APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 76-0341)
Before Aldisert, Adams and Hunter, Circuit Judges.
This appeal requires us to decide whether the district court erred in determining that the teaching of a course called the Science of Creative Intelligence Transcendental Meditation (SCI/TM) in the New Jersey public high schools, under the circumstances presented in the record, constituted an establishment of religion in violation of the first amendment of the United States Constitution. Plaintiffs sought injunctive and declaratory relief and, after defendants had filed numerous depositions, answers to interrogatories, admissions, and other affidavits, the district court granted summary judgment in favor of plaintiffs. The court held that SCI/TM was religious activity for purposes of the establishment clause and that the teaching of SCI/TM in public schools is prohibited by the first amendment. The World Plan Executive Council United States and certain individual defendants have appealed. We affirm, essentially for the reasons set forth by Judge H. Curtis Meanor in Malnak v. Yogi, 440 F. Supp. 1284 (D.N.J.1977).
The course under examination here was offered as an elective at five high schools during the 1975-76 academic year and was taught four or five days a week by teachers specially trained by the World Plan Executive Council United States, an organization whose objective is to disseminate the teachings of SCI/TM throughout the United States. The textbook used was developed by Maharishi Mahesh Yogi, the founder of the Science of Creative Intelligence. It teaches that "pure creative intelligence" is the basis of life, and that through the process of Transcendental Meditation students can perceive the full potential of their lives.*fn1
Essential to the practice of Transcendental Meditation is the "mantra"; a mantra is the sound aid used while meditating. Each meditator has his own personal mantra which is never to be revealed to any other person. It is by concentrating on the mantra that one receives the beneficial effects said to result from Transcendental Meditation.
To acquire his mantra, a meditator must attend a ceremony called a "puja." Every student who participated in the SCI/TM course was required to attend a puja as part of the course. A puja was performed by the teacher for each student individually; it was conducted off school premises on a Sunday; and the student was required to bring some fruit, flowers and a white handkerchief. During the puja the student stood or sat in front of a table while the teacher sang a chant and made offerings to a deified "Guru Dev." Each puja lasted between one and two hours.*fn2
The district court found that the SCI/TM course constituted a religious activity under the first amendment. In its exhaustive and well-reasoned opinion, the court concluded its analysis by stating:
When courts are faced with . . . forms of "religion" unknown in prior decisional law, they must look to the prior interpretations of the constitutional provisions for guidance as to the substantive characteristics of theories or practices which have been found to constitute "religion" under the first amendment. The Supreme Court has interpreted the religion clauses of the first amendment several times in its recent history. E. g., Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973); Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968); 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 (1963); Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961); Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). The historical development and purpose of the religion clauses have been elaborated in a number of these cases, especially in Engel and in Everson. Religion, as comprehended by the first amendment now includes mere affirmation of belief in a supreme being, Torcaso, supra, invocation of a supreme being in a public school, Engel, supra, and reading verses from the Bible without comment, Schempp, supra.
Defendants argue that all of the above-discussed decisions are inapposite to the issues in this suit because the activity in question in each of the prior cases was represented or conceded to be religious in nature whereas defendants in the instant action assert that the activities are not religious in nature. The court notes the distinction but cannot accept defendants' conclusion that the decisions are not relevant. The cases, at the very least, reveal the types of activity and belief that have been considered religious under the first amendment.
Malnak v. Yogi, 440 F. Supp. at 1315.
We agree with the district court's finding that the SCI/TM course was religious in nature. Careful examination of the textbook, the expert testimony elicited, and the uncontested facts concerning the puja convince us that religious activity was involved and that there was no reversible error in the district court's determination.
A recognition of the religious nature of the teachings and activities questioned here is largely determinative of this appeal because of the apparent governmental action which is involved. Under the most recent Supreme Court pronouncement in this area, Committee for Public Education v. Nyquist, 413 U.S. 756, 773, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973), the Court reiterated the three criteria within which to scrutinize the involved governmental action. To pass muster, the action in question must: (1) reflect a clearly secular legislative purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion. The district court applied the Nyquist test and determined that the SCI/TM course has a primary effect of advancing religion and religious concepts, School District of Abington Township 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), and that the government aid given to teach the course and the use of public school facilities constituted excessive governmental entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).
Appellants urge that even if the SCI/TM course and the puja are clearly religious, the district court erred in applying the controlling legal precept because the religious effect of the course and the puja was not significant. In advancing this argument, appellants rely on Grossberg v. Deusebio, 380 F. Supp. 285 (E.D.Va.1974); Wood v. Mt. Lebanon Township School District, 342 F. Supp. 1293 (W.D.Pa.1972); and Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974), for the proposition that religious effect must be substantial in order to be unconstitutional. Grossberg, Wood, and Wiest upheld as constitutional the delivery of invocations and benedictions at high school graduation ceremonies.*fn3 We are not persuaded that the reasoning employed in those cases requires reversal in this case because of the factual differences between a benediction at a non-instructional high school commencement exercise open to the public and the teaching of SCI/TM which includes ceremonial student offerings to deities as part of a regularly scheduled course in the schools' educational programs.
The judgment of the district court will be affirmed.
ADAMS, Circuit Judge, concurring in the result.
I concur in the judgment of the Court that the teaching of a course in the Science of Creative Intelligence, which was offered as an elective in certain New Jersey public schools, and was funded, in part, by a grant from a federal agency, constitutes an establishment of religion proscribed by the first amendment. In contrast to the majority, however, I am convinced that this appeal presents a novel and important question that may not be disposed of simply on the basis of past precedent. Rather, as I see it, the result reached today is largely based upon a newer, more expansive reading of "religion" that has been developed in the last two decades in the context of free exercise and selective service cases but not, until today, applied by an appellate court to invalidate a government program under the establishment clause. Moreover, this is the first appellate court decision, to my knowledge, that has concluded that a set of ideas constitutes a religion over the objection and protestations of secularity by those espousing those ideas. Under these circumstances, and recalling Justice Frankfurter's admonition that an individual expression of opinion is useful when the way a result is reached may be important to results hereafter to be reached,*fn1 I am impelled to state my views separately.
The district court, while conceding that the decisions of the Supreme Court have avoided the creation of explicit criteria in determining what is a religion under the first amendment,*fn2 nonetheless bases its result on those very decisions:
The (district) court finds it unnecessary to improvise an unprecedented definition of religion under the first amendment because it appears that this case is governed by the teachings of prior Supreme Court decisions. Careful inspection of the facts in this suit reveal that the novel aspects of the case are more apparent than real.*fn3
It is my view that the teachings of those cases cited by the district court do indeed suggest the result reached by that court and affirmed today. But, as Judge Meanor's opinion amply illustrates, those opinions involve substantially different facts and problems than are presented here. And although the application of such cases to the factual situation here may be warranted, such an application is an extension of existing case law, and thus calls for both an explanation and a justification.
For purposes of the issues posed by this controversy, the arguably relevant decisional law may be divided into four principal groupings: cases announcing the traditional definition of religion, cases dealing with prayers recited in school, cases involving the conscientious objector exemption to the selective service laws, and cases touching on the newer constitutional definition of religion. Although the district court, and apparently the majority of this Court, consider these decisions to be controlling on the question raised here, careful reflection reveals as many differences as similarities.
A. The Traditional Definition of Religion
The original definition of religion prevalent in this country was closely tied to a belief in God. James Madison called religion "the duty which we owe to our creator, and the manner of discharging it."*fn4 Basically, this was the position of the Supreme Court at the end of the nineteenth century. In Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890), the Court declared:
(T)he term "religion" has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.*fn5
This attitude remained unchallenged for many years. Chief Justice Hughes, writing a dissent in 1931, could conclude without concern that
(t)he essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.*fn6
Thus, the traditional definition was grounded upon a Theistic perception of religion. It is not clear, however, given the absence of any concentration in SCI/TM on a "Supreme Being," that it may be ...