent sponsorship and without inter- without exercise exist ference. Commission, supra, 669, [Walz Tax U. S. at v. 397 701-702; L. Ed. 2d at Ct. at emphasis added] the most Black, vigilant for many years

Even Justice Clause, was Establishment violations of the guardian against Education, supra, v. Board In Everson never totally rigid. a New statute Jersey calling where the Court upheld and public funded of students to parochial publicly busing schools, Justice Black commented vein, Abington 9In this find we Justice Brennan’s concurrence in Schempp, supra, particularly illuminating. School District to be faith, steadfastly must The State neutral in all matters of religion. my view, government nor neither favor In cannot inhibit sponsor religious jeopardizing exercises in the schools without neutrality. hand, hostility, neutrality, On the other would temporary empty public characterize the . . denial of the building use of an . congregation place, worship whose de- has been stroyed by fire or flood. [374 902] U. S. S. Ct. L. Ed. 2d at requiring Brennan was careful to indicate that he Justice was not religious groups, government so but stressed accommodate prohibition constitutional to such accommodation. there no * * * [w]hile we mean to do not intimate that a state could not provide transportation only attending schools, to children careful, protecting Jersey against must be we the citizens of New churches, inadvertently state-established to be sure that we do not prohibit Jersey extending general New from its law benefits to state regard religious all its citizens without to their belief. 512, 16-17, Ct.

[330 724] U. 67 S. at 91 L. at S. at Ed. have chosen to read behind more We the strident ex hortations of the Court concerning famous Supreme to “wall the actual results of separation,” examine that the eases. In so there a line of decisions emerges doing, fact, In it easily but defined. anything straight Everson, em supra, that Court notable Supreme “wall of separation” language quoted phatically that Thomas Jefferson one before it exactly page holding children to parochial State bus was permissible this S. Ct. 16, 17, U. S. at schools at taxpayer expense. Justice 724. 512-513, 91 L. at Significantly, Ed. be used so is no more to power Black warned “[s]tate Id. at than it is favor them.” as to handicap religions L. Ed. 725. 67 S. Ct. at dangers none of The East Brunswick scheme entails the Con- by government of religion the establishment look at the calm When one takes a stitution seeks prevent. the dire groups, use of there religious buildings divisiveness and political of sectarian predictions sponsorship rather by plaintiff silly. seem conjured up reimburse fully who We hold that may use out-of-pocket school boards for related expenses services school facilities on a temporary basis as well We further hold as educational classes. to pay courts below erred in these sectarian groups requiring limita one-year a commercial rental rate and placing tion on their continued use of the school premises. funds not be

Subject requirement taxpayers’ for the expended benefit there is no groups, reason why these should organizations not be accorded the same treatment by government as other nonprofit groups.

Reversed.

Clifford, J., Court dissenting. Today’s opinion creates yet another fissure in the wall of between separation church and state. It so, does unmistakably and despite protestations to the contrary, by the indefinite sanctioning use of public school facilities for religious worship during non-school hours. While as a matter of there public policy is much to said for the maximum use of all segments of statute, N. society, J. S. A. 18A:20- 34, does not extend permission for such United States Constitution forbids it. Our constitutional obligation to guard excessive against involvement in governmental affairs, religious however be, the pure motive therefor may is clear. I Because see today’s decision as short falling I obligation, dissent.

I As recites, the Brunswick Court’s the East Town- opinion ship Board of scrutiny Education’s rental under program here provides for the leasing public during school facilities non-school hours to various as as religious well organizations to other social, civic, recreational non-profit and charitable groups. Under the Board, established the procedures qualified association to use school seeking the submits an application local school adminis- directly to a trator. The applicant required the intended use specify of the as well facility the anticipated as duration. of the principal school, local the guided by regulations adopted by Board, the routinely grants long such as requests as stated use the conflict with .does school scheduling. While rental varies charge the to the according activity conducted, there being is no it is dispute substantially than the fair less rental value of such facilities. Likewise bemay dispute requisite application

is there no that while the monthly, annual or indefinite weekly, submitted for use on case the involved in the basis, present all of bodies an use indefinite applications requesting submitted facilities. in religious organizations program

Pursuant this Lutheran Evangelical this case began (Nativity Church), and Brunswick Church), Baptist (East school facilities Brunswick) East (Reform Temple leasing iof majority for set forth opinion. the various purposes or included, one other both respect These with for Sunday Churches, of classrooms two well as of instruction, and services meeting. weeknight prayer classroom on a space limited bibles, artifacts, hymnals, including Various religious in a closet or cabinet cross, a wooden with a were stored pulpit noteworthy It is the area utilized. adjoining being initial leasing Lutheran Church’s Nativity Evangelical duration was intended be of indefinite premises It renewals. no longer therafter approved yearly Board the case of the Likewise in uses school facilities. towas the initial application East Brunswick Church Baptist was treated an it period; rent the facilities for “indefinite” Board as for use for one by the request space year and granted; approved yearly until renewals thereafter Church its own purchased the Reform building community. regards Temple, As it elementary rented virtually entire school building instruction for five hours on a gymnasium Sundays; for and services social Friday on gatherings evenings; five classrooms for Hebrew and instruction language and Tuesday Thursday articles used evenings. Religious were also stored at In initial these activities the school. its the to use application Temple the facilities for sought the indefinite Board has period renewed the Temple’s on a the basis. At time of the commence- application yearly ment of this the had an Temple litigation option purchase

123 site also architect, and had retained an building but as of the time of oral the had argument building been yet We completed. informed that the after Temple, utilizing school facilities for some years, recently five discontinued other but that using public premises school purpose, church Brunswick are still those using East facilities.1

Plaintiff, a taxpayer Brunswick, East filed suit Chancery Division aforementioned the seeking enjoin use of public school facilities on and constitutional statutory grounds. Specifically, he Board lacked asserted that the N. J. under S. A. 18A:20-34 authority (permissible uses of such public facilities) permit and, more itself importantly, practice violated federal state constitutions.

trial court held that while the Board statutory lacked under N. J. A. authority S. 18A:20-34 to use of permit public schools religious groups services, worship Sunday school and Hebrew instruction were permissible East uses under statute. Resnick v. Brunswick Township Education, Board N. J. 135 261-62 Super. 257, (Ch. However, 1975). since did not religious organizations fully reimburse Board for the out-of-pocket expenses facilities, incurred as result of their use of expendi ture of meet public funds to these costs was held to violate though might 1Even the matter be considered moot because none religious organizations litigation participated of the who in this presently facilities, agree uses I with it the Court appropriate to reach merits in the instant In case. view importance attached to resolution of the issues the like giving litiga lihood recurrence of the circumstances rise to this tion, properly proceed See, g., the case is allowed to to decision. e. Kennedy Hospital Heston, 576, F. John Memorial N. 58 J. 579 ; Levine, (1971) 363-64, appeal dismissed, 351, Busik v. N. J. (1973) ; 414 U. S. L. 2d Dunellen Ct. Ed. Association, Education v. Dunellen Education 64 N. J. (1973). prohibition against public Jersey

the New constitutional at N. Super, J. in of support religion. expenditures I,Art. 3. 268; J. Const. see N. (1947), ¶ renting public further that The trial court held on an rate to religious reduced facilities Amend- Fourteenth the First and violated basis indefinite since Constitution ments to the United States state, program entanglement ad- and [t]he involves between church by entanglement keeping scheduling and de- in ministrative the record political subjecting employees, entanglement fendant board’s pres- officials, members, to the demands and defendant board’s elected opposing approve religious them to bodies and those sures disapprove religious for school facilities. leases use of Super, 268.] N. J. [135 court entanglement problems these Notwithstanding gave the enjoin practice declined the rental for continued submit a days proposal within would fixed time as use of facilities for such periods ac- secure alternative bodies to enable affected religious instruction. religious commodations for services and religious Board provided submitted subsequently The proposal could continue to use organizations for education and for one services the fair rental value year they pay the condition well as actual out-of-pocket expenses facilities as addition, use. In incurred as result of such no religious The artifacts were to stored proposal school. final embodied the trial court’s slightly modified order.2 Division affirmed Appellate substantially

reasons court. Resnick v. East trial Brunswick given plaintiff cross-appeal 2Beeause filed no order, from this final propriety provisions issue presented. of its is not I would however, emphasize, nothing opinion in this should im be read to approval ply use, year, the continued for one of school facilities services. Education, 144 N. J. Township Super. (App. of Div. 1976).

The in majority, Division, the approves reversing Appellate the continued of artifacts and holds: storing [R]eligious groups fully related out- who' school boards for reimburse of-pocket expenses temporary basis for use school on a facilities hold services as further well as educational classes. We pay requiring the courts below erred in these sectarian placing one-year limitation commercial rental and rate in premises. their continued use of the school added).] (emphasis [Ante at 120 The Court position, effect, thus takes mere payment by religious bodies "related out-of-pocket cures the expenses” somehow constitutional defects presented indefinite school facilities for religious I think it worship religious instruction. does not.3

II Before the constitutional issues the Board’s implicated by addressed, rental program initial must determination be made as to whether a local has authority school board school permit public facilities to used worship and religious instruction. As a general proposition of a powers are limited municipality to those granted expressly by necessary or fair implication of state legis G., E. Ringlieb lation. Parsippany-Troy Hills Township, 59 N. J. 351-52 McQuillin, see also 2 (1971); Munic 10.09 at 754-60 ipal Corporations ed. (3rd. The 1966). § board, of a local a fortiori, powers are similarly question validity program applied 3There is no as to the of the as non-profit non-sectarian, organizations utilizing to the the facilities. any applied finding program religious groups Thus W the utilizing viability is infirm the facilities would not affect of the non-profit applied remaining organizations. program as to the Westwood, Botkin v. 52 N. J. See, e.g., Super. limited. dismissed, 28 N. J. 218 (1958). 427 (App. Div.), appeal uses applicable concerning permissible statute A. N. J. S. hours, non-school during 18A:20-34, provides pertinent part: may, pursuant any The board to rules of education of district therein, adopted it, permit any the use of schoolhouse and rooms district, grounds property in use and the other when purposes: any following purposes, for school receiving assembly purpose giving persons a. The for the arts, learning, education, in- or the instruction branch floriculture; horticulture, cluding agriculture, and of the science meetings holding social, civic, The of such and recreational c. may approved by purposes be other as entertainments and such 4" * board; Board rules adopted Pursuant to this enactment “any of facilities by the rental its regulations permitting is in nature” non-profit which East Brunswick organization cultural “activities of an educational and whose and/or * * * community.” imple- As are of benefit nature permitted religious mented the associations lease involved in the case to the facilities for present pur- instruction of The religious religious services. poses then, issue, is one of statutory construction, threshold namely, A. N. J. S. 18A:20-34 whether authorizes the use of public of purposes instruction and religious school facilities services. religious I with the Court of sub- agree language

While is sufficiently the statute broad comprehend section of (a) well tenets as as the Hebrew instruction case, in the the use of involved present language authorized religious worship N. A. 18A:20-34(a) (c). (a) J. S. Subsection under such, and, activities as to instructional refers generally worship read to comprehend cannot be fairly case, this devoid they being admittedly services involved purpose. Subsection pedagogical (c) provides hours school facilities be used non-school during civic, for “such and enter- social, and recreational meetings such other as may approved by tainments and purposes the board.” in the course (Emphasis added.) majority, sub- services authorized under holding section (c), emphasized language expansively interprets as a local board discretion” in “wide affording determining uses school facilities. Ante at 99. permissible That interpretation disregards con- principles statutory settled and, struction in so circumvents the presumed doing, A. intent of the N. J. 18A:20- enacting legislature 34(c).

Under traditional canons of statutory construction where general statutory follows language specific describing words a legal subject, general “the words are to embrace construed only objects similar in nature those objects enumerated words.” specific 2-A Sutherland, Statutory Construc tion 47.17 (Sands 1973); ed. see also Villanova § Musicians, v. American Federation 123 N. J. Super. 57, 59 certif. (App. Div.), 63 N. den., J. 504 This (1973). of ejusdem sensible generis, doctrine invoked only when the meaning is, unclear, statutory language here, harmonize attempts to the apparent between incompatibility the specific general a statutory in language manner which the most legislature likely intended. As to applied the present statutory case authorization for services religious be J. may derived from N. S. A. if reli 18A:20-34(c) only services deemed to be similar in gious “social, nature to civic, and recreational and entertainments.” meetings While a the majority spins beguiling semantical web in reasoning services religious share common the characteristics permissible uses, these enumerated the assemblage per sons to a worship deity offering to established according exercises and rituals is different in plainly Moreover, nature. majority’s expansive the interpretation “such other uses the

as the board” renders by superfluous approved thereby uses subsection (c), enumerated in specifically has the that a ignoring recognized legislature presumption not used a statute. See drafting words superfluous Sutherland, at 103. swpra, 47.17 § since N. J. S. A. 18A:20-34 does au- not

Consequently, re- implication thorize or fair expressly holding ligious services school facilities non-school during hours, I below would the courts agree with activity. lacked the to such authority permit Ill N. A. 18A:20- I of view J. S. But even were worship to permit authorizes the Board 34(c) religious overturn, on I would nevertheless facilities, as the rental program ap- federal constitutional grounds, both re- plied including these religious organizations, instruction.4 ligious worship Amendment, applicable clauses of the First religion Amendment, provide the States the Fourteenth through "shall make no law establish- that government respecting thereof.” ment of the free exercise religion, prohibiting concludes, rental Since, as likewise majority pub- lic involved in the school facilities groups ante free exercise implicate question, ease did present then, issue, is whether this violated practice clause. establishment of a the "establishment religion,”

The prohibition against for individual straggle colonial out of a protracted growing aversion varying societal reflects religion, freedom intrusions into religious governmental noncoercive types applied program chal- as also rental 4The (1947), grounds. J. Art. N. Const. lenged See constitutional on state contrary applied program to the I, as estab- Inasmuch ¶ 4. constitution, however, the state con- federal clause lishment not he reached. need issue stitutional funda- establishment clause are two freedom. Underlying mental social concerns: by eschewing governmental (1) of voluntarism all the furtherance religion beliefs; (2) influence association with neutrality by avoiding all manifestations of

maintenance official religion religion preference for over another or for one over secular- ism. Analysis [Note, Legislative Establishment Clause Religion, 1175, Aid to 74 Colum. L. Administrative Rev. (1974).]

In the establishment requires clause application govern ment its adopt posture “neutrality” relations with See, Education, e. Everson v. g., religious groups. 330 U. S. Ct. 1, 15-16, 504, 511, 91 L. Ed. 711, 733 S. Over the the rather (1947). requirement years amorphous governmental has been neutrality expanded into the fol test be lowing three-part used whether determining an enactment or runs practice afoul of establishment clause: must have a ,(1) prin it secular legislative purpose; (3) cipal effect of the must be one primary practice inhibits neither advances nor it must religion; (3) with foster religion. excessive governmental entanglement Walter, 2598-99, 2593, S. Ct. Wolman v. 433 U. Grove Schaad v. Ocean L. Ed. 2d 724-25 (1977); Association, 72 N. J. 252 (1977). Camp Meeting of rent- test, practice the Board’s three-part Under this in- religious groups facilities ing in- rental must fair value than the less definite duration re- whether threshold determine examined to itially — pur- secular have the rental program quirement — that the dispute pur- there no Since is satisfied. pose utiliza- optimum before us program underlying pose non-school hours during tion of public secular purpose community, within diverse thereby met. requirement

As however, modified the this rental by majority, pro- serious constitutional raises under the second gram problems test, of the a prong three-part since effect is to con- primary fer on any benefits association significant religious utilizing the facilities. Under the view majority’s such need group reimburse the for the only out-of-pocket “related ex- incurred. Ante at 120. penses” Included are the expenses utility, administrative heating, janitorial costs would incurred not be but the use of the facilities. This nominal “rental fee” is less than the significantly — — rental $.75 value area hour per of the facilities. Hence it is that the apparent Board’s of not the policy assessing fair rental value of or religious the allowed these facilities ganizations realize substantial financial Por savings. instance, the Reform saved Temple $2600 approximately annually by not the fair rental value. Such being assessed governmental while doubtless motivated largesse, con cern for the of all well-being non-profit associations within nevertheless community, has the undeniable effect of a significant conferring economic upon benefit particular — association5 evil precisely the which the estab lishment clause seeks to prevent. aside from

Completely financial conferring benefit, use of extensive public school facilities for majority, holding program applied 5The in the course that as impermissible advancing religion, does not have the effect states question expenses there is no incidental of wear and tear property during when used non-instructional hours for religious worship teaching myriad as well as a ac- other public expense primarily tivities are not a for the benefit of re- ligion. [Ante 112.] misperceives analysis inquiry required This the second tier three-part of the establishment clause Under second test. tier the program impact perspective of the must be examined from the program, taxpayers not from who tmefioiaries the facilities. finance worship instruction affords reli- bodies gious otherwise unavailable forum for ex- their tenets. pounding That the use of services over worship any substantial allows ac- period cess to a audience greater cannot doubted. More im- portantly, however, the extent and duration use has of such effect, the inevitable some, least in the of plac- minds of ing imprimatur government upon religion gen- Indeed, eral.

that some such continuous use will point, im- surely “[a]t plicate the Board in promotion the of religion.” Ante at 117. In view my point that was surely reached in the pres- ent ease.

Thus, the as conferred program applied benefits both tangible and the intangible upon religious organizations the utilizing a This over sub- premises. practice stantial period had the undeniable effect of reli- advancing gion to contrary the Yet the majority, establishment clause. while benefitted these bodies were conceding not by the rental is contends that the program, program re- be may benefits whatever infirm since constitutionally Ante program. ceived effect of the an incidental simply aid an in- is to at 111. the effect primary It reasons that organiza- community pluralistic non-profit ternally group of this rationale unstated, tions. Although apparent the is while direct rental position effect the program be not to benefit applied may religion, program overturned under second tier the three-part estab- clause unless the is primary test effect to advance lishment Since on face benefits religion. program its the com- whole, as a so the munity its effect is argument goes, not to advance impermissibly religion. Court, just that. The Supreme effect

But I think the & Religious Liberty Education v. Public in Committee for 2955, S. Ct. 37 L. Ed. 2d 948 756, S. 93 413 U. Nyquist, adhere attempt such rejected rigidly expressly (1973), 132 part literal second the three tier of meaning

test: Appellees, focusing- primary “principal or term effect” prong expressing three- has second this Court utilized in 612, part e.g., Kurtzman, 602, test, Ct. at S. Lemon S. 91 v. 403 U. 2105, argued 745, (1971), 2111, Court L. Ed. have 29 2d. 755 “primary” New York’s effect of must decide these cases whether promote religion program these grant or to tuition is to subsidize dissenting opinion objectives. legitimate Mr. Justice White’s secular 987], similarly 2998, 823, 2d L. Ed. at [413 Ct. S. at S. U. judgment.” suggests today fails to make this “ultimate Court that the possible judgments metaphysical are either do think that such We not support simply a law necessary. the notion that do or Our cases legitimate promote un “primary” end some found to have effect power police immune examination der the State’s fur from ad immediate the direct it also has whether effect ascertain vancing religion. 2971, L. S. Ed. [413 Ct. U. at 785 n. S. added).] 39, (emphasis

2d at 969 n. issue of In the delicate whether governmental analyzing ad has the impermissible- effect program enactment an in cautioned religion, wisely against the Court vancing establishment clause three-part flexible interpretation observa test, Burger’s back to Chief Justice harking sage Kurtzman, 91 S. Ct. tion Lemon U. L. : 2105, 2112, 29 Ed. 2d (1971) analysis “legalistic pre- not [Constitutional is minuet in which * * govern.” Instead “the form of re- cise rules and forms the light lationship examined] for the it [must be casts on the sub- stance.” 790-91, Ct. U. S. at 93 S. [413 L. 2d 972.] Ed. Thus, under the called for in approach Nyquist, even if the effect rental primary of the is program it legitimate, of may nevertheless run afoul the if -establishment clause direct and immediate effect the program is to advance Tribe, See L. American religion. Constitutional Law 14- § 9 at In present the (1978). case a direct effect of the rental program applied to afford the associations in question a highly visible forum for their reli advancing gious tenets aat nominal an for indefinite price On period. this basis alone the program should be declared unconstitu — tional inasmuch as it had in this case hence con and tinues to have, with respect any operation future the — program, the potential for an effect of impermissible religion. advancing

This is failure of the pro- result buttressed the rental by gram to the final of the test satisfy component three-part — en- whether practice the fosters governmental excessive in- tanglement affairs. there must be Plainly volved not insubstantial amount record keeping frequent communications the employees between Board the bodies sched- using concerning like. uling Moreover, future by permitting any users to various store artifacts and assorted para- phernalia on the school premises, employees will be order forced exercise to ensure supervision safety the items and avoid of the artifacts. open display In en- addition, political entanglement potential an in- school facilities gendered the rental of on definite mani- is period equally basis or substantial fest. The adopted pro- rules and the Board regulations vide has of the broad discretion principal or an In theory princi- granting rejecting application. pal is guided by the rules and policies, regulations Board in or If an these granting application. guide- denying lines are disposition detailed to aid in the sufficiently of an then Schools application, Superintendent either or the Board itself to make upon called the determination. In a local any event, official, within presumably well-known community, given discretionary authority significant or grant deny application. an placed on such pressures political decision not only official the necessity arise out whether also on deny whether to but application grant another favored treatment over body one religious afford the same facility arise should conflict by applicants seeking divisive at Whether this potential political the same time. level of constitutional lines rises to the ness along religious In the is, course, present of question degree. infirmity in on an case use the religious organizations use, per However, definite basis. since indefinite renewals involve yearly mitted program, may official upon exerted application, pressure political con recurring be a other handling any applications community opposition sideration. Although not suf would rates public facilities reduced rental at cannot use, a court ficient, such a alone, to prevent standing along divisiveness ignore potential political treatment lines beneficent by this engendered ongoing Beach Union v. Huntington bodies. Johnson See District, 43, 1, Rptr. Cal. School 68 Cal. 3d High App. Ct. 877, 434 U. S. 98 S. cert. den. 1977), 50-51 (Ct. App. along 54 L. Ed. divisiveness 2d (1977) (potential a Bible club implicated study using public lines school facilities the school “cannot be day ignored” during As Chief clause Justice analysis). establishment has out: pointed Burger Ordinarily political vigorous division, debate however even

partisan, healthy are normal and our manifestations democratic system government, political along religious but lines was division principal against evils was in- First Amendment one protect. tended Kurtzman, supra, U. S. at [Lemon 761.] L. Ed. 2d at 91 S. Ct. fa- rental so I

And conclude rates for a sub- reduced organizations cilities to religious or di- has only primary or indefinite stantial duration but also in general, advances religion rect effect which in religious entanglement fosters excessive governmental test for de- three-part under Consequently, affairs. termining runs afoul of whether action governmental clause, establishment the rental as program modified by the is, in majority view, my respectful unconstitutional. Southside Estates -by Nor undercut is this conclusion Trustees, Church Board 115 So. Baptist 2d (Sup. Ct. of Elorida Supreme Fla. Court held 1959), where that the use of temporary school for facilities did not violate the federal worship constitutional prohibition against establishment of religion. Significantly, court added this caveat: permitted buildings prolonged [I]f use of were

periods time, absent an immediate intention on the evidence part building, of the Church construct its it could to own we think hardly contemplated system property its employed any particular permanent promotion could be in the sect or denomination. 700.] 2d at [115 So. use of school facilities Estates, then, Under Southside with the establish- religious worship cannot be reconciled ment clause if there is immediate use no is prolonged intention on its of the to construct body the part own used the facility. Here all the religious organizations on an basis, indefinite up years to seven duration two years instances in the That such use is other. type Estates prolonged referred to Southside cannot be doubted. While the takes the majority position that the second of Southside Estates is requirement satisfied since “every single Brunswick religious group using East schools has actively pursued to build its plans own house of worship”, 7,1 ante 107 n. hesitate so adopt indulgent record, view light be, it sparse though indicating the pursuit of building plans anything but “active.” Eive to seven is a years leisurely pace, best. event, In any Southside Estates is not persuasive authority for either position since, as noted, it was decided long before the formulation of the currently applicable three-part establishment clause test.

IY is unquestion the rental program In summary, although organiza non-sectarian charitable ably valid applied as them, its tions to continue and should be permitted statutory afoul of both runs application not been given The Board has constitutional law. of N. to the under J. A. 18A:20-34 permit S. authority assuming Even for public religious worship. school facilities fails withstand such to the rental authority, program result the While the clause. scrutiny under establishment for harsh, necessity vigilant upon be looked separation of the of requirement enforcement constitutional here, where, as of acute church and state particularly is worship of into houses school are transformed a basis. noted non-school As regular hours during Justice Frankfurter: Separation separation, something means not less. Jefferson’s metaphor describing speaks relation between Church State separation,” easily overstepped. of of of “wall not line fine democracy symbol is at once of our most and the pervasive activity promoting destiny. for In means our common of no keep the State is it more to out divisive than in its vital forces school, confusing, say fusing, avoid to what Constitution sought strictly apart. principle keep great “The of American — n — separation” phrase repetition Root’s one eternal Elihu bears is system assuring of the vital reliances our Constitutional of stronger among people our unities our than diversities. It duty principle integrity. full Court’s to enforce this its Education, 231, 203, [McCollum v. Board 333 U. 68 S. 461, 475, 649, (Frank (1948) S. Ct. 92 Ed. L. furter, concurring).] J.

I would affirm judgment Division. Appellate Judge Contoed joins this opinion. P. J. D. (temporarily A. assigned), dissenting.

Conford, I join Justice Clifford’s these dissenting opinion and add comments. affirm vote here I would an appellant

If were plaintiff to the extent only Division of the Appellate the judgment I of Education and that it rejected appeal .Board it extent to the to reverse that judgment would vote buildings use of public approved provisional instruction purposes worship even of time. In period my judg- limited to fixed though ment maintained buildings, use of built and publicly schools, for the anti- especially public purposes stated between principle separation thetical the fundamental in both the federal and State church and state embedded constitutions.

We are not confronted here with like debat anything able or secularism of questions argued neutrality purpose which have Wolman v. troubled courts in such cases as Walter, 433 229, 2593, U. S. 97 S. Ct. 53 L. Ed. 2d 714 Kurtzman, Lemon (1977); 2105, v. U. S. S. Ct. Allen, 29 L. ; 2d 745 Ed. Education (1971) 392 U. S. Ct. 20 L. Ed. 2d 1060 (1968); Education, and Everson v. Board S. 1, 330 U. 67 S. Ct. L. 504, 91 Ed. 711 Here we the raw have undis (1946). sembled over of turning publicly erected and maintained public for buildings purposes of straight religious worship instruction. authors of the Establishment Clause did not strive merely assure that authorities would public fair exact compensation use of public buildings therein, conduct religious exercises but rather any to erase vestige sponsorship in religious practices such buildings. It is particularly to countenance opprobrious violation of in schools where separatism public children are taught the basics of our respect democracy, including funda mental principle.

Here, as was said Supreme the situation Court Education, presented McCollum v. Board 333 U. S. “* * * 203, 212, 68 S. Ct. 92 L. Ed. 649 (1948), the state’s tax-supported used buildings [are] doctrines”; further, the dissemination of religious “* ** First a state with the consistently cannot system utilize

Fourteenth Amendments its dissemina to aid or all faiths or sects * * id. at 68 Ct. tion of their and ideals doctrines what the Court view, at 465. This is precisely, my here. I dissent. sañctioning Hughes

For reversal —Chief Justice and Justices Sulli- van, Pashman, Schreiber and Handler —5.

For Clifford and Judge Conford —-2. affirmance—Justice CASHEN, PAUL CASHEN AND IRENE PLAINTIFFS-RESPON DENTS, SPANN, v. FRANK ROBERT BICKLEY AND JOHN DUNNE, DEFENDANTS-APPELLANTS. Argued May 8, July 19, 1978 Decided 1978. concedes much when notes majority it

Case Details

Case Name: Resnick v. East Brunswick Township Board of Education

Court Name: Supreme Court of New Jersey

Date Published: Jul 11, 1978

Citation: 389 A.2d 944

Court Abbreviation: N.J.