Presbytery of New Jersey v. Florio, Civ. A. No. 92-1641 (WGB).

• Decision Date: 10 August 1993
• Docket Number: Civ. A. No. 92-1641 (WGB).
• Citation: 830 F. Supp. 241
• Parties: The PRESBYTERY OF NEW JERSEY OF the ORTHODOX PRESBYTERIAN CHURCH, Calvary Orthodox Presbyterian Church of Wildwood, and Rev. David B. Cummings, Plaintiffs, v. James FLORIO, Robert Del Tufo, Marilyn Flanzbaum, Roman Angel, Betty Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr., Reinhold W. Smyczek, Casey Tam, C. Gregory Stewart, John Doe(s), and Jane Doe(s), Defendants.
• Court: U.S. District Court — District of New Jersey

830 F. Supp. 241

The PRESBYTERY OF NEW JERSEY OF the ORTHODOX PRESBYTERIAN CHURCH, Calvary Orthodox Presbyterian Church of Wildwood, and Rev. David B. Cummings, Plaintiffs, v. James FLORIO, Robert Del Tufo, Marilyn Flanzbaum, Roman Angel, Betty Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr., Reinhold W. Smyczek, Casey Tam, C. Gregory Stewart, John Doe(s), and Jane Doe(s), Defendants.

Civ. A. No. 92-1641 (WGB).

United States District Court, D. New Jersey.

August 10, 1993.

COPYRIGHT MATERIAL OMITTED

Thomas S. Neuberger, Wilmington, DE, and Richard J. Traynor, Morristown, NJ, for plaintiffs.

Robert J. Del Tufo, Atty. Gen. of N.J. by William H. Lorentz, Charles S. Cohen, Andrea M. Silkowitz, Div. of Law, Newark, NJ, for State defendants.

Evans, Osborne & Kreizman by Lewis H. Robertson, Little Silver, NJ, for amicus curiae, the American Civ. Liberties Union of N.J.

Montgomery, McCracken, Walker & Rhoads by Louis A. Petroni, Cherry Hill, NJ, for Religious amicus curiae¹.

OPINION

BASSLER, District Judge:

Defendants James Florio, Robert Del Tufo, Marilyn Flanzbaum, Roman Angel, Betty Carson, Olga L. Vasquez-Clough, Felton Lingo, Sr., Reinhold W. Smyczek, Casey Tam, and C. Gregory Stewart move to dismiss this action as non-justiciable. For the following reasons, the Court will grant the motion.

I. Background

Plaintiffs, the Presbytery of New Jersey of the Orthodox Presbyterian Church (the "Presbytery"), Calvary Orthodox Presbyterian Church of Wildwood ("Calvary"), and Rev. David B. Cummings ("Cummings"), bring this constitutional challenge to certain recently-amended provisions of New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq., that prohibit discrimination based on "affectional or sexual orientation." Defendants are the Governor of New Jersey, various state officials charged with enforcing state law, and unnamed private individuals who Plaintiffs fear will sue them under the LAD.

A. The Law Against Discrimination

New Jersey's LAD, which was enacted in 1945, prohibits discrimination in employment, labor organization membership, public accommodations, and real estate, financial and business transactions. Prior to 1992, the LAD applied to discrimination based on race, creed, national origin, age, sex, marital status, and several other characteristics. See, e.g., N.J.S.A. 10:5-3 (Supp.1978). In 1992, the LAD was amended to include as a protected category "affectional or sexual orientation," which is defined as "male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, having a history thereof or being perceived, presumed or identified by others as having such an orientation." N.J.S.A. 10:5-5(hh) (1993).

The LAD makes it unlawful for an employer to discriminate against any individual because he or she possesses any of the enumerated characteristics or "to print or circulate or cause to be printed or circulated any statement ... which expresses, directly or indirectly" such discrimination. N.J.S.A. 10:5-12(a), (c) (1993). Similar prohibitions apply to places of public accommodation. See N.J.S.A. 10:5-12(f) (1993). The statute also forbids any person from refusing to transact business with another person for a discriminatory reason. N.J.S.A. 10:5-12(l), (m) (1993).

In addition, the LAD makes it unlawful "for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." N.J.S.A. 10:5-12(e) (1993). A similarly-worded section makes it illegal

for any person to aid, abet, incite, compel, coerce or induce the doing of any act forbidden by subsections l and m which prohibit discrimination in business transactions, or to attempt or to conspire to do so. Such prohibited conduct shall include, but not be limited to:

(1) Buying from, selling to, leasing from or to, licensing, contracting with, trading with, providing goods, services, or information to, or otherwise doing business with any person because that person does, or agrees or attempts to do, any such act or any act prohibited by this subsection n.; or

(2) Boycotting, commercially blacklisting or refusing to buy from, sell to, lease from or to, contract with, provide goods, services or information to, or otherwise do business with any person because that person has not done or refuses to do any such act or any act prohibited by this subsection n.; provided that this subsection n. shall not prohibit refusals or other actions either pertaining to employee-employer collective bargaining, labor disputes, or unfair labor practices, or made or taken in connection with a protest of unlawful discrimination or unlawful employment practices.

N.J.S.A. 10:5-12(n) (1993). The LAD also forbids "any person whose activities are included within the scope of this act to refuse to post or display such notices concerning the rights or responsibilities of persons affected by this act as the Attorney General may by regulation require." N.J.S.A. 10:5-12(j) (1993).

The LAD provides, however, that "it shall not be an unlawful employment practice ... for a religious association or organization ... in following the tenets of its religion in establishing and utilizing criteria for employment of an employee." N.J.S.A. 10:5-12(a) (1993); see Statement of Senate State Government, Federal and Interstate Relations and Veterans Affairs Committee, Senate No. 1608-L.1977, c.122 (stating that, under LAD, it is "lawful for a religious association or organization to use the `tenets of its religion' in `establishing and utilizing criteria' for hiring an employee."). The statute further states that it is not to be construed to apply to "any institution, bona fide club, or place of accommodation which is in its nature distinctly private; or to any educational facility operated or maintained by a bona fide religious or sectarian institution." N.J.S.A. 10:5-5(l) (1993). Moreover, it provides that

nothing herein contained shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, in the sale, lease or rental or real property, from limiting admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained.

N.J.S.A. 10:5-5(n) (1993).

A person discriminated against in violation of the LAD may obtain relief either by filing a complaint with the New Jersey Division of Civil Rights ("DCR") or by commencing suit in the New Jersey Superior Court without first filing an administrative complaint. N.J.S.A. 10:5-13 (1993). Moreover, "any individual who has been discriminated against" and "any organization which represents or acts to further the interests of individuals who have been discriminated against" have standing to enforce the provisions of the LAD. N.J.S.A. 10:5-38 (1993). The DCR is entitled to intervene in any private enforcement action. N.J.S.A. 10:5-13 (1993). The remedies authorized by the statute include awards of compensatory and punitive damages, fines and attorneys fees. See N.J.S.A. 10:5-3, 10:5-14.1a, 10:5-27.1 (1993). The Legislature has explicitly stated that the LAD is to be liberally construed. See N.J.S.A. 10:5-3 (1993).

B. Plaintiffs' Challenge

The Orthodox Presbyterian Church (the "Church") is a small nationwide denomination with 19 member churches, including Calvary, and 2,113 members in New Jersey. The Presbytery is the governing body of the denomination, and Cummings is an ordained minister of the Presbytery and the pastor of a member church. The Church, which split from the Presbyterian Church (U.S.A.) in 1936 because of what it viewed as that church's doctrinal error, teaches that homosexuality, bisexuality and heterosexual sex outside of marriage are grievous sins. Plaintiffs therefore avow that they discriminate against homosexuals, bisexuals and heterosexuals engaged in sex outside of marriage and publicly condemn these practices.

The "affectional or sexual orientation" amendments to the LAD became effective on January 19, 1992. Three months later, on April 15, 1992, Plaintiffs commenced this action. Plaintiffs alleged that the following sections of the LAD, as amended, violated their First, Fifth, Ninth and Fourteenth Amendment rights: the provisions applicable to employers, N.J.S.A. 10:5-12(a) & (c), and public accommodations, N.J.S.A. 10:5-12(f); the "aid, abet, incite" provisions, N.J.S.A. 10:5-12(e) & (n); the notice-posting provision, N.J.S.A. 10:5-12(j); and the provisions regarding discriminatory refusals to do business, N.J.S.A. 10:5-12(l) & (m). Plaintiffs requested declaratory and injunctive relief.

On May 15, 1992, Plaintiffs sought a preliminary injunction against enforcement of the amended statute. On June 5, 1992, Defendants responded to Plaintiffs' motion and also filed the motion to dismiss now before this Court.

In response to the motion for preliminary restraints, the Director of the DCR submitted an affidavit setting forth the way in which the DCR, with the advice of the Attorney General, has interpreted the LAD's applicability to religious institutions. See Affidavit of C. Gregory Stewart dated June 4, 1992 ("Stewart Aff."). The Director stated that the DCR does not consider places of worship to be "public accommodations," and therefore the LAD provisions applicable to public accommodations have never been and would not now be applied to them. Stewart Aff., ¶ 9-10. The Director further stated, consistent with N.J.S.A. 10:5-12(a), that "a church or other place or institution whose purposes sic is housing religious worship, practice or activities" is not "subject to the LAD when it makes employment decisions based...