Marsa v. Wernik

PASHMAN, J.,

concurring.

Because I am concerned that our decision to uphold the Metuchen Borough Council’s practice may encourage others to test the tolerance of the Establishment of Religion Clause, I join in the concurring opinion of Justice Clifford underscoring the limitations of our judgment today. At the same time, I also *255 agree with substantially all of the able opinion of Justice Handler for the Court. My concern is with one step in the Court’s analysis of this issue. I would not disregard the need to consider the “excessive entanglement” prong of the three-part test in a case such as this.

The Court states, “where the conduct itself is undertaken directly by governmental officials or personnel, the third element of the tripartite test — excessive government entanglement — is effectively embraced by the other standards of the test.” Ante at 242-243. I have no objection to this statement in a case where, because of the absence of a secular purpose or because of a primary or principal effect of inhibiting or advancing religion, “government itself can be said to be actually and directly engaged and, obviously, inextricably ‘entangled’ in religion.” Ante at 243. Since failure of any one element of the three-part test is a violation of the Establishment Clause, there is no need to evaluate the third element separately when either of the first two has been violated.

I cannot agree, however, that the converse of this proposition is true — that the third element need not be considered, in cases other than those involving “indirect” government conduct, where the first two elements of the test have been satisfied. It was precisely in such situations, where the activity satisfied the first two parts of the test but doubts as to constitutionality nonetheless remained, that the “excessive entanglement” prong developed.

As the Court notes, the earlier Establishment Clause cases, involving officially sponsored religious exercises, spoke only in terms of the purpose and effect of the government practice. E. g., School District of Abington Tp. v. Schempp, 374 U.S. 203 , 83 S.Ct. 1560 , 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421 , 82 S.Ct. 1261 , 8 L.Ed.2d 601 (1962); West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943). They established the first two prongs of the modern test. The third element, “excessive entanglement,” grew out of the “ef *256 feet” prong of the test in Walz v. Tax Commission of City of New York, 397 U.S. 664 , 90 S.Ct. 1409 , 25 L.Ed.2d 697 (1970). In determining whether New York City could constitutionally exempt church property from its real estate taxes, the Supreme Court said:

Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result — the effect — is not an excessive government entanglement with religion. [Id. at 674, 90 S.Ct. at 1414 .]

In later cases, this inquiry was separated into two distinct elements of the test: (1) whether the primary effect of the government practice is to advance or inhibit religion, and (2) whether the practice entangles government excessively with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 , 91 S.Ct. 2105, 2111 , 29 L.Ed.2d 745 (1971). The test has recently emerged as clearly comprised of the three prongs — purpose, primary effect, and excessive entanglement. E. g., Committee for Public Education v. Regan, 444 U.S. 646, 653 , 100 S.Ct. 840, 846 , 63 L.Ed.2d 94 (1980); Meek v. Pittenger, 421 U.S. 349, 358 , 95 S.Ct. 1753, 1759 , 44 L.Ed.2d 217 (1975); Committee for Public Education v. Nyquist, 413 U.S. 756, 773 , 93 S.Ct. 2955, 2965 , 37 L.Ed.2d 948 (1973). Our own cases have evaluated Establishment Clause issues in terms of this three-part test. State v. Celmer, 80 N.J. 405 (1979); Resnick v. East Brunswick Tp. Bd. of Ed., 77 N.J. 88 (1978).

Although the “excessive entanglement” prong developed mainly in the context of government aid to religious organizations, there is no reason to limit its application to such cases. It developed because it was needed to prevent constitutional violations where a government practice had neither a religious purpose or primary effect but still involved government too closely with religious activity. The same need is present whether the government practice is aid to religious organizations or some other form of official conduct. Thus, the Supreme Court recently stated the test in full, with all three prongs, when considering a case challenging a government practice which was itself religious. See Stone v. Graham, - U.S. -, 101 S.Ct. 192, 66 *257 L.Ed.2d 199 (1980) (posting of Ten Commandments in public schools).

By dividing Establishment Clause cases into two categories, depending on whether government itself is or is not “directly engaged in a religious activity,” ante at 243, the Court adds a new step to the constitutional test. To determine whether a particular government practice violates the Establishment Clause, henceforth a court must first determine whether “the conduct itself is undertaken directly by governmental officials or personnel,” ante at 242. If it is, the court will apply only the first two prongs of the test — purpose and effect. If it is not, the court will also apply the third prong — excessive entanglement. Thus, the majority has transformed the well-established and simpler three-prong test, recently reaffirmed in Stone v. Graham, supra, into a new test consisting of an initial categorization step followed by a two-prong test in some cases and a three-prong test in others. This complication is totally unnecessary. I believe it is more advisable simply to apply the same three-prong test to all Establishment Clause cases.

The “excessive entanglement” prong of the test would serve well in restricting the Metuchen Council and other government entities from overstepping the permissible bounds of these potentially religious practices. Both the majority opinion and the opinion of Justice Clifford caution against any increase in the “frequency or intensity of these religious expressions.” Post at 259. I would add that if the Metuchen Council were to get involved in selecting particular clergymen to deliver its opening invocations or selecting particular forms of expression, so that it had to evaluate the merits of competing religions, it might be guilty of “excessive entanglement” although the purpose and primary effect of the practice are still secular. The fact that an official activity offends neither of these two latter standards does not mean that “in a constitutional sense religion would not be at all involved.” Ante at 243.

*258 In this case, the Council members are not involved as an official body in selecting the form or content of the invocations. Each member takes a turn to present his own personally selected expressions. Also, the Council does not choose among local clergymen to present the opening invocations. Nor has the plaintiff shown any other way in which the government is “excessively entangled” in making religious decisions. Accordingly, I would find that the Metuchen Council’s present practice does not foster “excessive entanglement” of government with religion. In another case, where the facts are slightly different, the government practice might not survive scrutiny under the Establishment Clause.

I would retain the “excessive entanglement” prong of the test in all cases to aid in judicial evaluation of government practices which might encroach upon the Establishment Clause although otherwise embracing a purpose and primary effect that are secular.