Doremus v. Board of Ed. of Borough of Hawthorne

• Decision Date: 20 February 1950
• Docket Number: No. L--5201,L--5201
• Citation: 7 N.J.Super. 442,71 A.2d 732
• Parties: DOREMUS et al. v. BOARD OF EDUCATION OF BOROUGH OF HAWTHORNE et al.
• Court: New Jersey Superior Court

Page 442

7 N.J.Super. 442

71 A.2d 732

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

No. L--5201.

Superior Court of New Jersey Law Division.

Feb. 20, 1950.

Heyman Zimel, Paterson, attorney for plaintiffs.

Alexander E. Fasoli, Paterson, attorney for defendantBoard of Education of Borough of Hawthorne.

Theodore D. Parsons, Attorney General of New Jersey, attorney for defendant State.

Parker, McCay & Criscuolo, Mount Holly, attorneys for State Council of Junior Order of United American Mechanics of State of New Jersey, as amicus curiae.

DAVIDSON, A.J.S.C.

This action seeks to test the constitutionality of the provisions of the Laws of New Jersey with respect to religious services or exercises in the public schools of the state, and is presented for determination upon cross-motions for summary judgment on the pleadings.The statutes under attack are N.J.S.A. 18:14--77:

'Reading Bible at opening of school.

'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 pressence of the classes so assembled.' and N.J.S.A. 18:14--78:

'Religious services or exercises.

'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.'

Plaintiffs shortly contend that compliance with the statutes constitutes religious education and services in aid of one or more religions and in preference of one or more religions over others, and in that public funds and taxes are authorized to support religious activities and institutions and for the purpose of teaching and practicing religion, and so contravenes the First and Fourteenth Amendments to the Constitution of the United States, which read as follows 'Article I

'Right of Conscience, Freedom of the Press, etc.

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

'Article XIV

'Citizens and Their Rights

'Section I

'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 facts are not in dispute.Plaintiff Doremus is a citizen and taxpayer of the Township of Rutherford, New Jersey, and plaintiff Klein is a citizen and taxpayer of the Borough of Hawthorne, New Jersey, and the mother of Gloria Klein, a student in the Hawthorne High School, which is a public school operated by the Board of Education and supported by public funds appropriated by the state and by said borough.DefendantBoard of Education is complying with the laws and, although rules promulgated and directives issued by it permit any student to be excused from the classroom upon request when the Bible is read or the Lord's Prayer recited, no such request has ever been made by plaintiff Klein or her daughter.The matter, therefore, is submitted to the Court solely on the question of constitutionality, and appears to be of novel impression.

Although there is a diversity of opinion in the State courts as to statutes specifically permitting or requiring the Bible to be read in public schools, the great weight of authority generally seems to hold that such statutes do not contravene the provisions of the several State Constitutions.

That we are fundamentally a religious people is beyond dispute.An excellent review of the American organic utterances which speak the voice of the entire people, and which affirm and reaffirm that this is a religious nation, appears in Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 514, 36 L.Ed. 226, wherein the Court said:

'But, beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people.This is historically true.From the discovery of this continent to the present hour, there is a single voice making this affirmation.The commission to Christopher Columbus, prior to his sail westward, is from 'Ferdinand and Isabella, by the grace of God, King and Queen of Castile,' etc., and recites that 'it is hoped that by God's assistance some of the continents and islands in the ocean will be discovered,' etc.The first colonial grant, that made to Sir Walter Raleigh in 1584, was from 'Elizabeth, by the grace of God, of England, Fraunce and Ireland, queene, defender of the faith,' etc.; and the grant authorizing him to enact statutes for the government of the proposed colony provided that 'they be not against the true Christian faith nowe professed in the Church of England.'The first charter of Virginia, granted by King James I. in 1606, after reciting the application of certain parties for a charter, commenced the grant in these words: 'We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almightly God, hereafter tend to the Glory of his Divine Majesty, in progagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters-Patents, graciously accept of, and agree to their humble and well-intended Desires.'

'Language of similar import may be found in the subsequent charters of that colony, from the same king, in 1609 and 1611; and the same is true of the various charters granted to the other colonies.In language more or less emphatic is the establishment of the Christian religion declared to be one of the purposes of the grant.The celebrated compact made by the Pilgrims in the Mayflower, 1620, recites: 'Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid.'

'The fundamental orders of Connecticut, under which a provisional government was instituted in 1638-39, commence with this declaration: 'Forasmuch as it hath pleased the Allmighty God by the wise disposition of his divyne pruidence so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford, and Wethersfield are now cohabiting and dwelling in and uppon the River of Conectecotte and the Lands thereunto adjoyneing; And well knowing where a people are gathered together the word of God requires that to mayntayne the peace and union of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affayres of the people at all seasons as occasion shall require; doe therefore assotiate and conjoyne our selves to be as one Publike State or Comonwelth; and doe, for our selves and our Successors and such as shall be adjoyned to us att any tyme hereafter, enter into Combination and Confederation together, to mayntayne and presearve the liberty and purity of the gospell of our Lord Jesus wch we now prfesse as also the disciplyne of the Churches, wch according to the truth of the said gospell is now practiced amongst us.'

'In the charter of privileges granted by William Penn to the province of Pennsylvania, in 1701, it is recited: 'Because no People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship; And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith, and Worship, who only doth enlighten the Minds, and persuade and convince the Understandings of People, I do hereby grant and declare,' etc.

'Coming nearer to the present time, the declaration of independence recognizes the presence of the Divine in human affairs in these words: 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.''We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good People of these Colonies, solemnly publish and declare,' etc.; 'And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.'

'If we examine the constitutions of the various states, we find in them a constant recognition of religious obligations.Every constitution of every one of the 44 states contains language...