Doremus v. Board of Ed. of Borough of Hawthorne

• Decision Date: 16 October 1950
• Docket Number: No. A--2,A--2
• Citation: 5 N.J. 435,75 A.2d 880
• Parties: DOREMUS et al. v. BOARD OF EDUCATION OF BOROUGH OF HAWTHORNE et al.
• Court: New Jersey Supreme Court

Page 435

5 N.J. 435

75 A.2d 880

DOREMUS et al. v. BOARD OF EDUCATION OF BOROUGH OF HAWTHORNE et al.

No. A--2.

Supreme Court of New Jersey.

Argued Sept. 18, 1950.

Decided Oct. 16, 1950.

Heyman Zimel, Paterson, argued the cause for appellants.

Henry F. Schenk, Deputy Attorney General, argued the cause for respondents (Theodore D. Parsons, Attorney General, and Alexander E. Fasoli, Paterson, on the brief).

Albert McCay, Mount Holly, filed a brief for State Council of the Junior Order of United American Mechanics of State of New Jersey as amicus curiae.

The opinion of the court was delivered by

CASE, J.

The judgment under appeal was entered in the Law Division of the Superior Court, Passaic County, and was brought here on our certification. The action was originated under the Declaratory Judgment Act by a proceeding in lieu of prerogative writ to test the constitutionality of R.S. 18:14--77 and --78, N.J.S.A. Those statutory provisions are:

18:14--77. 'At least five verses taken from that portion of the Holy Bible known as the Old Testament shall be read, or caused to be read, without comment, in each public school classroom, in the presence of the pupils therein assembled, by the teacher in charge, at the opening of school upon every school day, unless there is a general assemblage of the classes at the opening of the school on any school day, in which event the reading shall be done, or caused to be done, by the principal or teacher in charge of the assemblage and in the presence of the classes so assembled.'

18:14--78. 'No religious service or exercise, except the reading of the Bible and the repeating of the Lord's Prayer, shall be held in any school receiving any portion of the moneys appropriated for the support of public schools.'

Section 77 was enacted as ch. 263, P.L.1916, slightly different in arrangement but with the same substance. Section 78 was enacted as sec. 114 of ch. 1 (2nd Special Session), P.L.1903 (the general school act). Its predecessor was a provision in section 65 of the School Act Revision of 1867, ch. 179, P.L.1867, as follows: 'It shall not be lawful for any teacher, trustee, or trustees, to introduce into or have performed in any school receiving its proportion of the public money, any religious service, ceremony or forms whatsoever, except reading the Bible and repeating the Lord's Prayer.' That provision was retained in sec. 65 of the Revision of 1867 (Rev. 1877, p. 1081, sec. 65), and in the amendatory Supplement of 1894 (Ch. 102, P.L.1894, Plac. 220, p. 3052, Gen.Stat.1895).

Considered with the statute was the directive issued by the defendant Board of Education of the Borough of Hawthorne that 'any student may be excused during the reading of the Bible upon request'. There was no request that a student be excused. The public schools which provide the occasion for the controversy are supported in part by public funds contributed by the state to the school district for educational purposes and in part by funds raised exclusively in the school district by levy upon taxable property within the school district. There were no disputed facts. On cross motions for summary judgment on the pleadings judgment went for the defendants, based on a holding that the statutory proceedings do not contravene the First or the Fourteenth Amendment of the United States Constitution.

Appellants present this line of reasoning: The principle of the separation of the church and state is established in the constitution of the United States, namely the first and fourteenth amendments which prohibit the intermingling of religious and secular education in the public schools; the reading of the Bible and the reciting of the Lord's Prayer in the public schools are religious services, religious exercises and religious instruction; they are of themselves in aid of one or more religious and in preference of one religion over another; and therefore those acts are contrary to the named constitutional provisions. The gist of the argument is that compliance with the statute necessarily involves sectarian worship and sectarian instruction and therefore violates the Federal Constitution.

The effective parts of the First and Fourteenth Amendments are these:

I. 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *.'

XIV. 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

The pertinency of the Fourteenth Amendment is that it carried over to the states the prohibition imposed by the First Amendment upon Congress against impairing religious rights of individuals. Therefore our question is whether the New Jersey statute violates the injunction which the first amendment lays against making a law respecting an establishment of religion or preventing the free exercise thereof.

No one is before us asserting that his religious practices have been interfered with or that his right to worship in accordance with the dictates of his conscience has been suppressed. No religious sect is a party to the cause. No representative of, or spokesman for, a religious body has attacked the statute here or below. One of the plaintiffs is 'a citizen and taxpayer'; the only interest he asserts is just that and in those words, set forth in the complaint and not followed by specification or proof. It is conceded that he is a citizen and a taxpayer, but it is not charged and it is neither conceded nor proved that the brief interruption in the day's schooling caused by compliance with the statute adds cost to the school expenses or varies by more than an incomputable scintilla the economy of the day's work. The other plaintiff, in addition to being a citizen and a taxpayer, has a daughter, aged seventeen, who is a student of the school. Those facts are asserted, but, as in the case of the co-plaintiff, no violated rights are urged. It is not charged that the practice required by the statute conflicts with the convictions of either mother or daughter. Apparently the sole purpose and the only function of plaintiffs is that they shall assume the role of actors so that there may be a suit which will invoke a court ruling upon the constitutionality of the statute. Respondents urge that under the circumstances the question is moot as to the plaintiffs-appellants and that our declaratory judgment statute may not properly be used in justification of such a proceeding. Cf. New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 69 A.2d 875; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, at page 488, 43 S.Ct. 597, 67 L.Ed. 1078, at 1085 (1923). The point has substance but we have nevertheless concluded to dispose of the appeal on its merits.

Was it the intent of the First Amendment that the existence of a Supreme Being should be negated and that the governmental recognition of God should be suppressed? Not that, surely. The temper of the times during which the agitation for and the accomplishment of the amendment was had, the events which led to the adoption of the amendment, the contemporaneous and subsequent interpretation by way of statute and public practice, the very wording of the amendment, all forcefully support that answer.

Instances could be multiplied going to the undeniable result that the Constitution itself assumes as an unquestioned fact the existence and authority of God and that preceding, contemporaneously with and after the adoption of the constitutional amendment all branches of the government followed a course of official conduct which openly accepts the existence of God as Creator and Ruler of the Universe; a course of conduct that has been accepted as not in conflict with the constitutional mandate.

The United States Constitution in Article I, section 7 provides that the President shall have ten days (Sundays excepted) within which to determine whether he will affirm or veto a bill. The essential idea of an oath seems to be that it is a recognition of God's authority and an undertaking by the affiant to accomplish the transaction to which it refers as required by His laws. Bouvier's Law Dictionary. The constitution recognized that divine authority by directing that in the alternative an oath or an affirmance be taken in certain instances. With particularity it framed the oath, or affirmance, to be taken by the president. The origin of the privilege, in the alternative, to affirm rather than to take an oath is not to be understood, necessarily, as a concession to disbelief in God. The privilege was accorded, or at least made more generous, in New Jersey, in 1727 because the Quakers, although a God-fearing group, were conscientiously scrupulous against taking an oath. See Allinson's Laws, (New Jersey, 1776), page 75.

The first ten amendments, called the Bill of Rights, were offered and adopted speedily after the adoption of the constitution and were a product of the motives and conditions which culminated in the parent instrument. The confederated colonies and, later, the states organized as a constitutional nation, acknowledged the existence of and bowed before the Supreme Being. The Declaration of Independence, phrased in the political ideology of Thomas Jefferson, frankly grounded its position in the unalienable rights endowed by God, the Creator, made appeal to Him, the Supreme Judge of the world for the rectitude of that position and expressed trust in the Divine Providence for protection in the fulfillment thereof. The articles of confederation recited the beneficient intervention of the Great Governor of the world.

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