Amicus Curiae Brief — Karcher v. May

No. 85-1551

~* Supreme Court, U,

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MAY 29 war

Fithian! JR,

IN THE

CLERK

Supreme Court of the United States

OCTOBER TERM, 1986

>

ALAN J. KARCHER, as Speaker of the

New Jersey General Assembly, ef ai.,

—V.

Appellants,

JEFFREY MAY, individually, ef a/.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF APPELLEES

=

JOHN A. POWELL

DAVID B. GOLDSTEIN

AMERICAN CIVIL

LIBERTIES UNION

132 West 43rd Street

New Yc k, New York 10036

(212) © 4-9800

ERIC NEISSER

ACLU OF NEW JERSEY

38 Walnut Street

Newark, New Jersey 07102

(201) 642-2084

NORMAN L. CANTOR*

RICHARD M. ALTMAN**

ANNE P. MCHUGH

PELLETTIERI, RABSTEIN

& ALTMAN

13 West Front Street

Trenton, New Jersey 08604

(609) 989-7000

Attorneys for Appellees

*On the Brief

**Counsel of Record

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QUESTIONS PRESENTED

1). Whether standing to appeal exists for an individual

legislator who originally entered the suit exclusively as a

representative of the New Jersey Assembly and whose succes-

sor as Official representative of that body has determined not

to pursue an appeal?

2). Whether the trial court correctly determined that New

Jersey’s minute of silence law constitutes an establishment of

religion because the Legislature’s actual purpose was to return

prayer to the schools and its proffered secular purpose was a

mere pretext?

3). Whether the direct and immediate effect of New Jersey’s

minute of silence law as enacted and implemented is to advance

religion?

4). Whether rule 52(a)’s “clearly erroneous” standard of

review applies to the District Court’s findings that A-1064 had

no secular purpose and was enacted to reintroduce school

prayer?

QUESTIONS PRESENTED

TABLE OF CONTENTS

Es Ci SEP R DEMME EM EEEED cccccccccsccscseccoseces

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

I.

II.

BECAUSE THE ONLY PARTIES WITH

STANDING TO BRING THE CURRENT

APPEAL HAVE WITHDRAWN THE APPEAL,

THERE IS NO CASE OR CONTROVERSY

AND THE APPEAL MUST BE DISMISSED

FOR WANT OF JURISDICTION..............

THE DISTRICT COURT CORRECTLY FOUND

THAT THE PURPOSE OF THE NEW JERSEY

LEGISLATURE IN ADOPTING BILL A-1064

WAS AN’ IMPERMISSIBLE RELIGIOUS

PURPOSE—TO PROMOTE PRAYER IN THE

,. *§ @ & 9s | Se

A. The District Court Correctly Examined

Whether the New Jersey Legislature Acted

With an Illicit Purpose—to Promote and En-

courage Prayer—When It Adopted A-1064 ...

B. The Legislative H'story and Background of A-

1064 Demonstrate that A-1064’s Preeminent

Purpose was to Promote Prayer in the New

hy >. Serr

1. The District Court Considered Relevant,

Probative Evidence ..............+e8:.

PAGI

6

6

16

IV.

V.

ill

Nm

Legislative Process Demonstrating Illicit

CC itecl Gs. phd ie dd bles uanee ated

3. History of Prior Legislation Provides Ad-

ee eee

C. The Record Below Demonstrated that the Sole

Secular Purpose Advanced by the Legis-

lature—A Transition Period—Was a Pretext..

D. By Invalidating A-1064 Only After Finding

that the State’s Sole Asserted Secular Purpose

was a Pretext, and After Finding that the

Actual Purpose of A-1064 was Religious, the

District Court Correctly Applied the Purpose

Prong of Lemon v. Kurtzman..............

BILL A-1064 HAD THE DIRECT AND IMME-

DIATE EFFECT OF ADVANCING RELIGION

AND HENCE VIOLATED THE “EFFECTS

PRONG” OF LEMON KV. KURTZMAN ........

A. Under The Minute of Silence As Structured

Pursuant to A-1064, Some Teachers Would

Im vitably Utilize the Minute of Silence For

Prayer and Would Thus Influence Impression-

able Children to Engage in Prayer ..........

B. Because the Universal Public Perception of

A-1064 was That its Purpose was to Encourage

Prayer, That Law Had the Inevitable Effect of

PE ss cabccoceseneeasece

ON THIS RECORD AND AS A MATTER OF

ESTABLISHMENT CLAUSE JURISPRU-

DENCE, A-1064 CANNOT BE SUPPORTED BY

A LEGISLATIVE PURPOSE TO ACCOMMO.-

i ccc i kee weeheneneeensenes

THE DISTRICT COURT’S FINDINGS THAT

A-1064 HAD NO SECULAR PURPOSE AND

THAT ITS PREEMINENT PURPOSE WAS TO

PAGI

28

5 9g

3]

34

PAGI

REINTRODUCE PRAYER IN THE PUBLIC

SCHOOLS ARE FACTUAL FINDINGS SUB-

JECT TO RULE 52(a)’s “CLEARLY ERRONE-

OUS” STANDARD OF REVIEW «ccccccccsccss 38

EET ances pcbescécbascedwdedendectseoues 43

TABLE OF AUTHORITIES

Cases PAGE

Abington School Dist. v. Schempp, 374 U.S. 203

Dh 6a tec oedek Gad deel es 66406 0s 6 e4RS4 00 Kes 14, 16

AFGE v. Pierce, 697 F.2d 303 (D.C. Cir. 1982)........ 1]

Anderson v. Bessemer City, 470 U.S. 564 (1985)...... 39, 40,

41, 42

Arlington Heights v. Metropolitan Hous. Dev. Corp..,

se re ee ts a eee y 16

Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), vacated as

a ee Ge es PU EG bs 6 d'ccécccécepeseseéevas 1]

Bender v. Williamsport Area School Dist., 106 S. Ct.

PC Ciricalh ck Kies 6Gadceeebecnéduriavaue Ge

Bose Corp. v. Consumers’ Union, 466 U.S. 485

lr he ei ek Bie re lee ead 6, 38, 39, 40

Committee for Public Educ. v. Nyquist, 413 U.S. 756

I ee a Ee ee) ee Se ee aedes 28

Daggert v. Kimmelman, 617 F. Supp. 1269 (D.N.J. 1985) 8

Davis v. Preston, 280 U.S. 406 (1930)................ 8

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979) 40, 41

Diamond v. Charles, 106 S. Ct. 1967 (1986) .......... passim

Duffy v. Las Cruces School Dist., 557 F. Supp. 1013

OE eee - a

Engle v. Vitale, 370 U.S. 421 (1962) .................29, 37

Epperson v. Arkansas, 393 U.S. 97 (1968) ............ 16

Federal Energy Admin. v. Algonquin Inc., 426 U.S. 548

DS cheCVA bh ob sd Sete eee ukeeeseetea sbusseeen’s 16

Vi

PAGI

Gaines v. Anderson, 421 F. Supp. 337 (D. Mass. 1976). 30

Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) 31

Grosjean v. American Press Co., 297 U.S. 233 (1936).. 16

Hall v. St. Helena Parish School Bd., 197 F. Supp. 649

I a i Oe rn 4 wcdias eis 27

Hobbie v. Unemployment Appeals Comm’n, 107 S. Ct.

PP teccn. wet Cah ase Ue eens bhe Ween a bhese oe 35

Hunter v. Underwood, 471 U.S. 222 (1985) .......... passim

Karen B. v. Treen, 653 F.2d 897 (Sth Cir. 1984), aff’d

ce es Ee IG wo e'nn's 68 de tus ceeparodns 14

Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) ... 1]

Kentucky v. Graham, 473 U.S. 159 (1985) ............ 8

Korioth v. Briscoe, 523 F.2d 1271 (Sth Cir. 1975) ...... 10

Lavender v. Kern, 327 U.S. 645 (1946) ............... 18

Lemon v. Kurtzman, 403 U.S. 62 (1971) ............. passim

Lynch v. Donnelly, 465 U.S. 668 (1984). ............. passim

Maine v. Taylor, 106 S. Ct. 2440 (1986) ..............39, 40

Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979)........... 37

McCollum v. Board of Educ., 333 U.S. 203 (1948) ..5, 29, 33

McRae v. Mathews, 421 F. Supp. 533 (E.D.N.Y. 1976),

rev'd on other grounds, 448 U.S. 297 (1980) ........ 1]

Miller v. Fenton, 106 S. Ct. 445 (1986)...............: 39, 40

Moore v. House of Representatives, 733 F.2d 946 (D.C.

eh I Fou 5 54 acdsee bed eka s ba eked Mae een es 40 1]

Opinion of the Justices, 440 N.E.2d 1159 (Mass. 1982). 29

Poe v. Uliman, 36/7 U.S. 497 (1961). 0... cc cccccccces 12

Poovey v. Edminsten, 526 F. Supp. 759 (E.D.N.C. 1981) 1]

PAGI

Pullman-Standard v. Swint, 456 U.S. 273 (1982)....... 4]

Rogers v. Lodge, 458 U.S. 613 (1982)............. 15, 41, 42

Schweiker v. Wilson, 450 U.S. 221 (1981) ............ 20

Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) ...... 10

Stone v. Graham, 449 U.S. 39 (1980) ............. 16, 27, 35

Thornburg v. Gingles, 106 S. Ct. 2752 (1986) .........39, 42

United States v. O’Brien, 391 U.S. 367 (1968)......... 3

Wallace v. Jaffree, 472 U.S. 38 (1985) ............... passim

Walter v. West Va. Bd. of Educ., 610 F. Supp. 1169 (D.

Te Ws MD oo Se bdcosevccccweees TOptTROweberes cia an

Washington v. Davis, 426 U.S. 229 (1976) ............ 14

Witters v. Washington Dep’t of the Blind, 106 S. Ct. 748

eee eek hse hbeb ena eee eee ee ee 34, 35

Statutes and Rules

I anda ds wills 9 Wir dee 4 Wd, Waid eee Rk passim

NA TE are Umer ee Ae 6

i ka eee ed bg ewes hem 18

er 8

Re ee 25

Other Authorities

Dellinger, The Sound of Silence: An Espistle on Prayer

and the Constitution, 95 Yale L.J. 1631 (1986) ...... 36

Dessem, Congressional Standing to Sue, 62 N.D. L.

a ala ie ss wena sikh Coe Saas ae Ree weet 10

Drakeman, Prayer in the Schools: Is New Jersey’s Mo-

ment of Silence Law Unconstitutional? 35 Rutgers L.

SL oh dan au eed unseat todd been eeete des 21

Vill

PAGE

ee Fo ee re 13, 32

eee, SS IN. UU. E. BV. SEG CIFES). oc ccc cccccccscccs 33

Monaghan, Constitutional Fact Review, 85 Colum. L.

Ne Ml ie Bled 2 hails one visit he ou ee 40, 41

Raveson, Unmasking the Motives of Government

Decision-Makers, 63 No. Car.L. Rev. 879 (1985) .... 17

Stern, Gressman & Shapiro, Supreme Court Practice,

i Pi cath Lh uee ewan hes ebhbe bo been epee 8

Veto Messages of the Governor (1969).............45. 22

C. Wright, Federal Courts (4th ed. 1983) ............. 40

STATEMENT OF THE CASE

The history of this challenge to New Jersey’s minute of

silence law (hereinafter Bill A-1064) has been set out at length

in Appellants’ Brief and in the amicus brief of the Solicitor

General. Appellees here will simply highlight the chronology of

events involved in this litigation.

March 8, 1982: Bill A-1064, requiring a one minute period

of silence in every public elementary and secondary schcol in

New Jersey, is introduced. (J.S.A. 11la).' The bill succeeds Bill

A-2197 (1981), requiring a period of silence “not to exceed one

minute,” which had been vetoed by Governor Brendan Byrne

in May 1981 as “either unconstitutional or unnecessary.” (J.A.

399).

May 17, June 21, and September 23 (1982): Perfunctory

hearings are held before the Assembly Education Committee

(May 17), and before the Senate Education Committee June

21, September 23). (J.A. 268-70, 274-76, 406-07, 408-09). In all

these hearings, A-1064’s main sponsor, Assemblyman Zangari,

is the sole witness favoring the bill. There is no testimony from

any educator or psychologist indicating any non-prayer utility

of a minute of silence. Professional educators’ organizations

uniformly oppose the bill.

October 1982: Bill A-1064 passes the Assembly and Senate.

December 6, 1982: Governor Kean vetoes A-1064 on the

basis that legislators’ statements reveal “a constitutionally

impermissible motive” and-the bill is therefore “unlikely [to]

pass constitutional muster.” (J.A. 382-83). The Governor, a

teacher by training, also notes that teachers already have

I Appellees’ citation system is as follows: “J.S.A.” refers to the

appendix attached to Appellants’ jurisdictional statement. “Mot. to Dism

App.” refers to the appendix attached to Appellees’ motion to dismiss the

appeal. “J.A.” refers to the joint appendix filed in this Court. “J.A. 3d Cir.”

refers to the joint appendix filed in the Third Circuit. “R.” refers to the

transcript of the trial conducted by the district court.

discretion to use silence in the classroom when educationally

needed.

December 13 & 16, 1982: The Assembly and Senate over-

ride the Governor’s veto and A-1064 by its terms becomes

effective immediately. The override debates are short and

preoccupied with discussion of prayer in the classroom. (J.A.

36-37, 369-72, Plaintiffs’ Exhibits !-5, 10, 13, 15, 17).

December 17, 1982: The Deputy Commissioner of Educa-

tion notifies school districts that A-1064 has been adopted and

that “the statute should be permitted to speak for itself.” (J.A.

3d Cir. 19a). No implementing guidelines are promulgated.

December 22, 1982: In testimony before the Senate Judici-

ary Committee the State Attorney General explains his deci-

sion not to defend Bill A-1064. He relies on a seldom-used

discretion not to defend a state measure which he conscien-

tiously believes is unconstitutional. (Plaintiffs’ Supplemental

Appendix in May v. Cooperman, #83-89 (D.N.J. 1983), at

2-4).

January 10, 1983: Judge Debevoise issues a temporary

restraining order against implementation of A-1064, relying on

legislators’ reported public statements indicating that the bill’s

object is to return prayer to the schools. (J.A. 51-53).

January 18, 1983: The state Assembly and Senate, through

their presiding officers acting in a representative capacity, are

allowed to intervene to defend A-1064. (J.A. 54).

October 10, 1983: After a five-day trial, Judge Debevoise

finds that the Legislature’s sole proffered purpose for A-

1064—creation of a transition period—-is a pretext. The actual

purpose is found to be “religious”—meaning an effort to

return prayer to the schools in an unconstitutional manner.

(J.S.A. 86a-94a).°

"

< Appellants erroneously contend that the district court applied a

novel standard requiring “an overwhelmingly obvious and important secula

December 24, 1985: <A divided panel of the Third Circuit

affirms the judgment of the district court. (J.S.A. 3a).

April 1986: The successor representatives of the state

Assembly and Senate withdraw the appeal to this Court. (Mot.

to Dism. App. la-Sa).

SUMMARY OF ARGUMENT

I. In. January 1983, after New Jersey’s Attorney General

refused to defend A-1064, the New Jersey Legislature inter-

vened in the instant litigation through the then presiding

officers of the Assembly and Senate, Alan Karcher and Car-

men Orechio. The intervention hearing shows clearly that

Karcher and Orechio intervened exclusively in an official

Capacity as representatives of their legislative bodies.

In April 1986, the successor representatives of the New

Jersey Senate and Assembly withdrew the Legislature’s appeal

to this Court. Their action ends the case or controversy before

this Court concerning the constitutionality of A-1064.

The only remaining Appellant, Alan Karcher, has no stand-

ing to bring this appeal. Karcher (who entered the suit solely in

a representative capacity) has no standing as an individual

legislator. In the first place, he did not enter the suit in that

capacity and cannot change his capacity at this stage. See

Bender v. Williamsport Area School Dist., 106 S.Ct. 1326,

1332 (1986). Second, where a collective body like a legislature

controls a decision whether to appeal, only an official repre-

sentative of that body (or the body itself) can make such a

decision. /d. The official representatives of the New Jersey

Senate and Assembly, Messrs. Russo and Hardwick, have

withdrawn the instant appeal. Their decision governs. Finally,

purpose” in order for a statute to satisfy the purpose prong of Lemon \

Kurtzman. (Appellants’ Br. at 8, 28). The quoted language is taken out of

context from a segment of the district court opinion distinguishing United

States v. O’Brien, 391 U.S. 367 (1968), from the instant case. The trial court

did not use that quoted language as the standard for secular purpose.

Alan Karcher as an individual legislator lacks Article III

standing to bring this appeal. A single legislator’s interest in

the constitutional validity of an enactment does not constitute

a particularized stake sufficient to confer standing.

The notion that Karcher can appeal as a representative of the

200th legislature, which expired three and one-half years ago,

is divorced from reality. The decision whether to litigate fur-

ther the fate of a state enactment declared invalid is a matter

for the current legislative body. See Diamond v. Charles, 106

S Ct. 1967, 1703-04 (1986). The current legislature represents

the constituency affected by such a decision, and the current

legislature determines whether to incur the expenses involved.

II. Although A-1064 did not use the word prayer, it was

surrounded by enough indicia of prayer to warrant the district

court’s inquiry into legislative purpose. Bill A-1064 was the

eighteenth legislative measure since 1968 that sought to inject a

morning silence exercise into New Jersey schools—measures

introduced “in an attempt to reintroduce prayer in the public

schools notwithstanding the Supreme Court’s ruling.” (J.S.A.

86a).° In addition, both the governor (in casting a veto) and the

attorney general (in refusing to defend the statute) had made

independent determinations that A-1064 was motivated by an

illicit religious purpose.

The district court used the very tools—examination of the

background and circumstances of the legislative process—

which this Court has endorsed whenever constitutional doc-

trine makes illicit legislative purpose a relevant inquiry. The

examination of legislative background and circumstances dis-

closed much evidence that A-1064 was intended to endorse

prayer and return it to the public schools. The legislative

hearings and debates were found to be “in terms of public

prayer and state involvement in religion.” (J.S.A. 90a).

Though the New Jersey Legislature makes no recording of its

proceedings, Appellees showed that several key legislators—

including the bill’s chief sponsor (Assemblyman Zangari) and

the President of the Senate (Senator Orechio)—made telling

3

In the past-whetrstch measures were passed they were vetoed and

never became law. See, e.g., J.A. 394, 397, 399

remarks disclosing that A-1064’s purpose was to encourage

children to engage in prayer in school.

The district court properly found that the sole secular

purpose proffered in this litigation—creation of a transition

period into the school day—was a pretext. The New Jersey

Legislature had received no input indicating that existing tran-

sition devices were inadequate, or that a regimented minute of

silence would be useful. All the input from educators indicated

that teachers already had discretion to use silence as a tool

when needed.

III. The history and administration of New Jersey’s A-1064

also ensured that the statute’s primary effect would be to

encourage prayer. Despite a widespread public perception that

the bill’s purpose was to promote prayer, there were no

administrative guidelines to explain alternative, secular uses of

a minute of silence, and no guidelines to confine teachers in

their implementation of the statute. New Jersey made no effort

to disclaim an intention of endorsing a religious exercise or to

prevent teachers from either intentionally or inadvertently

promoting prayer.

IV. Appellees do not contend that a minute of silence exer-

cise cannot be constructed without violating the establishment

clause. We contend that New Jersey’s statute as enacted and

implemented cannot be deemed a valid accommodation mea-

sure. First, the Intervenor-Legislature has never argued that A-

1064’s actual purpose was to enable children to pray. Rather,

the legislature has advanced a single purpose—creation of a

transition period—which the district court found to be an

after-the-fact pretext. Further, the well-grounded findings of

the district court indicate that the actual purpose of A-1064 was

to return prayer to the schools in a constitutionally impermissi-

ble manner.

A state must take extreme care in accommodating religion in

the public school environment. See McCollum yv. Board of

Educ., 333 U.S. 203 (1948). If a state decides to provide a time

and place for silent prayer within the classroom, it must at

least communicate alternative, non-prayer functions of that

period and (through regulations or otherwise) ensure that

teachers will in no way favor the religious function. New Jersey

has not taken such care here. Finally, the record showed there

was no impediment to prayer (within the existing school

framework) which might warrant a state accommodation of

religion.

V. The proper standard governing appellate review of a

district court’s findings of fact is the “clearly erroneous” test

of Rule 52(a). Although this Court concluded in Bose Corp. v.

Consumers’ Union, 466 U.S. 485 (1984), that a finding of

“actual malice” in a libel case must be subjected to indepen-

dent appellate review, Bose limits this requirement principally

to the area of free speech. In addition, Bose was grounded

largely on an overriding concern to ensure that constitutional

rights are not unduly restricted by the lower courts, a principle

that makes independent review inappropriate where, as here,

the constitutional right at stake was vindicated by the district

court.

This Court has consistently treated findings of illicit govern-

mental purpose as questions of pure fact in diverse contexts,

including establishment clause cases. See Hunter v. Under-

wood, 471 U.S. 222, 225-29 (1985); Lynch v. Donnelly, 465

U.S. 668, 680-81 (1984). The “clearly erroreous” standard of

review is not supplanted merely because the district court’s

findings of actual legislative purpose mey-be labeled as ulti-

mate or dispositive “constitutional” facts.

ARGUMENT

iI. BECAUSE THE ONLY PARTIES WITH STANDING

TO BRING THE CURRENT APPEAL HAVE WITH-

DRAWN THE APPEAL, THERE IS NO CASE OR

CONTROVERSY AND THE APPEAL MUST BE

DISMISSED FOR WANT OF JURISDICTION.

Counsel who filed the jurisdictional statement in this matter

informed the Court on May 6, 1986, that the current New

Jersey Assembly and Senate “do not join in and are not

appellants in this matter.” (Mot. to Dism. App. 2a). Appellees

submit that the New Jersey Legislature, as Intervenor,’ was the

sole agency which could have processed this appeal. The

Legislature’s withdrawal therefore leaves this Court without a

justiciable case or controversy, dictating dismissal of the appeal

for lack of jurisdiction. See Diamond v. Charles, 106 S.Ct.

1697 (1986).

Appellants contend that Messrs. Karcher and Orechio origi-

nally intervened in this suit as individual legislators, as well as

in their capacity as chief executive officers and_representatives

of their respective houses. (App. Br. at 11, 16). The record,

however, refutes that claim.

The hearing on the Legislature’s motion to intervene makes

unmistakably clear that the party accorded intervenor status

was the New Jersey Legislature.” Counsel for intervenor began

the hearing by announcing his appearance “for the General

Assembly and Senate, the intervenors.” (Mot. to Dism. App.

12a). He then explained that he was acting on behalf of both

the presiding officers of the Assembly and Senate, Mr. Karcher

and Mr. Orechio respectively. Jd. The ensuing discussion made

plain that Karcher and Orechio were acting purely in their

official capacities as representatives of the Legislature. The

following exchange is illustrative:

Mr. Marinari (counsel for intervenor): As the presiding

officers of both houses, they are empowered by the rules

of both houses to represent the house in litigation.

The court: They are in a representative capacity?

Mr. Marinari: That is correct.

(Mot. to Dism. App. 15a). Counsel for the intervenors speci-

fied further:

4 rhe instant suit was first brought against the N.J. Department of

Education, as the agency which would implement New Jersey’s minute of

silence law. The State’s Attorney General, as chief law enforcement officer,

refused to defend the law. At that point, the New Jersey Legislature, through

its presiding officers acting in their official capacities (Messrs. Karcher and

Orechio), intervened to defend

5 The full transcript of that January 18, 1983, hearing is reproduced in

the Appendix attached to Appellees’ Motion to Dismiss at 1la-27a

The institution is coming in as an institution. * * * It is

the presiding officer of each House and in charge of all

administrative duties, and from that we have been in

numerous suits * * *.

(Id. at 16a-17a).°

The district court’s order permitting intervention provides

for intervention of Karcher and Orechio only in a representa-

tive capacity. (J.A. 54). Subsequently, on appeal to the Third

Circuit, and on filing of the appeal before this Court, the only

reference to Messrs. Karcher and Orechio was in their repre-

sentative capacity. (J.S.A. la, 106a).

On January 14, 1986, when the 202d legislature assembled,

Messrs. Karcher and Orechio were succeeded by Chuck

Hardwick and John Russo as Speaker of the General Assembly

and President of the Senate, respectively.. Messrs. Hardwick

and Russo, as successors in office to parties named in their

official capacities as litigants, are automatically substituted as

the representatives of the intervening party in this litigation.

Supreme Court Rule 40(3); Stern, Gressman, & Shapiro, Su-

preme Court Practice, § 18.6, at 724 (6th ed. 1986); Kentucky

v. Graham, 473 U.S. at 166 n.11. See also Davis v. Preston,

280 U.S. 406, 407 (1930) (official capacity party loses authority

to pursue an appeal once successor takes office). By letter

dated April 21, 1986, Speaker Hardwick, on behalf of the

General Assembly, directed that the instant appeal be with-

6 The intervention by the state legislature through its presiding officers

was entirely consistent with “officer-capacity suits” as a pleading device to

bring into a litigation “the entity of which an officer is an agent.” Kentucky

v. Graham, 473 U.S. 159, 165 (1985); see Bender v. Williamsport Area

School District, 106 S.Ct. 1326, 1332 (1986). Appellants now argue that the

presiding officers of the legislature may not have been authorized to

intervene on behalf of their respective houses. (App. Br. at 16). This

suggestion conflicts not only with representations made by their counsel at

the hearing on intervention (Mot. to Dism. App. 15a, 17a), but also with the

apparent custom of the New Jersey legislature to allow its presiding officers

to intervene in litigation on behalf of the legislative bodies. See Daggert v.

Kimmelman, 617 F. Supp. 1269 (D.N.J. 1985).

Because the Legislature had standing to defend A-1064, there is no merit to

Appellants’ suggestion that if there is currently no case or controversy the

lower court decisions must be vacated. See Diamond v. Charles, supra

drawn. (Mot. to Dism. App. 4a). A similar step was taken by

President Russo on behalf of the Senate on April 28, 1986. /d.

By a joint statement issued April 28, 1986, Messrs. Hardwick

and Russo explained that “careful consideration of financial,

constitutional and practical” factors had prompted the deci-

sion to withdraw the appeal. (/d. at 10a).

Once the only authorized intervenors—the New Jersey Sen-

ate and Assembly—withdrew their appeal, there was no longer

a case or controversy before this Court. See Diamond, 106

S.Ct. at 1703-04. While Alan Karcher remains a member of the

current New Jersey Legislature (without leadership status), he

cannot now assert standing in that member capacity. As noted

above, Karcher took part in this litigation solely in his repre-

sentative capacity. This Court has determined that a party who

has litigated in one status (such as in an official capacity of

assembly speaker) cannot alter that status at an advanced

appellate level in order to preserve an appeal which the real

party in interest (the N.J. Legislature) has determined to drop.

Thus, in Bender, supra, a school board member who had been

sued in his official capacity could not launch an appeal in his

personal capacity either as an individual board member or

parent. The Court explained:

The fact that [the board member] was sued in his official

capacity does not give him standing to appeal in his

individual capacity. Acts performed by the same person in

two different capacities are generally treated as the trans-

actions of two different legal personages.

106 S.Ct. at 1332 n.6.

Appellants seek to distinguish Bender on the basis that the

board member there “had no interest in the suit as an individ-

ual,” while here “the interests of Messrs. Karcher and

Orechio” as individual legislators still exist. (App. Br. at 20).

This simply misreads Bender. The Court in Bender did not rule

that the individual board member had no cognizable interest.-

There, the Court held that the board member could not appeal

in his individual capacity (for example, as a parent) because he

had participated in the litigation solely in his official capacity.

106 S.Ct. at 1332, 1335. This reasoning applies fully to Kar-

10

cher, who entered this litigation solely in an official capacity

and who is likewise seeking to alter his status or capacity

before this Court.

There are additional reasons why Karcher cannot pursue this

appeal as an individual legislator. Where, as here, a collective

body (a legislature) is the party in interest in lower court

proceedings, only an agent of the collective body and not an

individual member of the body can invoke a right to appeal.

Bender, 106 S.Ct. at 1333; see Smuck v. Hobson, 408 F.2d 175,

177-78 (D.C. Cir. 1969). In Bender, this Court ruled that the

real party in interest was the legislative entity (a nine-member

school board) and that an individual member could not sup-

plant the entity for purposes of processing an appeal. 106 S.Ct.

at 1328-29, 1333. “[MJjembers of collegial bodies do not have

standing to perfect an appeal the body itself had declined to

take.” Jd. at 1333. This principle is particularly apt where, as

here, a state legislative enactment is in issue. As this Court has

explained:

[T]he power to create and enforce a legal code, both civil

and criminal is one of the quintessential functions of a

State. . . . Because the State alone is entitled to create a

legal code, only the State has the kind of “direct” stake

[necessary] . . . in defending the standards embodied in

that code.

Diamond, 106 S.Ct. at 1705. By barring standing to an

individual member of a collegial body, the judiciary avoids

becoming enmeshed in examination of whether a particular

member is faithfully and adequately advancing the views of the

collective body. See Dessem, Congressional Standing to Sue, 62

N.D. L. Rev. 1, 15 (1986).

Even if Karcher had entered the instant litigation in his

individual capacity as a legislator, there would be a final bar to

his prosecuting this appeal. In order to pursue an appeal, the

prospective appellant must meet Article II] standing require-

ments. Diamond, 106 S.Ct. at 1703. Yet an individual legislator

ordinarily has no standing in federal court to litigate the

constitutionality of a measure adopted by the collective body.

Korioth v. Briscoe, 523 F.2d 1271, 1277-78 (Sth Cir. 1975). This

1]

is sO whether the individual legislator is convinced that the

Statute is unconstitutional and seeks to attack it, or whether the

legislator seeks to defend the measure against constitutional

attack. See Poovey v. Edminsten, 526 F. Supp. 759, 765

(E.D.N.C. 1981); McRae v. Mathews, 421 F. Supp. 533, 540

(E.D.N.Y. 1976), rev’d on other grounds, 448 U.S. 297 (1980).

A legislator’s interest in the constitutional status of a statute is

a generalized concern shared by all citizens equally; individual

legislators therefore lack a personal stake in the outcome

necessary to confer standing. See AFGE v. Pierce, 697 F.2d

303, 305 (D.C. Cir. 1982).

There is a line of lower court decisions in which individual

legislators have been accorded standing in order to prevent

“nullification” of their votes. See Barnes v. Kline, 759 F.2d 21

(D.C. Cir. 1985), vacated as moot, 107 S.Ct. 738 (1987):

Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). But

nullification in this context has meant disenfranchisement—

that is, deviation from legally required processes of lawmaking

in a fashion which deprives a legislator of an opportunity to

vote. See, e.g., Moore v. House of Representatives, 733 F.2d

946, 951-52 (D.C. Cir. 1984). Mr. Karcher incurred no such

deprivation.

The suggestion that Mr. Karcher retains standing to appeal

as a representative of the 200th Legislature, which terminated

at the end of 1983, is totally divorced from reality. The New

Jersey Legislature was admitted as a party in order to defend

the minute of silence law. At no time in the protracted course

of this litigation was there any suggestion that a prior legisla-

ture rather than the current legislature was acting as intervenor.

This was true, for example, during the appeal in the Third

Circuit, which was conducted in 1984 and 1985 during the term

of the 20Ist Legislature. The 20Ist Legislature, and not the

200th Legislature, pursued and paid the costs of that appeal.

Nor did the notice of appeal or the jurisdictional statement

Individual legislaturs incur no greater stake when a court declares

Statute unconstitutional on grounds of illicit legislative purpose. A judgment

about collective legislative purpose does not impugn the character of ar

individual legislator. Hence, the Appellants’ claim of a specia th

instant case (App. Br. at 26) must fail

me ee ee

12

filed in this Court indicate that a prior, expired legislature was

involved. (J.S.A. 106a).

It is self-evident that a decision whether to appeal a judg-

ment declaring a state enactment unconstitutional is a matter

of policy for the current legislature or executive. Official

acquiescence in a declaration of unconstitutionality means that

a legislative measure will not be currently and prospectively

enforced. Diamond, 106 S.Ct. at 1705. The primary impact of

a decision whether to appeal is on the constituency of the

current legislature. This is true as to the many considerations

that go into a decision whether to appeal a judgment—

importance of maintaining a statute in force, economic costs to

be incurred in the appeal, changes in the will of the electorate,

and alternative means to accomplish whatever legitimate legis-

lative objectives are at stake.

A prior legislature cannot be accorded a proprietary interest

in a State’s enactment. The notion that a long-expired legisla-

tive body retains control of current litigation offends all sense

of sound procedure. Sometimes, many years elapse between

passage of a law and its judicial resolution. See Hunter v.

Underwood, 471 U.S. 222 (1985) (84 years); Poe v. Ullman,

367 U.S. 497 (1961) (82 years). Yet dead-hand cantrol would

preclude the current legislative leadership from settling a litiga-

tion according to a fair assessment of current public policy

concerns. Moreover, the dead-hand leadership could no longer

consult with its legislative constituency. The current legislative

leadership, by contrast, can always consult with its legislative

constituency. The current legislature, not the 200th legislature

which expired over three years ago, is the appropriate body to

decide whether to appeal. Its duly elected representatives have

withdrawn the current appeal. That decision of April 1986

ended the case or controversy upon which this Court’s jurisdic-

tion hinges.

13

il. THE DISTRICT COURT CORRECTLY FOUND

THAT THE PURPOSE OF THE NEW JERSEY

LEGISLATURE IN ADOPTING BILL A-1064 WAS

AN IMPERMISSIBLE RELIGIOUS PURPOSE—TO

PROMOTE PRAYER IN THE PUBLIC SCHOOLS.

A. The District Court Correctly Examined Whether The

New Jersey Legislature Acted With An Illicit Purpose—

To Promote And Encourage Prayer—When It Adopted

A-1064.

Appellants argue that A-1064 was a “facially neutral” statute

with a plausible secular purpose on its face. They contend

therefore that the district court should never have examined

the background and circumstances of the law in order to

determine that the measure had no secular purpose and that its

object was “religious.” (J.S.A. 90a). The argument is mis-

placed for two reasons. Bill A-1064 was not really neutral on its

face. And even if it had been neutral, that fact would not

preclude an inquiry into whether the actual legislative purpose

was to promote and encourage prayer in the public schools.

As to neutrality, although A-1064 uses the language “con-

templation or introspection” and does not by terms mention

prayer, it cannot be viewed realistically as divorced from

prayer. The term “contemplation” often connotes a religious

act involving private religious devotion. (J.A. 139-40; R. 295).

Most pupils have been exposed to organized silent meditation

only in a place of worship. See Note, 96 Harv. L. Rev. 1874,

1891 (1983). The opening minutes of the school day in New

Jersey were historically used for prayer. (J.A. 355; J.S.A. 67a,

86a). Organized group silence is a traditional form of prayer

associated with major religious bodies in New Jersey, such as

the Quakers. (J.A. 139, 141; R. 289). Given these facts, the

installation of a period for silent “contemplation” at the

beginning of the school day is at the very least suggestive of

prayer.

14

Additional factors undermined A-1064’s veneer of “neutral-

ity.” The statute appears to make the minute of silence permis-

sive, suggesting that persons having conscientious objections

should be free to abstain. This acknowledgement of potential

conscientious objection to the minute of silence exercise itself

betrays a recognition of the exercise’s religious character. If the

purpose of a minute of silence were simply to promote a

secular object like tranquil thought, there would be no need to

excuse persons from the silence exercise. See Abington School

Dist. v. Schempp, 374 U.S. 203, 224 (1963); Karen B. v. Treen,

653 F.2d 897, 901 (Sth Cir. 1981), aff’d mem., 455 U.S. 913

(1982). Finally, the only secular purpose asserted by the Legis-

lature in defending its minute of silence law—creation of a

transition period with a psychological “calming effect” on

pupils—did not appear on the face of the statute. Rather, that

purpose was first advanced well into the course of the litiga-

tion. See J.S.A. 9la (district court finding that A-1064 upon

passage became “a statute in search of a secular purpose”).

In short, the language of A-1064 was at best ambiguous

about actual legislative purpose. Since an organized morning

silence exercise carries strong implications of prayer, the dis-

trict court was warranted in examining whether A-1064’s actual

purpose was to encourage prayer in New Jersey’s public

schools.

Even if A-1064 were deemed neutral in its language, that fact

would not preclude examination of whether the measure was

actually intended to advance prayer. In some areas of constitu-

tional jurisprudence illicit legislative purpose is a key element.

See, e.g., Washington v. Davis, 426 U.S. 229 (1976) (racial

discrimination); Wallace v. Jaffree, 472 U.S. 38 (1985) (estab-

8 The statute uses terms such as “permit” a minute of silence and

“discretion” of the individual student. The trial court was uncertain whether

A-1064 required students to remain in the classroom during the minute of

silence. (J.S.A. 84a). However, all three judges in the Third Circuit con-

cluded that A-1064 was “permissive,” and that students objecting to observ-

ance of a minute of silence might well be permitted to leave the classroom.

(J.S.A. 1Sa, 22a, 33a). Appellees agree that A-iJ64 appears permissive on its

face and leaves room for an interpretation under which objecting students

may leave the classroom.

15

lishment clause). With regard to the establishment clause,

Justice Stevens recently noted:

In applying the purpose test, it is appropriate to ask

whether government’s actual purpose is to endorse or-

disapprove of religion. * * *

The proper inquiry under the purpose prong of Lemon vy.

Kurtzman .. . is whether the government intends to

convey a message of endorsement or disapproval of reli-

gion.

Jaffree, 472 U.S. at 58, 60 n.52 (quoting Lynch v. Donnelly,

465 U.S. 668, 690-91 (1984) (O’Connor, J., concurring)).

Where, as here, iliicit purpose is properly in issue, even the

facial neutrality of an enactment cannot bar judicial inquiry

into the background and circumstances of the enactment’s

adoption. This was vividly demonstrated in Hunter v. Under-

wood, 471 U.S. 222 (1985). There, litigants challenged a

provision of the 1901 Alabama constitution that disenfran-

chised all persons convicted of a crime involving moral turpi-

tude. Though the measure applied to both blacks and whites,

and though there was a plausible legislative purpose visible on

the measure’s face (the barring of morally unfit voters), the

challengers proved that racial animus was actually behind the

ostensibly neutral provision. Jd. at 229. See also Rogers. v.

Lodge, 458 U.S. 613 (1982) (at-large voting district).

The same principle applies under the establishment clause.

Facial neutrality of a statute cannot bar inquiry into illicit

religious purpose. As Justice O’Connor observed in Jaffree:

[T]he face of the statute or its legislative history may

clearly establish that it seeks to encourage or promote

voluntary prayer over other alternatives, rather than

merely provide a quiet moment that may be dedicated to

prayer by those so inclined. The crucial question is

whether the State has conveyed or attempted to convey

the message that children should use the moment of

silence for prayer. This question cannot be answered in

the abstract, but instead requires courts to examine the

history, language, and administration of a particular stat-

16

ute to determine whether it operates as an endorsement of

religion.

472 U.S. at 73-74 (emphasis added). In sum, the district court

in the instant case was acting consistently with precedent in

examining A-1064’s history and background.

A “neutral” statute with an avowed secular purpose cannot

foreclose judicial inquiry into actual legislative purpose: Liti-

gants must be permitted to demonstrate a “sham” secular

purpose underlying an enactment. See id. at 64 (Powell, J.,

concurring); id. at 75 (O’Connor, J., concurring). Government

may not use a pretext or facade in order to promote or endorse

a religious exercise. And the only limit to the manufacture of

secular purposes is the imaginativeness of counsel representing

legislative bodies. These principles are confirmed in cases like

Stone v. Graham, 449 U.S. 39 (1980); Epperson v. Arkansas,

393 U.S. 97 (1968); and Abington School Dist. v. Schempp,

374 U.S. 203 (1963).

B. The Legislative History And Background Of A-1064

Demonstrate That A-1064’s Preeminent Purpose Was To

Promote Prayer In The New Jersey Public Schools

l. The District Court Considered Relevant, Probative

Evidence

In considering an illicit legislative purpose, a court must

examine legislative history and background, including contem-

poraneous statements by members of the relevant legislative

body. See Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U.S. 252, 266-68 (1977); Jaffree, 472 U.S. at 55-58;

Hunter v. Underwood, 471 U.S. at 228. Legislators’ statements

are unlikely to be an exclusive index of legislative purpose.

After all, most legislators will either not participate in debates

or will avoid any comments which might betray an illicit

purpose. Nonetheless, legislators’ remarks can furnish a useful

element of proof of legislative purpose, especially when made

by key participants in the legislative process (e.g., sponsors,

floor leaders). See Jaffree, supra; Federal Energy Administra-

tion v. Algonquin Inc., 426 U.S. 548, 564 (1975); Grosjean v.

17

American Press Co., 297 U.S. 233 (1936). At the very least,

committee hearings and legislative debates are indicative of the

historical milieu, the information, and the thinking behind a

legislative decision, and are thus probative of legislative pur-

pose. See Raveson, Unmasking the Motives of Government

Decisionmakers, 63 No. Car. L. Rev. 879, 977-78, 982-83

(1985).

In the case of A-1064, several factors complicated the task of

establishing legislative purpose. The New Jersey Legislature

preserves no transcript of its committee hearings or floor

debates. (J.S.A. 14a). Plaintiffs’ requests for documents used

in consideration of A-1064, as well as for admissions regarding

legislators’ statements, were met by a claim of legisiative

privilege. (J.A. 3d Cir. 126a-140a). While the claim of privilege

was rejected, the trial court did rule that it would be “un-

seemly” to require legislators to be deposed or to answer

interrogatories. (/d. at 150a-52a). Consequently, the discovery

available to the Appellees here was quite circumscribed. ’

Despite these barriers, Appellees presented several witnesses

who described their first-hand observations of the committee

hearings and some of the floor debates leading to passage of A-

1064. The district court ultimately concluded that the debate

surrounding A-1064 was “in terms of public prayer and State

involvement in religion.” (j.S.A. 90a). The court similarly

found that legislators’ statements were “confirmatory of an

institutional purpose to accomplish something the Constitution

forbids.” (J.S.A. 92a). In making these findings the trial judge

relied primarily on the witnesses mentioned above, rather than

upon newspaper reports quoting legislators’ statements which

were also in evidence. (J.S.A. 85a n.4)."”

9 The district court prohibited Appellees from calling the legislators to

testify and granted the motion quashing interrogatories and requests for

admissions concerning legislators’ statements. J.S.A. 68a n.2; J.A. 3d Cir. at

152a-54a.

10 The Circuit Court found that the newspaper reports presented a

“difficult” issue of evidence, but ruled that the district court’s conclusions

18

Nonetheless, the newspaper clippings were properly admitted

by the district court and deserve full consideration.'' Because

the newspaper articles were properly admitted, Appellees will

use several quotations from the articles to show that the trial

court’s conclusions concerning the legislative history of A-1064

were well grounded in the record.

2. Legislative Process Demonstrating Illicit Purpose

After A-1064 was filed on March 8, 1982, the first committee

hearing took place before the Assembly Education Committee

on May 17, 1982. The New Jersey School Boards Association

(hereinafter NJSBA) appeared in order to oppose the bill as an

unnecessary legislative interference. (J.A. 274, 406-07). Assem-

blyman Zangari, the bill’s chief sponsor, was the sole witness

to favor the bill. In his remarks, Mr. Zangari noted that‘it was

“important that our society get back to religious values. ”

(J.A. 275, 406-07). No one, let alone a trained educator or

psychologist, testified as to the possible utility of a minute of

silence as a transition period. (/d.; see also J.A. 300).

would not have been any different if the newspaper clippings had been

excluded from evidence, and that “ample other evidence supportied] the

district court’s conclusion that the purpose of the legislation was not secular

+

but religious.” (J.S.A. 27a-28a n.9)

I With regard to legislative purpose, the newspaper articles fall

squarely within Fed.R. Evid. 803(24) as more probative to establish the

legislative purpose expressed by legislators than any other evidence Appellees

could procure through reasonable efforts, and as having circumstantial

guarantees of trustworthiness. The district court so ruled. (J.A. 122-26).

That court’s ruling on the admissibility of this evidence should ot be

disturbed absent a clear showing of abuse of discretion. See Lavender \

Kern, 327 U.S. 645, 654 (1946).

Appellees would have called reporters, if necessa to testify to the

accuracy of the quotations (J.A. 92, 96-97), but the court ruled that this was

unnecessary. (J.A. 124). The articles were trustworthy. There was substantial

agreement among them as to the legislators’ statements, thus corroborating

accuracy of the quotations. (J.A. 122). Not a single author of any statement

in question ever denied or sought to modify the reported remarks. (See J.A

96, 98, 122-23)

19

The next legislative step was a hearing before the Senate

Education Committee on June 21, 1982. Again, there was no

testimony from-any expert or person with background in

education to indicate any non-prayer utility of a minute of

silence exercise. (J.A. 268). Assemblyman Zangari appeared on

behalf of his bill, mentioned that it would have “an educa-

tional purpose” (J.A. 269), but also underlined his own posi-

tive experience with prayer in the classroom (J.A. 270). When

Mr. Joseph Chuman (Plaintiffs’ witness) privately asked Mr.

Zangari why he was not sensitive to the interests of atheists in

propounding his bill, Mr. Zangari replied * .at their feelings

could be discounted because they were so few in number. (J.A.

270).

The second and final Senate Education Committee hearing

occurred on September 23, 1982. The NJSBA again appeared

to oppose A-1064. Assemblyman Zangari appeared on the

bill’s behalf. Mr. Zangari_was asked why, since students already

have opportunities to pray during a school day, A-1064 was

necessary. His reply: “They won’t publicly do it [pray] unless

they’re directed.” (J.A. 408-09).

Bill A-1064 passed the New Jersey Senate on October 18,

1982, after a one-hour debate. See N.Y. Times, Oct. 19, 1982,

at Al. At the debate, advocates of the bill contended that it

provided a way to enable schoolchildren to pray quietly and

voluntarily; opponents called the bill unnecessary and uncon-

Stitutional. Jd. Senate President Orechio “led the fight for

passage.” Asbury Park Press, Oct. 19, 1982, Pluuntiffs’ Exh. 9.

Senator Orechio acknowledged that the bill was designed to

“bring prayers back into the school through the front door.”

Id. He also commented: “This bill will not harm any school-

age child. Rather, it will restore his faith in his Creator.”

Newark Star Ledger, Oct. 19, 1982, Plaintiffs’ Exh. 14. Sena-

tor Dumont remarked during the debate that there was no

difference between a moment of contemplation in the schools

and prayers used at the start of each legislative session.

Trenton Times, Oct. 19, 1982, Exh. 12. Senator Bassano, an

opponent of the bill, commented:

20

I keep hearing the word [prayer] over and over again.

And if that’s what it’s about, then it’s unconstitutional. It

makes no difference whether you come in the front door

or the back door.

Asbury Park Press, Oct. 19, 1982, Plaintiffs’ Exh. 9.

On December 6, 1982, Governor Thomas Kean vetoed A-

1064. (J.A. 381). The Governor noted that legislators’ public

statements had revealed “a constitutionally impermissible mo-

tive” behind A-1064, making it “unlikely that the bill could

pass constitutional muster.” (J.A. 382-83). Governor Kean

particularly noted the quote that adoption of A-1064 would

mean “bringing prayer back into the schools through the front

door.” Jd. As chief executive, the governor’s assessment of a

bill’s purpose is entitled to significant weight. See Schweiker v.

Wilson, 450 U.S. 221, 244 n.7 (1981) (Powell, J., dissenting).

The subsequent override debates in both the Assembly and

Senate focused on the issue of prayer in the schools. Any

purported psychological benefit from a calming transition

period was apparently not discussed. The only educational

benefit mentioned was an improvement in school climate and a

consequent decrease in crime and disruption. (J.A. 36-37, 369-

72; J.S.A. 71a).

The Senate override debate took place on December 16,

1982. According to an eyewitness, there was no discussion of

the pedagogical objectives of A-1064, other than the “social

control argument” mentioned above. (J.A. 371).'? Senator

Dumont expressed indifference to the apparent mixing of

church and state. (J.A. 370). He stated: “I don’t think we

ought to adhere so closely to the separation of church and state

that we forget other things are more important.” Bergen

Record, Dec. 17, 1982, Plaintiffs’ Exh. 10. Senator Kennedy

stated that the founding fathers never thought children could

not take a moment to think about God and religion, and that

perhaps it was time to put the constitutionality of prayer back

.

12 One Senator (Paolella) was quoted as saying A-1064 could support

“discipline and morality” and not necessarily prayer. (J.A. 372

Sk SS

before the Supreme Court. Trenton Times, Dec. 17, 1982,

Plaintiffs’ Exh. 13. At the Assembly override debate on

December 13, 1982, Assemblyman Wolf, one of the bill’s

supporters, stated: “Whether we want to hide behind contem-

plation or reflection, it’s prayer.” Newark Star Ledger, Dec. 14,

1982, Exh. 2. See also Bergen Record, Dec. 14, 1982, Exh. 4.

Bill A-1064 became law on December 16, 1982. On Decem-

ber 17, 1982, New Jersey’s Attorney General, Mr. Kimmelman,

announced that as chief law enforcement officer of the state he

would take no steps to defend the newly enacted minute of

silence law. He had determined, after “careful scrutiny” of the

law, that the minute of silence law was unconstitutional.

(Plaintiffs’ Supplemental Appendix in May v. Cooperman,

#83-89 (D.N.J. 1983), at 2-4). Thus, the governor and the

attorney general of New Jersey each reached the conclusion

that A-1064 was tainted by an illicit purpose to promote prayer

in the schools. g

3. History of Prior Legislation Provides Additional

Evidence

Another useful element of proof concerning the history and

background of A-1064 was Plaintiffs’ documentation of a

succession of similar New Jersey legislative measures concern-

ing morning moments of meditation or silence in the schools.

There were 18 such bills introduced between 1968 and 1982.

See Drakeman, Prayer in the Schools: Is New Jersey’s Moment

of Silence Law Unconstitutional? 35 Rutgers L. Rev. 341, 356

(1983). These bills, together with material about their legisla-

tive history, were introduced in order to show that A-1064 was

a culmination of repeated efforts (by forces favoring prayer-in-

the-schools) to adopt laws circumventing the Supreme Court’s

rulings of the early 1960’s. After examining the bills, informa-

tion about their legislative history, and the relevant executive

veto messages, the trial court found:

In New Jersey legislation was proposed from time to time

with the rather obvious purpose of reintroducing opening

prayer in some form in the public schools. (J.S.A. 67a).

a _

— _— mm a ee ee

Nm

Nm

[Mjany New Jersey legislators introduced one bill after

another in an attempt to reintroduce prayer in the public

schools notwithstanding the Supreme Court’s ruling.

(J.S.A. 86a).

The district court also determined that A-1064 was part of this

succession of events and was infected by the same illicit

purpose. /d.

Appellants strenuously object to the introduction and use by

the trial court of prior legislative measures. (See App. Br. at

35, 42).'* Yet the data about bills of prior legislatures furnished

a useful probative link in the evidentiary chain relating to the

actual purpose of A-1064. It was helpful to place A-1064 in the

context of an historic movement to reintroduce prayer into the

schools, just as it is useful to place any legislative enactment in

its historical context. See Hunter v. Underwood, 471 U.S. at

230-31 (testimony that a 1901 Alabama convention was part of

a post-Reconstruction movement in the South to disenfran-

chise blacks was key to attributing an illicit purpose to facially

neutral legislation growing out of that convention).

As the trial court noted, minute of silence laws have both a

national and a local historical context which helps cast light on

their purpose. (J.S.A. 67a). In the case of the New Jersey

Legislature, the record demonstrated that three successive

governors had vetoed morning exercise measures (including A-

1064) because of constitutional concerns stemming from the

perceived religious purpose, and because of grave doubts about

any educational need for such exercises. (J.A. 381, 394, 397,

399; Yeto Messages of the Governor 521-23 (1969)). The New

Jersey Department of Education had also gone on record as

opposing such prior measures as “contrary to the spirit and

holdings of the U.S. Supreme Court.” (Position Statement of

the N.J. Dept. of Educ. regarding A-648 (1976), dated 2/2/76,

13 While Appellants do not appear to contest that the prior measures

constituted “attempts by earlier independent New Jersey legislatures to

return prayer to the public schools,” (App. Br. at 42) they argue that the

illicit motivation of the prior bodies cannot be attributed to the legislature

which adopted A-1064. (/d. at 35 n.28)

aJ

nN

oe)

in Plaintiffs’ Supplemental Appendix in May v. Cooperman,

#83-89 (D.N.J. 1983), at 9)."°

C. The Record Below Demonstrated That The Sole Secular

Purpose Advanced By The Legislature—A Transition

Period—Was A Pretext

Appellants have indicated during the course of this litigation

that the sole legislative purpose behind A-1064 was to provide a

transition period to calm students before the school day.

(J.S.A. 82a; App. Br. at 13). As described above, the legislative

history of A-1064 shows no significant attention to this pur-

ported rationale; rather, the legislative debates focused sharply

on the desired relationship between prayer and the public

schools. The record below contains much additional support

for the trial court’s conclusion (J.S.A. 87a) that the Legisla-

ture’s asserted rationale was a pretext.

There was not one iota of evidence that anyone connected

with New Jersey’s educational system had ever communicated

to any legislator the notion that a calming transition period

was needed within New Jersey’s schools. To the contrary, the

record establishes that a wide variety of sources had uniformly

informed the Legislature that such a device was unnecessary.

For example, the New Jersey Education Association (NJEA),

the union representing 84,000 teachers in New Jersey, informed

the Legislature that it opposed A-1064 because it was unneces-

sary and appeared to be aimed at subverting constitutional

strictures on prayer in the classroom. (J.A. 375-77). Likewise,

the NJSBA, representing 611 school boards in New Jersey,

14 The link between A-1064 (1982) and its predecessors was particularly

close with regard to Bill A-2197 (1981). Both bills called for a one minute

period of silence in the public schools. Twelve of the twenty sponsors of Bill

A-2197 (1981) became sponsors of A-1064 (1982). Assemblyman Zangari was

the chief proponent of both measures. Like its successor A-1064, Bill A-2197

was passed after brief debate in which prayer was the focus of discussion.

Like A-1064, Bill A-2197 drew opposition from education groups because it

was perceived as an effort to reintroduce prayer into the schools. (J.A. 287-

89: Plaintiffs’ Exh. 78; J.A. 3d Cir. at 65Sa). Like A-1064, Bill A-2197

provoked an executive veto. (J.A. 399). In short, the links between A-1064

and predecessor morning exercise bills were sufficient to support the trial

court’s use of such bills to help discern the religious purpose behind A-1064

24

opposed minute of silence legislation as simply an effort to

reintroduce prayer into the schools. (J.A. 282, 292-94, 403-04;

J.S.A. 71a). See also R. 320-22 (opposition of the New Jersey

School Administrators’ Association).

Governor Kean, himself a trained educator, restated in his

veto message the same message previously communicated by

these groups of informed educators:

New Jersey public school teachers do not need a legisla-

tive mandate of one minute of silence in order to maintain

order in their classrooms. Rather, teachers already have

the discretion to silence their classes for one minute, five

minutes, or twenty minutes, as they in their wisdom

choose.

(J.A. 383)."

The evidence below went well beyond showing educators’

uniform opposition to a transition period. In addition, Appel-

lees presented expert testimony demonstrating three elements:

absence of utility in a minute of silence as a transition period;

availability of alternative transition devices which could easily

be used (and were in fact in use); and harm which world flow

from the minute of silence period as structured.'° This expert

15 Previous governors had communicated the same message to the

Legislature—that teachers could already employ silent contemplation if

educationally helpful and that a regimented minute of silence at the start of

every day would not be educationally sound. (J.A. 394-97).

16 The main witness was Professor Peter Kuriloff, an expert in social

psychology of the classroom and in school discipline. (J.A. 181-82). His

testimony established that the minute of silence as a transitional device was a

“poor” one in contrast to various alternatives, including existing ones. (J.A.

194, 196-98, 221-23). Moreover, Bill A-1064 included no guidelines for

administration and hence would pose “a potential disciplinary nightmare”

for school officials. (J.A. 188-89, 202-03). Most important, Professor Kuri-

loff testified that a minute of silence is a long period for children in

kindergarten through third grade, and that the duration would be quite

“anxiety provoking” for such children. (J.A. 188-89, 193).

Professor Stanley Rosner of Temple University provided added insight

with regard to his specialty—handicapped children. Professor Rosner noted

that for nmf@ny retarded, learning disabled, or emotionally disturbed children

N

Wa

testimony was not aimed at attacking the wisdom of A-1064; it

is beyond dispute that the wisdom of legislation is not a

judicial concern. Rather, the testimony served to establish that

the chasm between the minute of silence as structured in A-

1064 and sound educational policy for New Jersey’s schools

was so deep that a legislative body acting in good faith could

not possibly have adopted such a sweeping measure.

Appellants attempted to refute the evidence described above

concerning the educational vacuity of a minute of silence for

New Jersey schools. They presented a psychelogist from Las

Cruces, New Mexico, to testify about a “study” he did on a

minute of silence there. (J.A. 313-14).'’ Appellants also pre-

sented a fifth grade teacher from Sayreville, New Jersey, who

thought that a moment of silence there had been useful. (J.A.

327-28).'*° Finally, Appellants presented a sociologist who con-

tended that the minute of silence might have some educational

utility. (J.A. 352-53). There was, of course, not a shred of

evidence that the legislature had been aware of any of this

material when it adopted A-1064. “A rationale developed long

after passage of [a measure]. . . but asserted in support of its

‘purpose’ is entitled to little probative value.” Walter v. West

Va. Bd. of Educ., 610 F. Supp. 1169, 1176 (D.W.Va. 1985).

a minute of silence would present difficulties of attention and would have

negative behavioral impacts. (J.A. 303-07). The testimony of Professors

Kuriloff and Rosner was supplemented by New Jersey school administrators

and educators who also could find no educational utility behind a minute of

silence exercise as imposed by A-1064. (J.A. 230-31, 238, 294). The transition

function was already served by existing opening exercises. See, e.g., N.J.S.A.

18/.:36-3(c) (flag salute).

17 Despite use of the study in New Mexico litigation, a federal judge

there found that the local moment of silence law was not intended to

promote “intellectual composure,” but rather to advance prayer. See Duff)

v. Las Cruces School District, 557 F. Supp. 1013 (D. N.Mex. 1983). The

“intellectual composure” rationale was found to be an “afterthought”

devised to try and salvage a religious exercise. /d. at 1016.

18 Of course, Sayreville used an exercise shorter than a minute, and

Sayreville had been operating under a local ordinance, and not pursuant to

Bill A-1064.

26

Having heard this various testimony, Judge Debevoise con-

cluded that the “transition period” rationale was an after-the-

fact rationale manufactured to try and salvage A-1064. (J.S.A.

84a-88a). There was no genuine educational need—no curricu-

lar purpose, either actual or perceived—behind A-1064. The

minute of silence was simply “an empty sack” into which the

Legislature wanted to pour prayer. (J.A. 189, 220, 230-31).

D. By Invalidating A-1064 Only After Finding That The

State’s Sole Asserted Secular Purpose Was A Pretext,

And After Finding That The Actual Purpose Of A-1064

Was Religious, The District Court Correctly Applied The

Purpose Prong Of Lemon v. Kurtzman

As this Court recently explained in Jaffree, a statute fails the

purpose prong of Lemon v. Kurtzman, 403 U.S. 62 (1971), if it

does not have “a clearly secular purpose.” 472 U.S. at 56. The

Court added: “In applying the purpose test, it is appropriate to

ask ‘whether government’s actual purpose is to endorse or

disapprove of religion.’ ” Jd. (quoting Lynch, 465 U.S. at 690

(O’Connor, J., concurring)).

This is precisely the standard which the district court applied

in the instant case. Appellants incorrectly assert that the

district court applied a novel standard requiring “an over-

whelmingly obvious and important secular purpose” for a

Statute to satisfy the purpose prong of Lemon v. Kurtzman.

(App. Br. at 28). Judge Debevoise was entirely faithful to the

Jaffree standard in invalidating A-1064 only after finding that

the state’s sole secular purpose was a pretext, and that the bill’s

background and history revealed an actual religious purpose of

reintroducing prayer to the public schools. (J.S.A. 87a, 9la,

92a, 94a)."”

In effect, the trial court found that there was no secular

purpose behind A-1064, because it rejected as a pretext the only

secular purpose identified by the Intervenors (as well as finding

19 As documented in detail in Point IV, infra, when the trial court

stated that the purpose of A-1064 was “religious,” it meant that the Legisla-

ture’s purpose was to reintroduce prayer to the public schools in an

unconstitutional manner.

27

that the actual purpose was to reintroduce prayer). But it

would be sufficient under the purpose prong of Lemon v.

Kurtzman to find that the predominant or preeminent legisla-

tive purpose was to promote religion or prayer. See Stone v.

Graham, 449 U.S. at 43. For the secular purpose requirement

cannot be deemed satisfied “by the mere existence of some

secular purpose, however dominated by religious purposes.”

Lynch, 465 U.S. at 691 (O’Connor, J., concurring).

The preeminent religious purpose standard is appropriate, as

opposed to a “no secular purpose” standard, because it is

unrealistic to demand that litigants demonstrate the total

absence of a secular purpose. Crosses may be erected on public

property in part to attract tourism. Posting of the ten com-

mandments may be intended by some legislators to help instill

moral (as opposed to religious) values, or to illustrate one of

the foundations of our legal system. See id. Given the inevita-

ble existence of suvsidiary secular purposes underlying a reli-

gious measure, it is sufficient under the purpose prong of

Lemon v. Kurtzman to find that a statuie’s preeminent or

predominant purpose is to promote religion or prayer.

In sum, this Court should uphold the district court’s deter-

mination to invalidate A-1064 because it is clear from the

record that the preeminent purpose of the New Jersey Legisla-

ture was to encourage prayer in the schools. Judge Debevoise

wisely heeded the admonition of one of his colleagues on the

federal bench:

We cannot shut our eyes to matters of public notoriety

and general cognizance. When we take our seats on the

bench, we are not struck with blindness, and forbidden to

know as judges what we see as men.

Hall v. St. Helena Parish School Board, 197 F. Supp. 649, 654

(E.D. La. 1961). The governor of New Jersey knew that A-

1064 was intended to promote prayer in the public schools.

(J.A. 381-83). The attoiney general knew that A-1064 was

intended to promote prayer. (J.S.A. 66a). School administra-

tors knew. (J.A. 230-31; R. 321). Teachers knew. (J.A. 40; R.

323). The editors of New Jersey’s largest newspapers knew.

(Plaintiffs’ Exh. 27, 29, 30, 35, 36, 37, 40, 41, 42, 44, 45, 47,

28

49). Judge Debevoise could hardly blind himself to the public

Statements of A-1064’s supporters and the legislative history

and background, as described above. He simply agreed with

the observation of one superintendent of schools, who stated

with regard to A-1064 and prayer:

Call it what you want, but if it walks like a duck and has

feathers and quacks, it is still a duck. (J.A. 234).

lil. BILL A-1064 HAD THE DIRECT AND IMMEDIATE

EFFECT OF ADVANCING RELIGION AND HENCE

VIOLATED THE “EFFECTS PRONG” OF LEMON k

KURTZMAN

A legislative measure which has the “direct and immediate

effect of advancing religion” constitutes an unconstitutional

establishment of religion. See Committee for Public Education

v. Nyquist, 413 U.S. 756, 785 n. 39 (1973). The district court in

the instant case ruled that A-1064 would both advance and

inhibit religion. (J.S.A. 94a). That court determined that by

setting aside a special time period to allow schoolchildren to

pray, and by requiring all children present to be quiet and

respectful, New Jersey would be advancing religion for those

children whose prayer habits were suited to that format while

inhibiting religion for those children whose prayer required

sound or movement. (J.S.A. 95a-96a). The Third Circuit

refused to endorse this ruling of the district court. (J.S.A. 2la-

22a).

20 The Third Circuit’s unwillingness to uphold this aspect of the trial

court’s decision was grounded in part on the circuit court’s perception that

A-1064 is “permissive” in force. That is, the circuit court felt that the law

permits students not to participate in the minute of silence exercise—

presumably allowing them to leave the classroom. (J.S.A. 20a-2la). Appel-

lees agree that this is a possible reading of A-1064. Nonetheless, Appeilees

submit that for reasons articulated in this Point, A-1064 should be deemed to

have the direct effect of advancing religion even if children’s participation in

the minute of silence exercise is fully permissive.

——

—_——~- __

me ee oe

ee ee _—~--

29

Some courts have invalidated moment of silence laws ac-

cording to “effects” analysis. See Duffy v. Las Cruces School

District, 557 F. Supp. 1013, 1021 (D.N.Mex. 1983); Opinion of

the Justices, 440 N.E.2d 1159, 1162 (Mass. 1982). These courts

have reasoned that if a minute of silence is constructed in

significant part to facilitate prayer, the appearance of govern-

ment endorsement of religious activity within the schools

impermissibly advances religion. Indeed, the juxtaposition of

voluntary religious practice with a government operated school

system has frequently been deemed tc provide a symbolic

benefit to religion inconsistent with the establishment clause.

See, e.2., Engle v. Vitale, 370 U.S. 421 (1962) (voluntary

school prayer); McCollum v. Board of Education, 333 U.S.

203 (1948) (released time for instruction within the public

school building).

Appellees acknowledge that Jaffree contains language sug-

gesting that some Justices of this Court are willing to uphold

some moment of silence laws. Consequently, in contending that

A-1064 carried the impermissible effect of advancing religion,

Avpellees do not rely merely on the fact that the state set aside

a time within the public school classroom with the purpose

(exclusively or predominantly) of facilitating prayer. We point

instead to several factors involving the New Jersey statutory

scheme which particularly impel the conclusion that A-1064 in

application would directly advance religion.

A. Under The Minute Of Silence As Structured Pursuant

To A-1064, Some Teachers Would Inevitably Utilize The

Minute Of Silence For Prayer And Would Thus Influ-

ence Impressionable Children To Engage In Prayer

There was substantial testimony in the record indicating that

some teachers would likely use the minute of silence flowing

from A-1064 in order to pray, and that this would involve

displaying the outward manifestations of prayer customary to

their denominations. (J.A. 32-34, 45-46, 130-31, 159, 199,

217). For example, Professor of Educational Psychology Peter

Kuriloff predicted that approximately 5% of teachers in a

region such as New Jersey would be inclined to utilize a

30

morning minute of silence for prayer (J.A. 217), and that

young children would be affected by teachers’ cues. (J.A.

199).*' In addition, the NJEA supported the view that the

personal religious beliefs of some teachers would likely mani-

fest themselves in a fashion (folded hands, bowed heads, and

the like) which would influence young impressionable students.

See Brief of NJEA, amicus curiae, in May v. Cooperman, #83-

89 (D.N.J. 1983), at 15, 18.

With regard to teacher utilization of a minute of silence to

engage in prayer, there are significant differences between ithe

situation in New Jersey under A-1064 and the situation in other

states. In some jurisdictions, teachers have been issued instruc-

tions about how to ‘ andle the minute of silence—how to

introduce it and how to respond to students’ questions about

it. See Gaines v. Anderson, 421 F. Supp. 337, 340 n.4.

(D.Mass. 1976). In New Jersey, by contrast, the Legislature

made A-1064 effective immediately upon passage (J.5.A.

111a), and no guidelines or instructions were made available

with regard to implementation. On the day after A-1064

became effective, the Commissioner of Education simply in-

formed district school superintendents that the “statute should

be permitted to speak for itself.” (J.A. 3d Cir. 19a).~ Local

superintendents had sought clarification trom the Commis-

3]

sioner of Education, but drew no response. (J.A. 233; R. 325).

The result was utter confusion.”

In the absence of either legislative or administrative guide-

lines explaining the approach which teachers were to follow in

implementing A-1064, it was inevitable that the predictions

mentioned above would in fact be fulfilled. That is, it was

inevitable that some religiously oriented teachers would utilize

the minute of silence to pray and thus wouid influence the

impressionable children in their charge. For an illustration of

the tendency of religiously oriented public school teachers to

utilize a moment of silence exercise to influence schoolchil-

dren, see Walter v. West Va. Bu. of Educ., 610 F. Supp. 1169,

1171-73 (D.W. Va. 1985). Cf. Grand Rapids School District v.

Ball, 473 U.S. 373, 384-85 (1985).

The custom of opening the school day with prayer had

survived in New Jersey up until the early 1960’s—within the

memory of many teachers, parents, and administrators. (J.A

355: J.S.A. 67a, 86a). The message implicit in the Legislature's

particular selection of a silent period at the beginning of the

school day did not go unnoticed by New Jersey’s educators.

See Brief of NJEA, amicus curiae, in May v. Cooperman, #83-

89 (D.N.J. 1983), at 13, 18. In short, the placement of the

silent minute at the beginning of the school day, along with the

total absence of guidelines for implementation of A-1064,

meant that A-1064 would directly result in some teachers

engaging in prayer and thus influencing thet impressionable

charges to follow suit

B. Because The Universal Public Perception Of A-1064 Was

That Its Purpose Was To Encourage Prayer, That Law

Had The Inevitable Effect Of Advancing Religion

32

See Jaffree, 472 U.S. at 76; Duffy, 557 F. Supp. at 1016; Note,

96 Harv. L. Rev. 1874, 1888 (1983). In the case of A-1064,

there was considerable evidence that the bill was widely per-

ceived as a mechanism to reintroduce prayer into the schools.

Evidence indicated that this was a common perception among

students, parents, teachers, and administrators. (J.A. 28, 39-

40, 43, 45, 229, 234; R. 323-24). Several important organiza-

tions such as the NJEA (teachers’ union), the NJSBA

(schoolboards* association), and the NJSAA (school adminis-

trators’ association) fully shared this perception of A-1064’s

purpose. (J.A. 377, 282; R. 320-21).

These perceptions were solidly grounded. They flowed from

the fact that the legislative history and background of A-1064

were suffused with a legislative preoccupation with prayer in

the schools. (See Point Il, supra). That legislative history and

focus were brought home to the general public in a variety of

ways. First, the governor and the attorney general had each

branded A-1064 as an illicitly motivated mea: ure.” Second, the

press reports concerning the legislative debates over A-1064

confirmed this message—that A-1064 was intended to return

prayer to the public schools. Third, editorials in eight of the

state’s largest newspapers unanimously proclaimed that A-1064

was a transparent effort by the legislature to return prayer to

the public schools. (Plaintiffs’ Exh. 27, 29, 30, 35-37, 40-42,

44-45, 47, 49).

Despite the Legislature’s clear awareness of the widespread

perception of A-1064 as a prayer measure, it did nothing to

24 A deputy attorney general later commented on the degree of public

itv that the attorney general's decision not to defend A-1064 had received

She mentioned that the announcement had been carried in virtually ever;

state newspaper as well_as on radio and T.V. broadcasts originating in New

York and Philadelphia. (J.A. 3d Cir. 84a). She observed: “Just about

everyone in the state was aware of the executive branch's position regarding

the constitutionality of this statute [A-1064].” (/d.)

<4

- The New Jersey Baptist organization had sent mailgrams to every

legislator urging them not to override the governor's veto vecause Bil! A- 1064

was regarded as unconsitutional. (R 296-97). The New Jersey Council of

Churches (representing 3500 churches) had likewise communicated with the

,

33

dispel the notion that A-1064 was intended to return prayer to

the public schools. This silence stands in sharp contrast to

other states in which legislators have included explicit statutory

language disclaiming that their moment of silence laws are

intended to endorse prayer. See Note, 58 N.Y.U. L. Rev. 364,

396 (1983) (listing six states whose moment of silence laws

contain a disclaimer of any intention to promote religious

exercises).

In the face of a public perception that A-1064 was aimed at

reintroducing prayer in the schools, the Legislature neither

disavowed this object nor provided implementation guidelines

which might have dispelled any notion of a state imprimatur

upon prayer. Because of the clearcut and reasonably based

public perception of A-1064’s purpose, the bill must be deemed

to carry the impermissible effect of advancing religion.

There were also locales in which the minute of silence was

administered as a mandatory exercise. (J.A. 25-26, 39). In such

places, the influence of the state-organized exercise would be

patent. There, impressionable schoolchildren would be af-

fected by some peers’ praying and using the traditional indicia

of prayer.such as folded hands and bowed heads. That each

child would be free to decide whether to pray does not obviate

the indirect pressure upon non-religious minorities to conform.

“The law of imitation operates, and non-conformity is not an

outstanding characteristic of children.” Jaffree, 472 U.S. at 60

n.51 (quoting McCollum, 333 U.S. at 227). Inevitably, some

children would pray because of the perceived message from the

existence of the silence exercise. Other children would be

subject to the peer pressure that accompanies even voluntary

prayer.

legislators, urging them not to override the veto because A-1064 was seen as

“an attempt to circumvent” Supreme Court decisions (R. 302-03). the

NJEA (teachers’ union) had used its five lobbyists to convey to the Legisla

ture the union’s position that A-1064 constituted “a backdoor approach to

bringing prayer into the schools.” (J.A. 376-77)

34

IV. ON THIS RECORD AND AS A MATTER OF ESTAB-

LISHMENT CLAUSE JURISPRUDENCE, A-1064

CANNOT BE SUPPORTED BY A LEGISLATIVE

PURPOSE TO ACCOMMODATE RELIGION

Some amici have suggested to this Court that A-1064 might

be sustainable on the basis that its purpose was to accommo-

date religious practice by providing students with an opportu-

nity to pray. See, e.g., Brief for the United States, at 15-21;

Brief for the Catholic League for Religious and Civil Rights, at

9-10. This suggestion is un.enable for a number of reasons.

First, Appellants never asserted such a claim and would be

barred from doing so at this juncture. The Legislature which

intervened to defend A-1064 never argued that the actual

legislative purpose was to provide an opportunity for some

students to pray. To the contrary, during trial the Legislature

advanced a single justification for its minute of silence law—

provision of a calming transition from the bustle of the

playground. (J.S.A. 82a). Appellants continue _to defend A-

1064 on the ground that it provides a transition period into the

school day. (App. Br. at 13). See also Juris. Statement at 2]

n.10 (arguing that the Third Circuit was wrong in attributing

an accommodation purpose to A-1064).

Appellees focused considerable efforts at trial on repudiating

the sole proffered legislative purpose—a transition penod.

They succeeded to the satisfaction of both the district and

circuit courts in showing that the sole justification advanced

for the statute was a pretext. (J.S.A. 87a; 27a). The injection

of an “accommodation” defense at this stage would relegate

the efforts of the trial court to an exercise in futility. That

court’s whole perspective of this case was shaped by good faith

reliance on the Legislature’s representations and proofs as to

purpose. Amici curiae cannot at this point be permitted to alter

the whole defense. See Witters v. Washington Dep’t for the

Blind. 106 S.Ct. 748, 751 n.3 (1986).

Second. an accommodation purpose is a legitimate dasis for

an enactment only where government is either eliminating an

obstacle to free exercise, or is seeking to afford even-handed

treatment to religion while administering government benefits.

Ww

wa

See, e.g., Hobbie v. Unemployment Appeals Comm’n, 107

S.Ct. 1046, 1051 (1987) (state may treat Sabbatarians in com-

mon with Sunday observers for purposes of an unemployment

compensation program); Witters, 106 S.Ct. 748. In the absense

of some obstacle to free exercise, or in the absence of some

spectre of uneven treatment of religion, a governmental effort

to accommodate religious practice exceeds establishment clause

bounds. If government intervenes just to facilitate a religious

practice, the government’s power and prestige is arrayed be-

hind the religious practice in a manner conveying a message of

support or endorsement. See Stone v. Graham, 449 U.S. 39

(1980).

The hazard of such an implicit message is particularly

obvious in the setting of impressionable schoolchildren. If a

State were to provide chapels within public school buildings,

the message reinforcing private religious practice would be

enough to trigger the establishment clause. The governmental

provision of a special time within the classroom solely or

primarily in order that students have a special opportunity to

pray, with teachers ensuring that all students maintain the

decorum necessary for such prayer, is similarly liable to carry

with it a message of endorsement. This message is particularly

powerful where a purported secular usage of the time provided

is a mere pretext, and no guidelines explain or confine imple-

mentation of the silent period.”

The record here is devoid of any indication that schoolchil-

dren in New Jersey have so few quiet moments during the

school day that there exists a significant obstacle to a moment

of prayer. Indeed, the record indicates that opportunities

customarily exist within the school day in which students might

26 This was essentially the thrust of Judge Gibbons’ majority decision

in the Third Circuit. He treated the legislative purpose behind A-1064 as

accommodation. He then invalidated the statute because he agreed that

plaintiffs had demonstrated that no other “secular” purpose underlay the

Statute, and because pure “accommodation of prayer in the public schools

would violate the Establishment Clause. (J.S.A. 29-30a). Appellees disagree

with Judge Gibbens’ conclusion that accommodation was the purpose of A

1064. But we agree with his conclusion that if accommodation of prayer was

the exclusive or predominant purpose of A-1064, then the measure is

unconstitutional

36

silently meditate or pray. (J.A 241, 249; J.A. 3d Cir. 643a).

Logic also dictates that study halls, recess, or other unstruc-

tured moments can be utilized by a student for individual silent

prayer. See Dellinger, The Sound of Silence: An Epistle on

Prayer and the Constitution, 95 Yale L.J. 1631, 1637 (1986).

And, of course, students are completely free to pray before or

after the school day. In short, there was no showing of any lack

of opportunity for children to pray before, after, and during

the school day.

Any state which accommodates prayer in the schools with-

out any indication that there are obstacles to prayer risks

conveying a message that the state endorses and encourages

prayer. When, as here, the state issues no guidelines conveying

a secular object of the period of silence, and issues no dis-

claimer of an object to encourage prayer (in the face of a wide

public perception that the object is to promote prayer), the risk

becomes a reality. The state is in fact conveying a message

encouraging prayer.

There exists a third reason why A-1064 cannot be salvaged as

an accommodation of prayer measure. The district court made

findings, well grounded in the record, that the purpose of A-

1064 was religious. (J.S.A. 86a-94a). Careful reading of Judge

Debevoise’s opinion shows that by “religious” he meant that

the legislative purpose was to advance religion by returning

prayer to the public schools, clearly an illicit purpose going

beyond mere accommodation.” For example, Judge Debevoise

referred to a series of prior meditation and moment of silence

bills as “attempts to reintroduce prayer in the public schools

notwithstanding the Supreme Court’s ruling”; he then found

that A-1064 “is but the most recent of such bills motivated by

these sentiments.” (J.S.A. 86a-87a (emphasis added)). Judge

Debevoise based his conclusion that A-1064’s purpose was

27 “The legislative intent to return prayer to the public schools is, of

course, quite different from merely protecting every student’s right to engage

in voluntary prayer. . . .” Jaffree, 472 U.S. at 59.

Judge Debevoise determined not only that A-1064 “mandate([d] a period at

the start of each school day when all students would have an opportunity to

engage in prayer,” (J.S.A. 86a), but also that the purpose was to reintroduce

prayer to the schools in an unconstitutional manner. /d. at 87a, 90a, 92a.

37

“religious, not secular,” in part on evidence such as the Legisla-

ture’s prior efforts to evade Abington by reintroducing “a

mandatory time for prayer in the public schools.” (J.S.A. 90a).

After ruling that the overall circumstances of A-1064’s adop-

tion “point inescapably to an essentially religious purpose,”

Judge Debevoise added:

The statements of the legislators in committee, in the

floor and to the public as disclosed by the evidence in this

case are consistent with and confirmatory of an institu-

tional purpose to accomplish something the Constitution

forbids.

(J.S.A. 92a). In short, the district court determined that the

purpose of A-1064 was not simply to accommodate students

wishing to pray, but to promote religion by returning prayer to

the public schools in contravention of this Court’s dictates.”

This purpose of encouraging a religious exercise was, as Jaffree

establishes, constitutionally impermissible. 472 U.S. at 59-60.

Fourth, the New Jersey minute of silence format, while

providing an opportunity for some students to pray if they

choose, imposes a burden both on persons wishing to use

28 Judge Gibbons’ majority opinion in the Third Circuit commented:

“we do not believe a finding that the religious purpose was to encourage

prayer over other alternatives rather than to accommodate, would be

sustainable.” (J.S.A. 29a). This conclusion was apparently grounded on a

view that if tne minute of silence statute was permissive in nature—i.e., did

not require students to participate in the silence exercise—it could not be

deemed to be aimed at encouraging or endorsing prayer. (/d. at 27a-28a).

Appellees submit that this view was erroneous. If the Legislature installed a

voluntary and permissive exercise with the purpose of returning prayer to the

schools, that would be an illicit legislative purpose even though the means

chosen (a voluntary exercise) would be less offensive than installation of a

mandatory exercise. See Engle v. Vitale, 370 U.S. 421, 431 (1962). C/

Mainak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (initiation of an elective course in

transcendental meditation violates the establishment clause). Moreover, the

Third Circuit upheld the district court finding that A-1064 had no secula:

purpose. (J.S.A. 27a). This effectively meant that the only non-prayer

purpose submitted by the Legislature had been refuted, thus leaving intact

the inference that the Legislature was only concerned about prayer. If a

legislature sets aside a time for prayer without developing or communicating

a secular use for the time period, the inevitable effect is to advance prayer.

ve

oe

38

sound or movement in their prayer and on persons who have

conscientious objections to prayer in the classroom. Testimony

at trial demonstrated that there are many religious sects which

utilize modest amounts of noise (such as chanting) or body

movements in their prayers. (J.A. 143-44, 159). The trial court

accordingly found that while A-1064 might offer a chance for

some persons to engage in silent prayer, it would preclude

“others whose prayers require action and/or sound” from

utilizing the same classroom locale for prayer. (J.S.A. 88a,

96a). Though these other persons could probably be “accom-

modated” in school locations outside the classroom, that could

be done only at the cost of leaving the classroom and thus

losing some class time.’ A veteran school administrator testi-

fied that accommodating objectors to the minute of silence

would take up much more than a minute and would take

additional time away from instructional purposes. (J.A. 239-

41). What this illustrates is that if prayer is to be accommo-

dated in the public school building, designated places outside

the immediate classroom must be utilized. Otherwise, the

minute of silence becomes a quasi-sectarian exercise accommo-

dating students of some religious persuasions but inconven-

iencing persons of other persuasions and conscientious

objectors.”

V. THE DISTRICT COURT'S FINDINGS THAT A-1064

HAD NO SECULAR PURPOSE AND THAT ITS

PREEMINENT PURPOSE WAS TO REINTRODUCE

PRAYER IN THE PUBLIC SCHOOLS ARE FAC-

TUAL FINDINGS SUBJECT TO RULE 52(a)’s

“CLEARLY ERRONEOUS” STANDARD OF REVIEW

Appellants use Bose Corp. v. Consumers’ Union, 466 U.S.

485 (1984) to argue that a finding of illicit religious purpose (or

29 Similarly, students with conscientious objections to prayer i the

classroom could presumably leave the room to avoid exposure to any

religious exercise. Again, this could be accomplished only by losing some

tinte from the class day.

30 The record shows that in addition to the Plaintiffs-Appellees who

filed the instant suit, there were other conscientious objectors to A-1064.

(J.A. 232, 239-40).

39

of no secular purpose) represents an “ultimate constitutional

fact” (App. Br. at 43), and that “questions of constitutional

fact compel an appellate court’s de novo review of the record.”

(/d. at 46). Even if the Court were to conduct a de novo review

of the record in this case, the district court findings of illicit

purpose should be upheld. However, the proper standard of

review of the district court’s findings of fact is Fed. R. Civ. P.

52(a)’s “clearly erroneous” rule. Anderson v. Bessemer City,

470 U.S. 564, 573 (1985). Appellants’ effort to expand the

limited exception to Rule 52(a) announced in Bose is not

supported by any pronouncement of this Court.

Bose holds that a finding of “actual malice” in a libel

proceeding must be subjected to independent appellate review.

While Bose cannot be confined to libel cases, the opinion

indicates that its teaching is limited to the free speech area. The

Court, relying on precedents treating fighting words, incite-

ment to riot, contempt of court, obscenity, and child pornogra-

phy, concluded that independent appellate review of a record is

necessary in First Amendment speech cases in order to ensure

“that the judgment does not constitute a forbidden instrusion

on the field of free expression.” Bose, 466 U.S. at 499.”

Bose also reflects an overriding interest in ensuring that

constitutional rights will not be unduly restricted by the lower

courts. Bose states that independent appellate review may be

necessary in free expression cases “to confine the perimeters of

any unprotected category within acceptably narrow limits .

to ensure that protected expression will not be inhibited,” /d. at

505, and “in order to preserve the precious liberties established

3] Since Bose was decided, this Court has explicitly refused to expand

its limited call for independent appellate review to cases involving claims of

unconstitutional vote dilution, see Thornburg v. Gingles, 106 S.Ct. 2752,

2781 (1986), and discrimination against interstate trade, see Maine v. Taylor,

106 S.Ct. 2440, 2451 (1986). The Court in these instances refused to extend

Bose even though the findings involved dispositive issues of constitutional

fact. The only post-Bose decision of this Court which does author:ze

independent appellate review is Miller v. Fenton, 106 S.Ct. 445 (1986). Miller

relied upon fifty years of unbroken Supreme Court precedent holding that

voluntariness of a confession is a legal question requiring independent

federal determination. /d. at 450. Miller's rationale is wholly unrelated to a

district court's finding of actual purpose in an Establishment Clause case

40

and ordained by the Constitution.” /d. at 511. Thus, Bose

reflects the Court’s conviction that the appropriate division of

responsibility requires judges—“and particularly members of

this Court,” id. at 501—to engage in independent appellate

review of lower courts’ denials of federal constitutional rights.

Because the district court here vindicated the right to be free

from establishment of religion, independent review is inappro-

priate.”

Even if independent appellate review is not confined purely

to free speech issues, or to cases in which a constitutional right

was denied in the trial court, its reach cannot be extended to a

finding of illicit legislative purpose. As a first principle, it is

important to note that labeling an issue as a “constitutional

fact” or “an ultimate fact” does not alter the “clearly errone-

ous” standard of review. See, e.g., Maine v. Taylor, 106 S.Ct.

at 2451: Dayton Board of Educ. v. Briniv-nan, 443 U.S. 526,

$34 (1979). Rather, the issue is one of proper allocation of

judicial responsibility. See Miller vy. Fenton, 106 S.Ct. 445, 451-

52 (1985); Monaghan, Constitutional Fact Review, 85 Colum.

L. Rev. 229, 234-39 (1985).

Actual legislative purpose is a factual question whose resolu-

tion hinges on determination of various subsidiary facts. A

district court finding on legislative purpose ought therefore to

be subject to the “clearly erroneous” test of Rule §2(a).°> This

32 No one has argued that the free exercise clause requires moments of

silence in the schools. Hence, a finding concerning establi nt here does

not infringe any citizen’s free exercise rights.

The Bose Court was obviously troubled by the fact that the district court

had created a rule of inference to determine actval malice, a rule with which

the Court disagreed. In this respect, Bose stands in stark contrast to the

district court’s finding of illicit purpose in the instant matter. That finding

was not based on any inferential rule of general applicability, but on a

specific conclusion that the asserted secular purpose of the legislation was a

pretext and on a record replete with direct evidence that the actual purpose of

the law was to return prayer to the public schools.

33 Whether the factual finding is grounded on credibility of witnesses,

documentary evidence, or inferences from subsidiary facts, the rationale for

the clearly erroneous standard 1s still arplicable.. See Anderson v. Bessemer

City, 470 U.S. 564, 573-74 (1985): see C. Wright, Federal Courts, € 96, at

648-49 (4th ed. 1983). But where, as here, findings also are grounded on

4]

Court has consistently indicated that district court findings

concerning illicit purpose of government decision-makers—for

example, purposeful racial discrimination—are subject to the

“clearly erroneous” scope of review. In Roberts v. Lodge, 458

U.S. 613 (1982), the “clearly erroneous” standard was applied

to a district court finding that an at-large election system had

been maintained by the governmental body for invidious pur-

poses. /d. at 622-23. That standard was applied not just to

subsidiary questions of fact, but also to the ultimate factual

inference of purposeful discrimination. /d. at 623-24. See also

Anderson, supra (government discrimination in hiring).

The same considerations dictating application of a “clearly

erroneous” standard to factual findings of racially discrimina-

tory purpose dictate application of an identical standard to

findings of religious purpose. See Lynch, 465 U.S. at 680-81;

id. at 704 n.11 (Brennan, J., dissenting). Both areas involve the

application of a settled constitutional norm to disputed facts—

grist for the mill of federal district courts. The substantive

issue under review here does not implicate the kind of fluid

constitutional norm which dictates independent appellate re-

view.” Jaffree fixes the relevant norm in administering the

“purpose prong” of establishment clause jurisprudence. A

legislative measure will be invalidated if shown to lack a

genuine secular purpose, or if “government’s actual purpose is

to endorse or disapprove of religion.” Jaffree, 472 U.S. at 60-

61.

assessments of the credibility of witnesses, the district court’s unique role

determining demeanor and tone of voice demands even greater respect under

Rule 52. Anderson, 470 U.S. at 574

34 “Treating issues of intent as factual matter

commonplace. In Dayton Board of Education Brinkmar

principal question was whether the defendants had intentionally maintair

racially segregated school system at a specified time in the past. W

nized that issue as essentially fact

Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982)

3§ Tr ution and

Varta ndepe! dei ipp 5 M BS) 4

42

In the instant case Appellants advanced only one legislative

purpose before the district court—to impose a transition pe-

riod between the playground and the rest of the school day.

(J.S.A. 82a). After consideration of extensive evidence, includ-

ing the testimony of numerous witnesses, the district court

concluded that this rationale was an after-the-fact pretext and

that A-1064 therefore had no secular purpose. (J.S.A. 87a).

This finding constitutes a finding of pure fact. It encompasses

no legal standards; it is a factual rejection of the Appellants’

asserted rationale as a sham.

The district court also made a factual finding that the actual

purre-~ of A-1064 was to advance religion by reintroducing

pray: .9 the public schools. This issue of actual legislative

purpose is also a question of pure fact, based in turn on a great

number of subsidiary factual findings of the district court. It is

in no part a legal question, in no part a judicial balancing of

social values. It is a finding of the actual intent of a collective

body after an extensive evidentiary hearing by the court which

has the greatest expertise and experience in weighing the

evidence (and is in the best position to judge the credibility and

demeanor of the witnesses who testified). Cf. Anderson, 470

U.S. at 574. As such, the district court’s finding is indistin-

guishable from the countless findings of unconstitutional pur-

pose that have been reviewed by this Court under the “clearly

erroneous” standard. See, e.g., Thornburg v. Gingles, 106

S Ct. 2752 (1986); Rogers v. Lodge, 458 U.S. 613 (1982).

43

CONCLUSION

For the reasons set forth herein, the judgment of the Court

of Appeals should be affirmed.

Resp2ctfully submitted,

NORMAN L. CANTOR*

RICHARD M. ALTMAN**

ANNE P. MCHUGH

PELLETTIERI, RABSTEIN & ALTMAN

JOHN A. POWELI

DAVID B. GOLDSTEIN

AMERICAN CIVIL LIBERTIES UNION

ERIC NEISSER

ACLU OF NEW JERSEY

Attorneys for Appellees

*On the Brief

**Counsel of Record

May 1987