Marsa v. Wernik

430 A.2d 888, 86 N.J. 232, 1981 N.J. LEXIS 1634
CourtSupreme Court of New Jersey
DecidedJune 8, 1981
StatusPublished
Cited by28 cases

This text of 430 A.2d 888 (Marsa v. Wernik) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marsa v. Wernik, 430 A.2d 888, 86 N.J. 232, 1981 N.J. LEXIS 1634 (N.J. 1981).

Opinions

The opinion of the Court was delivered by

HANDLER, J.

The issue presented in this case is whether the commencement of public meetings of a municipal governing body with a brief exercise, variously referred to as an invocation, prayer or silent meditation, violates the Establishment of Religion Clause of the First Amendment to the United States Constitution. Challenging this practice is a resident and taxpayer of the municipality, an atheist. Defendants are the mayor and members of the municipal governing body.

The facts as they appear from the pleadings and affidavits in conjunction with motions for summary judgment are not complicated and, although controversial, are not controverted. Plaintiff regularly attends meetings of the town council of the Borough of Metuchen. At each meeting there is first a formal announcement to the effect that in calling the meeting there has been compliance with requirements óf the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. This is followed by the taking of a roll call. The mayor then asks those who so wish, to rise for an invocation or silent meditation which is delivered by a particular member of the municipal council. It appears that the member who gives the invocation has himself determined or selected its [238]*238contents. There is nothing to suggest that it is in any way subject to the approval of any other official or person. Four sample messages or invocations are before the Court.1 It is not clear, however, to what extent these are typical or representative of all such invocations or with what degree of regularity or frequency any of these is actually used.

Plaintiff claims that the practice of opening council meetings with what he calls an invocation, prayer or silent meditation causes him great discomfort and may have the effect of dissuading plaintiff and others from attending these meetings. He has objected to the “invocation” by remaining seated when the mayor asks all present to stand. Defendants admit that meetings are commenced with such an exercise but deny that there is anything legally wrong with the practice. They point out that in the past meetings were customarily opened with an invocation by local clergy until June 1976, when council members individually began giving the invocations.

[239]*239The trial judge entered summary judgment for defendants, 163 N.J.Super. 589 (Ch.Div.1978), applying a three-pronged test set forth by the United States Supreme Court for Establishment Clause cases. The judge concluded that the practice of opening a public meeting with an invocation has a secular purpose, has a primary effect that neither advances nor inhibits religion, and does not foster excessive governmental entanglement with religion. Id. at 592-593. He found that the invocations are nondenominational and that participation is noncompulsory. Id. at 593. The secular purpose and primary effect of the invocation, he concluded, are to “call on the consciences and moral resolves of those in attendance at the council meeting and to inspire their wisest and fairest participation through a few opening moments of prayer or reflection.” Id. The judge found minimal entanglement, analogizing to the practice of opening state and federal legislative sessions with prayer. Id. at 594. He distinguished cases prohibiting prayer in public schools on the basis of the “impressionability of children and their compulsory school attendance.” Id. at 591. The Appellate Division affirmed on the opinion below. 171 N.J.Super. 587 (1980). Plaintiff appealed to this Court as of right. See R. 2:2-l(a)(l).

I

The principles underlying the Establishment Clause of the First Amendment are clear.2 As stated by Justice Black in [240]*240Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511, 91 L.Ed. 711, 723 (1947):

The “establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance, or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or [241]*241groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State.”

Over the years governmental action touching upon religious practices, beliefs and attitudes has served to probe the limits of the Establishment Clause. The Supreme Court has defined these limits under a three-element test in order to identify the demarcation between church and state which is at the heart of the Establishment Clause. This standard was succinctly described in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 772-773, 93 S.Ct. 2955, 2965, 37 L.Ed.2d 948, 962-963 (1973), viz:

[T]o pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, second, must have a primary effect that neither advances nor inhibits religion, and, third, must avoid excessive entanglement with religion.

The Supreme Court recently reaffirmed the three-part test applied in Establishment Clause cases in Stone v. Graham,U.S. -, 101 St.Ct. 192, 66 L.Ed.2d 199 (1980).

This tripartite test has most often been applied in the area of state aid to nonpublic schools. See, e.g., Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980); New York v. Cathedral Academy, 434 U.S. 125, 98 S.Ct. 340, 54 L.Ed.2d 346 (1977); Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), reh. den. 422 U.S. 1049, 95 S.Ct. 2668, 45 L.Ed.2d 702 (1975); Committee of Public Education and Religious Liberty v. Nyquist, supra; Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), reh. den. 404 U.S. 874, 92 S.Ct. 25,30 L.Ed.2d 120 (1971); Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), reh. den. 404 U.S. 876, 92 S.Ct. 24, 30 L.Ed.2d 123 (1971). These cases often turn upon the third element of the test, namely, the degree of governmental entanglement with religion. See Resnick v. East Brunswick Tp. Bd. of Education, 77 N.J. 88, 115 [242]*242(1978). That element, first proffered in Walz v.

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Marsa v. Wernik
430 A.2d 888 (Supreme Court of New Jersey, 1981)

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Bluebook (online)
430 A.2d 888, 86 N.J. 232, 1981 N.J. LEXIS 1634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsa-v-wernik-nj-1981.