The issue presented by these two cases, which were consolidated for trial, is whether a public institution of higher education may administer privately funded scholarship trusts which are restricted to students who intend to study for the Protestant Ministry.
The case involves two testamentary bequests to Rutgers University, one by Clarence Garretson, who died in 1938, and the other by Katherine Frey Dickerson, who died in 1946. The Garretson will provided for the creation of a "Clarence Garretson, Class of 1899 Scholarship" and specified, among other things, that in the award of the scholarship "special deference" should be extended to "one studying for the Christian Ministry." The Dickerson will provided that upon the death of Mrs. Dickerson's husband (which occurred in 1951) the unexpended principal of her residuary estate would be divided into three equal parts, one of which would be given to the New Brunswick Theological Seminary in trust for students "who are studying for the Protestant ministry,"*fn1 the second to Rutgers in trust for students "who are taking a pre-divinity course and have expressed an intention to study for a Protestant Church ministry" and the third to Rutgers in trust for students of the "New Jersey State College for Women (a department of Rutgers
University) who are studying for service in Protestant Church social centre or other religious work."*fn2
The scholarship trusts were administered in accordance with their terms for a substantial number of years. However, Rutgers suspended award of the scholarships in the late 1970s when its administrators developed misgivings over the restrictions to students who intend to study for the Protestant Ministry.
To determine the legality of such restrictions, Rutgers filed these actions.*fn3 It named as defendants the residuary legatees to whom the scholarship funds would revert in the event the trust provisions were held to be illegal or impossible of performance and not susceptible to modification under the doctrine of cy pres. Two of those defendants have entered appearances and actively participated in the litigation, the United Reformed Church of Somerville in Garretson and the New Brunswick Theological Seminary in Dickerson. In addition, the Attorney General has participated in his role as guardian of the public interest in charitable trusts (see Trustees of Rutgers College in N.J. v. Richman, 41 N.J. Super. 259, 283 (Ch.Div.1956)), and the New Jersey Council of Churches has participated in Dickerson as amicus curiae.
Rutgers has taken the position, supported by the Attorney General, that the trust provisions violate the Establishment Clause of the First Amendment to the United States Constitution as well as Article I, paragraph 5 of the New Jersey Constitution and the New Jersey Law Against Discrimination (N.J.S.A. 10:5-1 et seq.)*fn4 Defendants, United Reformed Church and New Brunswick Theological Seminary, joined by amicus curiae New Jersey Council of Churches, take the position that the trust provisions are valid.*fn5 In the alternative, they argue that if the trust provisions are invalid it is solely by virtue of Rutgers occupying the position of trustee and therefore Rutgers should be removed and a substitute trustee appointed. As a second alternative position, defendants argue that the principal of the trusts should revert to the residuary legatees which, under the Dickerson will, is defendant New Brunswick Theological Seminary and, under the Garretson will, includes defendant United Reformed Church.
The case was presented on stipulated facts supplemented by testimony from Arthur Richmond, the Director of Financial Aid at Rutgers, Alvin J. Popper, the Coordinator of Human Services for the Reformed Church of America and Frederick Mold, Jr., a vice president of the New Brunswick Theological Seminary.
All parties acknowledge that the issues presented are essentially legal and that only limited fact finding is required.
The primary source of Rutgers' concern over the validity of the scholarship trusts is the Establishment Clause of the First Amendment. It is now clear that the "mandate that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof' has been made wholly applicable to the States by the Fourteenth Amendment." Abington School Dist. v. Schempp, 374 U.S. 203, 215, 83 S. Ct. 1560, 1567, 10 L. Ed. 2d 844 (1963). Furthermore, the constraints of the Religion Clauses are not limited to legislative enactments but extend to other forms of governmental activity as well. See McCollum v. Bd. of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948). But this does not mean that every governmental involvement with religion is unconstitutional. The Court in Walz v. Tax Com'n, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970) observed that:
[R]igidity could well defeat the basic purpose of [the Religion Clauses], which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. [397 U.S. at 669, 90 S. Ct. at 1411-12.]
The greatest number of Establishment Clause cases decided by the Supreme Court in recent years have involved public aid to non-public schools. See, e.g., Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593, 53 L. Ed. 2d 714 (1977); Meek v. Pittenger, 421 U.S. 349, 95 S. Ct. 1753, 44 L. Ed. 2d 217 (1975); Hunt v. McNair, 413 U.S. 734, 93 S. Ct. 2868, 37 L. Ed. 2d 923 (1973). Even in that context, the court has recognized that not every program which "'in some manner aids an institution with a religious affiliation' violates the Establishment ...