An Important Religion Case for the Supreme Court

American Civil Liberties Union of New Jersey v. Hendricks, 445 N.J. Super. 452 (App. Div. 2016).  In 1978, the Supreme Court decided Resnick v. East Brunswick Bd. of Educ., 77 N.J. 88 (1978).  That case found it unconstitutional for public schools to allow religious organizations to use school facilities at night or on weekends for religious instruction unless the religious organizations reimbursed the full cost attributable to their use of the buildings.  The ruling was based on Article I, paragraph 3 of the New Jersey Constitution, which provides, among other things, that no person shall “be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or the maintenance of any minister or ministry” contrary to the dictates of his or her conscience.

Today, in an opinion by Judge Sabatino, the Appellate Division applied Resnick to invalidate grants that the Department of Higher Education made to a Lakewood yeshiva, Beth Midrash Govoha, and the Princeton Theological Seminary.  The yeshiva’s grant was for construction of buildings, while the seminary’s would go toward improving technology.

Judge Sabatino provided a detailed and fascinating review of the history of Article I, paragraph 3, tracing it from its place in the 1776 New Jersey Constitution through its incorporation in the subsequent 1844 Constitution and again in the current 1947 Constitution.  He also discussed the sparse caselaw (virtually no decisions besides Resnick have even mentioned the provision) addressing the constitutional clause  since then.

Judge Sabatino rightly recognized that Resnick was binding on the Appellate Division, and that, as an intermediate appellate court, the panel could not go its own way.  He concluded that Resnick mandated the rejection of the grants at issue here.  But the panel found that the meaning of Article I, paragraph 3 was “not entirely clear,” and that Resnick “did not discuss the provision’s history at length.”

The opinion then went on to invite the Supreme Court to revisit Resnick.  “[W]e do no more than acknowledge the debatable lineage of the provision, leaving it to the Supreme Court to consider, if it so chooses, whether the arguments presented by the parties as to the meaning and history of the clause warrant a reexamination of Resnick.”

Especially in light of that language, there is no doubt that the State will seek Supreme Court review, likely by both a petition for certification and by an appeal as of right, given the presence of a substantial constitutional issue.  There is also no question that the Supreme Court will review the case.  No matter the result, the case will likely be one of the major decisions of the next Supreme Court term.  Without having read the briefs or heard the oral arguments, my guess is that the Court will trim Resnick back.


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  1. […] Union of New Jersey v. Hendricks, 445 N.J. Super. 452 (App. Div. 2016), which was discussed here.  The Appellate Division relied on Resnick v. East Brunswick Bd. of Educ., 77 N.J. 88 (1978), to […]

  2. […] (2018).  In 2016, in a decision reported at 445 N.J. Super. 452 (App. Div. 2016), and discussed here, the Appellate Division invalidated as unconstitutional grants that the Department of Higher […]

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