Schaad v. Ocean Grove Camp Meeting Ass'n of United Methodist Church

SCHAAD, INDIVIDUALLY, E. AND ROBERT OCEAN GROVE SERVICE, CORPORATION, A NEWS PLAINTIFFS-RESPONDENTS, NEW JERSEY v. OCEAN CAMP GROVE THE OF METHODIST MEETING ASSOCIATION UNITED COLE, CHURCH AND KENT A. OF POLICE OF CHIEF THE OCEAN GROVE CAMP MEETING ASSOCIATION OF CHURCH, THE UNITED METHODIST DEFENDANTS-AP PELLANTS, AND WILBUR DINEGAR AND JEAN DINE GAR, DEFENDANTS. Argued Reargued April 6, October 1975— February Decided Arnold MyteTka Mr. C. Mr. K. argued Clapp Alfred at- Clapp Eisenberg, (Messrs. the cause for appellants Mr. counsel; Clapp Myieika Mr. Mr. Clapp and torneys; on the briefs). D. Farren for respondents.

Mr. Michael the cause argued Slcillman, ar- General, Mr. Assistant Attorney Stephen of New (Mr. curiae Jersey amicus State cause gued at- of New Hyland, Attorney Jersey, William F. General Lalcind, ; counsel; Mr. Arnold Deputy Mr. Slcillman of torney General, brief). on the Attorney of on behalf Sager Mr. Theodore Meth submitted brief of Christ amicus curiae National Council of Churches Meth, Wood, at- Cooper, (Messrs. the U. S. A. Neff . torneys) by of court delivered

The the opinion D., The prin- P. J. A. temporarily assigned. Confokd, litigation plaintiffs-respondents in this adversaries cipal E. Schaad and his held closely Robert small corporation, hand, Grove on the one Service,1 Ocean News and the de- Ocean fendant-appellant Camp Grove Association Meeting Methodist Church2 “Ocean Grove” (hereafter of the United seen, will the latter on the other. As “defendant”), exercises, statute, of certain by police licensing force Since similar to those of powers municipality. regulatory involved, enforcement of its the of two ordinances is police defendant, Grove of a nominal police chief party two as were Ocean Grove residents who precipitated under the ordinances by complaints against litigation filing have from the Schaad. These withdrawn complainants pro- ceedings. in support amicus curiae joined General as Attorney of Sun- constitutionality ordinances prohibiting they activities, asserting certain other

day driving and power came within of the legitimate police exercise amicus, of Churches Another the National Council the State. to brief the U.S.A., propo- of Christ was permitted freedom sition that the constitutional principle validity ordinances. supports from his ordinances arise Plaintiff’s violations news- Sunday hundred copies several delivery regular truck, Saturday late by beginning Grove in Ocean papers on the hours early morning terminating night by are not obtainable of those newspapers Most Sunday. on Satur- midnight until near from publisher Schaad for some had been pursued of conduct This course day. and operator owner service news by predecessor years in 1972. The the business purchased whom Schaad plaintiffs collectively as “Schaad” refer hereinafter 1 We “plaintiff”. Legislature originally chartered name association’s 2 The Episco Camp Meeting Methodist Association was Ocean Grove change was authorized pal c. name 157. The Church. a. P. L. motor and the of the distribution of newspapers operation vehicle in the course thereof contravened the ordinances which had and effect of purpose prohibiting question time on activity any Sundays.3 such him of under against filing complaints Subsequent ordinances, an in lieu such action of plaintiff brought pre- writs of attack asserting grounds upon various rogative of the ordinances of statutes validity enabling relief of or- injunctive enforcement seeking against dinances. motions for summary judgment,

On cross the trial court plaintiff. court found that granted judgment of an newspaper Sundays deliveries prohibition infringement unconstitutional the freedom the press Sunday and that ban was violation of the driving Amendment of due Fourteenth The court guaranty process. statute, also declared the N. J. A. enabling 40:97-1 et a law seq., to be the establishment of respecting religion 30, adopted April 20, 1928, effect, provides 3 Ordinance still part: in relevant * * * * * * * * * any person [I]t 1. shall unlawful for * *" !h * * * any drive an or other vehicle in street automobile upon day week, day commonly Grove the first * * Sunday, called *. * * * Any person any provisions who shall violate * * * securing permit this ordinance without first to do prohibited, upon shall, conviction, all of the acts above forfeit and * * n pay a fine *. 73-2, adopted April 27, 1973, provides pertinent part: Ordinance WHEREAS, provide it is deemed advisable to for and to main- quiet geographical tain the historic Sabbath within the limit of Ocean Grove as established of the Ocean founders Grove Camp Meeting Association, traditionally and as observed over the years by the inhabitants of Ocean Grove: following prohibited geo- Section '1. The shall be within the * * graphical Sunday limits of Ocean Grove on *: ,r** n * * riding vehicles, A. The all *. * * selling delivering newspapers B. The *. * * * Any person violating any provisions Section 2. * * * shall, upon conviction, pay this ordinance a fine or be im- * * * prisoned imprisonment. or both fine and in violation of the Eirst' Amendment with result that the dependent ordinances were "without any effect.” force or court granted stay its judgment stay is (which still extant) that, upon condition plain- pending appeal, tiff would be permitted to conduct his as there- business tofore notwithstanding ordinances.

Ocean judgment appeal Grove and the appealed Division, here by our direct certification to the Appellate R. 68 N. J. where it was unheard. 2:12-1. pending both Ocean the substance' and (1975). challenges Grove trial decision in not scope invalidating court the two the statute under whose only but also ordinances authority adopted. were they court, we appeal

After initial this argument t he the cause for of the record and amplification remanded as the issue an fact to whether findings: supplementary (cid:127) against had defendant effective to shield estoppel arisen - - from enforcement- of the ordinances. plaintiff Thereupon .a the trial court conducted there was hearing, concluded for an and re-affirmed estoppel no basis its dis previous evidence, On of the cause. .the we have no reason position with the and conclusions disagree findings trial!.court’s on the and we estopp'el,. therefore -question proceed issues examination of involved the -initial disposition.

I Before considering legal the stat questions regarding and ordinances We utes before us first outline the relevant s facts. Schaad the new service in Oc purchased business 1972 from a predecessor- tober who had it operated undis turbed for 13 years, the abbreviated making Sunday morning truck. He deliveries without "practice .continued objection incident or until police the formal complaints were filed in It does not that August appear Ordinance prohibition against Sunday ever driving'had been enforced with' vehicular regard of Sun- delivery'

day newspapers. Actually, Sunday the early delivery had been made to the Ocean Grove Headquarters, among Police others.

When purchased Schaad agreed business was $12,000 $850 seller the total would price remain in escrow and be over the seller if paid Schaad’s were operations Ocean for a stopped by year, Grove otherwise to be returned to the buyer.4 manager”, time Grove had “business

At Prank director”, a Mr. after 1974 an “executive known commenced months after Schaad Two Henson. three con if he permitted asked Henson would he business wrote As Schaad Sunday requested, tinue his deliveries. would Sunday that his deliveries a letter Henson explaining a.m”; this was necessary 2:15 that until “about only be were and customers; many elderly of them serve that his continue; wished service and it upon all his depended upon these Sun depended survival of his business that be taken to observe and would every care day deliveries The letter was dis Sunday community. of quiet committee” of Ocean Henson with the “business cussed no ever one had and since it was established Grove, ac took no deliveries the committee about the complained 16, 1973 their continuance. On February tion to prohibit follows: Schaad as wrote Henson Camp Meeting of the Ocean Grove Asso- Business Committee The January you impressed your letter of 15 in which was ciation newspaper delivery problems your method and of at- reviewed your They appreciated clear thereto. concise manner tendant morning is, course, Sunday presentation. of a matter service grateful early completion your they for an will be concern ¤ * * Saturday nite route. good your urges its wishes for success and extends The committee you pattern you have established. to continue the adjustment provision as indication of is an accurate 4 This not impact ordinance would on Schaad. that enforcement have destroyed. business The shows that his would record committee” business acts as an execu- apparently tive committee, representative trustees, of the who are vested with the aof responsibility body statute. governing by the

But necessary not to consider whether Henson letter “written may be considered as the con- permission” templated Ordinance more soon thereafter comprehensive and restrictive 73-2 Ordinance adopted, and it of no Later admitted com- exceptions. the instant plaints Schaad, were ac- against filed he this brought tion to his vindicate continue right the deliveries.

Our determination will rest on our con- appeal clusion that the enforcement of Ocean Grove’s regulations here in question, activities, consti- applied plaintiff’s tutes an impermissible interference freedom press. facts, Certain additional sub- some which are the ject notice, are to that Ocean judicial relevant issue. Grove has an area of about a half mile situated square and is on the resort adjacent community Atlantic Ocean to.the Asbury resort, Park. Grove a summer itself is growing 18,000- from an of aboirt to about all-year population 20,000 in summer. Sun- newspapers While sold on days an affidavit offered neighboring municipalities, on behalf of walk opinion Ocean Grove that the expresses any point Ocean Grove to nearest such [news- minutes”, outlet “does exceed ten it is well known paper] that a substantial proportion permanent residents them, middle and it is evident that aged elderly, many of weather, in- inclement find it especially probably would difficult to obtain without such a home Sunday newspapers service as delivery plaintiff’s.

II initial Plaintiff’s contention is that the ordinances constitute an unreasonable interference with his to con right business, duct a lawful within N. Good such decisions as J. Humor, Beach, Inc. N. L. Bradley v. 124 J. 162 & A. (E. v. and Iannella J. 1940), Piscataway Township, Eq. 138 N. 246 598, 600 Schmidt v. Newark Bd. 1946); see (Ch. 405, 9 N.

Adjustment, right J. 415-416 (1952). business, conduct a lawful however, is sub commonly held ject reasonable ordinances. such police-power Ordinarily, streets, N. J. powers extend of the use of the regulation Newark, S. A. 134, 1, Pivnick v. 14 N. J. 137- Super. 40:97 — 138 Div. and to ac (Law 1951), Sunday certain proscribing tivities. In latter if they case such ordinances are upheld have the secular purpose effect protecting people from the burdens of work continued for uninterruptedly Harrison, seven Inc. v. days Guys more. See Two from Furman, 199, N. Inc. v. J. 228 Masters-Jersey, (1960); Paramus, 296, N. N. J. S. A. 2A:171- (1960); 5.8 et in the instant seq. Sunday prohibitions Although ordinances are with the undoubtedly associated purposes which fostered the creation of the Ocean Grove Association, the mere fact that Camp etc. Meeting from legitimate police-power policy uninterrupted (surcease with the views of the labor) coincides sectarian association regulation will not suffice to strike down the on establish Harrison, Guys See Two ment-of-religion grounds.. Furman, Inc. v. N. J. at McGowan supra (32 214-216); 433-434, 366 U. S. Maryland, 2d (1961). Ed. Thus, were these not voidable for undue regulations circulation of we interference free the press, might have due- difficulty striking regulations solely of unreasonable interference with the con- process grounds In circumstances, lawful business. we need duct of this question decision pursue purposes case.

Ill need not be The free issue raised press plaintiff than the requirements examined in context any broader right Plaintiff not seek the de the case before us. does or later on Sunday, liver hours during daylight papers 247 than 2:30 on and it Sunday, would therefore be in a.m. here to appropriate explore the of Ocean validity Grove’s regu — — in lations free press terms relation to the prohibition of Sunday deliveries newspaper early Sunday beyond hours essential to State plaintiff’s v. morning operations. Cf. Zimmelman, 279, J. 62 N. 287 v. Camarco (1973); City of 61 N. 463, Orange, The thus nar (1972). question whether, rows to due deference to Ocean Grove’s according decision to forbid sale public-policy or distribution news insofar papers as the remainder of the 24 hours of the Sab bath concerned, it is an undue restriction press prohibit delivery Sunday Saturday papers midnight 2:30 when is that Sunday papers the result those a.m. will in this probably community not be delivered homes re an affirmative question all. We believe this requires sponse. an “inci Grove its ordinance is only argues assertedly

dental burdening press”, permitted Ct. Branzburg 665, 682-683, v. S. Hayes, 408 U. S.

33 L. Ed. of the com 2d the comfort (1972), time munity requires the regulation during Struthers, Martin be distributed. newspapers may U. S. L. Ed. 1313 (1943).

The cited cases do First, not sustain this argument. Branzburg case, which mentions “incidental burdening press”, involved claim a First Amendment privi- lege aby when newspaper reporter testify ordered before a grand jury. reporter agreed not to names divulge persons interviewed return for information but grand jury the names as demanded well information not appearing In newspaper. the reporter’s dealing claim that the press would be thwarted its function of news on controversial if he obtaining topics and other re- were porters divulge forced to such information before a adverted grand jury, court to the “incidental burden” mentioned above. Clearly the total ban the sale or

248 of found Sunday Ordinance 73-2 newspapers distribution an is more than incidental burden. Btrwbhers, v. with a supra, city Marlin dealt

Secondly, canvassing. solicitation or ordinance door-to-door prohibiting and of the First The. be a violation ordinance was held to there state the court did Fourteenth Amendments. While of require regulation community may the comfort of the literature, 319 U. S. of manner of distribution time and IB, does 73-2, Section 63 143, 862, Ordinance and sale prohibits but effect merely to purport regulate, Moreover, plain entirely. of Sunday newspapers distribution doors when knock on solicit, not seek to canvass tiff does al have for the papers The orders he delivers his papers. desires of to the he merely acceding ready been placed ordered papers. residents who have Jackson, 24 L. 727, 733, 96 U. S. In Matter Since Ed. of circulating “liberty been settled 877 has (1878), of publish as liberty to the freedom is as essential [press] would circulation, publication without ing; indeed Griffin, Lovell v. 303 U. S. value.” See also of little be Thus an or 666, L. Ed. 949 444, 452, (1958). 58 S. Ct. IB, 73-2, which, prohibited Section like Ordinance dinance literature, down un as struck any the distribution of Ibid. constitutional. a fundamental is of course press Freedom of — one successful liberty upon

personal right largely depends. our processes conduct of democratic * * * attempt [A]ny justified to restrict those liberties must be * * public clear interest *. Collins, Thomas v. 323 U. S. 315, 322, 65 S. Ct. L. Moreover, Ed. (1945). where there is a charge legislative the First abridgement Amendment courts are rights, required carefully circum “weigh stances and to appraise the reasons ad substantiality vanced in support of regulation the free enjoyment 147, 161, 308 U. S. Irvington, Schneider v. rights.” S. Ct. 151, 84 Ed. 155 (1939). snch otherwise legitimate police power goals,

Accordingly, use of the rest and Sunday quietude regulation stifle streets, broadly means that “cannot be pursued more nar fundamental the end can when personal liberty Tucher, S. 479, U. achieved.” rowly Shelton Cf. 81 S. Ct. 247, 252, 5 L. Ed. 2d 231 (1960).

As was earlier, peace noted any disturbance extent of to the will be tranquility plaintiff only 2-1/2 — a.m. His hours 2:30 custo to every Sunday midnight un there is no delivers; mers order the he therefore papers Rowan be let alone”. wanted intrusion “their to upon right S. Ct. 728, 736, S. 90 United States Post 397 U. Office, v. ordinance, drawn 1484, 1490, 25 Ed. 2d 736 (1970). the acceptable in terms of a crosses complete prohibition, and manner of time, line of a reasonable “regulation place Struthers, 141, U. S. v. 319 supra, distribution” (Martin an 143, 862, 863, 1313), S. Ct. 87 L. Ed. and becomes Amend First plaintiff’s unreasonable infringement upon tq “evil when to the compared ment freedom of the press 530, Collins, U. S. be curbed”. Thomas supra (323 L. Ed. S. Ct. 430). In free present relation to the Sunday aspect of another court be inhibition, may observations press v. Mc Pulitzer Co. Publishing In pertinent. peculiarly Nichols, 1915), S. W. court (Mo. Sup. stated: press humanity great rendering performed is

Tlie service the is Sunday day upon Monday any week, on as well as other latter, potent its beneficence more former than on the on the simple toiling to read for the reason that masses have more time ** upon day papers Sunday *. on than other on free therefore 73-2 invalid press We hold Ordinance of plain- but the extent of its grounds, only prohibition Sundays. a.m. on tiff’s deliveries truck until 2:30 present By the token, same Ordinance which prohibits the driv- ing parking automobiles or other motor vehicles within extent, Grove on Sunday, must, to the same limited an deemed invalid infringement .freedom of press.

IY The trial for court chose to enjoin plaintiff’s prosecution violation of the ordinances on the of un premise only constitutional to exercise abridgement plaintiff’s rights freedom of the but press, also on the that total (1) ground prohibition on of vehicles is invalid “as driving Sunday an overly broad exercise of the police power” and (2) that N. J. A. sweeping 40:97-1 et ruling seq., statutory grant power associations camp formed meeting to provide meeting grounds religious purposes, adopt ordinances, police-power was violative of the establishment- of-religion clause of the First Amendment of the United States Constitution.

As to the first mentioned, added of decision ground we regard holding unnecessary inappropriate this case. Plaintiff does not seek to drive his vehicle on Sun days except the limited extent indicated. Relief already afforded him an amply order that he by drive his may vehicle for purposes distribution of papers from midnight to 2:30 a.m. on Sunday. in validity ordinance its more expansive be aspect may determined if it is enforced one against other times on a driving and such en Sunday forcement is challenged.

The observations in the prior or paragraph might also be dinarily applicable the trial court’s invalida tion of the statutes vesting limited in municipal powers camp associations meeting constitutional-religious It is grounds. so obvious as not to require citations that an court need not appellate decide a case on ad every ground vanced by successful court, or held litigant by trial when will less sustain the A judgment. special applica e., tion of this is the principle so-called “rule of i. necessity”, on constitutional grounds that the resolution of controversies Barnett, See is' to be avoided where possible. generally Ground Decision Constitutional Upon Of Judicial “Avoidance Ground”, Another Be Based Upon When Decision Can of Constitu “Avoidance Note, L. Rev. Ore. 201 (1949); Rev. 427 Colum. Cases”, 48 L. tional Issues in Civil Rights Authority, Valley v. Tennessee see Ashwander And (1948). Ed. 688 288, 347, (1936). 56 S. Ct. 297 U. Chief opinion by an early expression The rule received circuit bench: he was on the Justice Marshall while sitting questions brought judicial greater No can be before a tribunal of delicacy constitutionality legisla than those which involve the aof they indispensably case, necessary If tive act. become them; may court must meet and hut if the determined case decide just points, respect legislature requires on other for the that unnecessarily obligations wantonly of its laws should not be parte Randolph, pp. (No. 11,558) Ex assailed. F. Cas. (C. 1833). D.C. Va.

It us, seems to to the rule of foregoing analogy necessity, where there is more than one con potential stitutional basis for invalidation a restriction based upon a statute and ordinance, here, should, a dependent as a court lean toward ratio decidendi ordinarily, judgment which will save as much of the and ordinance or of statute of their and rest its in range application, possible, validation thereof on the narrowest basis with re consistent lief to the successful suitor. Such principle judicial deference have legislation particularly apropos would been here when the extraneous issue entertained trial court involved the total destruction a community’s statutory powers continuously back, exercised and governing dating century. over a part, therefore, think it was a we mistaken

Although, discretion for trial have judical exercise court case, entered issue upon particular with it on we to deal its merits for two rea have decided First, three members this partially dissenting sons. chosen to Court have their express held view earnestly that the statutes indeed invalid are on establishment grounds. Second, a published has, decision of court since county of this pendency appeal, purported invalidate the court of Ocean on municipal Grove the same broad grounds.5 It therefore as in impresses interest, us in general us peculiar circumstances, these for lay rest this ques- tion of considerable public importance notwithstanding fact our of the relief affirmance awarded plaintiff below would have free-press grounds rendered it unnecessary. accept

We trial court premise of the that the criteria Kurtzman, for set forth validity in Lemon 403 U. S. 602, 612-613, 91 Ct. 2105, 2111, 29 L. Ed. 2d (1971), be here applied those to determine whether the Ocean Grove is consistent with the enabling legislation Establishment clause: may gleaned First, Three such tests from our cases. statute legislative purpose; second, principal pri- must have a secular its mary religion, effect must be one that neither advances nor inhibits * ** ; finally, government “an statute must not foster excessive

entanglement religion.” However, the underlying decisions of United States Supreme Court from Lemon has distilled the three criteria stated make foregoing excerpt plain careful and detailéd analysis of the factual weighing circumstances in which the arose and questioned legislation Celmer, Super. (Cty. 1976). 5 State v. N. We here position holding legislative take no On the strict Oelmer that vesting power camp as-, municipal meeting to establish a court religious origin soeiations of is in violation of the Establishment power century police clause. Such a was not contained in the 19th power legislation scrutiny granted under here but was the amend ment of N. J. S. A. 40:97-4 contained c. § P. power court, granted by latter-day amendment, create may distinguishable subject original well be from the matter of the legislation light rationale, developed herein, in the later sustaining validity of the earlier statutes.

253 now operates for requisite proper adjudication as validity. We discern the ultimate benchmark to be whether the legislation than fosters impermissibly religion rather serves secular purposes with only incidental relation to re or ligion religious interests or organizations. Giannella, Cf. “Beligious Liberty, Nonestablishment, and Doctrinal De velopment: Part II. The Nonestablishment Principle”, Harv. L. Rev. 513, 515, 517-518, 532-533 (1968). The opinion of trial court in respect of this issue is obviously lacking such factual analysis addressed to Lemon criteria.

The first two of the Lemon criteria can above quoted be dealt with conveniently will be from together. They seen the discussion hereinafter to be obviously offended under legislation examination. shall We scrutinize legislation presently. Examined of the light history birth and early Grove, of Ocean development will evident be that the statutes had “secular pur legislative pose” giving governing body camp meeting association the authority adopt for the regulations good order, proper physical health and development general welfare new These community. are not purposes whit less secular in nature than if they had been given a conventional municipal same governing body. By the token, or “principal effect” of primary the enabling will legislation be found to be parallel to its “secular pur pose”. powers observed, as will given, were rudimentary police powers any community had to be vouchsafed, new an especially one in area isolated sprung up unimproved in the 1870’s, disorder, lands to prevent lay streets, out provide other sewage and health fa cilities, regulate and tradesmen, license etc. None of these powers, enumerated in the enabling had or legislation, have effect toward advancing much inhibiting religion, less a “principal effect” in primary either of those direc tions. Walz case of in the establishment Burger Justice

Chief 90 Ct. Commission, 675-676, U. S. Tax v. tax exemption (validity Ed. 2d 697 (1970) Justice noted dictum quoted aptly property), church Eisner, U. S. York Trust Co. New Holmes “a page (1921), 65 L. Ed. 506, 507, 349, 41 S. here. indeed, So, of logic”. a volume is worth history headed clergymen Methodist In 1869 a band of small a long capped Earmingdale William B. Osborn Rev. meeting camp an to establish place for agreeable search 260 acres which the by choosing near the ocean grounds mainly The was then of Ocean Grove.6 site now nucleus the one trees, only family a and and grove sand dunes Gibbons, Ocean Grove History there. four lived people and project the purchased 9-11. was (1939), property The were incor organizers adherents. The attracted quickly 157, as the Ocean Grove charter, L. c. porated by Association of the Methodist Camp Meeting Episcopal To maintain the special Church. character of place the the all adopted policy association title to retaining lands, streets, walks, and and parks public places public Residents, buildings. many originally living (there tents some tent for a of the dwellers) only are still and part summer, were sold for 99 years, leaseholds renewable- at a annual fixed sum down and stated perpetuity, ground Sanders, L. rental. Ocean Grove Asso. v. 68 N. J. 631 See Reeves, Ocean 1903); Ct. Grove (Sup. Camp Meeting N. J. 80 N. J. L. 464 (Sup. (E. aff’d 1910), & A. 1911). 6 Camp meetings have been described as revivals of the ancient practice Suecoth, of the Feast of for

Hebrew Tabernacles named camping grounds leaving Israelites after the first Rameses departure Egypt. Perspectives McMahon, Brewer and their (1969) camp meetings Ocean 1869—1969 Grove The first in Amer Kentucky. They through in 1799 in ica were held have been scattered England during intervening out the United States and period’, principally century. in the nineteenth Ibid. and physical development population growth was relatively rapid Grove contrasted with inhabited of much undeveloped sparsely character territory proximity Gibbons, with it. cit. op. close supra, 9. In circumstances, these with no p. local existing gov- ernmental available, structure not surprising should basic Legislature grant rudimentary police gov- ernmental Trustees of powers Meeting the new Camp for Association their new community.7 governance The 1870 charter created association a “body, corporate and politic”. Section to con- gave power Trustees struct all provide works the said necessary to supply with “water and premises artificial and to light provide all other conveniences and make all other improvements be deemed Section 4 might necessary or desirable”. created of 26 Trustees and governing body provided officers be selected from them. among granted Section power by-laws needed, enforce such pass might to the and laws of repugnant constitutions the State or the United States. Section accorded authority such officers should appoint péace as be necessary deemed for the on purpose order keeping grounds camp of the premises corporation; and which officers would pos- sess same and power which and authority constables other officers peace possessed, particularly the “to en- power force obedience grounds said and rule premises any or of said for the regulation Trustees preservation of quiet order.” and good

In the a succeeding decade series of legislative enact- ments was passed expanding powers of camp meeting camp meeting incorporated 7 Other Methodist associations were during period, granted govern the same and were similar limited powers. incorporated mental least At one still survives was Camp Meeting as the Association of the Newark Conference of the Episcopal 185, p. 484, Methodist L. Church. c. and maintains community County. called Mount Tabor in Morris seaside the reli- (not qualified by associations and resorts L. 1878, S. organizations). p. (C. character gious works; L. drainage p. with and sewerage dealt 355) of boats, with trucks and 358) licensing S. (C. kinds; L. S. p. (C. of all and vehicles commercial sale and restraint of with the 358) licensing, regulating of liquors. and basic were consoli rudimentary powers former 1894 into a general power and expanded police

dated association or other meeting to “any camp applicable statute under the heretofore or hereafter incorporated corporation of providing religious for purpose laws this state or ground camp meeting body society permanent * * 1894, c. 90 (N. service place necessary A. et not here to detail It seq.). 40:97-1 is nine in the specified regulatory police powers all the essential those They generally of the statute. sections health welfare of order, of good to the maintenance authority included the specifically municipality small ordinances under which the use streets regulate (“to prescribe in this case were adopted in contention ** * in which such and manner streets terms, fix times * * *” 1.). Section used may be at that what point It emphasized should in establishment terms validity here issue is the the matter above, local government outlined structure of terms, of any par- or other in establishment validity, such by that adopted government ticular regulation controversy.8 to this law which rise gave Sunday closing regulation adopted by ordinance or If any particular above, Sunday closing laws ordinances are defensible 8 As noted religious origin; see McGowan terms even where in establishment supra (366 1101, Maryland, 6 L. Ed. 2d U. 81 S. Ct. v. Harrison, Furman, (32 Guys supra 393) ; Inc. N. J. Two 214-216). is The discussion such cases relevant to the estab case, pursued fully more issue in this is lishment infra. reason, is Grove trustees invalid for relief any should had by exscinding regulation, down the striking whole structure of local if government valid. otherwise

Relevant Lemon criteria as to whether the gov- ernmental scheme described above had a “secular” legisla- tive and not a purpose “primary or effect” which principal “advances is religion” geographical sociological set- aof ting community likely the latter of the 19th part a century to be religious camp association. meeting Plainly a such congregation would be settled over a area of large land, hundreds or housing thousands of for weeks people at a months time. The logistic and re- order-maintenance of such a quirements community would be to be apt peculiar itself, not by shared a area larger in com- having nothing mon with it but territorial contiguity.

This quality uniqueness requirements exemplified Ocean Grove itself. by This enclave about one-half square water; is surrounded on three sides mile the ocean east, and Fletcher and lakes on the Wesley south north. There is no road area. The through traversing nearest road inter-municipal (Main Street) is Route Ocean Grove on the west. The Neptune Township, skirting land, of all the moreover, lots of are lessees or the occupants of lessees heirs who their interests assignees acquired abide under the rules the association. agreements There is no indication resident at any complaint by any over the character of regulatory community.9 time change government 9Although form an internal movement effect, borough to that c. in a statute resulted closing regulatory preserved Sunday features of the scheme act municipal special legislation. McCran held invalid as The statute 1921). community (E. Grove, A. N. L. 158 & v. Ocean prior legislation. operated under ever since has government and the customs and form of tradi- its distinct Under century grown up in the course of there has have which tions way spiritual unique developed within a of life in Ocean Grove many has been resorted to thousands and cultural enclave h.v repute regard people generations. Ocean Grove’s over the Ocean being Grove thus tucked geographically away as a bordering Neptune whole, Township had having distinct separate development, and see community supra, and the land entirety owned being camp meeting association devoted to of its exclusively the purposes adherents, it in a secu- functionally was appropriate purely lar sense to in primary vest the association. police powers viewed,

Thus secular of the purpose Legislature nature the conferring powers associations upon Grove, would at application least to question, appear beyond question. difficulty refuting

There should be no greater was notion or principal that the legislation’s primary effect It effect religion. primary advance is obvious of the was to create a mechanism for basic local regulation out, How the were be how sewers community. laid streets licensed, how were created, how merchants were to be in a of no all maintained, consequence was were order to be of the religion advancement sense. The mutual their product Grove was residents of Ocean beliefs, police of the kind function devotion to their in the board repose saw fit to powers Legislature asso- meeting incidental the camp trustees. What benefit any, if in its religious aspect, ciation derived therefrom secular purpose incidental to the permissibly has re- Court Supreme theAs United States legislation. State “Neutrality what is cently required. stated: is advance neither objectives, must itself to secular confine Jersey Department of Environmental Pro The New is nationwide. Register planning National Ocean Grove tection nominate Speakers Auditorium Historic the Ocean Grove have Places. at Roosevelt, Grant, Garfield, McKinley, Theodore included Presidents many persons. Gibbons, distinguished other Taft Wilson Galli-Curci, supra, Performing op. artists cit. 54-57. like Mme. Schumann-I-Ieink, Damrosch, Caruso, Mme. Emma Enrico Walter Plomer, Gluck, Pryor, Bispham, Eames, David Alma Louise Arthur Spalding, all Fritz Kreisler and Mischa Elman were heard Albert McMahon, op. supra, Brewer and cit. at 27-28. there. Roemer v. Public Maryland activity”. nor impede religious Bd., 736, 747, U. S. S. Ct. Works how Ed. In further (1976). explication, 2d “* * * ever, the v. Board court said: Everson [Everson Education, 91 L. 1, 504, 330 S. 67 Ct. Ed. 711 (1947)] U. S. Allen, 236, and Allen Education U. S. [Board of S. Ct. L. Ed. 1923, 20 ar 2d 1060 to rest (1968)] put that gument way State act in such a never may has the incidental activity”, effect of facilitating religious Roemer, 747, (emphasis U. S. at added). supra, S. Ct. 49 L. Ed. Everson valid 2d at 188. held state for for of children program parents compensating bus schools. transportation school, including parochial Allen loan State validated the of secular text-books by the on elementary equal to public terms church-related schools. of in conclusion the trial herein that the court statutes

question re “were in to advance specifically enacted order ligion” is based court upon non-sequitur. The transparent said that because the corporations associations and given in police were powers described in statute as those “for corporated body of purpose providing any religious or society with a permanent camp meeting place ground service”, N. 40:97-1, J. S. A. therefore in them of vesting police was for the power pur regulations pose of religion. This course secular ignores advancing nature the powers op conferred and the manifold secular erations of such societies for the land-owning facilitation of which the powers were conferred. As well might one aver that the broad spectrum legislation collected under Revised Title “Corporations Associations, Statutes. Religious”, aspect of the every regulating incorporation, governance, and control of properties religious organizations, and dealing separately many specific by name, churches e. N. g., J. S. A. 16:2-1 et seq. (Baptist Seventh-Day Baptist ; N. J. S. A. et Churches) seq. 16:3-1 (Church Christ, N. J. S. A. Scientist): 16:5-1 Lutheran (Evangelical N. Church); A. S. 16:6-3 etc. (Free Methodist Church), constitutes a series of violations of the Establishment clause because having purpose advancing interests of those churches.10

The case perhaps most relevant to the contention that statutes here involved have an invidious primary effect of advancing is McGowan v. religion Maryland, supra (366 U. 81 S. Ct. L.6 Ed. In that 393). 2d case employees of a department store who were sell convicted of ing articles on Maryland violation of statutes Sunday such prohibiting that the Sun activity Sunday contended day closing laws that state were clearly religious origin and that their enforcement them violated the Estab against lishment clause. The court conceded that there much evidence of religious inspiration purpose inception legislation, only Maryland but throughout colonies, 431-433, American U. S. at 81 S. Ct. 1101. But demonstrated modern times such legislation came the enjoy widespread public for its approbation goes beyond and 10 The concurrence dissent of Justice Pashman appellant qualifications single religious contention of out the camp meeting of for a trustee association charter as office clause, demonstrating citing of a violation the Establishment Torcaso Watkins, 488, 1680, (1961) S. Ct. Ed. 2d 367 U. S. 81 6 L. read, Torcaso, However, properly imposition (p. 280). held the of requirement notary religious public for a oath office of violated Religion clause, Free Exercise of not Establishment clause. 496, U. S. at S. It also See 367 Ct. 1680. noted that an oath office of the federal for violates constitution. 367 test U. S. Article present complains, at 81 S. Ct. 1680. No in the case one being religious Torcaso. that he is denied oflice of his did because obviously standing Plaintiff beliefs. would have no to make a such claim. Moreover, question of is irrelevant to the. this tack of the dissent alidity involved, J.N. S. A. 40:97 — 1 of basic statutes here inv impose religious quali legislation seq. other does this ct Nowlu-re camp meeting of kind of associa of trustees for officers fications Bylaws designated force of therein. ordinances have the tions and laws of this with the constitution not "when inconsistent law S. A.40:97-6. N. state.” — of quality affording society a secular benefit that of a of a “making Sunday rest, when day day people re may cover from the of labors the week passed just may physically mentally week’s work prepare come.” 366 U. S. at 81 S. Ct. at 1110. The court ra its tionalized validation of the as follows: statutes present purpose provide effect most of them is to a uni day citizens; day Sunday, form of rest for all fact that is a day particular significance sects, for the dominant Christian does goals. achieving say bar the State from its secular To that prescribe Sunday day purposes States cannot as a rest for these solely genesis ago because centuries such laws had their reli gion give interpretation hostility would constitutional to the public separation welfare rather than one mere church and State. 366 U. S. S. at Ct. at 1115. In in that case Justice Frankfurter concurring observed that the fact were legislators’ purposes 468-469, was irrelevant. U. Ct. 81 S. 1101. He said, moreover, that “not regulation some whose every practical effects facilitate the may observance of religion its adherents requirement affronts the of church-state separa tion.” 366 U. S. at 81 S. at 1157.

This essentially court has laws upheld Sunday closing the McGowan a decision secularity rationale of although Harrison, Inc. v. Fur Two Guys case. preceding man, supra, 32 N. J. at 215-216. In required terms of the the fore- judicial weighing, authorities, of intent and effect which is going legislative seen whether a bene- to be implicit process deciding fit to the incidental rather than the religion only primary effect of has secular principal objectives, statute we consider the settled validity Sunday closing the laws constitute support validity fortiori instant Even courts validating Sunday legislation. laws that are as they facilitating concede regarded widely Sunday cessation of labor and that worship McGowan, further such ends. See they substantially supra, statutes, The passim. instant whose and effect plain purpose are health, safety welfare of regulate general tenants, have, association and its the con camp meeting functional if with only connection, remotest trary, any, stated within rationale They peculiarly religion. * “* * Frankfurter, Justice in McGowan: concurring that a once it is determined statute supportable is challenged as other substantial interests than the pro implementing belief, 'es motion guarantee prohibiting religious 466, 81 is 366 U. S. at S. Ct. at 1157. tablishment’ satisfied.” Commission, Walz Tax S. supra (397 U. also See uni L. Ed. which sustained the 697), 90 Ct. 2d S. as tax for churches exemption of property practice versal clause, notwithstanding of the Establishment not violative of re of financial support its characteristic major obvious by government. ligion three third of the consideration of the now pass

We fosters legislation Lemon whether the criteria: questioned with religion”. ''an government entanglement excessive clearly it Ct. at 2111. We believe 612-613, U. at 91 S. criterion renders The formulation of the very does not. “en mere regard not Court does Supreme obvious that the compliance with given of government religion, tanglement” fatal as the Lemon so criteria, long with the first two is “excessive”. not entanglement Bur- Chief first surfaced in Justice test entanglement Commission, supra. Tax The court in Walz v. g'r’s opinion said: Determining legislative purpose exemption tax is not that sponsoring, supporting religion establishing, does not aimed inquiry, result must the end end however. We also sure be

— — entanglement government is an excessive the effect not degree, (emphasis added). inescapably religion. The test one of S. Ct. at 397 U. S. at stated, hardly the criterion seems to differ

As thus e., second, i. effect primary the principal White Indeed, Justices advance or inhibit religion. 263 Rehnquist regard entanglement criterion serving Roemer no legitimate purpose. Maryland Public Works Bd., 426 at 767-770, U. S. supra, 2355-2356, S. Ct. at 49 L. Ed. at 200-201. In event, 2d any the discussions of in Walz that criterion both and Lemon appear to suggest it comes into if play involves questioned statute substantial requires government surveillance of a re institution, nature, of a ligious particularly continuous Lemon, 403 at 615, 617, 619-620; U. S. 2105; 91 S. Ct. Roemer, supra, 426 U. S. at 761-767, 96 Ct. at 2352- Ed. 2d at 196-199. Another earmark of ex entanglement cessive is the of the State tendency activity Lemon, toward “divisive political potential”, 403 U. S. 2105; Roemer, 622; 91 S. Ct. at U. S. at 2353, 49 L. Ed. S. Ct. at 2d at In regard is whether State activity creates a inquiry “danger * * * Id., fragmentation ‘[p]olitical religious lines’”. 426 U. S. at S. Ct. 49 L. Ed. 2d at 198. in far discussion the cases So as the cited any affords what meant by as to “excessive insight entanglement”, to be the case at present none hand. No sur- appears nature is by veillance the State in required respect — the camp meeting association cer- powers granted administrative surveillance no of its tainly any phase — found Lemon. activities as was to be religious the case Nor has of limited regulatory grant powers camp associations been attended by any meeting degree political “divisiveness” or “fragmentation” lines. We along political are not aware that governmental of Ocean drove powers have ever been the subject conflicts political partisan To lines.11 along religious contrary, the administration community seems to have been attended at all times acceptance, even general public serenity, and admiration dispute government 11 The local over form of 1920 was 9, supra, reference to issues. See note and Justice Pash concurring dissenting opinion (pp. 283-285). man’s of Monmouth County and the State people above, noted the New Jersey as whole. As Department Protection Environmental is to planning nominate the Grove National Historic Places. Register to sum, there no factual for trial In is basis court de- the en- before us foster termination that the statutes excessive — of the State not religion certainly tanglement by decisions of the United States explicated sense the above. Court in reference to that Supreme concept discussed are, course, appear We unaware that may not there to something in the of even limited anomalous vesting in a governmental whether re powers private organization, ligious or otherwise. But there have been instances analogous of it. In Humane Soc. U. S. v. N. J. State Fish and Coun., Game 70 N. J. 565 court as (1976), sustained on against challenges equal due protection process which grounds legislation excludes appointment Pish and Game Council any person by recommended either State Agricultural Jersey Convention or the New State Federation of Sportsmen’s Clubs. We there that said “Even delegation of legislative authority to private parties withstand may constitutional if challenge sufficient safe guards exist an prevent arbitrary concentration of power persons groups motivated N. J. self-interest.” 70 at 579.

We do not view express here undertake settled as to the scheme validity statutory before us aspects other than violation clause, Establishment that only is trial embraced court this argued by plaintiff on We phase of the observe no appeal. only that there is patent offensiveness on other constitutional grounds us, motion, should move on our own and without argument, down Ocean Grove’s statutory strike form of government. rejected court trial contention these plaintiff’s that constitute invalid special legislation, statutes and plaintiff does not renew argument that before us. It may be pointed out that this and various other alleged defects in stat- these utes, that “attach a they test including to municipal franchises”, rejected were former summarily by Court of Meeting in Percello v. Errors and Ocean Grove Appeals Camp so., N.2 J. Misc. 124 aff’d o. b. in 100 (Sup. Ct.), As N. J. L. 407 & A. (E. 1924). A consideration in transcending validity passing upon of this century-old scheme, which governmental survives State, aware, so far as today we only this Tabor,12 association at Mount that camp meeting of a presumption validity long-existent legislative Arbour, In In Loch plan or re 25 N. J. 258 arrangement. State, was a that (1957), there its re- charge through that wished to quirement villages incorporate hold election special purpose, at- unconstitutionally internal tempting regulate the affairs of municipality. court upheld validity noted, This of legislation and J. at 25 N. 264-265: approaching problem this, always recognize In a such as courts a

strong presumption constitutionality ; of doubts are resolved in favor conformity organic law, of if and the statute under attack constructions, admits of two of will one render it invalid and valid, interpretation sustaining constitutionality the other will adopted. given concepts Added force is to these basic the fur policy a ther of our law not invalidate statute which has been in challenge many years, tvithout substantial its unless uncon force for stitutionality Union, is obvious. Brown’s Estate v. Town 62 J.N. of (Sup. 1898) ; Pendlebury, 245, L. 142 Ct. O’Banner v. 107 N. J. L. (E. 1931) ; Corp. Slapo, 459, 247 & A. Gibraltar Factors N. 23 (1957). (emphasis added). 463 Joas, This view was restated in State v. 34 N. J.

186-187 and fundamental (1961), to our jurisprudence.

In particular application sup as long acquiescence porting an establishment governmental practice against Commission, attack, Tax Chief Justice in Walz v. Burger, supra, noted the of church age-old acceptance exemption 7, supra. in

12 Noted note

266 397 from taxation as U. S. at

property proper. 90 1404. He then Holmes’ dictum aptly Justice quoted Co., 22, 31, Jackman v. Rosenbaum 260 43 U. S. S. Ct. 67 L. Ed. 107 (1922), “If a thing practised has been years consent, for two common will hundred need case for Fourteenth Amendment strong to affect it.” U. 90 S. at S. Ct. of the presumption validity camp meeting from association stand legislation constitutional-religious from point, arising long public acceptance acquiescence therein, should not be affected that our by any supposition against State constitutional prefer interdictions ences narrower than the arc federal Establishment clause. In this regard, note should be taken of the opinion Clay Kervick, ton v. N. case, J. 523 (1950). pur That to contrast the porting State and federal pro constitutional visions as to 4 of only I, mentioned Art. sec. religion, Constitution, re prohibiting the establishment of one sect to another ligious preference test any religious aas However, office. Id. qualification public at 528. section of the same article preserves individual right of freedom of worship immunity attending supporting any place These worship ministry. sections were substantially same corresponding of the Constitution provisions and of Article Constitution 1776. In our judgment, letter of these spirit New Jersey constitutional provisions, together, taken substantially in the same purpose, and effect as the tent religious guaranties First always Amendment and have been probably regarded as in v. such State. See Everson Board Education of of 351, Ewing 350, 133 N. J. L. Twp., 366-367 & A. (E. 1945), 504, aff’d 330 67 Ct. 91 1, U. S. L. Ed. 711 (1947); Tudor v. Board Education Rutherford, 14 N. J. cf. of of 44-45 cert. sub nom. 31, (1953), den. Internat’l Gideons Tudor, 816, 25, 99 L. U. S. S. Ct. Ed. 644 (1954). And our constitutional compare provisos two with religion of the Establish intent and purpose the of summary the Education, Board Everson v. in forth clause set ment of 504). 67 S. Ct. 15-16, at U. S. supra (330 Establishment the that the Thus, fact notwithstanding via States, the binding upon as has been regarded clause 1940 decision Amendment, since the only Fourteenth the Connecticut, 60 S. 310 U. S. Cantwell v. this State before in anyone Ed. failure the Association, supra, Meeting Camp v. Ocean Grove Percello in of the validity the concerning raise a issue religious Con or the federal State under either the stant legislation, the so, warrants Percello to do since stitution, anyone or of in the validity of its strong presumption invocation of the here debated. respect the Percello, attack upon a broadside

In there was supra, Meet- Camp Ocean Grove of the powers statutory regulatory Supreme former was the Association which described ing : 125) N. Misc. at (2 follows as opinion Court’s respecting special law as a statute is unconstitutional That granting township, Neptune and as also internal affairs of corporation, association, private camp meeting certain exclusive as a powers police delegation privileges; is, effect, that it association; purports test mu- private that to attach a camp meeting nicipal franchises; associa- that the classification original assigned illusory. charter are that reasons tions is Other powers; licensing that no conferred association municipal powers; township Neptune cor- that two has exclusive time; space porations occupy same same cannot at incorporated; territory charter never called Ocean Grove any attempt repealed to restrict and that 1870 was powers township Neptune municipal unconstitutional added). (emphasis void. basically, objections being, these as court summarized not a class legitimate associations are “that camp meeting pur- to which legislation of municipalities respect can be enacted.” municipal legislation to be general porting with the N. J. Misc. 125-126. The court then dealt 126-127): follows N. J. Misc. at argument (2 so, strange invalidity If this it seems that the and unconsti tutionality legislation affecting camp meeting of associations as a They by class have not been discovered before. have been treated legislature municipal legislation many years, the as a in class for fact, just Comp. p. in Stat., since after the constitution of 1875. giving powers camp In etc. ing 1878 there was an act license to meet (Comp. Stat., p. 358), including associations hucksters and peddlers provisions. of merchandise and This act was attacked in Camp Meeting of v. Association, case Grover the Grove N. J. L. any question but it is noticeable that the attack was not based on special legislation solely of powers and went to the body liquor in licenses, contained of the act in relation to and ground point; this on the that of title act did not cover that Later, and this was what the court decided. came an act regard licensing camp meeting of vehicles associations. Comp. Stat., p. act, In 1894 there was enacted another con ferring powers government managers camp certain on the meet ing associations, (Comp. p. 365) Stat., of which section 8 it provided every trustees, managers that such board directors or power authority make, shall have full establish and enforce regulating granting fixing ordinances all licenses and fees paid which, by any to be therefor laws of this now in state force passed, they may authority grant, or hereafter have and to fix prescribe penalties ordinances, for violation of such This &c. Camp act was considered in the Slocum v. this court case of Meet ing Association, 110; and, again, N. J. L. is noticeable that question substantially only question discussed was whether (o power delegate magistrate the association could fix a fine requiring for the infraction an ordinance license to fruit. sell part There seems have been no hint on the of either counsel or the court that itself was an infraction of the statute constitution. So municipal far relates to the status of Ocean Grove as a corporation, go quote language we need no further than to present Grove, Chief Justice McCran v. Ocean 96 N. J. L. corporation by where it was said that its charter was consti body corporate politic. tuted a proposition As an abstract we think there is little or no merit in the attack on the constitutional status of the act now under con sideration. But if even we were inclined to think it somewhat vulner regard, pari able changed materia, the existence of other acts in un period nearly fifty years, clearly should turn the support. scale in favor of its Butler v. Commonwealth Tobacco Company, Eq. 423; Roofing 74 N. Company J. Commonwealth Riccio, Eq. 486, 489, N. and cases cited. The foregoing is set out excerpt not to refute length se the merits of the trial per court opinion in respect violation alleged clause, the Establishment we since the only realize that raised' religious question by the plain- tiff in Percello one a was narrow of test to “religious the franchises”. But the Percello court’s municipal general approach to the effect of the years acceptance of by bench, the bar and of fostering the public presumption here of attacked both validity legislation there and now years is fortified of another 50 by yet the passage without legislation of on challenge establishment other Percello. grounds since

Eor the reasons stated we that sound presump- conclude tion of our validity determination undergirds independent from the ex- facts and the of law constitutional principles plicated that court of the land Ocean Grove’s highest statutory exercised ordi- police powers, by adoption nances ease, involved in this do the Establishment not offend clause of the Eirst Amendment.

There no fur- apparent likelihood that the occasion for ther such legislation, or for the of the existing application new legislation associations, to camp will' arise meeting the future. This association community are practically unique today’s society, truly before case us is sui generis. In case, the Walz court supra, the referred to the “eminently sensible and realistic lan- of the application guage case, Establishment Everson Clause” in the supra, where state aid for the transportation parochial school pupils 397 U. upheld. S. at 90 S. Ct. here,

So too, viewed sensibly realistically, the govern- ment of community this no threat whatsoever presents constitutional and salutary principle government absten- tion from sponsorship support of religion. the Law Division is modified and judgment entry

cause is remanded for of modified judgment, defendants, appropriate against restraints that on declaring of undue interference with a free press grounds defendants may enforce either Ordinance 30 or Ordinance 73-2 activity in delivering respect plaintiff’s newspapers Saturday 2:30 a.m. midnight in Ocean Grove truck Sunday. costs.

No I only. in result J., concurring agree Sullivan, delivery on the Sunday restrictions attempted Grove’s and that press freedom of newspapers infringe lawful, if even otherwise “ordinances” in question, However, I am unable that reason. subscribe invalid “the government majority’s holding sympathetic whatsoever the con- threat community presents no abstention government salutary principle stitutional support religion.” or sponsorship of pro for the purpose associations exist Camp meeting meeting with camp or societies religious bodies viding in ques The statute or for services. grounds places religious laws, ancillary J. :97—1 and tion, N. S. A. 40 et other seq., within the Meeting power, confer on Association the Camp and controlled, of lands owned or to enact ordinances limits thereof, impose municipal for establish penalties violation to J. courts A. have 40:97-4), licensing regula S. (N. tory J. for sewer (N. plan S. A. 40:95-1 et power seq.), for such age and facilities and assessments impose drainage improvements, which liens on the lauds assessments become N. J. affected, A. 40 et not S. :96-1 seq. peace Its officers have the only power, on to enforce association camp grounds, rules and for regulations preservation quiet good order, also but can arrest for crime the commission in all N. J. respects. A. 40:99-1. are fire dis also constituted associations

Camp meeting em tricts, elected commissioners duly lands, to finance the acquisition to issue bonds powered fire The purposes. for fighting buildings equipment needed for fire appropriations pay amount of or money is to the appropriate district tax asses bonds certified sor collection taxes. S. A. 40 et (N. J. :101-1 seq.) short, In these statutes confer broad purport to governmental on associations. powers camp meeting That such runs afoul of the legislation establishment-of- religion clause of the Amendment First is clear me. The trial held violated all three the tests enun judge Kurtzman, Lemon ciated in 403 U. S. Ct. 91 S. L.

29 Ed. 2d 745 in that the had a (1971) legislation rather than a secular its effect purpose, principal primary was to advance and it an religion fostered excessive govern ment In entanglement main, with it is the ex religion. cessive with governmental that con entanglement religion vinces me of the legislation’s unconstitutionality. Broad gov involved, ernmental can powers such as are here be vested and exercised only by constituted lawfully governmental bodies, would, I not there religious organizations. fore, the extent invalidate the To legislation ground. Asso., that Percello v. N. Camp Grove Meeting b., Misc. 124 N. J. & aff’d o. (Sup. 1924), (E. A. I otherwise, holds would overrule it. 1924) majority statutory seems to concede opinion scheme does result “entanglement” some government but fatal that this unless the religion entangle- ment I is “excessive.” find the be just that entanglement violation of legislation plain the doctrine of of church and state. That separation governmental Ocean Grove been powers granted have exercised in benign way does not cure the constitutional infirmity.

A down of the striking present statutory scheme would mean that Ocean necessarily Grove and way the life it an represents must'come to end. it Geographically Neptune which part Township presently exercises limited over the powers camp governmental meeting That grounds. full Township, assuming jurisdiction over the Ocean area, Grove could properly give recognition to Ocean Grove’s its unique physical characteristics and historical status. site I would much of think the customs, that secular traditions Grove of life to way the Ocean which endear practices

so conld be many preserved. majority, the

I, therefore, by in the result reached concur heretofore dis- but would the broader ground bottom it on cussed. in the J., I concur dissenting.

Pasiiman, concurring the Court’s the limited extent that judgment permits plaintiff and one-half hours to deliver newspapers two on Court, in However, I that the Sunday mornings. believe its to save form of eagerness Ocean Grove’s existing govern- ment, has undermined fundamental seriously two guarantees of the First Amendment. its the By restricting holding plaintiff’s 2:30 on to deliver before right newspapers a.m. Sundays, Court free fully speech fails vindicate his and free this result press casts a rights; surely cloud similar activities of others should also be protected. More importantly, Court the establishment clause strips of all meaning by role of the sanctioning public Associa- tion’s trustees approving Grove’s form existing of government.

I My with the Court’s treatment disagreement free First, issue raised is two-fold. press plaintiff ma- narrows jority unwarrantedly scope its discussion to the two and one-half hours on Sunday when morning delivers to Ocean plaintiff normally newspapers Grove’s resi- dents. to the Although “early it also refers Sunday morning hours essential to plaintiff’s operations,” [emphasis supplied], view majority’s claim plaintiff’s sug- constricted these may be used in civil gests ordinances and quasi- criminal proceedings prohibit deliveries plaintiff if at other times. See ante at he drives 250-251. But it is pos- sible that on any Sunday given morning plaintiff bemay his deliveries complete unable within time. His sup-

373 schedules; help- their his late; alter they may bemay pliers he if strays to subject prosecution he be be ill. Is may ers hours? hour, an a few or even by a.m. deadline the 3:30 past routine to make foreclosed from his changing is be And he to has hours? The plaintiff during daylight deliveries later efforts to minimize the disruption early made strenuous he never his constitutional hours, yielded but has morning I business other hours.1 cannot agree on carry his at right to sell deliver that news- plaintiff’s right notion with the the day progresses. wanes as papers de- be statement of

Second, question the Court’s leaves distinct 346-347, impression ante cided, at may status which shared holds special plaintiff Sunday to distribute seeking publications others. else Anyone have Ocean Grove should equal' subscribers sought in- Additionally, rights those rights. Amendment Eirst seek such deliveries?2 Even enjoy who those applicable these ordinances cannot be exception, the majority’s with the reasonable forms of regulation dealing reconciled as manner” of such Given the “time, activity. special place a conduit for informa- providing newspapers function of 1 Admittedly, plaintiff’s may narrower claim have been reflected in remand to determine whether Ocean Grove decision to our enforcing However, original estopped from these ordinances. injunctions sought against pleadings enforcement in this action they ground ordinances on the were unconstitu Grove’s Hence, challenge has never abandoned his and void. he tional broader issue. 2 Although litigation has been framed terms of the consti rights plaintiff publications, as a distributor tutional guarantees right of the First Amendment also citizens settled that publications. See, g., access to sources of communication or e. to have Pharmacy Virginia Virginia v. Board Citizens Consumer State Council, Inc., 748, 1817, (1976) ; L. 425 U. S. 96 S. Ct. 48 Ed. 2d 346 Martinez, 396, 408-409, 1800, v. 416 U. 94 S. Ct. Procunier 1801- ; 224, (1974) General, v. Ed. 2d Lamont Postmaster L. 301, 305, S. Ct. 14 L. Ed. 2d 381 U. S. Struthers, supra, 143-144, (1965) ; Martin 319 U. S. at 63 S. 863-864, Ed. at 1317. Tornillo, ideas, see Miami Herald Publishing Co.

tion 2837, 241, 252, 2831, 418 94 S. Ct. 41 L. 730, U. S. Ed. 2d Sullivan, New York Times Co. v. 376 U. (1974); 254, 266, 710, 686, 84 S. Ed. 2d (1964), I im nndnly think that these ordinances restrictive and even permissible forms as regulation, qualified by majority’s ruling today.

Because I any consider exercise public powers by body to be invalid under establishment governing Grove’s clause, J., see and dis (Pashman, concurring infra I senting), would vote to down ail of its ordinances strike in their entirety. However, even from the establish apart issue, ordinances, ment I believe that con presently as strued, impermissibly restrict the freedom of Since press. to majority declines construe the ordinances question comport unqualified plaintiff’s right distribute Borough newspapers, Collingswood v. Ringgold, cf. N. J. 365-67 I (1975), would down 1B strike Section 73-2. Ordinance Ordinance Similarly, which prohibits the use of a vehicle Sundays, should have been declared unconstitutional, at least applied as to persons who are re quired operate order vehicles to deliver publications. Nevertheless, as I already have stated, this form of judicial be pruning available only if the ordinances had been would passed by a lawfully constituted a municipality, conclusion I which respectfully reject.

II Returning the establishment issues posed by case, I cannot agree with the majority’s conclusion that the statute conferring governmental powers a upon is religious group In constitutional. view, my there are few cases that could a present more flagrant violation of glaring the estab- lishment clause than posed by this set of facts.

The majority’s analysis of Ocean Grove’s constitutionality under the establishment clause is inconsistent with the and the of enforcement that clause history philosophy has Amendment to the Consti First Federal enjoyed. “shall law make no government tution proclaims Art. an 4 of this establishment religion.” respecting ¶ similarly prohibits “establishment State’s Constitution sect to another” one forbids religious preference . . . ... test “religious qualification requirement least, trust.”3 con very office At these public mean affiliation cannot provisions stitutional office or holding public exercising gov prerequisite Furthermore, I fail to see how they ernmental do powers. enforcement, by and a religious enactment preclude which that municipal promote group’s of body, ordinances today, beliefs. And its yet by placing sectarian imprimatur J. S. 40 :97-1 legislation (N. Grove’s enabling Ocean A. Court et authorizes implicitly municipality seq.), of and of authority limit members positions public trust It its Methodist Church.4 also of gives ap- the United stamp provides “Congress shall no law Amendment make First that 3The religion, prohibiting respecting of free exer an establishment commands, incorporated having been into the . . .” cise thereof Its equally Amendment, apply Meek Pitten to the states. v. Fourteenth 1756, 349, 1753, 217, 351, ger, L. S. Ct. 44 Ed. 2d 224-225 S. 95 421 U. (1 Pennsylvania, 105, 108, 975) ; U. Ct. Murdock v. 319 63 S. S. ; Connecticut, (1943) 1292, 870, 872, v. L. Ed. Cantwell 310 1295 87 903, 1213, 303, 900, (1940). 84 Ed. 60 S. 1217-1218 U. S. provides: 4¶ Art. religions prefer- be no establishment of one sect in There shall required another; shall be or racial test ence to no public qualification office or trust. for concurring (Pashman, J., below, discussed see 278 4 As infra stipulate dissenting), by-laws Association Methodist “shall remain members of the United be and the trustees By-Laws, regular standing.” good Association Art. in Church III, non-voting must be a “member of a A “associate” trustee § 1. III, regular good standing.” recognized Art. Christian Church authority regulatory J. S. A. 40:97-5 confers § N. exercise gives powers trustees, and N. J. S. A. 40:97-6 the trustees’ on the by-laws, regulations, rules, of and resolutions the force ordinances law. proval laws, a set of Sunday closing promulgated by far the limits staked out beyond religious group, go Court and the United Supreme decisions States this See McGowan v. U. S. 81 S. Ct. Maryland, Court. Harrison, Two Guys L. Ed. 2d (1961); from Furman, N. J. Inc. v. (I960).5 reviews Ocean Grove’s majority history gov- ernance trustees the Ocean Grove Camp Meeting Asso- Church, ciation of the Methodist United concluding not irrational to act as it did.6 Legislature Ap- have parently, performed trustees over the creditably last century governing camp Grove now ground. the distinction being has enrolled the National Begister places and, told, Historic we are has earned the admira- However, tion of other and public citizens officials. these considerations are irrelevant utterly to the constitutionality parties challenge 5 Since the have not raised a direct to the legislation validity Sunday closing (N. seq.), A. et 2A:171-1 purposes appeal regulation I assume for this that such is a legitimate police power. However, exercise I no intimate view vitality Guys Harrison, as to the Two continued Inc. Furman, supra. reaching issue, 6 The Court’s rationale for even in view of its necessity,” 250-252, question discussion of the “rule of ante at is majority long As as able. the chooses to clothe itself the mantle judicial opinion, of unbecoming self-restraint Part III of its it seems rather abruptly purpose to disrobe in Part so IV for the of deciding question “mistakenly” a the trial court If reached. the word, is Court to be taken at the N. its J. defense of S. A. 40:97-1 seq. unnecessary et is dicta which is to the decision in I this case. Celmer, Super. (Cty. 1976), note that State v. N. J. holding Municipal Ocean Grove’s Court unconstitutional for establish proceeded reasons, municipality’s participation, ment without the al though given proceedings pursuant it of notice the to R. 4:28-4. Id., Super. point N. at 373. I also out that our decision today necessarily “lay controversy. will not to rest” this The ma jority intact, leaves State v. Gelmer ante at 252 n. thus antici pating litigation point. case, course, further on this In such a Supreme appellate jurisdiction United States Court would have over originally affirmance of criminal a conviction secured in Ocean Municipal 1257(2). Grove’s Court. See U. S. C. § of N. J. A. et seq. 40:97-1 The whether question not Ocean Grove’s “way of life” our approval sup deserves port; indeed, no one is a maintains that con there necessary nection between Ocean Grove’s form of its government and distinctive customs. Rather, issue before us is the legiti all macy of ceding essential to a governmental functions private, religious whose self-perpetuating group pur primary to a pose is site provide services. religious the regulatory powers that majority argues delegated! fulfill to the were intended to typical municipal trustees tasks of order and securing public de- maintaining orderly to beliefs of the velopment, promote religious United It finds that primary Methodist Church. purpose a is to this modicum social legislation guarantee peace in an isolated locale with organization “unique” physical and social characteristics. “anom- Conceding that bemay alous” on a association private role rely perform this State, for the invokes the usual majority presumption of constitutionality (1) that Ocean argues gov- Grove’s a ernmental scheme should be cen- respected venerable, institution, it now “no tury-old (2) poses threat” our constitutional ideals it will (3) not happen again.

I find elaborate wholly this defense unconvincing. Unlike eases, usually school aid the challenged legislation where a rather represents departure subtle the ideal official in- neutrality, a appeal presents straightforward favoritism. As governmental stance presently operated, government Grove’s violates First Amendment attaching public test and by pursuing office religiously-inspired policies. However, more its important, the State inevitably places authority structure behind the tenets particular sect delegating prerogatives the trustees. government Both the statutory enabling legislation camp association reflect meeting by-laws than coincidence more of secular and N. objectives. J. S. A. 40:97-5 any camp the trustees of upon law-making power

confers internal regulate allows them to the association and meeting encompass Their responsibilities the community. affairs streets, maintenance public highways, construction and J. (N. other services. municipal and walks, sewers parks, hold a veto 40:97-1, power A. -2 and also -3). They S. and public highway over of any public the construction they J. A. and 40:97-3), forms of S. transportation (N. and order, pre abate nuisances enact may protect laws laws, J. These A. (N. 40:97-4).7 serve health S. public ordinances, regu in the form by-laws whether passed court established lations, by municipal be enforced the may A. 40 :97-6 -7) given the are by (N. trustees A. J. S. effect as ordinance any municipal (N. same 40:97-8). then, virtual trustees, exercised powers by

The are to local officials. ordinarily to those equivalent delegated are tra By contrast, however, by trustees not selected Associ ditional democratic procedures. by-laws affairs ation who stipulate manage trustees authority therefore exercise the corporation (and than include no less ten by shall delegated Legislature) ministers and ten all whom “shall be and re laymen, main members of the Methodist Church in good United By-Laws, III, Art. 1. If regular standing.” § Church, trustee ceases to be member of the his position vacant vote of re may be declared two-thirds Ibid. The trustees maining present regular meeting. also make for the election of “associate” by-laws provision trustees who have the but privilege attending meetings, By-Laws, III, not of must voting. Art. These persons § powers gives trustees 7 N. A. additional J. S. 2A:171-6 Sunday closing modified the laws refer counties whose voters have they counties, permitted municipalities such endum. Like sport recreation, regulate and amuse forms of conduct of various commercialization, by adopting ment, rules or ordinances. their “a Christian Church good be members of recognized from their mem- elect, Id. trustees regular standing.” of the and pro- officers and members executive bership, the 4; YIII, YI, 1, Art. By-Laws, committees. Art gram §§ as the administrative The executive committee serves 2.§ official in all arm the board and the board represents Y, 2; Art. YII. The By-Laws, program matters. Art. § meetings, committee services organizes religious of the executive com- at each reports meeting its chairman 2, 4. YIII, Art. By-Laws, mittee. §§ re- segregate impossible This structure makes functions. from their secular of the duties trustees ligious purpose has the single board of trustees As group, convenient, perma- “a and desirable of providing proper, seaside resort” and Christian camp meeting ground nent By-Laws, Methodist Church. for the United members coincide no doubt objectives Art. II. While their immediate they a municipality, body with those of any governing peculiar ends which are also committed to other are their orientation. religious char- original from the stems arrangement

The existing 26 trustees That of incorporation required ter. act empowered church. It of the standing members good who officers appoint peace them and to pass by-laws c. and regulations, could their rules enforce little features, changed its has 5, 7. In essential §§ in- have as council successive acts Ocean Grove’s governing It is in- ante 255-256. See at board’s powers.8 creased the longer 8 Although reference a direct statute no contains the current board, composition governing its Grove’s to the sby-laws provisions give and effect of laws.” force the board’ “the majority disingenuous for the A. is somewhat N. J. S. 40 :97-6. It qualifications self-imposed religious suggest selec these underlying legislation. See can be severed tion trustees charter, original any event, still which is n. In ante at 260 good standing requires effect, to be members in the trustees J., concurring (Pashman, and dis n. 4 See ante church. senting). conceivable that fusion of civil and religious authority does not violate establish underlying principles clause, whether they interpreted erecting ment as Everson State,” “wall of separation between Church Education, Board 1, 16, S. U.

91 L. Ed. 711, 723 forbidding “sponsorship, (1947); sovereign financial and active involvement of the support Commission, in Tax 397 U. S. Walz religious activity,” v. 1409, 697, 701 664, 668, 1411, 90 S. Ct. 25 L. Ed. 2d or as a (1970); benign neutrality govern commanding Clauson, 306, ment toward Zorach v. 343 U. S. religion, 313-314, 72 Ct. L. Ed. 954 679, S. (1952).

The union of majority gov to this appears suggest than to “destroy ernment and rather religion, tending gov Vitale, ernment and 370 U. S. Engel degrade religion,” 421, 431, 1267, 601, 82 Ct. 8 L. Ed. 1261, (1962), S. 2d in view of Ocean Grove’s “functionally appropriate” Ante of land and social pattern ownership composition. assertion, at 258. an is con interesting This is but for would be sensible stitutionally preposterous. equally It the to Catholics or Jews to Legislature permit only govern when constitute or they overwhelming majority, simply the to rabbis in com yield governmental powers priests and leaders. Both the as moral them respect which munities New 1, 4 of Con Jersey Art. the Eirst Amendment and ¶ lan latter by express its foreclose that option, stitution shall be as a quali . required . . test guage (“no religious by and the former trust”) for or any public fication office Watkins, 367 Torcaso v. Court’s decision Supreme In Ed. L. 2d (1961). U. S. 81 S. Torcaso, declared unconstitutional unanimously the Court Constitution which stated that Maryland provision “no test ever ought required qualifica religious State, other for or trust this tion office profit . .” existence of . than declaration of belief God. Black Court, rejected for Justice Writing probing historically constitutionally policy of reli- discredited limiting public persons gious beliefs oaths offices who test profess have, have, perhaps properly a belief in more some religious particular concept. kind of 488, 494, 1680, 1683, U. S. 81 S. Ct. [367 982, 987] L. Ed. 2d N. now form of authorized government Clearly, A. et seq. members of the United Metho 40:97-1 favors and nonb of other sects dist Church over members elievers.9

Even alone would be sufficient though aspect invalidation of there justify challenged legislation, The a conclusion. original other factors reinforce such meeting charter proclaimed purpose camp association was to a “Christian seaside resort” provide 1870, c. Church, members Methodist Episcopal A. and N. J. S. currently “any 40:97-1 refers to § say holding 9 It no answer to based free that Toreaso’s is clause, inapposite plaintiff’s exercise and therefore to the claim. See religion parsed ante n. at 260 two clauses cannot be so neatly: governmental while on a form inter each focuses different of religious freedom, overlap substantially. with ference clauses the Thus, Torcaso, Maryland Justice Black criticized the constitu provision requiring tional to belief in office holders declare their the power authority of God because “the of of the State existence Maryland put particular on is thus the side of one sort of believers ” — willing they say those who to believe ‘the existence God.’ of Id., 490, 1681, U. at S. L. Ed. 81 Ct. at 6 2d at 984. He S. history religious recounted of such in the colonies and ob tests practical served that “The ‘estab effect of all this was the formal or particular religious Colonies, lishment’ faiths in most with of of consequent burdens of ewereise nonfavored of faiths free (Emphasis supplied; omitted). Id. footnote 8.ee also believers.” Engel Vitale, supra (free v. exercise clause establishment clause necessary overlap; showing of coercion to raise establishment no claim). plaintiff’s Moreover, did the Toreaso court claim address the applicable of Federal that Article VI Constitution was to state solely holding as offices well as federal offices. Its based on the Id., 1, First and Fourteenth Amendments. 367 U. S. at 489 n. S. Ct. 6 L. Ed. 2d at at heretofore association or other meeting corporation camp . . . for the incorporated purpose providing or hereafter society camp or with meet any body permanent religious services.” This statutory for religious ing ground place delega assertion that Legislature’s refutes pattern a class to tion of is valid as pertaining functions municipal to suited or corporations uniquely associations private unusual local under out duties carrying government purpose conditions.10 Only incorporated societies from these activities benefit religious locale for providing this statute Thus, is analogize enactments. to impossible ser essential supply neutral facially provisions facili vices, fire sanitation such police protection, re all without regard ties and transportation groups Public Works Roemer Maryland affiliation. See v. ligious Board, 2344-2345, 745-748, U. S. S. Board Everson v. 49 L. Ed. 2d 187-188 (1976); Education, 512-513, Ct. at 17-18, 330 U. S. S. supra, at Commission, Ed. Tax 91 L. 2d 724-725. Walz v. Cf. supra. acts various from the differ these enactments

Similarly, speci exercise named religious groups certain authorizing J. internal affairs (N. their to regulate fied legal rights et seq.). N. J. A. 16:19-1 S. through A. 16:1-1 et seq. S. the same religious groups to give latter are designed They associations. non-sectarian private afforded prerogatives 15 :1-21 which permits A. to N. offer an alternative sec- statutory under to incorporate societies govern delegating legitimacy majority recognizes, 10 As the questionable, any private organization highly powers mental Humane Soc. U. S. Ante Its reference “anomalous.” at 264. (1976) high Council, 70 N. J. 565 N. J. State Fish and Game powers aspect granting doubly lights to a such anomalous prohibit provisions religious sect, given existing constitutional suggest incongruous “religious ing to It seems the use of tests.” equal government of the could be a violation that Ocean Grove’s clauses, process protection establishment clause. but not of the or due 283 and associations. corporations to nonprofit tions applicable by sects religious assist they particular extent that To the features, they idosyncratic for their making special provision with the dictates in accordance acting simply clause.11 free exercise Ocean majority’s to the fact, contrary suggestion

In in and universal marked by approval was history Grove’s belies history its as well as secular harmony, goals, ternal in the controversies both of these contentions. Numerous Brewer See from its status. peculiar 1900’s arose early Grove, 1869 — 1949 on Ocean McMahon, Perspectives to re were attempts 62-70 several (1939). Among these such one including as a borough, constitute Ocean Grove surrounding succeeded.12 events which almost The effort acknowledge judicial effort resulted in .both legislative Legis- In 1920 the of Ocean Grove’s religious purpose. ment disputes property upon to decide called 11 When civil courts are by they Amendment groups, the First are constrained entanglement doctrinal nature. of a in controversies avoid undue 696, Milivojevich, U. 96 S. v. S. Diocese Serbian Orthodox Presbyterian Church, ; 2372, (1976) v. Hull Church Ed. 2d 151 L. (1969); 601, v. Ed. 21 L. 2d 658 S. Ct. 393 U. edroff K Cathedral, L. Ed. 120 73 S. Ct. 344 U. S. St. Nicholas controversy (1952). particularly revolves around so when the This is in structure. Since is hierarchical church which the decision struc the internal in accordance with decisions courts will enforce presbyterial congregational, ture, policy, (whether a sect procedures legislature episcopal), fashion for the is natural Note, generally, correspond of the sect. the structure See (1962) ; Disputes,” “Church-Property Gia Harv. L. Rev. 1142 Develop Nonestablishment, nella, “Religious Liberty, Doctrinal (1968). ment,” 81 Harv. D. Rev. 535-537 community’s leading group organized reform was of the 12The through Legislature engineered passage bill of a citizens who subject supra, Gibbons, approval at 64-65. local referendum. voters, special overwhelmingly supported by bill The However, organiza another held to select local officials. election was Attorney borough opposed aid the new enlisted tion grounds. challenging on constitutional Oourt General in the act Appeals McCran Errors and struck down statute. (1921). Grove, 96 N. J. lature did Ocean Grove’s change governmental structure to one, purely secular but it made special provisions pre serve the “religious integrity” community the by circum the scribing power of newly the elected officials in several areas. L. 1930, c. 96.13 the Specifically, prohibited act any in the change ban on existing Sunday vehicular traffic and ruled out municipal approval for construction of public c. highways the through borough. 1. The § law was challenged numerous grounds, in a resulting declaration by the Court of Errors and was a Appeals that law special internal regulating the affairs of municipality in violation of N. J. Const. 11. McC (1875), Art. § ¶ Grove, ran v. Ocean 96 N. L. &(E. A. In 1931). refusing excise the offending provisions Act, of the the Court noted expressly the fact in was legislation tended to further goals: religious controlling [O]ne legislature of the motives which influenced the review, preservation the enactment of the statute under was the newly-created borough, among things, other so much religious integrity municipality earlier exhibited in its keeping Sunday action in prevent its street free from and in travel ing any public highway passing through or boulevard from terri its torial limits. [96 164-165]. N. J. L. at preamble 13 The recited: WHEREAS, willing The said association is to surrender mu- such nicipal control, violating religious integrity but without Grove, preserving Oeean and also desirous inviolate all those rights appertaining religious integrity; to and included in such WHEREAS, separate municipal deemed it is advisable to religious functions, except provides; as this act WHEREAS, will of the said Ocean It is the desire Grove lessees, Meeting Association, Gamp and the residents territory particularly described, borough form hereinafter provided law, government shall be but shall have no authority Gamp with the Meet- interfere said Ocean Grove maintaining ing in- character and Association in tegrity Ocean Grove. [Emphasis supplied] This concession of a ready legislative purpose uphold the so-called of Ocean “religious integrity” Grove con flatly tradicts majority’s repeated assertions that the delega tion of board of powers trustees was animated objectives. fact, secular In persistent most theme in Ocean history Grove’s is the steadfast defense of its Sun day laws local by the authorities. Even a that assuming legislative body may promote secular policies whose ends to happen coincide sectarian practices, see Two Guys Harrison, Furman, ; v. Inc. supra McGowan v. Mary from land, supra, it does not follow that it may a design mu nicipal government whose primary is to goal re safeguard ligious customs. The majority that suggests the proper course follow, to if these Sunday laws closing were indeed involved, would be to strike down these regulations rather than dis mantle the entire governmental However, apparatus. Sunday closing rules adopted by the trustees and enforced — over the vigilantly a years constitute primary perhaps — the sole justification for this municipal scheme. Ocean Grove could be governed a form of efficiently by gov secular ernment, but any such has resisted as change apparently been a to threat the continued laws. vitality of the Sunday closing restrictions,

When we turn examine these local enacted 73-2, into we cannot they law Ordinance see health, safety of the conception general rationalized The list of pro- and welfare of citizens.14 Grove’s 73-2 to guaran- hibited Ordinance is not limited acts a uniform for leisure of rest and an teeing day opportunity Rather, and amusement for Ocean Grove’s residents. forms all virtually of its sweep prohibitions, extending upheld Sunday closing 14 This, course, laws assumes Harrison, Furman, Guys v. are valid exercises Inc. Two from J., concurring 5, Pashman, power. and dis police ante n. See senting. labor,15 and manual recreation “orientation suggests desire such against sectarian Sabbath as protect ” Harrison, Furman, Inc. v. Guys ‘desecration.’ Two Paramus, J. supra, Masters-Jersey 32 N. at 217. See N. raises of all recreation (1960) (prohibition issue). police power Chief Jus Maryland, McGowan v.

By contrast, supra, Maryland many exceptions tice Warren emphasized and the absence of blanket laws, prohibition Sunday closing Id., labor. S. at 447- bodily U. work Sunday against 1116-1117, 411-412. He 6 L. Ed. 2d 448, 81 at S. Ct. observed: provides: 15 The ordinance geographical following prohibited The shall be within the Section 1. Sunday, Sabbath, also known as the limits Ocean Grove year: throughout each allowing parked, riding, parking, all ve- to remain A. automobiles, trucks, including bicycles, buses, trailors, hicles, horses except livestock, wagons, and in areas. or other enclosed selling delivering periodicals, newspapers, of advertis- B. The or vending merchandise, including milk, ing circulars, any of form of unprepared except prepared foodstuffs, when and con- or served per- restaurant, shop, a or other establishment sumed within coffee foodstuffs. mitted serve bathing. O. Ocean ap- bathing wearing bathing boating, Fishing, or the of sun D. parel public. in buildings structures, repair building, or or construction of E. The machinery carpentry, painting, including engaging and similar buildings structures. of said or and outside both inside activities games lots, play- playing exercises; of vacant F. Athletic promenades; skating; streets, grounds, parks, ice or roller sidewalks skating; and similar activities. lawns, shrubbery mowing and flowers. and care G. The clothing, bedding, exposure placing or other articles or H. The drying character. lines similar lines or on wash or corporation violating persons Any person, or Section upon pay conviction, shall, a fine provisions of this ordinance imprisoned exceeding ($200.00) or Dollars be Two Hundred not exceeding Thirty (30) days, period County a Jail for imprisonment. fine and both day shall violated shall be deemed that ordinance be this Each separate and distinct offense. a

taken provisions, along permit sports These with those which various Sunday, clearly pur- seem for the entertainments be fashioned pose providing Sunday atmosphere cheerfulness, recreation, a repose enjoyment. Coupled general proscription against with the types work, day we other believe that the air of the is one of re- religion. rather laxation than one of [Id., U. S. at 81 S. Ct. at 412] L. Ed. 2d at I do not believe Grove’s custom of preserving as an Sunday occasion for rest and quiet need away pass character, historical now altogether. officially recognized Its the Federal Government, would a rationale for supply local rules its reflecting long adherence to Sunday closing However, laws. have they would to make for due allowance Moreover, activities. nondisruptive could not ve- they prohibit hiclar traffic for necessary emergencies (such as ambulances fire trucks) reasonably required constitutionally protected (such activities the plaintiff’s deliveries). as With- out a local government susceptible attack on First Amend- grounds, ment these would rules their lose sectarian charac- ter; likelihood, in all they would also be enforced in more manner, reasonable thus preventing controversies such one rise to this giving litigation.

For reasons, these I am unconvinced by majority’s argument long existence of statutory plan “a consideration” which transcending creates heavy pre sumption against its If invalidity. I am correct assuming that Ocean Grove can survive a transformation of its political without system its losing features, attractive then the most reason for compelling its upholding present status is a ju dicial deference to the will. legislative This general policy restraint has judicial little force when law has sur vived close largely scrutiny without weighty constitutional claims. As the majority points out, the Court of Errors and Appeals gave only consideration a passing to similar argu ment Percello v. Ocean Association, Grove Camp Meeting 100 N. J. L. 407, o. 2b. N. J. aff’g Misc. 124 Ct.), (Sup. there, and even the Supreme Court’s opinion heavily relied Id., in which had been addressed. cases issue prior 2 N. Misc. at 126-127.

The seems to reasoning of the be that import majority’s a constitutional the failure of these decisions to detect early this raised, flaw, prevents had not been where the issue from radically differs Court now. This case so doing Commission, argument a similar supra, Walz v. Tax where which tax case16 Walz was a considerable given weight. religion to assistance concerned a form of governmental As Justice Republic. days from the earliest dating if "Rarely concurring opinion: observed in his Brennan constitutionality of a ever this Court considered has is so overwhelming.” historical for which the practice support L. Ed. Id., 2d at 1418, 90 S. Ct. at S. at U. have exchanged it would differently, Court ruled Had the to churches) assistance one constitutional defect (financial Rather financing). entanglement for another (excessive Court economic subsidy, this form of than terminate of Church and maintain the mutual separation chose treat church authorities to taxing State by permitting associations private, non-profit that of other like property com services and contribute to social organized provide Here, however, the has carved Legislature well-being. munity of private a narrow class sectarian place a out special au between civil fosters continual interplay societies leaders.17 Invalidation this legis thorities Grove’s religious community restore Ocean would lation dictum 16 Hence, Justice in New York Holmes’ relevance 345, 349, Company Eisner, U. S. 41 S. Ct. Trust by majority. (1921), referred Ed. 65 L. exemption argued plaintiffs York’s of reli- Walz New property functionally property tax was gious ad valorem from the subsidy. Although distinction between an stressed the the Court economically equivalent. subsidy, exemption them as it viewed test, majority, “entanglement” ante at criticized 17 The superfluous instance, For it matters context. little seem does present neighbors approve its con citizens Ocean Grove’s leadership government limited law to members its stitution if sects, end, status to all equivalent all, other once and for this fusion of government religion.

Moreover, mere of time has no talismanic passage signifi cance. The Pirst were Amendment’s religious guarantees not expressly into the Fourteenth incorporated Amendment Connecticut, until 1940 when v. Cantwell de supra, was Education, cided. Prior to McCollum v. Board U. S. 68 Ct. S. Ed. 92 L. “released time”18 (1947), had arrangements been for more than 30 widespread years. Id., 333 U. 222-223, 470-471, at 68 S. Ct. Ed. at 92 L. at J., 664-665 (Frankfurter, School concurring). prayer Vitale, not declared unconstitutional until Engel supra. The we are suggestion that restricted a sum today by mary treatment of this issue in court interpreting our State Constitution overlooks the dramatic develop ments in area of the Pirst In Per- ease, Amendment. cello should to the extent that it rejected holds that this scheme statutory does not violate Art. 4 of this State’s ¶ Constitution. I would overrule Percello a matter of state law is constitutional since it beyond argument Grove currently attaches a to those religious test who would Ante J., hold office. public (Pashman, concurring and dissenting).

IV occurrence, if Admittedly, rare, it is not unprecedented for the Court to be to rule such a asked viola- upon glaring tion of The normal inquiry settled this area principles. significant danger Methodist United Church. Neither there governmental religious activity. The evil surveillance here stems political power leadership from the concentration reli- gious thus, group; integrity civil order is more threatened sphere. religious than the freedom of the arrangements permitted groups time” 18 “Keleased various to con premises. religious public periods duct classes on school These study subjects instruction were substituted secular or for other extracurricular activities of a secular nature. First Amend departures been concerned has subtle, in Chief Justice as reflected more far ment which Kurtzman, 602, 403 U. S. Lamon v. remarks in Burger’s L. Ed. 2d 2105, 29 745 (1971): Ct. S. objective falling ‘respecting’ may while forbidden

A law be one proscribed ‘respecting’ re- A law of its total realization. short always easily religion, sult, is, not identi- of is that establishment given might law not establish A as violative of the Clause. fiable one ‘respecting’ religion that in the one end a but nevertheless be state step being could establishment and hence of a lead to such sense that offend First Amendment. 612, 2111, 755.] at 29 L. Ed. 2d at U. S. 91 S. Ct. [403 at Thus, a whether a is to determine normally required court a promote tends to single enactment legislative encourage Public Edu or all Committee religion generally, religions 2965, 2955, v. S. 756, 771, cation U. Ct. Nyquist, 413 S. Educa 948, 37 L. Ed. McCollum Bd. 2d 962 (1973); of tion, 465, 466, Ct. 211-212, U. at S. at supra, 333 S. words, 659, L. Ed. or in “could Chief Justice Burger’s to the First Amend lead such establishment and hence offend here, ment.” But I am afraid [Supraj emphasis added.] for the subtle violation majority’s myopic search has in its the ob overlooking establishment clause resulted vious Here legislative only flaw. enactment tends also a religion effectively but institutes church encourage official The creed faith in Ocean Grove. statute con implicitly pub limits ferring upon municipality powers office of and hence lic to members allows specific religion, use order the municipality governmental power of with the of lives its inhabitants conformity orthodoxy its tenets.

The of of church and state in this doctrine separation the result of country history experiences long been wisdom. So has our strong emphasis confirm its — which underlie civil this doctrine liberty the principles religion one’s own free right practice governmental — has that it been considered most one interference fundamental of constitutional rights. principle em bodied the establishment clause of the Eirst Amendment is based the settled upon precept that place religion “[t]he in our society is an one, exalted achieved through long tra dition of reliance on the home, the church and the inviolable citadel of the individual heart and Abington mind.” School District v. Schempp, 374 U. S.

1574, 10 L. Ed. 2d 860-861 It (1963). upholds practice -right one’s religion free from in governmental terference, but it also eliminates the to seek the right prerogatives official status for I one’s creed. believe that the Court’s in this holding case amounts to a neglect these and the of its principles, result failure to realize the own implication its decision.

I cannot more with the belief disagree majority’s apparent that a decision striking down the statute conferring govern- mental powers on Ocean Grove would threaten that com- munity’s way. of life. That view is based upon entirely mistaken notion that spiritual or cultural habits which exist in Ocean Grove are the product its form government. They not. The convictions which a com- impel munity persons adopt practices similar to those in Ocean Grove are not the which survive type because official edicts. They because of the personal continue con- strong live victions who there. persons These attitudes beliefs only can harmed decision gov- allows ernmental influence -to take the of individual or place church leadership. Schkgibek

Justice j'oins opinion. J., Sullivan, result. concurring For and remandment —Chief Justice Hughes, modification Justices, Mountain, and Judge Sullivan Clieeokd Coneord —5.

Concurring part dissenting part--—Justices Pash- man- and SCHRETBER-2.

Case Details

Case Name: Schaad v. Ocean Grove Camp Meeting Ass'n of United Methodist Church

Court Name: Supreme Court of New Jersey

Date Published: Feb 10, 1977

Citation: 370 A.2d 449

Court Abbreviation: N.J.