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DISCUSSION

Plaintiffs allege that the teaching of the SCI/TM course in New Jersey high schools violates the establishment clauses of both the United States Constitution and the New Jersey Constitution. The first clause of the first amendment to the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The New Jersey Constitution states that "[t]here shall be no establishment of one religious sect in preference to another." N.J. Const. Art. 1, P. 4. The fundamental mandates of the "establishment of religion" clause were enumerated by the Supreme Court thirty years ago:

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 or 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, 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 groups 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."

Everson v. Board of Education, 330 U.S. 1, 15-16 (1947), quoting Reynolds v. United States, 98 U.S. 145, 164 (1878). The Court reaffirmed its commitment to these basic principles in Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (footnotes omitted):

We repeat and reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

The position of the federal government and the states must be one of neutrality in the area of religious activity. Abington School District v. Schempp, 374 U.S. 203, 222 (1963). A three-part test has emerged from the Supreme Court decisions involving the establishment clause. In order to avoid violation of the establishment clause, the federal or state

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 government entanglement with religion.

Committee for Public Education v. Nyquist, 413 U.S. 756, 773 (1973).

Before applying this three-part test, however, the court must determine if the SCI/TM course constitutes a religious activity under the first amendment. Owing to the variety of form and substance which religions may take, the courts have avoided the establishment of explicit criteria, the possession of which indelibly identifies an activity as religious for purposes of the first amendment. This court, therefore, must be guided by the type of activity that has been held to be religious under the first amendment by the courts.

In implementing the establishment clause, the Supreme Court has made clear that an activity may be religious even though it is neither a part of nor derives from a societally recognized religious sect. In Engel v. Vitale, 370 U.S. 421 (1962), the New York State Board of Regents, a governmental agency with broad supervisory, executive and legislative powers over the state's public school system, composed a nondenominational prayer and recommended that it be recited by students at the beginning of each school day. Recitation of the prayer was voluntary; students could remain seated and silent or leave the room during the recitation. The prayer read:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.

Id. at 422. The Regents put forward the prayer as part of its "Statement on Moral and Spiritual Training in the Schools." Despite the fact that the prayer was not connected to any recognized religious group or groups and had been composed and recommended solely by laymen, the Supreme Court found that "[t]here can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity." Id. at 424.

Similarly, in Torcaso v. Watkins, 367 U.S. 488 (1961), the Supreme Court held unconstitutional a provision of the Declaration of Rights of the Maryland Constitution which required appointees to state offices to declare a belief in the existence of God as a condition of obtaining their commissions. Although a belief in the existence of God is central to many religions, the Court did not find that this belief in and of itself constituted a religion in the societally accepted meaning of that word nor did the Court find that the belief derived from a particular sect. Rather, the Court found that the Maryland provision violated the establishment of religion clause because it propagated "a particular kind of religious concept." See id. at 494 (footnote omitted). The Court thus held that governmental aid to the propagation of a "religious concept" would violate the establishment clause. The Court indicated that the Maryland provision violated the establishment clause both in that it prevented nonreligious people from holding public office and in that it aided all "those religions based on a belief in the existence of God as against those religions founded on different beliefs." Id. at 495 (footnote omitted). The Supreme Court in Torcaso and Engel interpreted the word "religion" in the first amendment broadly to encompass "religious concept[s]" and religions which do not propound a belief in the existence of God. In a footnote to Torcaso, the Court listed certain religions which do not hold a belief in the existence of a Supreme Being: "Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others." Id. at 495 n.11 (citations omitted).

In a statutory context, the Supreme Court has given a broad meaning to the phrase "religious training and belief" in construing section 6(j) of the Universal Military Service and Training Act. Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965). Section 6(j) provided in part:

Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.

Despite the fact that the Court was called upon to construe a statute, which contained an explanation of the phrase "religious training and belief," the Court held:

If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual "a place parallel to that filled by...God" in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a "religious" conscientious object exemption under S. 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.

Welsh v. United States, supra, at 340, quoting United States v. Seeger, supra, at 176.

The majority opinion in neither Seeger nor Welsh grappled with the problem of defining religion as it is used in the first amendment. The significance of these cases for purposes of this court's analysis derives not from the definitions of "religious training and belief" at which the Supreme Court arrived, but rather from the fact that the Court defined the phrase broadly in an exercise of statutory construction, an area in which the Court is far more circumscribed in defining terms than it is in the area of Constitutional interpretation. See Welsh, supra, at 346 (Harlan, J., concurring).

In light of Engel, supra, and Abington School District v. Schempp, supra, a panel of the Seventh Circuit held that the first amendment's establishment clause was violated by a teacher who had her kindergarten students recite the following poem or prayer prior to their morning snack:

We thank you for the flowers so sweet;
We thank you for the food we eat;
We thank you for the birds that sing;
We thank you for everything.

DeSpain v. DeKalb County Community School District 428, 384 F.2d 836, 837 (7th Cir. 1967), cert. denied, 390 U.S. 906 (1968). The Seventh Circuit held that recitation of this simple poem or prayer by five-year olds constituted an establishment of religion because the word "you" referred to "the Deity." Id. at 839.

In Founding Church of Scientology v. United States, 409 47 F.2d 1146 (D.C. Cir. 1969), the court confronted the question whether or not a philosophy or system of beliefs called Scientology was a religion under the first amendment. Although Scientology postulated the existence of no supreme essence or being and disavowed mysticism and supernaturalism, the court held that the Founding Church's claim that its theories and philosophy constituted a religion for purposes of the first amendment revealed a prima facie case for such status. Id. at 1160. The court noted that the theories of Scientology included a belief

that man is essentially a free and immortal spirit (a "thetan" in Scientological terminology) which merely inhabits the "mest body" ("mest" is an acronym of the words matter, energy, space, time). Man is said to be characterized by the qualities of "beingness," "havingness," and "doingness." The philosophical theory was developed that the world is constructed on the relationships of "Affinity," "Reality," "Communication," which taken together are denominated "the ARC Triangle."

Defendants point out that none of the above-discussed decisions explicitly defined religion within the meaning of the first amendment. The lack of a precise definition is not surprising in light of the fact that a constitutional provision is involved. This court knows of no decision defining press or speech within the meaning of the first amendment. The meaning of these terms, and many other constitutional terms, have expanded with the passage of time and the development of the nation. The drafters of the Constitution certainly attributed a meaning to the term "the press" which would not encompass means of communication now deemed to be part of "the press." See, e.g., Rosenbloom v. Metromedia, Inc., 415 F.2d 892, 895 (3d Cir. 1969). Similarly, philosophies and theories recognized as religions or religious practices were unheard of by the drafters of the Constitution and the Bill of Rights. New religions appear in this country frequently and they cannot stand outside the first amendment merely because they did not exist when the Bill of Rights was drafted. As stated by Mr. Justice Frankfurter in McGowan v. Maryland, 366 U.S. 420, 465-66 (1961) (Frankfurter, J., concurring),

Of course, the immediate object of the First Amendment's prohibition was the established church as it had been known in England and in most of the Colonies. But with foresight those who drafted and adopted the words, "Congress shall make no law respecting an establishment of religion," did not limit the constitutional proscription to any particular, dated form of state-supported theological venture. The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct; man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief.

When courts are faced with forms of "the press" or forms of "religion" unknown in prior decisional law, they must look to the prior interpretations of the constitutional provisions for guidance as to the substantive characteristics of theories or practices which have been found to constitute "religion" under the first amendment. The Supreme Court has interpreted the religion clauses of the first amendment several times in its recent history. E.g., Committee for Public Education v. Nyquist, 413 U.S. 756 (1973); Epperson v. Arkansas, 393 U.S. 97 (1968); Abington School District v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1963); Torcaso v. Watkins, 367 U.S. 488 (1961); Everson v. Board of Education, 330 U.S. 1 (1947); Cantwell v. Connecticut, 310 U.S. 296 (1940). The historical development and purpose of the religion clauses have been elaborated in a number of these cases, especially in Engel and in Everson. Religion, as comprehended by the first amendment now includes mere affirmation of belief in a supreme being, Torcaso, supra, invocation of a supreme being in a public school, Engel, supra, and reading verses from the Bible without comment, Schempp, supra.

Defendants argue that all of the above-discussed decisions are inapposite to the issues in this suit because the activity in question in each of the prior cases was represented or conceded to be religious in nature whereas defendants in the instant action assert that the activities are not religious in nature. The court notes the distinction but cannot accept defendants' conclusion that the decisions are not relevant. The cases, at the very least, reveal the types of activity and belief that have been considered religious under the first amendment.

Finding no guidance in the decisional law, defendants urge the court to adopt a "definitional approach" which is "substantive and contextual."¹⁸ Harned Affidavit P. 12. Under the cases discussed supra, it is the usual practice of courts to examine the substance, or content, of a challenged activity and the context in which it occurs. This court is following this usual practice in the instant case.

Defendants illustrate their concept of a "substantive and contextual" approach by means of an analogy:

Imagine I watch an athlete, who bows his head, folds his hands and closes his eyes for a moment during athletic competition. Although this occurs in a secular context, I assume he is praying. When I mention this to him, he denies that he is praying and asserts that he is merely trying to empty his mind of every distraction so he can concentrate entirely upon the athletic event. I refuse to believe him because whenever I have seen persons act in this manner, they have been engaged in prayer. But the athlete responds that if his actions did have religious significance, he would act similarly after his victories in order to express his gratitude to God. Yet he does not do so. Furthermore, he says, if he were devout, he would certainly not maintain the extravagant life style, that has gained him notoriety in the newspapers. In the end, I am persuaded that his actions have no religious significance. He has provided me with the complete context in which it is possible to accurately assess whether or not his actions have any religious significance. In the context of this athlete's life and ideas, these actions have no religious significance.

Harned Affidavit P 13. Although defendants label this approach "substantive and contextual," the analogy is devoid of substantive analysis and places determinative emphasis on the athlete's subjective characterization of his activity. To inject some substantive analysis into the analogy, the narrator might ask the athlete how he emptied his mind of distraction. If the athlete replied that when he closes his eyes he pictures in his mind's eye a black dot which expands until it blots out all distracting thoughts and noises, then the narrator again would conclude that the action carried no religious significance. If, however, the athlete states that after he closes his eyes he invokes and contacts That, the narrator no doubt would ask a definition of "That." If the athlete answered that "That" is the eternal, omnipresent source of everything in the universe, the narrator might respond, "oh, then you were praying." The athlete would answer: "Oh, no. Prayers are directed to God, which is a projection of the human imagination of an ideal and around which the theologies and religions of the world have grown. There's nothing religious about That. That is an objective reality. I know because I contact it frequently and it helps me." Although the athlete steadfastly and sincerely denies the religiosity of his action, it is doubtful that the narrator would have any hesitation in concluding that the athlete had engaged in what society would recognize as a religious activity. The difference in interpretation does not depend on the sincerity or cognition of the athlete. Rather, the difference is semantical. The athlete is cognizant of his action and sincerely believes that he has contacted "That." He fails to characterize the activity as religious because he believes religions to consist of moral precepts and rituals and an abstraction known as God. The narrator thus would be faced with a situation in which the questioned action had no religious significance in the eyes of the athlete, but clearly would be viewed as religious by society. The difference derives from the different definitions of religion held by the athlete and by society.

continues....

¹⁸ Defendants preface this "definitional approach" with the assertion that "the free exercise clause may require a broad definition of religion in order to protect individual liberty; however, the establishment clause has a more narrow scope." Harnod Affidavit P. 11. This statement by one of defendants' experts in religion is clearly improper and inadmissible under Rule 56(e) because the professor presents no credentials as an expert in constitutional law. Defendants argue that "[u]nlike the free-exercise clause of the First Amendment, the establishment clause does not encompass multifarious heterodox beliefs." Defendants' Second Supplemental Brief at 2. Defendants cite no authority for this assertion and the proposition appears dubious. As stated by Mr. Justice Rutledge:

"Religion" appears only once in the Amendment. But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid "an establishment" and another, much broader, for securing "the free exercise thereof." "Thereof" brings down "religion" with its entire and exact content, no more and no less, from the first into the second guaranty, so that Congress and now the states are as broadly restricted concerning the one as they are regarding the other.

No one would claim today that the Amendment is constricted, in "prohibiting the free exercise" of religion, to securing the free exercise of some formal or creedal observance, of one sect or of many. It secures all forms of religious expression, creedal, sectarian or nonsectarian, wherever and however taking place, except conduct which trenches upon the like freedoms of others or clearly and presently endangers the community's good order and security.... The word connotes the broadest content, determined not by the form or formality of the teaching or where it occurs, but by its essential nature regardless of those details.

"Religion" has the same broad significance in the twin prohibition concerning "an establishment." The Amendment was not duplicitous. "Religion" and "establishment" were not used in any formal or technical sense. The prohibition broadly forbids state support, financial or other, of religion in any guise, form or degree.

Everson v. Board of Education. supra, at 32-33 (Rutledge, J., dissenting). While Mr. Justice Rutledge was speaking for four members of the Court in dissent in Everson, the majority and dissent agreed that the establishment clause must have a broad interpretation and application. See Abington School District v. Schempp, supra, 216-217.

To the extent that the religion clauses differ in the protections afforded, the application of the two clauses of course will differ. For example, the establishment clause has a broader application than does the free exercise clause in the sense that a plaintiff may bring suit under the establishment clause even though he has suffered no injury to or impairment of his religious beliefs while a plaintiff cannot bring suit under the free exercise clause unless he can allege a direct governmental infringement upon his religious beliefs or practices. See, e.g., Engle v. Vitale, supra, at 430-31; McGowan v. Maryland, supra, at 466-67 (Frankfurter. J., concurring). The establishment clause protects every individual's right to freedom of belief while the free exercise clause protects the individual's freedom to practice his religion. See, e.g., Abington School District v. Schempp, supra, 217-18; Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).

The case at bar is illustrative of the different functions of the religion clauses. While defendants deny the religious nature of their teachings and activities, the adherents to certain teachings and activities who sought the protection of the free exercise clause never could deny the religious nature of their teachings and activities.

The fact that the religion clauses offer different protections gives no reason to infer that the word "religion," which appears only once in the religion clauses, has a meaning under the establishment clause different from its meaning under the free exercise clause. While it is possible for a group of individuals to attach religious significance to activities which society regards as nonreligious and seek protection for the practice of those activities under the free exercise clause, a court cannot afford that protection unless the activities embody religious teachings. E.g., People v. Woody, 61 Cal. 2d 716, 394 P.Ld. 813, 40 Cal. Rptr. 69 (1964) (In Bank). See note 23 infra. In Woody, a group of individuals believed that the eating of peyote put them into direct contact with God. The California Supreme Court held that a state criminal statute proscribing the use of peyote could not be applied to the adherents to this belief because application of the law to them would violate the free exercise clause. If subsequent medical research which revealed that peyote had beneficial properties lead the state to repeal the criminal statute, a public school would be able to teach that peyote has beneficial effects but the school could not teach that use of peyote puts the user in touch with God without violating the establishment clause. The activity is not religious per se, but is religious in light of the beliefs or teachings attached to it.

Similarly, principles which society at large finds beneficial and useful are not religious in nature merely because similar principles are common to the dogmas of many religious sects. For example, a public school could teach its students that it is both wrong to steal or murder without violating the establishment clause. The public school could not teach its students to refrain from stealing because God has proscribed it. The principle is not necessarily religious, but becomes religious if taught as a divine law. [ back ]

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