decided: January 12, 1979.
PUBLIC FUNDS FOR PUBLIC SCHOOLS OF NEW JERSEY, AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, INC., AMERICANS FOR DEMOCRATIC ACTION, NEW JERSEY REGION OF AMERICAN JEWISH CONGRESS, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, TRENTON AREA CHAPTER OF AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, ETHICAL CULTURE SOCIETY OF BERGEN COUNTY, NATIONAL COUNCIL OF JEWISH WOMEN, NEW JERSEY CONGRESS OF PARENTS AND TEACHERS, NEW JERSEY EDUCATION ASSOCIATION, SOCIETY OF SEPARATIONISTS, NEW JERSEY CHAPTER, TEANECK CITIZENS FOR PUBLIC SCHOOLS, UNION OF AMERICAN HEBREW CONGREGATIONS, GILBERT S. BARNES, LINDA B. CAPPELSON, FRED E. CLEVER, SUSAN P. COEN, WARREN D. CUMMINGS, RITA D'JOSEPH, JOHN H. FORD, RUTH D. GLICK, DAVID GOLDBERG, LAWRENCE HAAS, JOHN C. HAZEN, ALEXANDER H. HOLMAN, JOHN PINTARD HORCHNER, W. CLIFFORD JONES, MERLE H. KALISHMAN, JUDITH S. KNEE, LIBBY B. KORENSTEIN, WENDY F. KORENSTEIN, JO KOTULA, PHYLLIS A. MINCH, EDNA B. NORRIS, ALLAN S. OLSEN, DONALD C. OSBORNE, ROSE PAULL, PENNY PISTILLI, DOROTHY BELLE POLLACK, RAYMOND J. POINTIER, EVAN C. RICHARDSON, ALEX ROSEN, DONALD R. SIMON, MARCIA SMITH, PETER E. STOKES, NATHAN TAMARIN, HARRY F. UNGAR, MANYA S. UNGAR, ARTHUR W. WELD, ELIZABETH WINTERMUTE, WILLIAM WITHERS, NANCY DUFFY, ARTHUR KNUDSEN, AND GEORGE W. SOPER
BYRNE, BRENDAN T., GOVERNOR OF THE STATE OF NEW JERSEY, SIDNEY GLASER, DIRECTOR OF TAXATION OF THE STATE OF NEW JERSEY, AND DR. FRED G. BURKE, COMMISSIONER OF EDUCATION OF THE STATE OF NEW JERSEY, APPELLANTS NEWARK ARCHDIOCESAN FEDERATION OF HOME SCHOOL ASSOCIATES, AND JAMES P. BEGGANS, JR., NEW JERSEY GENERAL ASSEMBLY, INTERVENING PARTY DEFENDANTS
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 77-0139
Before Rosenn and Weis, Circuit Judges, and Hannum, District Judge.*fn*
This case presents recurring and troublesome questions concerning the relationship between religion and government. The occasion for our consideration of these questions is a challenge, under the Establishment Clause of the Federal Constitution, to the State of New Jersey's recent enactment of its first general income tax law which includes tax relief to parents of children attending nonpublic schools.
The commands and guarantees of the first amendment to the Federal Constitution enabling Americans to assemble freely, speak freely, publish freely, and worship freely created the quintessence of a unique and open society which characterized the quality of our Republic. The amendment also "underwrote the admonition of Thomas Jefferson that there should be a wall of separation between church and state."*fn1 In recent years, the Supreme Court succinctly described the attitude of the state to the relationship between man and religion in our society in these words:
The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to realize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.
Abington School District v. Schempp, 374 U.S. 203, 226, 83 S. Ct. 1560, 1574, 10 L. Ed. 2d 844 (1963).*fn2
In 1976 New Jersey instituted a general income tax, which included among its many sections this provision:
(b) Additional exemptions. In addition to the personal exemptions allowed in (a), the following additional personal exemptions shall be allowed as a deduction from gross income:
2. For each dependent who qualifies as a dependent of the taxpayer during the taxable year for Federal income tax purposes $1,000.00 plus, for each dependent child attending on a full-time basis an elementary or secondary institution not deriving its primary support from public moneys $1,000.00.
N.J.S.A. 54A:3-1(b)(2) (West Supp.1977). This exemption for dependents in nonpublic schools is one of several $1,000 exemptions for which a taxpayer might be eligible. Beside a $1,000 personal exemption, a taxpayer can claim additional $1,000 exemptions if he or she has a spouse, if the taxpayer or spouse is 65 or older, if the taxpayer or spouse is blind or disabled, or if a dependent of the taxpayer attends a college or university and receives from the taxpayer at least half the costs of tuition and maintenance. N.J.S.A. 54A:3-1(b)(1)-(6), 54A:3-1.1 (West Supp.1977).
Contending that the exemption for dependents in nonpublic elementary or secondary schools violates the Establishment Clause of the first amendment, several organizations interested in the relation of church and state, as well as several individual taxpayers, sued in the United States District Court for the District of New Jersey seeking declaratory and injunctive relief.*fn3 They named as defendants the Governor of New Jersey, the state's Director of Taxation, and the Commissioner of Education (collectively "the State" or "New Jersey").
No testimony was presented, and the learned district court characterized its findings of fact as "undisputed." Public Funds for Public Schools v. Byrne, 444 F. Supp. 1228, 1229 (D.N.J.1978). The court found that of the 753 nonpublic elementary and secondary schools in New Jersey, 714 (or almost 95 percent) are religiously affiliated. Upon the assumption that most children from New Jersey attending private or parochial schools go to schools within the state, the court concluded that "only a few such children attend a school that is not religiously affiliated." Id. at 1229-30. Reasoning that the provision under attack rewards the enrollment of children in religiously affiliated schools, the district court held that "this income tax reduction provision has the direct effect of aiding religion" and that the law, on its face, contravenes the Establishment Clause of the first amendment. Id. at 1231. An additional ground ...
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