Public Funding for Religious Education Likely headed to the NJ Supreme Court

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A New Jersey appeals court recently ruled that Gov. Chris Christie’s administration violated the state constitution when it awarded more than $11 million in funding to two religious schools. The Department of Higher Education awarded $10.6 million to Beth Medrash Govoha, a Jewish Yeshiva, and $645,323 to the Princeton Theological Seminary pursuant to the Building Our Future Bond Act

The American Civil Liberties Union of New Jersey, the Unitarian Universalist Legislative Ministry of New Jersey, and three citizens challenged the grants, citing that the schools would use the money to support religious instruction in violation of a constitutional provision banning taxpayer funds from going toward the maintenance of a church or ministry.

The New Jersey Constitution

Art. I, para. 3 of the New Jersey Constitution states:

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.

While New Jersey overhauled its constitution in 1947, the wording of the provision at issue dates back to 1776. As the appeals court acknowledged, its meaning is debatable, and there are not a lot of sources to consult when interpreting it. “Given the haste and informality surrounding the adoption of the 1776 constitution while British warships were gathering off the coast of Sandy Hook, little is known of the intent of its drafters,” Judge Jack Sabatino wrote.

Not surprisingly, the state and the plaintiffs advocated very different interpretations of the constitution. The plaintiffs maintained that Article I, Paragraph 3 prohibits New Jersey tax revenues from being used for the maintenance of a religious group, regardless of whether such subsidies are provided on an equal basis to other organizations. Meanwhile, the state argued that the grants do not violate the constitution because they will be used to fund classrooms, libraries, and technical equipment rather than places of worship or “ministries.”

The Appellate Court Decision

The Appellate Division ultimately ruled that the grant awards were unconstitutional in light of the Supreme Court of New Jersey’s 1978 decision in Resnick v. East Brunswick Board of Education. In that case, the court held that Article I, Paragraph 3 bars 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, although the case did not delve very deeply into the meaning of the constitutional provision.

Regardless, the appeals court was compelled to follow the precedent. “Applying that binding precedent here, we conclude that Resnick compels the invalidation of these grant of public funds to the yeshiva and the seminary,” Sabatino wrote.

The ACLU is touting its victory as a win for civil rights. However, given the significance of the constitutional issues raised, the case appears destined to go before the state’s highest court. In fact, the Appellate Division’s opinion invited the state Supreme Court to weigh in. Regarding Art. I, para. 3 of the state constitution, Judge Sabatino wrote: “[W]e 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.”

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.