Cruces Public Schools, supra; Beck v. McElrath, 548 F. Supp. 1161 (M.D. Tenn. 1982); see also Opinions of the Justices to the House, etc., 387 Mass. 1201, 440 N.E.2d 1159 (Sup. Jud. Ct. 1982); contra, Gaines v. Anderson, 421 F. Supp. 337 (D. Mass. 1976). Intervenors argue that New Jersey's statute is inherently different from the statutes under review in those cases because there "the plain language of the statute, which incorporated the word prayer, made apparent their predominantly religious purpose." (Intervenors' Brief p. 14). Given the history and circumstances of the enactment of Bill 1064, I think it is clear that the omission of the word "prayer" is a cosmetic change only, having no substantial effect. Illustrative of the lack of any practical effect is Sayreville's experience. There the town's original enactment provided for a two minute meditation period in order that the students have an opportunity to pray. The subsequent change in language to omit the reference to praying was not intended to result and did not result in any change in what was actually being done in the schools.
Nor do I believe that the recent Supreme Court case of Marsh v. Chambers, 463 U.S. 783, 51 U.S.L.W. 5162, 77 L. Ed. 2d 1019, 103 S. Ct. 3330 (1983) was intended to modify the law governing State sponsored prayer in public schools. There the Court held that the practice of the Nebraska Legislature of opening each legislative day with a prayer by a chaplain paid by the State did not violate the Establishment Clause of the First Amendment. The Court noted an unbroken history of more than 200 years during which legislators opened their sessions with a prayer but emphasized that in Marsh "the individual claiming injury by the practice is an adult, presumably not readily susceptible to 'religious indoctrination'". 463 U.S. at 792. This latter comment, I believe, suggests a clear intent to distinguish legislative prayer by adults which, like the opening of court, is primarly of a traditional ceremonial nature from mandated prayer by school children.
Thus I conclude that Bill 1064 does not have a bona fide secular purpose and, in fact, has a religious purpose.
Turning to the second prong of the test of validity, I conclude that the Bill both advances and inhibits religion.
It advances the religion of some persons by mandating a period when all students and teachers must assume the traditional posture of prayer of some religious groups and during which those who pray in that manner can do so. This is exactly what happened during the time when Bill 1064 was in effect. In Sayreville, continuing past practice, students were instructed to sit, close their eyes and observe silence. In Hillsborough Township children were directed to sit and be quiet and still. In Roosevelt Junior High School students were instructed to stand up, bow their heads, close their eyes and observe silence.
Thus the State has injected itself into religious matters by designating a time and place when children and teachers may pray if they do so in a particular manner and by mandating conduct by all other children and teachers so that the prayers may proceed uninterrupted in their presence.
While this form of legislation advances the religion of some, it inhibits the religion of others in at least two ways.
First, there are those whose religious practices include silent prayer and meditation but who, as an article of faith, believe that the State should have no part in religious matters. For them mandated prayer is no longer prayer. It is their conviction that if the State requires any form of religious observance the observance is drained of its substance, loses its power and becomes but an empty shell. Cf., Tillich, Dynamics of Faith, Ch. III, Symbols of Faith (Harper & Row 1958). Thus the State, seeking to further religion by mandating certain religious observances, in fact weakens religion by draining vitality from these observances.
Examples of this emasculating process can be seen in the cases. When a legislature routinely opens its sessions with prayer, when a court commences each day with "God save the United States and this honorable court", the courts have recognized that the effect is not to establish religion. Rather, the words which are spoken may represent a solemn and traditional ceremony serving a valuable civil function. They are no longer the words of a believer responding to his views of ultimate reality; they are, therefore, no longer prayer either in a religious or constitutional sense. Certain of those who oppose Bill 1064 on religious grounds seek to spare their mode of prayer from such a fate.
Second, by mandating a minute of silence which permits some persons to engage in prayer, Bill 1064 prevents other persons from engaging in their kind of prayer. Justice Brennan noted in his concurring opinion in Abington:
. . . our religious composition makes us a vastly more diverse people than were our forefathers. They knew differences chiefly among Protestant sects. Today the Nation is far more heterogeneous religiously, including as it does substantial minorities not only of Catholics and Jews but as well of those who worship according to no version of the Bible and those who worship no God at all. . . . In the face of such profound changes, practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike.
The religious diversity of which Justice Brennan spoke in 1963 is far more pronounced now. Thus religious practices and the concepts of ultimate reality to which these practices point vary ever more widely. While once the prayers of most religious people could be carried on in an environment of silence, now that is no longer the case. The prayers of some persons require movement and sound. Bill 1064, therefore, mandates an environment which allows some to pray but which prevents others from engaging in their form of prayer.
Finally there are those who profess no religion and to whom any form of prayer is offensive. Bill 1064 requires these persons to assume a posture suggestive of particular forms of prayer which are responsive to particular beliefs about ultimate reality. Understandably those who do not share those beliefs do not wish to be required to maintain a pose which suggests that they do. Children holding these views, as illustrated in the present case, are forced either to endure an exercise which runs counter to their beliefs or to face public opprobrium or ridicule by asking to be excused each day.
There is nothing in the language or reasoning of the Supreme Court's opinion in Mueller v. Allen, 463 U.S. 388, 51 U.S.L.W. 5050, 77 L. Ed. 2d 721, 103 S. Ct. 3062 (1983) which affects the conclusion that the effect of Bill 1064 renders it unconstitutional. There the Court upheld a Minnesota statute which permitted taxpayers in computing their state income tax to deduct certain expenses incurred for the education of their children. This result was reached even though most such expenses involved payments on account of students attending private schools and even though it was established that 95% of such students attended sectarian schools. Applying the three point test, the Court concluded the tax deduction satisfied the primary effect inquiry. However, Mueller is of very limited utility in the present case. It is but the most recent in a long line of cases dealing with the question of the extent to which state legislation may, directly or indirectly, aid sectarian schools. The facts of those cases and the problems of church and state relations which they raise are quite different from the facts and problems raised by the school prayer cases.
Bill 1064 impermissibly advances the religion of some and inhibits the religion of others.
The third inquiry is whether Bill 1064 fosters an excessive government entanglement with religion. Implementation of the Bill would not involve the State in the kind of continued and pervasive monitoring of sectarian activities which was condemned in Lemon v. Kurtzman, supra. It would, however, tend to promote divisiveness among and between religious groups, another form of entanglement. Gilfillan v. City of Philadelphia, supra, at 932. A required minute of silence would put children and parents who believe in prayer in the public schools against children and parents who do not. The events in Princeton are illustrative of this consequence. There the school administrators were threatened with disruptive behavior by students who believed the minute of silence constituted enforced prayer contrary to their own convictions. Elsewhere the opposition did not take the form of threatened disruption, but children and parents were forced to decide whether the children should submit to an exercise which violated their beliefs or whether they should separate themselves from their peers.
With no secular purpose being served, this degree of entanglement causes Bill 1064 to fail the third prong of the test of validity.
For the foregoing reasons Bill 1064 violates the First Amendment and plaintiffs are entitled to a judgment granting the declaratory and injunctive relief they seek.
Under 42 U.S.C. § 1988 a prevailing party may in appropriate circumstances be entitled to recover attorneys fees. In the unusual circumstances of this case I do not believe that such an award is warranted.
The named defendants did not contest the action on the merits. They were not responsible for enactment of the legislation under review. There is no reason why they should be required to pay plaintiffs' attorneys fees.
The intervenors did oppose plaintiffs on the merits. However, even though they did not prevail, their participation in the case served a valuable public purpose. Without their participation the facts and the law would not have been developed adequately. In a difficult case such as this in which important public interests are involved, it was essential that the facts be developed and the law fully presented. Since intervenors' role in this case contributed significantly in that regard it would be inappropriate to charge them with attorneys fees.
For the same reason no costs will be allowed to any party.
Plaintiffs' attorneys are requested to prepare a form of order implementing this opinion.