On appeal from the Superior Court, Appellate Division, whose opinion is reported at 171 N.J. Super. 587 (1980).
For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Handler, J. Pashman, J., concurring. Clifford, J., concurring. Justice Pashman joins in this opinion. Pashman and Clifford JJ., concurring in the result.
The issue presented in this case is whether the commencement of public meetings of a municipal governing body with a brief exercise, variously referred to as an invocation, prayer or silent meditation, violates the Establishment of Religion Clause of the First Amendment to the United States Constitution. Challenging this practice is a resident and taxpayer of the municipality, an atheist. Defendants are the mayor and members of the municipal governing body.
The facts as they appear from the pleadings and affidavits in conjunction with motions for summary judgment are not complicated and, although controversial, are not controverted. Plaintiff regularly attends meetings of the town council of the Borough of Metuchen. At each meeting there is first a formal announcement to the effect that in calling the meeting there has been compliance with requirements of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. This is followed by the taking of a roll call. The mayor then asks those who so wish, to rise for an invocation or silent meditation which is delivered by a particular member of the municipal council. It appears that the member who gives the invocation has himself determined or selected its
contents. There is nothing to suggest that it is in any way subject to the approval of any other official or person. Four sample messages or invocations are before the Court.*fn1 It is not clear, however, to what extent these are typical or representative of all such invocations or with what degree of regularity or frequency any of these is actually used.
Plaintiff claims that the practice of opening council meetings with what he calls an invocation, prayer or silent meditation causes him great discomfort and may have the effect of dissuading plaintiff and others from attending these meetings. He has objected to the "invocation" by remaining seated when the mayor asks all present to stand. Defendants admit that meetings are commenced with such an exercise but deny that there is anything legally wrong with the practice. They point out that in the past meetings were customarily opened with an invocation by local clergy until June 1976, when council members individually began giving the invocations.
The trial judge entered summary judgment for defendants, 163 N.J. Super. 589 (Ch.Div.1978), applying a three-pronged test set forth by the United States Supreme Court for Establishment Clause cases. The judge concluded that the practice of opening a public meeting with an invocation has a secular purpose, has a primary effect that neither advances nor inhibits religion, and does not foster excessive governmental entanglement with religion. Id. at 592-593. He found that the invocations are nondenominational and that participation is noncompulsory. Id. at 593. The secular purpose and primary effect of the invocation, he concluded, are to "call on the consciences and moral resolves of those in attendance at the council meeting and to inspire their wisest and fairest participation through a few opening moments of prayer or reflection." Id. The judge found minimal entanglement, analogizing to the practice of opening state and federal legislative sessions with prayer. Id. at 594. He distinguished cases prohibiting prayer in public schools on the basis of the "impressionability of children and their compulsory school attendance." Id. at 591. The Appellate Division affirmed on the opinion below. 171 N.J. Super. 587 (1980). Plaintiff appealed to this Court as of right. See R. 2:2-1(a)(1).
The principles underlying the Establishment Clause of the First Amendment are clear.*fn2 As stated by Justice Black in
Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S. Ct. 504, 511, 91 L. Ed. 711, 723 (1947):
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance, or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or
groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."
Over the years governmental action touching upon religious practices, beliefs and attitudes has served to probe the limits of the Establishment Clause. The Supreme Court has defined these limits under a three-element test in order to identify the demarcation between church and state which is at the heart of the Establishment Clause. This standard was succinctly described in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 772-773, 93 S. Ct. 2955, 2965, 37 L. Ed. 2d 948, 962-963 (1973), viz:
[T]o pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, second, must have a primary effect that neither advances nor inhibits religion, and, third, must avoid excessive entanglement with religion.
The Supreme Court recently reaffirmed the three-part test applied in Establishment Clause cases in Stone v. Graham, U.S. , 101 St.Ct. 192, 66 L. Ed. 2d 199 (1980).
This tripartite test has most often been applied in the area of state aid to nonpublic schools. See, e.g., Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S. Ct. 840, 63 L. Ed. 2d 94 (1980); New York v. Cathedral Academy, 434 U.S. 125, 98 S. Ct. 340, 54 L. Ed. 2d 346 (1977); Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593, 53 L. Ed. 2d 714 (1977); Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 96 S. Ct. 2337, 49 L. Ed. 2d 179 (1976); Meek v. Pittenger, 421 U.S. 349, 95 S. Ct. 1753, 44 L. Ed. 2d 217 (1975), reh. den. 422 U.S. 1049, 95 S. Ct. 2668, 45 L. Ed. 2d 702 (1975); Committee of Public Education and Religious Liberty v. Nyquist, supra; Tilton v. Richardson, 403 U.S. 672, 91 S. Ct. 2091, 29 L. Ed. 2d 790 (1971), reh. den. 404 U.S. 874, 92 S. Ct. 25, 30 L. Ed. 2d 120 (1971); Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), reh. den. 404 U.S. 876, 92 S. Ct. 24, 30 L. Ed. 2d 123 (1971). These cases often turn upon the third element of the test, namely, the degree of governmental entanglement with religion. See Resnick v. East Brunswick Tp. Bd. of Education, 77 N.J. 88, 115
(1978). That element, first proffered in Walz v. Tax Commission of City of New York, 397 U.S. 664, 675, 90 S. Ct. 1409, 1414, 25 L. Ed. 2d 697, 705 (1970) (upholding a state property tax exemption for religious organizations), proscribes "excessive" government involvement in religion, an involvement that entails continuing official surveillance "leading to an impermissible degree of entanglement" in religious activities.
The present case may be contrasted with the school aid cases in that it is one in which government is engaged directly in an activity claimed to be religious in purpose and effect. This situation can be analogized to the Supreme Court cases involving officially sponsored prayers or other religious exercises in public schools. E.g., Stone v. Graham, supra (statute required posting of the Ten Commandments on walls of public classrooms); Abington School District v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) (students required to read from the Bible and recite the Lord's Prayer in school); Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962) (teacher recited brief, denominationally neutral prayer, with voluntary participation by students); West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943) (students required to salute flag and recite pledge of allegiance); cf. Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952) (students "released" during school day to attend religious schools). Only Stone v. Graham explicitly mentioned the "entanglement" element of the three-part test, but all of the cases recognized that, if under either of the initial standards of the three-prong test, -- those relating to purpose and effect -- the challenged government conduct crosses the pale from the secular to the religious, it would offend the Establishment Clause of the First Amendment.
In this context, where the conduct itself is undertaken directly by governmental officials or personnel, the third element of the tripartite test -- excessive government entanglement -- is effectively embraced by the other standards of the
test. In such a situation, if direct governmental action constitutes a "religious" practice under the initial components of the three-prong test, namely, the absence of a secular purpose or a primary or principal effect inhibiting or advancing religion, then, by definition, government itself can be said to be actually and directly engaged and, obviously, inextricably "entangled" in religion. In contrast, if the activity offends neither of these standards, then in a constitutional sense religion would not be at all involved. In that converse posture, where government itself is not directly engaged in a religious activity or function, and is not otherwise supervising, working through or dealing with religious entities, there would be no entanglement by government in the religious domain.*fn3
Since we are here confronted not with indirect action in the form of "continuing official surveillance" of religious persons or entities but with conduct undertaken directly by government, namely, the opening exercises of public municipal meetings by municipal officials, it will suffice for analytic purposes to concentrate upon the elements of the ...