NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4399-13T2

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, UNITARIAN UNIVERSALIST LEGISLATIVE MINISTRY OF NEW JERSEY, GLORIA SCHOR APPROVED FOR PUBLICATION ANDERSEN, PENNY POSTEL, and WILLIAM FLYNN, May 26, 2016

APPELLATE DIVISION Appellants,

v.

ROCHELLE HENDRICKS, Secretary of Higher Education for the State of New Jersey, in her official capacity; and ANDREW P. SIDAMON-ERISTOFF, State Treasurer, State of New Jersey, in his official capacity,

Respondents. _____________________________________

Argued April 11, 2016 – Decided May 26, 2016

Before Judges Sabatino, Accurso and Suter.

On appeal from New Jersey Department of Education, Office of the Secretary of Higher Education.

Edward L. Barocas (American Civil Liberties Union of New Jersey Foundation) argued the cause for appellants (Barry, Corrado & Grassi, P.C.; Lenora Lapidus (American Civil Liberties Union Women's Rights Project); Galen Sherwin (American Civil Liberties Union - Women's Rights Project) of the New York Bar, admitted pro hac vice; Daniel Mach (American Civil Liberties Union Program on Freedom of Religion and Belief) of the District of Columbia bar, admitted pro hac vice; Ayesha Khan (Americans United for Separation of Church and State) of the District of Columbia bar, admitted pro hac vice, and Alex Luchenitser (Americans United for Separation of Church and State) of the District of Columbia bar, admitted pro hac vice, attorneys; Mr. Barocas, Jeanne M. LoCicero, Frank L. Corrado, Ms. Lapidus, Ms. Sherwin, Mr. Mach, Ms. Khan, Mr. Luchenitser, on the briefs).

Stuart M. Feinblatt, Assistant Attorney General, argued the cause for respondents (Robert Lougy, Acting Attorney General, attorney; Mr. Feinblatt, of counsel and on the brief; Jennifer J. McGruther, Deputy Attorney General, and Laura M. Console, Deputy Attorney General, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

Appellants, the American Civil Liberties Union of New

Jersey ("ACLU-NJ"), the Unitarian Universalist Legislative

Ministry of New Jersey ("UULM-NJ"), and three individuals

challenge the Department of Higher Education's award of public

grants to two sectarian institutions of higher education.

Specifically, appellants contest two grants for capital

improvements totaling over $10 million the Department awarded to

Beth Medrash Govoha ("the Yeshiva"), and three grants totaling

$645,323 it awarded to Princeton Theological Seminary ("the

Seminary").

2 A-4399-13T2 Appellants contend the grants violate Article I, Paragraph

3 of the New Jersey Constitution because the recipients will use

the grant funds to support religious instruction, including the

preparation of candidates for ministries respectively in the

Jewish and Christian faiths. Appellants further contend that

the grants violate other provisions in the State Constitution.

Lastly, they argue the grants violate the Law Against

Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, because the

recipient institutions engage in gender-based or religion-based

discriminatory practices.

As we explain in this opinion, the constitutional analysis

under Article I, Paragraph 3 is controlled by the New Jersey

Supreme Court's opinion in Resnick v. East Brunswick Township

Board of Education,

(1978) (construing Article I,

Paragraph 3 to bar public schools from allowing religious

organizations to use their school facilities in the evenings and

on weekends for religious instruction unless the users fully

reimburse the public for the costs of providing such access).

Applying that binding precedent here, we conclude that Resnick

compels the invalidation of these grants of public funds to the

Yeshiva and the Seminary.

In doing so, we acknowledge that the intended meaning of

Article I, Paragraph 3 of the Constitution – a provision

3 A-4399-13T2 included in our State's first Constitution in 1776 and readopted

in the 1844 and 1947 Constitutions – is not entirely clear. We

also are mindful that the Court did not discuss the provision's

history at length in Resnick. Nevertheless, we do no more than

acknowledge the debatable lineage of the provision, leaving it

to the Supreme Court to consider, if it so chooses, whether the

arguments presented by the parties as to the meaning and history

of the clause warrant a reexamination of Resnick.

I.

The Bond Act and the Grant Process

On August 7, 2012, the Governor signed into law the

"Building Our Future Bond Act" ("GO Bond Act"), L. 2012, c. 41,

a measure dedicated to capital improvement projects for New

Jersey institutions of higher education. Pursuant to that

initiative, a $750 million public referendum in November 2012

authorized the State to issue and direct bond proceeds for

capital improvements to the higher education sectors.

The Governor thereafter authorized the Secretary of the

Department of Higher Education to promulgate rules and approve

grants that would make use of GO Bond Act funds, along with four

other State-supported bond programs administered by the New

Jersey Educational Facilities Authority ("NJEFA"). The State's

commitment to capital investment in higher education through

4 A-4399-13T2 these initiatives totaled $1,316,905,000. That amount was

comprised of $750 million under the GO Bond Act Fund;

$191,905,000 under the Higher Education Capital Improvement Fund

("CIF"); $220 million under the Higher Education Facilities

Trust Fund ("HEFT"); $55 million under the Higher Education

Technology Infrastructure Fund ("HETI"); and $100 million under

the Higher Education Equipment Leasing Fund ("ELF").1

A "Solicitation for Grant Applications" for these programs

was issued by the Secretary for what was known as the "Spring

2013 Cycle." The Solicitation explained that GO Bond Act funds

would provide grants for projects to construct and equip

academic facilities, and would be allocated by sector as

follows: $300 million for public research universities; $247.5

million for state colleges and universities; $150 million for

county colleges; and $52.5 million for private nonprofit

institutions with endowments less than $1 billion. Institutions

receiving GO Bond Act funds would be required to provide

matching funds equal to twenty-five percent of the cost of the

proposed project. See N.J.A.C. 9A:18-1.3(c).

1 Because the issues raised in this appeal involve grants made only under the GO Bond Act and the HETI Act, those are the only programs that we discuss in any detail.

5 A-4399-13T2 The Solicitation announced that applications for GO Bond

Act funds would be reviewed and compared with others within each

sector pursuant to the following criteria:

1. the advancement of student education in the State of New Jersey;

2. the improvement and expansion of educational opportunities for students;

3. the promotion of academic research excellence, workforce readiness and the enhancement of the State's academic and economic competitiveness and prosperity by assisting in the production of a highly skilled workforce;

4. the promotion of innovation and improvement in the delivery of higher education;

5. the advancement of study at all levels in science, technology, engineering and mathematics education;

6. consistency with the institution's educational mission;

7. consistency with the institution's long-range facilities plan;

8. the cost-effectiveness of the Project;

9. consistency of the Project with the State's goals and priorities for development and redevelopment, including the promotion of industry clusters, job and business opportunities in areas designated by the State for growth, transportation choice and efficient mobility of goods and people, and promotion of access to opportunity for all New Jersey residents;

6 A-4399-13T2 10. the demonstrated commitment of the institution over the past ten years to appropriate maintenance of facilities previously funded by the State of New Jersey grant programs; and

11. serving the best interests of higher education in the State as a whole.

These criteria mirror those enumerated under N.J.A.C. 9A:18-

1.6(b).

The Solicitation explained that HETI funds were available

to public or private nonprofit institutions of higher education

eligible to receive State aid. Grants would be awarded for

technology infrastructure projects that "advance the institution

toward the next level in establishing integrated voice, video

and data networks." See N.J.A.C. 9A:13-1.3(a)(4). Applications

for HETI funds would be reviewed under the same criteria as

those considered under the GO Bond Act, with the exception that

"the demonstrated commitment of the institution over the past

ten years to appropriate maintenance of facilities previously

funded by the State of New Jersey grant programs" was not a

factor. See N.J.A.C. 9A:13-1.5(b). Institutions receiving HETI

funds would be required to provide matching funds equal to the

amount of the grant requested. See N.J.A.C. 9A:13-1.3(a)(6).

In response to the Solicitation, forty-six higher education

institutions submitted applications proposing more than 250

capital improvement projects totaling $2.1 billion. On April

7 A-4399-13T2 29, 2013, the Governor announced that the Secretary had

transmitted to the Legislature a list of 176 projects that were

recommended for awards. Because the Legislature failed to take

action to preclude the grants within the prescribed time limits,

the list was deemed approved and authorized. See N.J.A.C.

9A:13-1.6(c) (as to HETI); N.J.A.C. 9A:18-1.7(d) (as to GO Bond

Act).

Beth Medrash Govoha ("the Yeshiva")

The Yeshiva is a private institution of higher education

located in Lakewood that specializes in advanced Talmudic

scholarship. According to its grant applications, the Yeshiva

"is an independent institution rooted in Jewish tradition. It

has no formal affiliation to any hierarchical religious

organization."

The Yeshiva has over 6000 undergraduate and graduate

students. According to its applications, the Yeshiva

"represents 59% of Lakewood's families and 74% of Lakewood's

married couples." The Yeshiva asserts that its emergence in the

Lakewood community and the jobs it has provided have contributed

significantly to the area's economic and demographic growth over

the last twenty years.

The Yeshiva offers an undergraduate program culminating in

a Bachelor of Talmudic Studies degree. The twelve required

8 A-4399-13T2 courses in the undergraduate curriculum all involve the study of

the Talmud. The Yeshiva describes the Talmud as "a broad

compendium of scholarship that draws on knowledge from a wide

array of sources and disciplines, among which are references to

religious texts such as the Bible."

The Yeshiva acknowledged that its curriculum includes

"religious study." Its grant applications defined the term as

"the study of religious beliefs, behaviors, texts, [and]

institutions" because "portions of the curriculum may utilize

texts with religious origins." Undergraduates at the Yeshiva

may take elective courses in Ethics and Hebrew Language and

Literature. The Yeshiva offers graduate programs conferring a

Master of Talmudic Studies, a Graduate Talmudic Diploma, or an

Advanced Graduate Talmudic Diploma. There is also what the

Yeshiva characterizes as a "small program available to advanced

students" that leads to ordination as a rabbi. According to the

Yeshiva, fewer than 5% of its enrolled students participate in

its ordination program.

Admission to the Yeshiva is limited to qualified men,

regardless of their religious affiliation, national or ethnic

origin, age, race, color, or disability. The faculty are all of

the Jewish faith, although that is not a formal requirement.

The Yeshiva staff are not all of the Jewish faith, however, and

9 A-4399-13T2 the Yeshiva's employment policy asserts that it "does not

discriminate on the basis of race, color, creed, religion,

gender, pregnancy, marital status, age, national origin,

ethnicity, ancestry, handicap or disability, atypical hereditary

cellular or blood trait, or service in the Armed Forces of the

United States or status as a veteran of the Vietnam Era."

The Secretary recommended awarding two grants to the

Yeshiva from GO Bond Act funds totaling $10,635,747. The first

grant was for the construction of a new library and research

center that would also house the Department of Hebrew Studies,

the Department of Adult and Continuing Education, internship

advisors, career and academic counselors, and a writing resource

center. The second grant was for the renovation of an existing

building to create fourteen new classrooms, a reference library,

a computer room, faculty offices, and academic support space.

In July 2013, the Secretary formally notified the Yeshiva

that its applications for grant funding had been approved. A

corresponding grant agreement was ultimately executed between

the Yeshiva and the NJEFA in June 2015 while this case was

pending.

Princeton Theological Seminary ("the Seminary")

The Seminary is a private institution of higher education

in Princeton, having what it describes as "an historical and

10 A-4399-13T2 continuing relationship with the Presbyterian Church (USA)."

The Seminary's stated mission is to "prepare[] women and men to

serve Jesus Christ in ministries marked by faith, integrity,

scholarship, competence, compassion, and joy, equipping them for

leadership worldwide in congregations and the larger church, in

classrooms and the academy, and in the public arena." According

to its Mission Statement, the Seminary

stands within the Reformed tradition, affirming the sovereignty of the triune God over all creation, the gospel of Jesus Christ as God's saving word for all people, the renewing power of the word and Spirit in all of life, and the unity of Christ's servant church throughout the world. This tradition shapes the instruction, research, practical training, and continuing education provided by the Seminary, as well as the theological scholarship it promotes.

As a professional and graduate school, the Seminary offers

degrees in Master of Divinity; Master of Arts (Christian

Education); Master of Theology; and Doctor of Philosophy

(Biblical Studies, History and Ecumenics, Theology, Practical

Theology, or Religion and Society). The school also offers

continuing education programs through conferences, initiatives,

institutes, summer courses, and inter-institutional agreements.

The Seminary acknowledges that "[r]eligious instruction is

a mandatory component of [its] Master of Divinity program;

students in the other Masters programs and the Ph.D. program can

11 A-4399-13T2 arrange their course work and may opt out of religious

instruction altogether." A review of the Seminary's course

catalog reveals comparatively few offerings that do not entail

study of the Bible; religious literature; hymns; art or poems;

religious philosophy; spirituality; the ecumenical movement;

Christian ethics; evangelism; pastoral care; ministry; or

denominational doctrines.

According to the Seminary, it "does not discriminate on the

basis of race, color, ancestry, sex, age, marital status,

national or ethnic origin, sexual orientation, gender identity,

or disability in its admissions policies." As to religion, all

degree students and faculty at the Seminary are expected to be

of the Christian faith. However, staff and participants in non-

degree programs at the Seminary are not required to be

Christians.

The Secretary recommended awarding the Seminary three

grants from HETI funds totaling $645,323. The proposed projects

would (1) upgrade the IT infrastructure of the Luce Library to

allow for expanded historical and theological research; (2)

install technology in a training room to allow for on-site and

distance training of students and staff; and (3) equip a

conference room with multimedia functionality to expand online

education and strengthen interaction with other universities.

12 A-4399-13T2 The Seminary indicated in its grant application that the

Luce Library is open to any member of the public, whether or not

he or she is affiliated with the Seminary. Such persons may

access the library's collections for educational, religious,

historical, or other purposes. According to the Seminary, the

enhancement of the library's IT infrastructure would "make

available sizeable portions of the Library collection in digital

form to users located anywhere in the world via the internet."

The Seminary planned to use the proposed corporate-style

computer training room to train employees on commercial software

programs such as Microsoft applications, although the room

potentially could be used for software programs in both

religious instruction and religious study. The upgrades to the

"Cooper" conference room were intended "to facilitate remote

learning as part of [the Seminary's] continuing education

programming, which includes religious instruction and religious

study . . . as well as non-religious subjects."2

In July 2013, the Secretary notified the Seminary that its

application for grant funding had been approved. A related

grant agreement was executed between the Seminary and the NJEFA

in June 2015.

2 The State asserts in its brief that the Seminary withdrew its application to upgrade the conference room after it had been approved, and only pursued its other two projects.

13 A-4399-13T2 Other Grant Recipients

The record indicates that several other higher education

institutions with religious affiliations received grants from

the Secretary as part of the 2013 Solicitation, including

approximately $11.7 million to Seton Hall University, $2.8

million to St. Peter's University, and $2.4 million to the

College of St. Elizabeth. Appellants have not challenged those

other grants. Their counsel acknowledged at oral argument that

the constitutional analysis as to those institutions might

differ from the analysis of the present case, which solely

concerns the Yeshiva and the Seminary.

This Litigation

The ACLU-NJ, UULM-NJ, and Gloria Schor Andersen filed in

the Chancery Division a verified complaint for injunctive and

declaratory relief in June 2013, along with a request for a

temporary restraining order in July 2013, against the Secretary

and the State Treasurer. The complaint sought a declaration

that the State's grants to the Yeshiva and the Seminary, which

had been approved by the Secretary and were then pending before

the Legislature, violated Article I, Paragraph 3 and Paragraph 4

(what is known as the State "Establishment Clause"), and Article

VIII, Section 3, Paragraph 3 (what is known as the "Public

14 A-4399-13T2 Purpose Clause") of the New Jersey Constitution, as well as the

LAD. No federal claims were asserted.

The complaint sought to enjoin defendants from issuing any

check or otherwise providing the challenged funding to the grant

recipients. The complaint did not name the Yeshiva or the

Seminary as co-defendants, and they have not sought to intervene

in this matter.3 The State denied that the grants violated the

New Jersey Constitution or the LAD.4

3 At oral argument on the appeal, counsel represented that the Yeshiva and the Seminary are aware of this challenge to their respective grants, and have nonetheless chosen not to seek to intervene. All counsel agree that the recipients are not indispensable parties because the funds have not been disbursed, and the Attorney General as counsel to the Secretary and State Treasurer is advocating the propriety of the grants consistent with the interests of the Yeshiva and the Seminary. See R. 4:28-1(a). 4 In defense to the LAD claim, the State relies on the LAD's religious exemption in N.J.S.A. 10:5-5(l) ("Nothing herein contained shall be construed to include or apply to . . . any educational facility operated or maintained by a bona fide religious or sectarian institution[.]"). Appellants, meanwhile, contend that the religious exemption is unavailing to authorize grants of public funds to private institutions that practice discrimination, pointing to footnote seven of the New Jersey Supreme Court's opinion in Dale v. Boy Scouts of America,

, 593 n.7 (1999), rev'd on other grounds,

,

,

(2000), which observes that "New Jersey governmental entities are . . . bound by the LAD," and that "[t]heir sponsorship of, or conferring of special benefits on, an organization that practices discrimination would be prohibited." We do not reach this statutory issue of first impression because we nullify the grants in this case on another legal basis.

15 A-4399-13T2 In July 2013, the trial court entered a consent order

memorializing the parties' agreement that appellants would

withdraw their request for a temporary restraining order in

consideration for the State's promise to provide appellants'

counsel with fourteen days' advance written notice prior to

disbursing any funds under the challenged grants. Appellants

thereafter filed an amended verified complaint adding Penny

Postel and William Flynn as plaintiffs.

Subsequently, the trial court transferred this dispute to

the jurisdiction of this court pursuant to Rule 2:2-3(a)(2).

During the briefing stages of this transferred appeal, a panel

of this court denied appellants' motion to remand this matter

for additional fact-finding to explore more fully certain

details of the grant review process and the programs and

activities at the two recipient institutions. Meanwhile, as was

confirmed at oral argument, the disbursement of the grant funds

continues to be held in abeyance.5

5 It has come to our attention that the Secretary had issued another solicitation that closed in January 2016, which appears to be essentially identical to the content of the Spring 2013 Solicitation. The 2016 solicitation is not before us.

16 A-4399-13T2 II.

A.

As their primary argument, appellants contend that the GO

Bond and HETI grants violate Article I, Paragraph 3 of the New

Jersey Constitution because the funds will be used to support

the "ministries" of the Yeshiva and the Seminary. They assert

that both the Yeshiva and the Seminary are, fundamentally,

religious schools because they train ministers of their

particular sects, and provide religious instruction to all

degree students. They contend that if properly construed and

applied, Article I, Paragraph 3 prohibits the use of New Jersey

tax revenues for the maintenance of a religious group,

regardless of whether such subsidies are provided on an equal

basis to other organizations. To support that contention, they

rely on the Supreme Court's decision in

, as well as the history of Article I, Paragraph 3 itself.

The State responds that the grants do not violate Article

I, Paragraph 3 because they will be used to fund classrooms,

libraries, and computer and audio-visual equipment, not places

of worship or "ministries." Presenting its own review of the

history of the New Jersey Constitution's religion clauses, the

State maintains that the government is not precluded from

providing funds for religious instruction or to sectarian

17 A-4399-13T2 schools. Further, the State contends that appellants read

Resnick too broadly, and that the Court's decision in that case

must be interpreted in light of the generally more stringent

judicial approach to evaluating public aid to religious

organizations that existed at the time thirty-eight years ago.

B.

We begin our examination by focusing upon the text of

Article I, Paragraph 3:

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

[N.J. Const. art. I, ¶ 3 (emphasis added).]

"This paragraph is nearly verbatim from Article XVIII of the

1776 Constitution. It appeared as Article I, Section 3, in the

1844 Constitution and was carried over in the 1947

Constitution." Robert F. Williams, The New Jersey State

Constitution, A Reference Guide 32 (1997).

Given the haste and informality surrounding the adoption of

the 1776 Constitution while British warships were gathering off

18 A-4399-13T2 the coast of Sandy Hook,6 little is known of the intent of its

drafters. Id. at 1-5; John Bebout, Introduction to Proceedings

of the New Jersey State Constitutional Convention of 1844, at

xvi (N.J. Writers' Project, Work Projects Admin. ed., 1942)

("1844 Proceedings"); 1 Proceedings of the New Jersey

Constitutional Convention of 1947, at v ("1947 Proceedings").

Although the 1776 Constitution contained no separate Bill of

Rights, it included important rights within its structural

provisions. Williams, supra, at 2. In particular, Articles

XVIII and XIX of the 1776 Constitution "reflected early notions

of religious freedom." Id. at 3; see also 1844 Proceedings,

supra, at xv (noting that "religious liberty was guaranteed,

except to papists").

Article XVIII was incorporated into the Bill of Rights of

the State Constitution of 1844 after amendments proposing to

place limits on individuals' "dictates of conscience" were

briefly debated and then rejected. 1844 Proceedings, supra, at

52, 141-42. No other discussion of the provision, which became

6 See John Bebout, Introduction to Proceedings of the New Jersey State Constitutional Convention of 1844, at xvi (N.J. Writers' Project, Work Projects Admin. ed., 1942) (citing Charles R. Erdman, Jr., The New Jersey Constitution of 1776, at 49 (Princeton Univ. Press, 1929)).

19 A-4399-13T2 Article I, Section 3, was apparently preserved in the 1844

record.7

However, there was considerable discussion in 1844 about

drafting a constitutional article to create "common schools"

that would be free for all classes and sects. Id. at 345-47,

405. Amendments were proposed that would prohibit the School

Fund8 from being used to promote sectarian views of religion.

Debate focused on the sectarian strife that might arise from the

creation of such common schools. Id. at 345-47, 400-05, 550.

Even though no article was ultimately adopted to create common

schools, these discussions are significant because they arguably

support the State's contention that the framers of the 1844

Constitution did not interpret Article I, Section 3, as barring

the State from providing public funds to sectarian schools.

Rather, it is at least some evidence that the 1844 framers

7 The 1942 publication, sponsored by the New Jersey State House Commission, summarized the 1844 proceedings after a gap of almost a full century. The volume is derived from stenographic reporters' notes of the debates that were published daily in newspapers during the 1844 Convention. Williams, supra, at 143. 8 The State School Fund was established by the Legislature in 1818. L. 1817, c. 26, as amended by L. 1818, c. 100; see Everson v. Bd. of Educ.,

(E. & A. 1945) (discussing history of the School Fund), aff'd,

,

,

(1947). The permanency, proper use, and administration of the School Fund was ensured through the adoption of a constitutional provision in 1844. N.J. Const. of 1844, art. IV, § 7, ¶ 6.

20 A-4399-13T2 believed a specific constitutional amendment was required to

prevent such a result.

Free public schools were once again a topic of deliberation

by the 1873 New Jersey Constitutional Commission. See Peter J.

Mazzei & Robert F. Williams, "Traces of Its Labors": The

Constitutional Commission, The Legislature, and Their Influence

on the New Jersey Constitution, 1873-1875, at 117-74 (2012).9

The 1873 Commission considered an amendment to the 1844

Constitution that would provide for free, public schools, and

debated the inclusion of a prohibition that "'[n]o money . . .

be paid to any creed, religion, church or sectarian association

. . . .'" Id. at 145 (quoting The Constitutional Commission,

Daily St. Gazette, Oct. 30, 1873). Further, the 1873 Commission

discussed amendments defining "free schools" or "public schools"

as excluding "schools controlled by or under the influence of

any creed or religious society, or denomination whatever," and

prohibiting the appropriation of money for the use of any

seminary or other institution of learning "when the said

institution is controlled by any creed, sect or religious

society." Id. at 148 (quoting The Constitutional Commission,

Daily St. Gazette, Nov. 14, 1873).

9 Available at https://statecon.camden.rutgers.edu/books.

21 A-4399-13T2 As Mazzei and Professor Williams have commented: "It is

absolutely clear, based on the [1873] Commission's proceedings

and report, that the Commission ultimately agreed with

[Commissioner Jacob L.] Swayze's original intent that public

schools were free and that religious, private or college

preparatory schools would not be eligible for state funds." Id.

at 154 (emphasis added). Hence, the Commission's report to the

1874 Legislature proposed adding text to the School Fund

provision, N.J. Const. of 1844, art. IV, § 7, ¶ 6, establishing

public schools and defining "free schools" as not including

religious schools. Mazzei & Williams, supra, at 159.

Senators took issue with various aspects of the proposed

amendment, but there appeared to be no recorded objection to the

exclusion of sectarian schools from receiving school funds. Id.

at 161, 166, 168. However, the amendment that ultimately passed

in 1874 by the Legislature, which provided for a thorough and

efficient system of "free public schools," contained no specific

reference to sectarian schools.10 Id. at 171. The Catholic

Church nevertheless interpreted the amendment as barring the

10 The "thorough and efficient" clause that was passed by the Legislature and adopted after a special election remains a vital part of the current constitution. N.J. Const., art. VIII, § 4, ¶ 1. See generally Abbott v. Burke,

(1985); Robinson v. Cahill,

(1975).

22 A-4399-13T2 diversion of public funds to parochial schools and strenuously

opposed its adoption in the 1875 election.

.

Like the drafters of the Constitution of 1844, the members

of the 1873 Constitutional Commission never conclusively

resolved whether Article I, Section 3 prevented the State from

providing funds to religious schools. Rather, they sought to

attain that result by limiting the fund recipients to "free

public schools."

A century later, the delegates at the Constitutional

Convention of 1947 incorporated Article I, Section 3 of the

Constitution of 1844 into the 1947 Constitution's final draft,

doing so with little discussion. 3 Proceedings of the

Constitutional Convention of 1947, at 167. Similar to the 1844

convention, however, there were deliberations in 1947 concerning

state funding of religious educational institutions,

particularly with regard to busing students to parochial school.

5 Proceedings of the Constitutional Convention of 1947, at 791-

807. As at the prior convention, these deliberations in 1947

focused on financial matters rather than on fundamental

religious liberties.

A proposal to bar the State from expending public money to

aid any school or institution under the control of any religious

denomination was originally submitted at the 1947 Convention by

23 A-4399-13T2 a citizens' group to the Bill of Rights Committee. However,

that proposal was transferred to the Taxation and Finance

Committee. Id. at 791-92. During public comment over the

proposal, a representative of the Presbyterian Church, William

E. Dickey, asserted that Article I, Paragraph 3 prohibited the

use of public funds to support the Catholic Church. Id. at 799.

His argument apparently provoked no action, however, and efforts

to include language expressly prohibiting the State from paying

public funds to assist religious schools died in committee. Id.

at 800-06.

The State argues that "[i]t is clear that the framers of

the 1947 [C]onstitution did not interpret [Article I, Paragraph

3] to prohibit aid to sectarian schools. Had that been the

case, there would have been no need for Committee discussion on

whether to include such a new provision in the 1947

Constitution." Appellants respond that the 1947 proposed

amendment to prohibit funding of religious schools was "rejected

because it was not deemed necessary, as aid to religious schools

was already prohibited" by Article I, Paragraph 3. Appellants

partly base that contention on a statement of the Committee

Secretary recorded in the 1947 proceedings, noting that "[t]he

parochial school system [had] developed without any public aid

24 A-4399-13T2 whatsoever and it will continue to develop without any public

aid." Id. at 805.

This mixed constitutional history does not easily reveal

whether Article I, Paragraph 3 was or was not intended to

prohibit public aid to religious organizations to support their

activities in religious instruction and the training of future

clerics. The parties have each asserted substantial competing

interpretations.

The State presents a plausible argument that the provision

was not intended to ban such public grants and expenditures

because the 1844 Delegates and 1873 Commissioners were concerned

that funds could still be diverted to sectarian schools, and

therefore took care to define "public schools" in such a way as

to exclude institutions controlled by religious sects. Later,

the 1947 Delegates seemingly rejected the notion that Article I,

Paragraph 3 prohibited public funding of sectarian schools,

first by transferring the proposed amendment barring religious-

school aid from the Bill of Rights Committee to the Tax and

Finance Committee, and then by discussing the merits of the

proposed amendment without ever expressing an opinion in the

record that it was unnecessary.

The Committee Secretary's remarks in 1947 are open to

differing reasonable interpretations. The Committee Secretary,

25 A-4399-13T2 who was a Catholic, listened to several commentators condemn the

Catholic Church and accuse parochial schools of invading the

public purse. When a speaker asked the Committee Secretary "why

is your church asking for [transportation aid]?" the Committee

Secretary responded that the parochial schools were doing fine

and the Catholic Church wanted no public control or supervision.

Id. at 805-06. The Committee Secretary added that the Catholic

people simply believed that their children were entitled to free

public-funded bus transportation. Id. at 806. His statements

could reasonably be construed to signify a belief that public

funding of sectarian schools was not already prohibited by

Article I, Paragraph 3. Such an interpretation is consistent

with the Committee Secretary's assertion that students were

entitled to free transportation to parochial schools.

On the other hand, appellants have presented substantial

arguments in favor of the hypothesis that the 1844 Delegates,

the 1873 Commissioners, and the 1947 Delegates did not adopt any

proposals to explicitly ban public aid to religious schools

because those respective drafters implicitly were satisfied that

Article I, Paragraph 3, as originally drafted by the 1776

framers, already prohibited such financial support. Although

the Committee Secretary in 1947 was in favor of free

transportation to parochial schools, he repeatedly responded to

26 A-4399-13T2 constitutional criticisms raised by various speakers by

questioning whether such transportation could even be considered

public "aid" or "support" of those schools or their affiliated

religions. Id. at 797-98, 800-01, 804, 806. In essence,

appellants contend that years later the Court in Resnick, which

we discuss infra, appropriately enforced the intended

prohibition of Article I, Paragraph 3 by striking down the

public subsidy afforded to sectarian groups in that case.

We do not resolve this historical dispute here. Our

reluctance to do so is founded in part by principles of

statutory construction. Generally, courts should exercise

caution when considering the import of a legislative body's

rejection of proposed amendments to a codified scheme. Although

the failure to adopt an amendment can, at times, indicate a

conscious decision to reject the amendment's provisions, see,

e.g., State v. Crawley,

(1982) (finding that

the Legislature's rejection of a proposed amendment to the

criminal code indicated "a conscious decision" not to include

the provision), such inaction conversely may signal that the law

as written already achieves the sought-after objective. See

generally 2A Norman J. Singer & J.D. Shambie Singer, Sutherland

Statutory Construction § 48:18 at 633-37 (7th ed. 2014). We

need not decide which side's historical argument concerning

27 A-4399-13T2 Article I, Paragraph 3 is more persuasive because the Supreme

Court has already adopted a dispositive construction of the

provision in Resnick.

The relevant circumstances in Resnick were as follows.

Defendant, the East Brunswick Township School Board, had a long-

standing policy of allowing local groups, including religious

organizations, to rent its school facilities during non-school

hours at below cost.

. Various

religious organizations used the facilities for worship,

religious instruction, prayer meetings, social gatherings, and

Hebrew language classes.

. Some religious

artifacts and Sunday School materials were stored at the

schools.

.

The plaintiff in Resnick filed suit to enjoin the school

board's practice of allowing the religious organizations to use

the public school facilities below cost. The plaintiff argued

that such action violated Article I, Paragraph 3's prohibition

against public expenditures in support of religion. The

plaintiff also alleged violations of the Establishment Clause of

the First Amendment of the United States Constitution and that a

statutory provision, N.J.S.A. 18A:20-34, did not authorize

public school buildings to be used for such religious

activities.

28 A-4399-13T2 The trial judge in Resnick found that N.J.S.A. 18A:20-34

neither contemplated nor allowed the public schools to be used

by religious groups for worship services.

; see also

Resnick v. E. Brunswick Twp. Bd. of Educ.,

(Ch. Div. 1975). However, the judge did find that the

statute permitted the schools to be used for Hebrew instruction

and Sunday School. Resnick, supra,

. With respect

to the latter, the judge concluded that even such a limited

instructional activity involved an outlay of taxpayer funds for

utilities, and thereby violated the constitutional prohibition

in Article I, Paragraph 3.

To cure the statute's

constitutional infirmity, the judge ruled that the religious

organizations were obligated to pay rent commensurate with the

school district's actual costs for utilities, administrative and

janitorial services.

The trial judge further concluded that the religious

organizations use of the schools also violated the First

Amendment.

; see also Resnick, supra,

. On this issue, the judge found the federal constitution

more restrictive than the state constitution and required the

board's program, even at rental rates equaling costs, to cease

within a year. As a caveat, the judge noted that his decision

did not nullify leases of public school facilities to religious

29 A-4399-13T2 bodies at competitive market rates, nor did it bar the temporary

use of school facilities by religious groups during emergencies,

such as after a fire or flood. Resnick, supra,

.

This court affirmed the trial judge's decision, substantially

for the reasons he expressed in his published opinion. Ibid.;

see also Resnick v. E. Brunswick Twp. Bd. of Educ.,

(App. Div. 1976).

The Supreme Court largely upheld the trial judge's decision

in Resnick, although a majority of the Justices voted to modify

the court's ruling to allow religious organizations to continue

to use the school district's facilities on a temporary basis so

long as those groups "fully reimburse school boards for related

out-of-pocket expenses[.]" Resnick, supra,

. The

majority found that the trial court had gone too far in

requiring the sectarian groups to pay a commercial rental rate

and in placing a one-year limit on their continued use of the

school premises.

Although Justice Clifford and Judge Conford dissented from

certain facets of the majority's analysis in Resnick, the

members of the Court were unanimous in striking down the school

board's existing leasing arrangement. Justice Clifford stated

that the trial court's ruling, which this court had upheld,

should be affirmed without modification, reinstating the market-

30 A-4399-13T2 value rental charge requirement because he considered the charge

mandated by the federal Establishment Clause to avoid improper

entanglement of church and state.

(Clifford, J.,

dissenting). Judge Conford, sitting on the Court by temporary

designation, went even further, opining that "any use of

publicly built and maintained buildings, especially public

schools, for the [religious groups'] stated purposes is

antithetical to the fundamental principle of separation between

church and state embedded in both the federal and State

constitutions."

(Conford, J., dissenting).

The majority opinion in Resnick ruled that Article I,

Paragraph 3, when "fairly read, specifically prohibits the use

of tax revenues for the maintenance or support of a religious

group."

. The majority cautioned that the provision

should not be carried to "an extreme," and the State need not

withhold police or fire protection because of a property's

sectarian use.

at 103 (citing Clayton v. Kervick,

(1970), vacated on other grounds,

,

,

(1971)). The majority provided no

further analysis of the issues under Article I, Paragraph 3,

other than to repeat its holding under the provision as

signifying that "the state constitution does require that

religious organizations be singled out among nonprofit groups in

31 A-4399-13T2 general as being ineligible for certain benefits which are

partly subsidized by tax-generated funds[.]" Id. at 103-04

(emphasis added).11

No reported New Jersey cases since Resnick have interpreted

the "religious aid" prohibition of Article I, Paragraph 3.

Other reported state decisions discussing Article I, Paragraph 3

have arisen instead in the context of claimed violations of free

exercise of religion and, when doing so, interpreted it co-

extensively with the Federal Free Exercise Clause, U.S. Const.

amend. I. See, e.g., S. Jersey Catholic Sch. Teachers. Org. v.

St. Teresa of the Infant Jesus Church Elementary Sch.,

(1997) (finding that allowing lay teachers to

unionize did not infringe on a parochial school's free exercise

of religion); State v. Perricone,

(finding

that the administration of a blood transfusion to a child in

contradiction to the parents' deeply held religious beliefs did

not infringe on the parents' free exercise of religion), cert.

11 In the portion of the majority's opinion that followed, the Court noted that the State Constitution's version of the Establishment Clause in Article I, Paragraph 4 is "less pervasive" than the federal counterpart provision, and ruled that the school board's leasing arrangements did not "appear to" violate that provision, "since no one religious sect was preferred over other sects." Id. at 104. Because our decision concludes that the grants to the Yeshiva and the Seminary violate Article I, Paragraph 3, we need not address the separate issues posed by appellants under Article I, Paragraph 4.

32 A-4399-13T2 denied,

,

,

(1962);

Bethany Baptist Church v. Deptford Twp.,

(App. Div. 1988) (finding that requiring a church to pay

tax on property acquired after the yearly assessment date did

not impede its free exercise of religion); see generally William

F. Cook, Note, The New Jersey Bill of Rights and a "Similarity

Factors" Analysis,

, 1137-41 (2003)

(suggesting that Article I, Paragraph 3 may be more pervasive

than its federal counterpart and thus deserving of distinct

analysis).

The federal court had occasion to discuss Resnick and

Article I, Paragraph 3 in Pope v. East Brunswick Board of

Education,

(3d Cir. 1993). In Pope, a student

challenged a school board's refusal to certify her Bible Club as

a student organization. Id. at 1245. After concluding that the

board's action violated the Federal Equal Access Act,

, the Third Circuit briefly addressed the

board's argument that the costs it would incur from recognizing

the Bible Club would violate Article I, Paragraph 3 of the New

Jersey Constitution. Id. at 1256. Relying on the holding in

Resnick, the Circuit noted that New Jersey courts have held that

"off-hours use of school facilities by church groups did not

offend the state constitution." Ibid. The Circuit then found

33 A-4399-13T2 that the incidental cost of providing space for student meetings

was a de minimis expenditure of public funds.12 Ibid.

Because the millions of dollars collectively involved in

the present case are surely not "de minimis," the reasoning in

Pope is not instructive. Pope does reflect, however, that the

federal court recognized our Supreme Court's opinion in Resnick

as setting forth the authoritative interpretation of Article I,

Paragraph 3.

The State attempts to distinguish Resnick from this case by

arguing that the grants to the Yeshiva and the Seminary would

benefit college and graduate students, who it asserts are not as

susceptible to religious indoctrination as the elementary school

students who used the East Brunswick public school facilities.

The State also argues that providing money for capital

improvements does not equate to "maintaining a minister or

ministry" as those terms are commonly understood in our

contemporary times. But neither of these considerations was a

factor in Resnick, where the facilities were used both for the

religious instruction of children and for adult worship, prayer

meetings, and social gatherings. Resnick, supra,

-

12 It is questionable whether the holding in Resnick truly supports the Pope court's conclusion, since the difference between the hourly rent charged and actual out-of-pocket costs in Resnick was only about $2.25, which is arguably a de minimis expense. Resnick, supra,

n.1.

34 A-4399-13T2 95. Moreover, the Court made no analytic distinction in Resnick

that hinged upon the ages of the users, even if we were to agree

with the debatable proposition that college and graduate

students are not particularly susceptible to religious

indoctrination.

The school classrooms in Resnick did not lose their non-

sectarian character simply because they were used after hours at

times for religious purposes. At least one of the uses the Court

identified in Resnick — Hebrew language instruction — was

arguably non-religious in nature. However, it was the sectarian

nature of the groups renting the space for such instruction that

was of primary concern to the Court in striking down the

subsidized arrangement.

Here, unlike other broad-based liberal arts colleges that

received grants, both the Yeshiva and the Seminary are sectarian

institutions. Their facilities funded by the Department's

grants indisputably will be used substantially if not

exclusively for religious instruction. The planned uses by

these sectarian institutions clearly fall within the prohibitory

ambit of Resnick.

We discern no principled distinction between the

consumption of public resources that was invalidated under

Article I, Paragraph 3 in Resnick and the payment of taxpayer-

35 A-4399-13T2 funded grants to the Yeshiva and the Seminary. The fact that

most or many of the students at the Yeshiva and the Seminary do

not eventually become "ministers," rabbis, or other clergy does

not cure the constitutional infirmity, just as the fact that the

adults and children who received religious instruction in

Resnick were laypeople did not alter the Court's analysis. Nor

does the fact that the Department's awards to these sectarian

schools were part of a larger competitive grant process

involving non-sectarian recipients solve the problem. The

public school buildings in Resnick were also used by non-

religious groups, but that did not eliminate the district's

constitutional violation in allowing religious groups to use

them on a subsidized basis.

As an alternative to its attempt to distinguish Resnick,

the State argues that the Court's 1978 opinion is out of step

with more recent national trends in constitutional jurisprudence

concerning religion, particularly case law involving the

Establishment Clause. More specifically, the State submits that

First Amendment jurisprudence has shifted over the years to

relax the circumstances under which government aid for religious

schools is permitted. See generally, Ira C. Lupu et al., Pew

Research Ctr., Shifting Boundaries: The Establishment Clause

36 A-4399-13T2 and Government Funding of Religious Schools and Other Faith-

Based Organizations (2009).13

We will not speculate as to whether this asserted shift in

federal Establishment Clause jurisprudence, assuming there is

truly such a shift, affects the independent meaning and force of

the New Jersey Constitution. Indeed, our state has a rich

tradition of sometimes construing our own state constitutional

protections of individual rights more broadly than cognate

provisions in the United States Constitution. See Williams,

supra, xix (noting that the New Jersey Supreme Court "has

continued to consider interpretations of the state

constitutional rights provisions that are broader, or more

protective of citizens, than the decisions of the United States

Supreme Court interpreting the federal Constitution"); see also

State v. Hunt,

(1982) (Handler, J.,

concurring) (identifying "divergence factors" for determining

whether a provision within the State Constitution should be

interpreted more broadly than its federal counterpart).

Moreover, the differences of viewpoint between the majority of

13 Available at http://www.pewforum.org/files/2009/05/funding. pdf.

37 A-4399-13T2 the Justices and Justice Clifford's dissent14 in Resnick hinged

only upon the analysis under the federal Establishment Clause

and not over Article I, Paragraph 3, indicating that a proper

interpretation of the latter is not to be affected by the

federal jurisprudence. See Resnick, supra,

(Clifford, J., dissenting) (disagreeing only with the majority's

interpretation of the statute regarding boards of education and

the federal Establishment Clause).

We acknowledge that the Court's discussion of Article I,

Paragraph 3 in Resnick was rather abbreviated. Resnick did not

delve into the extensive constitutional history that has been

presented to us by the parties and which we have canvassed in

this opinion. We have set that history out at some length for

the sake of completeness. We stop there, however, because

Resnick remains the controlling Supreme Court precedent.

Resnick has never been overruled or called into question by

the Court. As an intermediate appellate court, we are bound by

the Court's holding. See N. Jersey Media Grp., Inc. v. Twp. of

Lyndhurst,

(App. Div. 2015) (citing

White v. Twp. of N. Bergen,

(1978)) (noting

14 As we have noted, Judge Conford's more stringent approach in his own dissent rested upon both the federal and state constitutions. Resnick, supra,

(Conford, J., dissenting).

38 A-4399-13T2 that "intermediate appellate courts are 'bound, under the

principle of stare decisis, by formidable precedent'").

For these reasons, we conclude that Resnick compels

invalidation of the grants to the Yeshiva and the Seminary under

Article I, Paragraph 3 of the New Jersey Constitution. In light

of that disposition, we need not and do not reach appellants'

separate claims of invalidity under Article I, Paragraph 4;

Article VIII, Section 3, Paragraph 3; and the LAD. We also

caution that our opinion should not be construed to adjudicate

fact patterns involving public grants to different religiously

affiliated institutions of higher education which have a broader

non-sectarian scope and thereby may be distinguishable from the

Yeshiva and the Seminary, including the other recipients of

grants from the 2013 Solicitation.15

Reversed.

15 As just one example of the limited scope of our opinion, it should not be read to nullify under Article I, Paragraph 3 public grants to broad-based liberal arts colleges and universities just because they happen to have a Religious Studies Department or a chapel on campus.

39 A-4399-13T2