for sending his child to a non-public school. Only the form in which the financial gain came to the parent was different. Under the tuition reimbursement program, a cash payment was received while under the tax benefit plan the amount of taxable income and, hence, the amount of tax owed, were reduced. The Court ultimately held that ". . . insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions." 413 U.S. at 793.
I see no distinction of constitutional moment between the income tax deduction provided in the statute under attack here and the tax benefit program invalidated in Nyquist. In both cases the parent taxpayer receives a financial reward from the state for sending his child to a non-public school. Since the vast majority of those schools in New Jersey are religiously affiliated it follows that this income tax deduction provision has the direct effect of aiding religion and is, under Nyquist, in violation of the establishment clause.
It is also my opinion that as well as violating the "effect" or second part of the three-part test, the New Jersey statute at issue also violates the "entanglement" or third prong of the test. In Nyquist, the Court observed that had the statute remained viable there undoubtedly would have been continuing pressure to enlarge its benefits.
One need not be clairvoyant to know that if this New Jersey statute continues there will be increasing pressure to enhance it. This would enmesh New Jersey in continuing political strife over aid to religion, thereby engaging the government of New Jersey in excessive entanglement with religion. See Nyquist, supra, 413 U.S. 794-798.
Great emphasis has been placed by defendants upon Walz v. Tax Commission, 397 U.S. 664, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970) in which property tax exemptions for religious organizations withstood an establishment clause attack. I need not discuss this argument at length. Walz was also relied upon by the appellees in Nyquist and was thoroughly distinguished by Mr. Justice Powell's opinion for the majority. Since I have found that Nyquist is controlling here, obviously Walz can be of no aid to the defendants.
The plaintiffs seek both declaratory and injunctive relief, and have raised a question concerning the scope of that relief. Plaintiffs do not contend that the statute would be unconstitutional if it permitted the deduction only to parents whose children attended a private non-sectarian school. And plaintiffs appear unconcerned whether that section of the statute they attack is stricken entirely or whether the statute is restricted in its effect so as to eliminate any deduction to parents of children who attend religiously affiliated private schools.
The defendants take the position that the statute cannot be so severed and that if the clause under attack is unconstitutional with regard to attendance of a taxpayer's dependent child in a sectarian school, then the relief must be to deny the deduction altogether and not to preserve it for those parents whose children attend a non-sectarian private school.
Since severability is a question of legislative intent,
it seems clear that defendants are correct in their position that the legislature would not wish to retain the deduction with respect to attendance solely at non-sectarian schools. In view of the fact that the overwhelming majority of beneficiaries of the statute as written would be parents of children attending religiously affiliated primary and secondary schools, it is extremely unlikely that the New Jersey legislature would have provided this deduction only for the parents of that comparatively small number of children who attend non-sectarian private schools. Sloan v. Lemon, 413 U.S. 825, 833-834, 37 L. Ed. 2d 939, 93 S. Ct. 2982 (1973).
For the reasons set forth in this opinion, plaintiffs are entitled to a declaratory judgment that that portion of N.J.S.A. 54A:3-1 italicized in footnote 2 of this opinion is unconstitutional in violation of the establishment clause of the first amendment. Plaintiffs are also entitled to a permanent injunction against defendant Glaser restraining him from permitting any taxpayer to take the income tax deduction held unconstitutional in this opinion for taxable years ending in 1977 and successive years.
Injunctive relief is not appropriate as to any other defendant.
Plaintiffs shall present a judgment in conformity with this opinion as soon as possible with consent to the form thereof if attainable. If consent to the form of the proposed judgment cannot be had, plaintiffs may move to settle the form of the order on 24 hours' notice, and such a motion shall be returnable before me any non-holiday morning at 9:30.