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Marsa v. Wernik

Decided: November 6, 1978.

PAUL MARSA, PLAINTIFF,
v.
DONALD J. WERNIK, INDIVIDUALLY AND AS THE MAYOR OF THE BOROUGH OF METUCHEN, DONALD J. BARNICKEL, JOHN W. BERTRAND, PATRICIA LAGAY, DENNIS O'LEARY, THOMAS E. SHARP AND JOHN WILEY, JR., INDIVIDUALLY AND AS MEMBER OF THE COUNCIL OF THE BOROUGH OF METUCHEN, DEFENDANTS



Furman, J.s.c.

Furman

Plaintiff challenges the constitutionality of the practice of a nondenominational invocation or, alternatively, a silent meditation of about a minute at the start of regular meetings of the Metuchen Borough Council, immediately following the announcement of compliance with the Open Public Meetings Act (N.J.S.A. 10:4-6 et seq.) and the roll call. His challenge is brought solely under the establishment of religion clause of the First Amendment to the United States Constitution, which is applicable to the States under the Fourteenth Amendment. The Knights of Columbus have intervened.

On motion and cross-motion for summary judgment the facts are undisputed. The council practice, which is not formalized in any ordinance, resolution or rule of procedure, is as follows. The mayor asks those who wish on the council and in the audience to rise for an invocation or silent meditation. The individual council members, on a rotating basis, give a short invocation or ask for a brief silent meditation. The salute to the flag follows. Plaintiff is an atheist who has objected to the practice and remained seated during the invocation or silent meditation and the salute to the flag.

Three recent invocations by as many council members are before the court. Two are addressed to "Heavenly Father." Another is a prayer for protection and nourishment without addressing by name God or divine providence. A fourth council member asked for silent meditation: "Let us take the next few moments of silence to each seek in our own way whatever sources of inspiration will help us make those decisions which will be in the best interests of all the citizens of the Borough of Metuchen."

Nothing in the record suggests that, except as a prelude to silent meditation, any council members have offered a nonreligious call to conscience or other moral declaration, rather than an invocation to divinity.

Lincoln v. Page , 109 N.H. 30, 241 A.2d 799 (Sup. Ct. 1968), upheld the constitutionality of a practice of opening town meetings with a prayer by a local clergyman. The practice was viewed as not an establishment of religion proscribed by the establishment clause of the First Amendment in "any pragmatic, meaningful and realistic sense."

No other direct authority is cited. In United States and New Jersey Supreme Court opinions invalidating prayers in public schools (Abington School District v. Schempp , 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963); Engel v. Vitale , 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962); State Bd. of Ed. v. Netcong Bd. of Ed. , 108 N.J. Super. 564 (Ch. Div. 1970), aff'd 57 N.J. 172 (1970), cert. den. 401 U.S. 1013, 91 S. Ct. 1253, 28 L. Ed. 2d 550 (1971)) the impressionability of children and their compulsory school attendance are factors considered. Abington is also distinguishable because the laws struck down required the reading of verses from the Bible.

Justice Brennan, concurring in Abington , drew a distinction between school prayers and prayers before legislative bodies, as follows:

The saying of invocational prayers in legislative chambers, state or federal, and the appointment of legislative chaplains, might well

represent no involvements of the kind prohibited by the Establishment Clause. Legislators, federal and state, are mature adults who may presumably absent themselves from such public and ceremonial exercises without incurring any penalty, direct or indirect. [374 U.S. at 299, 300, 83 S. Ct. at 1612]

In Zorach v. Clausen , 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1951), which ruled constitutional a program of released time on a voluntary basis for religion education classes during school hours outside ...


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