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Cooke v. Tramburg

Decided: December 14, 1964.


For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.


Plaintiff, a member of the Black Muslim movement, was confined at the New Jersey State Prison serving a sentence for larceny.*fn1 He requested the Board of Managers of the New Jersey State Prison to grant to the Black Muslims confined therein the right to assemble in a chapel or other appropriate place of worship and furthermore to permit a Minister of the Black Muslim movement to preach to the congregation assembled there. The Board of Managers denied plaintiff's request on the ground that if permission were granted, the practice would be inimical to the maintenance of prison welfare.

Defendant points out that in the exercise of the Board's discretion Black Muslims are allowed the following liberties which are in the nature of the exercise of religious beliefs. Black Muslims are permitted to receive religious tracts in prison, they may purchase their Qu'ran, and may read it in their cells, they are permitted to gather together in the exercise yard up to six in number, and discuss the Qu'ran, Muslimism and Islam if done orderly and in quiet voice. Moreover, they can have a Black Muslim minister placed on their visiting list and the minister may visit each one and give him private

counselling without anyone's listening in; and also they have writing privileges to their ministers.

Plaintiff appealed the Board's decision to the Appellate Division pursuant to R.R. 4:88-8.*fn2 Before argument, we certified the cause on our own motion. After oral argument before us we ordered the matter referred to the Superior Court for the taking of testimony of the basis of the Board's rule or regulation.

The Board of Managers made no determination concerning the religious status of the Black Muslim movement. We need not decide the question as even were we to proceed under the assumption that it is a religion, we reach the same conclusion.*fn3

Both the Constitution of the United States and the Constitution of the State of New Jersey provide for freedom of religious worship.*fn4 But we note that in Cantwell v. State of Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1939), the Supreme Court distinguished between the two concepts embodied in the First Amendment, namely, the freedom to believe and the freedom to exercise one's belief. It pointed out that the first is absolute while the second is not and furthermore that the freedom to act is subject to regulation for the protection of society. See also Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1879); Davis v. Beason,

133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890). The latter concept is clearly applicable to a penal institution. Banks v. Havener, 234 F. Supp. 27 (E.D. Va. 1964).

These principles were followed in McBride v. McCorkle, 44 N.J. Super. 468 (App. Div. 1957). There the court noted that while freedom to believe is absolute, freedom to exercise one's belief is not and must be considered in light of the general public welfare. With particular reference to a prison inmate the court held that although attendance at Mass on Sundays and Holy Days as prescribed by the Roman Catholic Church is the "exercise" of religion, a prisoner who, in common with 30 other men in the segregation wing of the State Prison, was prevented from attending Mass on Sundays and Holy Days was not thereby subjected to cruel and unusual punishment or deprived of his constitutional right of free exercise of his religion.

In Reynolds, supra, the Supreme Court upheld a Mormon's conviction for bigamy against the defense of interference with religious freedom as guaranteed by the First Amendment. Chief Justice Waite there stated (98 U.S., at p. 166, 25 L. Ed., at p. 250): "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?"

In State v. Perricone, 37 N.J. 463 (1962), cert. denied 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2 d 124 (1962), we held that where parents who were Jehovah's Witnesses had refused to grant permission for necessary blood transfusions for their infant, the finding that the parents were guilty of neglect and the appointment of a guardian for the purpose of consenting to blood transfusions were not violative of either the Federal or State Constitutions. We pointed out that where the interests of society as a ...

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