Tudor v. Board of Ed. of Borough of Rutherford

• Decision Date: 07 December 1953
• Docket Number: No. A--23,A--23
• Citation: 45 A.L.R.2d 729,100 A.2d 857,14 N.J. 31
• Parties: , 45 A.L.R.2d 729 TUDOR v. BOARD OF EDUCATION OF BOROUGH OF RUTHERFORD et al.
• Court: New Jersey Supreme Court

Page 31

14 N.J. 31

100 A.2d 857, 45 A.L.R.2d 729

TUDOR v. BOARD OF EDUCATION OF BOROUGH OF RUTHERFORD et al.

No. A--23.

Supreme Court of New Jersey.

Argued Oct. 5, 1953.

Decided Dec. 7, 1953.

Leo Pfeffer (of the New York Bar), New York City, argued the cause for the appellant (Archibald Kreiger, Paterson, attorney).

Jacob Stam, Paterson, argued the cause for the respondents (Kipp, Ashen & Somerville, Rutherford, attorneys for respondent Board of Education; W. Adriance Kipp, Jr., Rutherford, of counsel with both respondents).

A brief amici curiae was filed by the Synagogue Council of America and the National Community Relations Advisory Council (Harry Silverstein, attorney, Philip Baum and Joseph B. Robison, of the New York Bar, New York City, of counsel).

The opinion of the court was delivered by

VANDERBILT, C.J.

I.

The Gideons International is a nonprofit corporation organized under the laws of the State of Illinois, whose object is 'to win men and women for the Lord Jesus Christ, through * * * (c) placing the Bible--God's Holy Words--or portions thereof in hotels, hospitals, schools, institutions, and also through the distribution of same for personal use.' In recent years it began a campaign to make available to pupils in the public schools of this country the so-called 'Gideon Bible', which was characterized by the International in its pleadings as 'a book containing all of the New Testament, all of the Book of Psalms from the Old Testament, all of the Book of Proverbs from the Old Testament; all without note or comment, conformable to the edition of 1611, commonly known as the Authorized, or King James version of the Holy Bible.' In furtherance of this campaign it applied by letter to the Board of Education of the Borough of Rutherford for permission to distribute its Bible to the public schools of that municipality:

'Board of Education

'Rutherford, N.J.

'Attention: Mr. Guy Hilleboe

'Gentlemen:

'The Gideons of Passaic and Bergen County, consisting of local business men, hereby offer to furnish, without charge, a volume containing the book of Psalms, Proverbs and the New Testament to each of the children in the schools of Rutherford from the fifth grade up through the eighth grade, and High School.

'This offer is part of a national campaign conducted by the Gideons International to furnish the Word of God free to the young people of our country from the fifth grade through the high school. If God's word is heard and heeded, if it is read and believed, we believe that this is the answer to the problem of juvenile delinquency.

'If your board approves this distribution, we will be glad to have our committee work out the details with the principals of the schools.

'Yours very truly,

'Passaic County Camp of Gideons

'/s/ John Van Der Eems,

'John Van Der Eems,

'Treasurer'

The proposal was considered at a meeting of the board of education on November 5, 1951, at which time there was voiced some opposition to the proposal by a Catholic priest and a Jewish rabbi on the grounds that the Gideons' New Testament was sectarian and forbidden to Catholic and Jewish children under the laws of their respective religions. The proposal, however, was passed by the board with one dissenting vote, the resolution adopted providing that 'the Gideons International be allowed to furnish copies of the New Testament, Psalms and Proverbs to those pupils who request them.' Under date of November 21, 1951 the following request form for signature of the parents was prepared by the board of education and distributed to the pupils of the public schools of Rutherford:

'Rutherford Public Schools,

'Rutherford, N.J.

'November 21, 1951

'To all Parents:

'At the regular meeting of the Board of Education on November 5, 1951, The Gideon Bible Society, presented a request that the New Testament, Psalms and Proverbs be made available, without cost, to all children who wish a copy. The Board approved this request provided the distribution be voluntary. If you wish a copy of this Bible, will you please sign the slip below and return it with your child to the school he attends by Friday, December 21.

'_ _ues

'School

Date

'Please request The Gideon Bible Society to provide my child ---, with a copy of the New Testament, Psalms and Proverbs. This request involved no obligation on my part or on the part of the Board of Education.

'Signed _ _

'Parent or Guardian'

On January 14, 1952 the board of education was advised by its counsel that the proposed distribution was in his opinion legal. At a principal's meeting on February 6, 1952 the following instructions were issued:

'(a) Only names of pupils whose parents had previously signed for the Bibles should be used in any announcement.

'(b) Pupils whose parents had signed for Bibles are to report to the home room at the close of the session and no other pupils are to be in the room when the Bibles are distributed.

'(c) Any announcement of names for the purpose of reporting after school should not include a reference as to the purpose of reporting.'

Prior to the distribution of the books the present action was commenced demanding judgment as to the validity of the distribution under the Federal and New Jersey Constitutions and seeking an injunction against it. On February 19, 1952 the trial judge granted a temporary injunction and by order dated February 29, 1952 restrained the board of education from carrying out the terms of its resolution of December 10, 1951, until further determination of the action. By consent Gideons International was permitted to intervene as a party defendant. After a full hearing the trial judge on March 30, 1953 found in favor of the defendant and vacated the restraint and stay. By consent of the parties, however the stay has been continued pending appeal. While the appeal was before the Appellate Division of the Superior Court, we ordered certification on our own motion.

The plaintiff Bernard Tudor is an adherent of the Jewish religion, while plaintiff Ralph Lecoque is a member of the Catholic faith, each being a New Jersey citizen and taxpayer of Rutherford and a parent of a pupil in a Rutherford public school. Each contends that the Gideon Bible is 'a sectarian work of peculiar religious value and significance to members of the Protestant faith.' Mr. Tudor claiming that 'its distribution to children of the Jewish faith violates the teachings, tenets and principles of Judaism,' while Mr. Lecoque states that 'its distribution to children of Catholic faith violates the teachings, tenets and principles of Catholicism.' After this action was commenced, the child of plaintiff Ralph Lecoque transferred from the public school to a Catholic parochial school and to the extent that the complaint was based upon his status as a parent, the issue became moot. The State of New Jersey was originally named as a party defendant but the action as to it has been dismissed. The Synagogue Council of America and the National Community Relations Advisory Council have submitted a brief Amici curiae.

II.

The American doctrine of the separation of Church and State cannot be understood apart from its history for it is the epitome of centuries of struggle and conflict. In 311 A.D. Christians were still being persecuted; but shortly thereafter the Fourth Century witnessed the toleration of Christianity in the Roman world. In 313 A.D. Constantine, the ruler of the West, and Licinius, the emperor of the East, met in Italy and proclaimed the Edict of Milan, which made the toleration of the Christian religion 'a part of a universal toleration of all religions, and it establishes absolute freedom of worship,' Innes, Church and State, p. 23. In 410 A.D. Rome was sacked by Alaric. Italy, as well as Spain and Africa, fell to the Teutonic barbarians, but these conquests did not spell defeat for Christianity. The attitude of the invaders is illustrated by the words of Theodoric, speaking shortly after the fall of Rome:

'That to pretend to a dominion over the conscience is to usurp the prerogative of God; that by the nature of things the power of sovereigns is confined to external government; that they have no right of punishment, but over those who disturb the public peace, of which they are the guardians; and that the most dangerous heresy is that of a sovereign who separates himself from a part of his subjects, because they believe not according to his belief.' Innes, Church and State, p. 51.

After the collapse of the Roman Empire the Church remained as the one stable, permanent element in society. Gradually it came to claim not merely equlity with the State, but actual superiority. Thomas Aquinas summed up the Church's attitude:

'The highest aim of mankind is eternal happiness. To this chief aim of manking all earthly aims must be subordinated. This chief aim cannot be realized through human direction alone but must obtain divine assistance which is only to be obtained through the Church. Therefore the State, through which earthly aims are obtained, must be subordinated to the Church. Church and State are as two swords which God has given to Christendom for protection; both of these, however, are given by him to the Pope and the temporal sword by him handed to the rulers of the State.' Bates, Religious Liberty: An Inquiry (1945), p. 140.

The Church's claim of supremacy did not go unchallenged. Charlemagne, who had been crowned by the Pope, deliberately crowned his own son as successor without consulting the Pope. The struggle for supremacy was on between Church and State, and the history of the Middle Ages in Europe is largely a history of this continuing conflict. The struggles between Pope Gregory VII and Emperor Henry IV in the 11th Century, and between the English kings Henry II and John and Celestine III and Innocent III a century later were but phases of the conflict. The Church reached the height of its supremacy over the State in the 13th Century, under Innocent III, who informed the...