American Civil Liberties Union of New Jersey v. Hendricks

Annotate this Case

In this appeal, the issue this case presented for the New Jersey Supreme Court's review focused on state action based on, among other grounds, the Religious Aid Clause of Article I, Paragraph 3 of the New Jersey Constitution, specifically its prohibition against the use of public funds “for the maintenance of any minister or ministry.” The challenge arose following the Secretary of Higher Education’s (Secretary) determination to award grant monies to a yeshiva and to a theological seminary as part of a state program to subsidize facility and infrastructure projects for higher education institutions. The Appellate Division determined that prior case law concerning the New Jersey Constitution’s Religious Aid Clause required invalidation of the grants to the yeshiva and theological seminary. The State maintained the proper constitutional analysis in this matter turned on the use to which these higher education institutions would put the monies, not the nature of the institutions themselves. The Supreme Court determined judicial review was premature because factual disputes required resolution before the Secretary could make a properly informed decision on the grant applications. Because an informed administrative decision could not have been made without the benefit of a proper record, the matter was remanded to the Secretary, in order that a contested case proceeding be conducted prior to the ultimate administrative decision of the Secretary concerning the challenged grants.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

American Civil Liberties Union of New Jersey v. Rochelle Hendricks (A-22-16) (077885)

Argued October 23, 2017 -- Decided May 2, 2018

PER CURIAM

In this appeal, the Court addresses a challenge to state action based on, among other grounds, the Religious
Aid Clause of Article I, Paragraph 3 of the State Constitution, specifically its prohibition against the use of public
funds “for the maintenance of any minister or ministry.” The challenge arose following the Secretary of Higher
Education’s (Secretary) determination to award grant monies to a yeshiva and to a theological seminary as part of a
state program to subsidize facility and infrastructure projects for higher education institutions.

In 2012, the “Building Our Future Bond Act” authorized the State to effectuate the means to subsidize
capital improvement projects for institutions of higher education. Secretary of Education Rochelle Hendricks
submitted a list of 176 higher education capital construction projects for forty-six institutions of higher education,
which included funding for research laboratories, computerized classrooms, and interconnected cyber networks. Of
the forty-six higher education institutions, at least nine were religiously affiliated.

Two of those institutions were the Beth Medrash Govoha (the Yeshiva) and the Princeton Theological
Seminary (the Seminary). The Yeshiva received a grant award totaling $10,635,747, including $5,118,000 to fund
construction of a new library and research center, and $5,517,747 to fund construction of a three-story academic
center. The Seminary was awarded three grants totaling $645,323. One grant, for $241,722, was to enhance the
library’s information technology system. A second grant, for $113,711, was to be applied toward construction of a
software training room. The Seminary subsequently withdrew its application for a third grant, for $289,889.

The American Civil Liberties Union of New Jersey (ACLU-NJ), joined by several other parties, filed a
complaint in the Superior Court, Chancery Division, against Secretary and State Treasurer in their official capacities
(State or State defendants). The complaint asserted that the grants to the Yeshiva and the Seminary were improper
because they were awarded to sectarian schools that “provide sectarian educations and ministerial training,” in
violation of Article I, Paragraphs 3 (the Religious Aid Clause) and 4 (the Establishment Clause) and Article VIII,
Section 3, Paragraph 3 (the Donation Clause) of the State Constitution. Plaintiffs also alleged that the grants to the
Yeshiva violated the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49. The ACLU-NJ sought to enjoin
the State defendants from disbursing the grant funds to the Yeshiva and the Seminary.

On July 15, 2013, the trial court entered a Consent Order under which plaintiffs agreed to withdraw their
request for an injunction and the State defendants agreed to give plaintiffs notice before disbursing any of the
contested funds. Determining that the lawsuit was an appeal from an agency action, the trial court transferred
jurisdiction of the case to the Appellate Division pursuant to Rule 2:2-3(a)(2).

The Appellate Division invalidated the grants to the Yeshiva and the Seminary, holding that the grants violated
the Religious Aid Clause of the State Constitution.
445 N.J. Super. 452, 454-55 (App. Div. 2016). The panel did not
address the arguments pertaining to the alleged Establishment Clause or Donation Clause violations, or the LAD claim,
id. at 477-78, because it determined that prior case law concerning the Religious Aid Clause required invalidation of the
grants, id. at 454-55. The Court granted certification.
228 N.J. 440-41 (2016).

HELD: Judicial review is premature because factual disputes require resolution before the Secretary can make a
properly informed decision on the grant applications. Because an informed administrative decision could not have been
made without the benefit of a proper record, the matter is remanded to the Secretary, in order that a contested case
proceeding be conducted prior to the ultimate administrative decision of the Secretary concerning the challenged grants.

1
1. The New Jersey State Constitution provides as follows: “No person shall be deprived of the inestimable privilege of
worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense
whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be
obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship,
or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and
voluntarily engaged to perform.” N.J. Const. art. I, ¶ 3. (p. 18)

2. Until recently, this Court’s most authoritative prior application of the Religious Aid Clause arose in Resnick v. East
Brunswick Township Board of Education,
77 N.J. 88 (1978). Resnick involved a challenge to a rule whereby religious
groups could rent school facility space for religious worship and instruction during non-school hours at the same rates
as charged to other secular community groups. Id. at 93-95, 98. The Court invalidated the rule, holding that Article I,
Paragraph 3 of the State Constitution “prohibits any lease arrangement between a school board and religious groups
under which the out-of-pocket expenses of the board directly attributable to the use by the religious body are not fully
reimbursed.” Id. at 103. However, the Court stated that the “constitutional infirmity may be remedied by an upward
adjustment of rentals to religious groups which would fully cover extra utility, heating, administrative and janitorial
costs which result from the leasing by these groups.” Ibid. In sum, religious organizations were not excluded from a
public benefit under Resnick, but were required to pay the entire freight for using the public facility. (pp. 19-21)

3. The issue decided in Resnick is not the same as the question presently before the Court. Here, the Court is not
concerned with the Yeshiva’s and the Seminary’s use of public space for worship or religious instruction purposes.
Rather, the Court confronts the direct disbursement of grant funds for the improvement of physical and technological
infrastructure of higher education facilities, a general and statewide benevolent program to which two entities seek to
gain access like other higher education institutions. Specifically at issue is whether the disbursement of funds for
avowed secular purposes becomes violative of our Religious Aid Clause when granted to sectarian schools that offer
curricula steeped in theological study, as plaintiffs say. (p. 21)

4. The arguments of the parties reveal competing views of (1) the sectarian nature of these institutions of higher
education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant
funds will necessarily be used in the “maintenance of any minister or ministry”; and (3) the adequacy of promised
restrictions or other curbs against sectarian use of the grant proceeds. In light of the contrary assertions by the parties
and the state of this record, the Court can only conclude that the facts are murky on critical details that will affect the
constitutional conclusions to be reached. The record simply does not equip the Court to answer whether the award of
the challenged grant funds to these two institutions violates the Religious Aid Clause. (pp. 4, 22-23)

5. In assessing the Religious Aid Clause issue that was reached by the Appellate Division, there is a corollary question
concerning whether the denial of the requested funds would run afoul of the federal Free Exercise Clause. U.S. Const.
amend. I. Upon close examination of two Supreme Court cases highly relevant to the argument involving the federal
Free Exercise Clause, the Court again finds that the inadequacies and unresolved questions about the present record
hobble any ability to address the question. Because resolution of factual matters is a necessary basis for the additional
claims, this matter similarly requires factual development prior to undertaking any analysis of the state Establishment
Clause, Donation Clause, and LAD claims raised in the complaint and which are, as yet, undecided. (pp. 24-27)

6. With respect to the Religious Aid Clause issue—the only claim decided by the Appellate Division, whose judgment
is under review—the Court remands the matter for an evidentiary hearing. Among the questions to be explored are
those previously identified based on the contrary views of the parties. The record does not reveal enough about the
nature of the educational training and curriculum offered by the Yeshiva and Seminary and how it is delivered, nor does
the record present sufficient detail about how the grant fund projects will be put to use in the institutions’ respective
settings. It is imperative that those issues be more fully developed below, through the crucible of an adversarial
process, before the constitutional questions raised in this matter are addressed. (pp. 27-29)

The judgment of the Appellate Division is VACATED, and the matter is REMANDED to the Secretary of
Higher Education for proceedings consistent with the opinion. The Court leaves in place the Consent Order entered
by the trial court.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON and
TIMPONE join in this opinion. CHIEF JUSTICE RABNER did not participate.
2
SUPREME COURT OF NEW JERSEY
A-
22 September Term 2016
077885

AMERICAN CIVIL LIBERTIES
UNION OF NEW JERSEY,
UNITARIAN UNIVERSALIST
LEGISLATIVE MINISTRY OF NEW
JERSEY, GLORIA SCHOR
ANDERSEN, PENNY POSTEL, and
WILLIAM FLYNN,

Appellants-Respondents,

ROCHELLE HENDRICKS, Secretary
of Higher Education for the
State of New Jersey, in her
official capacity; and ANDREW
P. SIDAMON-ERISTOFF, State
Treasurer, State of New
Jersey, in his official
capacity,

Respondents-Appellants.

Argued October 23, 2017 – Decided May 2, 2018

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
445 N.J. Super. 452 (App. Div.
2016).

Stuart M. Feinblatt, Assistant Attorney
General, argued the cause for appellant
(Christopher S. Porrino, Attorney General,
attorney; Stuart M. Feinblatt, of counsel
and on the briefs; Jennifer J. McGruther, on
the briefs).

Edward L. Barocas argued the cause for
respondents (American Civil Liberties Union
of New Jersey Foundation; Barry, Corrado &
Grassi; American Civil Liberties Union
Program on Freedom of Religion and Belief;
1
Americans United for Separation of Church
and State; and American Civil Liberties
Union – Women’s Rights Project, attorneys;
Edward L. Barocas, Jeanne M. LoCicero, Frank
L. Corrado, Lenora Lapidus, on the brief,
and Galen Sherwin of the New York bar,
admitted pro hac vice, Daniel Mach of the
District of Columbia bar, admitted pro hac
vice, Alex J. Luchenitser of the District of
Columbia bar, admitted pro hac vice, on the
brief).

Ross A. Lewin argued the cause for amicus
curiae Princeton Theological Seminary
(Drinker Biddle & Reath, attorneys; Ross A.
Lewin, of counsel and on the brief).

Avi Schick (Dentons US) of the New York bar,
admitted pro hac vice, argued the cause for
amicus curiae Beth Medrash Govoha (Dentons
US, attorneys; Avi Schick, of counsel and on
the brief, and Joel N. Bock on the brief).

Gedalia M. Stern submitted a brief on behalf
of amicus curiae the National Jewish
Commission on Law and Public Affairs (Hafetz
& Necheles; Lewin & Lewin; and Dennis Rapps,
attorneys; Gedalia M. Stern, on the brief,
and Nathan Lewin of the District of Columbia
bar, admitted pro hac vice, and Dennis Rapps
of the New York bar, admitted pro hac vice,
of counsel and on the brief).

PER CURIAM

This appeal involves a challenge to state action based on,

among other grounds, the Religious Aid Clause of Article I,

Paragraph 3 of the State Constitution, specifically its

prohibition against the use of public funds “for the maintenance

of any minister or ministry.” The challenge arose following the

State Secretary of Higher Education’s (Secretary) determination

2
to award grant monies to a yeshiva and to a theological seminary

as part of a state program to subsidize facility and

infrastructure projects for higher education institutions in New

Jersey. The Appellate Division ended the challenge by focusing

on the Article I, Paragraph 3 issue to the exclusion of all

other state constitutional and statutory claims raised in the

case. The appellate panel determined that prior case law

concerning our Constitution’s Religious Aid Clause required

invalidation of the grants to the yeshiva and theological

seminary. We granted the State’s petition for certification

seeking review of that determination.

The State maintains that the proper constitutional analysis

in this matter turns on the use to which these higher education

institutions will put the monies, not the nature of the

institutions themselves. While plaintiffs do not dispute that

the use of funds must be addressed, they emphasize the

pervasively sectarian nature of the institutions and the avowed,

and practically implemented, purpose of each to train

individuals in theological and religious study, which plaintiffs

contend profoundly affects the analysis in this matter.

This case comes before us as an appeal from final

administrative action by the Secretary approving the grants.

The present record is comprised essentially of the grant

applications submitted by the institutions to the Secretary.

3
The arguments of the parties reveal competing views of (1) the

sectarian nature of these institutions of higher education; (2)

whether, in the setting of the curriculum and training programs

of these particular institutions, the grant funds will

necessarily be used in the “maintenance of any minister or

ministry”; and (3) the adequacy of promised restrictions or

other curbs against sectarian use of the grant proceeds.

Because those factual disputes require resolution before the

Secretary can make a properly informed decision on the grant

applications, we conclude that judicial review is premature.

A remand is necessary to allow for the development of a

proper record, with fact-finding. Adversarial testing of the

evidence in support of the parties’ presentations is required

here. Only based on such a record can the courts appropriately

review the Secretary’s decision to award, or not, grants to

these institutions, in light of the constitutional arguments

raised by plaintiffs. Because we conclude that an informed

administrative decision could not have been made without the

benefit of such a record, we remand this matter to the

Secretary, and not to the trial court, in order that a contested

case proceeding be conducted prior to the ultimate

administrative decision of the Secretary concerning the

challenged grants.

4
A.

The background to this appeal is the “Building Our Future

Bond Act” (the Act), which was enacted into law on August 7,

2012. L. 2012, c. 41. The Act authorized the State to

effectuate the means to subsidize capital improvement projects

for institutions of higher education. At the ensuing Election

Day in November 2012, New Jersey voters approved a referendum

authorizing the issuance of $750 million in general obligation

bonds, the proceeds of which were to support the purposes of the

Act.

The State proceeded to issue bonds and secure funds to be

available to support higher education capital-improvement

projects; at about the same time, the State solicited

applications from higher education institutions interested in

receiving such funding. Following the receipt and review of

submitted applications, on April 29, 2013, the Governor

announced that Secretary of Education Rochelle Hendricks had

submitted to the Legislature for approval a list of 176 higher

education capital construction projects to forty-six

institutions of higher education, which included funding for

research laboratories, computerized classrooms, and

interconnected cyber networks. See L. 2012, c. 41, § 5(g);

N.J.A.C. 9A:18-1.7. After sixty days elapsed, the grants were

deemed approved by the Legislature. See N.J.A.C. 9A:18-1.7(d).

5
Of the forty-six higher education institutions that

received funding, at least nine were religiously affiliated.

Relevant for our purposes, two of those institutions were the

Beth Medrash Govoha (the Yeshiva) and the Princeton Theological

Seminary (the Seminary).

From the administrative record submitted to the Appellate

Division, we glean the following information. Largely, except

where noted, the information comes from material gathered during

the application process conducted by the Secretary, either in

the form of representational responses to the State’s

application questions or in attachments submitted with the

application.

The Yeshiva is located in Lakewood Township and serves more

than 6,000 students. It is accredited by the Association of

Advanced Rabbinical and Talmudic Schools. The Yeshiva describes

Talmudic Studies as “a broad compendium of scholarship that

draws on knowledge from a wide array of sources and disciplines,

among which are references to religious texts such as the

Bible.” For purposes of elucidating the discussion, we add that

a commonly accepted definition describes the Talmud as

the basic compendium of Jewish law and
thought; its tractates mainly comprise the
discussions collectively known as the Gemara,
which elucidate the germinal statements of law
(mishnayot) collectively known as the Mishnah;

6
when unspecified refers to the Talmud Bavli,
the edition developed in Babylonia, and edited
at the end of the fifth century C.E.; the
Talmud Yerushalmi is the edition compiled in
the Land of Israel at the end of the fourth
century C.E.

[Talmud, Chabad.org, https://www.chabad.
org/search/keyword_cdo/kid/2700/jewish/
Talmud-The.htm (last visited April 17,
2018).]

Courts have employed similar descriptions. See, e.g., State v.

Freedom From Religion Found.,
898 P.2d 1013, 1022 n.9 (Colo.

1995) (“The Talmud, an 'all-embracing constitution of medieval

Jewish life,’ is an extended, multivolume compilation of

rabbinic teachings, including law, morality, and theology. The

Hebrew word talmud means 'study.’ The original writings, which

were substantially supplemented over time, were 'completed’ by

the middle of the fifth century.” (citing 14 The Encyclopedia

of Religion 256-57 (Mircea Eliade et al. eds., 1987))).

According to its mission statement, the Yeshiva is “an

institution of Higher Education that specializes in advanced

Talmudic scholarship. Its primary objective is to produce

Talmudic scholars and to thereby provide firm, lifelong

foundations for its students, graduates and their communities.”

The Yeshiva further represents that “[a]n integral part of [its]

scholastic and professional aims is ethical and moral growth and

maturity of the students, based on Jewish ethics and

philosophy.”

7
The Yeshiva offers four programs: a bachelor’s degree in

Talmudic Studies, a master’s degree in Rabbinical and Talmudic

Studies, and two certificates in graduate Talmudic Studies. The

Yeshiva explained that fewer than five percent of students

participate in a program that leads to ordination, and that the

ordination program’s religious instruction is “opt-in, not opt-

out.” The application record does not clarify whether the other

courses constitute religious instruction, but does specify that

“portions of the curriculum may utilize or reference texts with

religious origin.”

That said, the graduate course catalog included with the

Yeshiva’s grant application lists a series of courses that

appear to correspond almost exclusively to tractates of Talmud,

with a few additional course offerings that explore the work of

selected rabbis, largely in the context of ethics. The

undergraduate program mandates that each student complete a

Bachelor of Talmudic Studies, including 150 credit hours, 140 of

which are taught by the Talmud Department. The sample

curriculum for this program illustrates that each student is

expected to complete four courses each semester: two in Talmud,

one in jurisprudence -- a course not described in the course

description, and one in Jewish ethics. From the record as

presently developed, the Yeshiva does not provide any program

unrelated to Talmudic scholarship and does not offer courses in

8
science, technology, engineering, mathematics, or general

secular study.

The Yeshiva received a grant award totaling $10,635,747.

The award included a grant of $5,118,000 to fund construction of

a new library and research center, and a grant of $5,517,747 to

fund construction of a three-story academic center, which would

contain study halls, classrooms, a reference library, a computer

room, faculty offices, and academic service rooms. As a

condition of its receipt of grant funds, the Yeshiva was

required to submit a Sectarian/Religiously Affiliated

Educational Institution Questionnaire to the State. In

answering the questions posed by that form, the Yeshiva stated

that it was an “independent institution rooted in Jewish

tradition,” that it has “no formal affiliation to any

hierarchical religious organization,” and that the funds would

not be used to finance any chapels or places of worship. In a

supplemental questionnaire provided to the State, the Yeshiva

further stated that “all classes may be offered” in the

facilities subsidized by grant funds, but that the project

facilities would not be used for “anything associated with

ordination.”

The Yeshiva acknowledged that its curriculum includes

“religious study,” focusing, as noted, on its answers in respect

to ordination, that its faculty are all of the Jewish faith, and

9
that only men are accepted for admission. The Yeshiva further

stated that “[a] small number of specialized faculty administer

a set of oral, one-on-one examinations on topics of practical

religious matters.” There is no other concession that the

Yeshiva provides religious instruction.

The Yeshiva contends that their programs focused on

Talmudic Studies “contain a critical thinking liberal-arts core

. . . [and] [a]lthough [the Yeshiva] does not directly offer

degree programs in the STEM concentrations, it does provide its

students with broad-based knowledge and the transferable skills

to exceed in graduate programs in Science, Technology,

Engineering, and Mathematics.” For example, the course

description for Beginning Talmud Survey 1 and 2 states that the

study of portions of Talmud tractates is “to gain acquaintance

with the broad panoply of Talmudic knowledge and approach to the

disciplines of Logic, Ethics, Philosophy, Religion, Economics,

Law, Sociology, History, Psychology, Literature, Classical

Civilizations, Science, Mathematics, Language, and Political

Science.”

The Seminary is a coeducational denominational school

located in Princeton offering graduate programs in theological

education. It is accredited by the Association of Theological

Schools and the Middle States Commission on Higher Education.

10
The Seminary offers the following degrees: Master of Divinity;

Master of Arts (Christian Education); Master of Theology; and

Doctor of Philosophy (Biblical Studies, History and Ecumenics,

Theology, Practical Theology, or Religion and Society). It also

offers a number of continuing education programs through various

initiatives, institutes, and inter-institutional agreements.

According to its mission statement, it “prepares women and men

to serve Jesus Christ in ministries marked by faith, integrity,

scholarship, competence, compassion, and joy, equipping them for

leadership worldwide in congregations and the larger church, in

classrooms and the academy, and in the public arena.” The

Seminary also refers to itself as

[a] professional and graduate school of the
Presbyterian Church (U.S.A.) [that] stands
within the Reformed tradition, affirming the
sovereignty of the triune God over all
creation, the Gospel of Jesus Christ as God’s
saving word for all people, the renewing power
of the word and Spirit in all of life, and the
unity of Christ’s servant church throughout
the world.

The Seminary applied for and was awarded three grants

through the program totaling $645,323. One grant, for $241,722,

was to enhance the information technology system at the

Seminary’s library. Counsel, at oral argument, informed us that

the award would provide for infrastructure improvement only and

would not include digitalization of the library’s contents. A

second grant, for $113,711, was to be applied toward

11
construction of a “training room,” which would service faculty,

students, and staff with software training.1

The Seminary also submitted to the Secretary a

Sectarian/Religiously Affiliated Educational Institution

Questionnaire in which it stated that it is an “independent

educational institution with an historical and continuing

relationship with the Presbyterian Church (USA).” It explained

that the proposed projects did not “contain any existing or

proposed areas to be used for prayer or worship,” that the

grants would not fund any “chapels or other places of worship,”

and that there would not be “any religious use of or religious

instruction in any of the Project Facilities.” In its project

summary for the upgrades to the library’s information-technology

(IT) infrastructure, the Seminary asserted that the grant funds

will allow the public to access its scholarly content, including

academic materials and publications, and will “create a

repository to expand scholarly communications as well as make

scholarly material open to interested parties outside the

seminary.”

The Seminary also maintained that the enhanced IT

infrastructure will increase inter-institutional communication

1 The third grant, for $289,889, would have subsidized the
renovation of a conference room and upgrades to the room’s
telecommunications equipment, but the Seminary subsequently
withdrew that application.
12
and education, stating that the grant funds will “result in the

enhancement of Open Educational Resources (OER) for scholarly

collaboration and support services for educators and

researchers” and will “connect infrastructure for intra- and

inter-institutional repositories.” According to the Seminary,

that connected infrastructure will allow the Seminary to share

its repository with other institutions with which it has a

reciprocal relationship, including Princeton University and the

Westminster Choir College of Rider University, whose students

will be able to access the library electronically. The Seminary

stated that by connecting its infrastructure it will be able to

share its “world-class research library” and meet the growing

demand for electronic and interactive access to its academic and

research resources.

The Seminary made similar assertions concerning the grant

for the training room, stating in its application that the grant

funds will add a number of technological enhancements to the

training room that will “increase its telecommunication

offerings, as well as facilitate access to key video, audio, and

data resources,” and keep the training room “compatible with

inter-institutional communication.” The training room will

apparently be used for software and other computer training,

providing “on-site and distance training” to train faculty and

students on “emerging tools necessary for their academic work.”

13
The Seminary acknowledged a number of other, sectarian uses

to which the projects may be put. The Seminary stated in its

project description for the library that it is “developing a

core Internet resource for the study of theology and religion.”

In its application for grant funds for the training room, the

Seminary noted that its expansion through the use of grant funds

will allow for building partnerships with organizations such as

the Administrative Personnel Association of the Presbyterian

Church. In its technology plan, submitted as part of its

application for renovation of the library, the Seminary stated

that the services provided as part of the upgrades to their

audio and video equipment will include “[a]ll lectures and

special campus events, from Presidential lectures to Chapel

services.” The Seminary also stated in its questionnaire that

“the training facility potentially may be used for software

programs employed in both religious instruction and religious

study.”

Moreover, the Seminary also stated that “[a]ll degree

students are expected to be of the Christian faith”; that the

faculty are required to be of the Christian faith; and that the

curriculum includes religious instruction. It also stated in

that report that the “proposed project is essential to the

Seminary’s educational mission” of “preparation of men and women

14
for ministry to congregations and for Christian leadership in

communities and professional environments.”

II.

The American Civil Liberties Union of New Jersey (ACLU-NJ),

joined by several other parties,2 filed a complaint in the

Superior Court, Chancery Division, on June 21, 2013 against

Secretary of Higher Education Rochelle Hendricks and State

Treasurer Andrew Sidamon-Eristoff in their official capacities

(hereinafter State or State defendants). The complaint did not

name either the Yeshiva or the Seminary as parties in the

matter. The complaint asserted that the monetary grants to the

Yeshiva and the Seminary were improper because they were awarded

to sectarian schools that “provide sectarian educations and

ministerial training,” in violation of Article I, Paragraphs 3

(the Religious Aid Clause) and 4 (the Establishment Clause) and

Article VIII, Section 3, Paragraph 3 (the Donation Clause) of

the State Constitution. Plaintiffs also alleged that the grants

to the Yeshiva violated the Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49, because the Yeshiva “discriminates on

the basis of sex” by not allowing women admission to the

Yeshiva. The ACLU-NJ sought to enjoin the State Treasurer and

2 The ACLU-NJ has taken the lead in pursuing this matter.
Therefore, we hereinafter refer to plaintiffs collectively as
ACLU-NJ.
15
State Secretary of Higher Education from disbursing the grant

funds to the Yeshiva and the Seminary.

On July 15, 2013, the trial court entered a Consent Order

under which plaintiffs agreed to withdraw their request for an

injunction and defendants agreed to give plaintiffs notice

before disbursing any of the contested funds. Determining that

the lawsuit was an appeal from an agency action, the trial court

transferred jurisdiction of the case to the Appellate Division

pursuant to Rule 2:2-3(a)(2). The Appellate Division later

denied plaintiffs’ motion to remand the matter for further fact-

finding.

The Appellate Division invalidated the grants to the

Yeshiva and the Seminary, holding that the grants violated the

Religious Aid Clause of the State Constitution. ACLU of N.J. v.

Hendricks,
445 N.J. Super. 452, 454-55 (App. Div. 2016). The

panel reached only the constitutional argument premised on a

violation of the Religious Aid Clause and did not address the

arguments pertaining to the alleged Establishment Clause or

Donation Clause violations, or the LAD claim, because the case

was decided under the Religious Aid Clause. Id. at 477-78.

The panel reasoned that its analysis under Article I,

Paragraph 3 of the State Constitution was controlled by this

Court’s holding in Resnick v. East Brunswick Township Board of

Education,
77 N.J. 88 (1978). Id. at 454-55. That said, the

16
panel observed that “the intended meaning of Article I,

Paragraph 3 of the Constitution -- a provision included in our

State’s first Constitution in 1776 and readopted in the 1844 and

1947 Constitutions -- is not entirely clear” and that the

provision’s history was not discussed “at length in Resnick.”

Id. at 455. The panel examined Article I, Paragraph 3’s

incorporation into our current Constitution and concluded that

its history did not reveal whether it “was or was not intended

to prohibit public aid to religious organizations to support

their activities in religious instruction and the training of

future clerics.” Id. at 468-69.

With Article I, Paragraph 3’s ambiguities providing no easy

answer to the issue, the panel turned to Resnick for guidance

concerning the clause. Id. at 470. After examining the facts

and holding of that case, the panel determined that it could

“discern no principled distinction between the consumption of

public resources that was invalidated under Article I, Paragraph

3 in Resnick and the payment of taxpayer-funded grants to the

Yeshiva and the Seminary.” Id. at 475. Although noting the

State’s argument that Resnick is an older case, “out of step

with more recent national trends in constitutional jurisprudence

concerning religion,” the panel noted that Resnick has never

been overruled and that therefore the panel was “bound” by its

holding. Id. at 476-77. The panel concluded “that Resnick

17
compels invalidation of the grants to the Yeshiva and the

Seminary under Article I, Paragraph 3 of the New Jersey

Constitution.” Id. at 477.

As noted, the State defendants petitioned this Court for

certification. They argue that the Appellate Division failed to

apply the plain language of the Religious Aid Clause of the

State Constitution and that Resnick does not control the

disposition of this case. We granted the petition for

certification.
228 N.J. 440-41 (2016). We also granted the

motions of the Yeshiva, the Seminary, and the National Jewish

Commission on Law and Public Affairs to appear as amici curiae

in the appeal.

III.

The New Jersey State Constitution provides as follows:

No person shall be deprived of the inestimable
privilege of worshipping Almighty God in a
manner agreeable to the dictates of his own
conscience; nor under any pretense whatever be
compelled to attend any place of worship
contrary to his faith and judgment; nor shall
any person be obliged to pay tithes, taxes, or
other rates for building or repairing any
church or churches, place or places of
worship, or for the maintenance of any
minister or ministry, contrary to what he
believes to be right or has deliberately and
voluntarily engaged to perform.

[N.J. Const. art. I, ¶ 3.]

18
Until recently, when this Court thoroughly examined the

history and import of the Religious Aid Clause of our State

Constitution in Freedom From Religion Foundation v. Morris

County Board of Chosen Freeholders, ___ N.J. ___ (2018), this

Court’s most authoritative prior application of the provision

arose in Resnick,
77 N.J. 88. Resnick involved a challenge to

the East Brunswick Board of Education’s adoption of a rule

whereby religious groups could rent school facility space for

religious worship and instruction during non-school hours at the

same rates as charged to other secular community groups. Id. at

93-95, 98. We invalidated the Board’s rule, holding that

Article I, Paragraph 3 of the State Constitution “prohibits any

lease arrangement between a school board and religious groups

under which the out-of-pocket expenses of the board directly

attributable to the use by the religious body are not fully

reimbursed.” Id. at 103.

In explaining that holding, reached in the setting of

religious organizations conducting worship services and

religious instruction on rented public property subsidized by

the public fisc, the Court in Resnick stated that the State

Constitution is explicit and requires “that religious

organizations be singled out among nonprofit groups in general

as being ineligible for certain benefits which are partly

19
subsidized by tax-generated funds.” Id. at 103-04.3 A

workaround to that constitutional problem was recognized in

Resnick, however; the Court stated that the “constitutional

infirmity may be remedied by an upward adjustment of rentals to

religious groups which would fully cover extra utility, heating,

administrative and janitorial costs which result from the

leasing by these groups.” Id. at 103.

Resnick’s broad summary language about religious

organizations should not be misconstrued. To be viewed

properly, the Court’s statements in Resnick must be tethered to

its holding, and its holding rooted the application of Article

I, Paragraph 3 of the State Constitution to the facts of the

case. Specifically, Resnick’s holding allowed a church -- a

“religious organization” -- to rent public facilities for

temporary worship and for the provision of religious

instruction, just as other community organizations were

permitted to rent such public space under the Board’s policy.

3 The requirement was not to be “carried to an extreme,” the
Court noted. Id. at 103 (noting specifically exception for
police and fire protection for property held by sectarian
groups). Police and fire protection was considered different
from the rental question posed in Resnick. Ibid. So too is
busing of pupils to school considered part of general public
benefits that do not transgress constitutional limits on aid to
religion. See Everson v. Bd. of Educ. of Ewing,
133 N.J.L. 350,
355-56 (1945), aff’d,
330 U.S. 1 (1947) (holding that government
reimbursement of busing costs incurred by parents of students
who attended parochial schools did not contravene the State or
Federal Constitutions).
20
But, the decision made clear that such organizations must

completely pay their own way for the rental use of public

property so that there was no public subsidizing of the use of

school facilities for religious worship or instruction. In sum,

religious organizations were not excluded from a public benefit

under Resnick, but a religious organization such as a church,

renting public space to enable it to minister to its flock

through worship or religious instruction, was required to pay

the entire freight for its use of the public facility.

The issue decided in Resnick is not the same as the

question presently before us. Here, we are not concerned with

the Yeshiva’s and the Seminary’s use of public space for worship

or religious instruction purposes. Rather, here we confront the

direct disbursement of grant funds for the improvement of

physical and technological infrastructure of higher education

facilities, a general and statewide benevolent program to which

two entities seek to gain access like other higher education

institutions.

Specifically at issue is whether the disbursement of funds

for avowed secular purposes becomes violative of our Religious

Aid Clause when granted to sectarian schools that offer

curricula steeped in theological study, as plaintiffs say.

According to plaintiffs, giving public grant funds to two

21
educational institutions so pervasively sectarian and oriented

to the training of persons for instructing in a particular

religion constitutes religious use prohibited under the

Religious Aid Clause.

Plaintiffs argue that the grants “would directly support

and enhance the grantees’ religious training and instruction.”

They assert that the grants to the Yeshiva would support

construction of classrooms, libraries, and other facilities that

would be used for religious instruction.” Quoting directly from

application records, plaintiffs note that the Yeshiva’s “grants

would 'significantly increase the capacity of’ the Yeshiva’s

religious 'academic programs,’” and that “the grants to the

Seminary would be 'essential to’ and 'multiply the impact of’

'the Seminary’s educational mission’ of 'preparation of men and

women for theological leadership.’ They would pay for

technological training and equipment that would enhance

religious study through aids such as 'biblical software

programs.’”

The educational institutions assert that the improvements

to the infrastructure of their facilities would assist adherents

to their faith and earnest students alike. Both claim they are

not training for ordination and therefore would not be using

funds for the “maintenance of any minister or ministry.”

Further, the Seminary emphasizes that the grant funds for

22
improving its library’s IT infrastructure will allow for public

access to the Seminary’s library materials, which include

scholarly articles and books, although the record contains few

specifics on the contents of the theological library. When

questioned about the contents at argument, counsel’s proffer was

general in nature. The Yeshiva also claims that greater public

access to its library materials will be a beneficial byproduct

of the grants.

In light of the contrary assertions by the parties and the

state of this record, we can only conclude that the facts are

murky on critical details that will affect the constitutional

conclusions to be reached. Different religions use varying

approaches to what constitutes religious instruction and forms

of worship. There are many questions left unanswered by this

record, which does not explore or define the relationship of

religious instruction and study to worship, devotion to the

religion, and ministry at these two institutions. Also, greater

detail is needed concerning the exact purpose and ultimate use

to which the grant funds will be put. The record simply does

not equip us to answer whether the award of the challenged grant

funds to these two institutions violates the Religious Aid

Clause of the State Constitution.

IV.

23
In assessing the Religious Aid Clause issue that was

reached by the Appellate Division, there is a corollary question

concerning whether the denial of the requested funds would run

afoul of the federal Free Exercise Clause. U.S. Const. amend.

I. Although not raised in plaintiffs’ complaint, the issue

about the Free Exercise Clause has been raised by the State, the

educational institutions, and amicus. The Free Exercise

argument advanced before our Court was not addressed below.

Upon close examination of two Supreme Court cases highly

relevant to the argument involving the federal Free Exercise

Clause, we again find that the inadequacies and unresolved

questions about the present record hobble any ability to address

the question at this time.

In Locke v. Davey, the United States Supreme Court

addressed the constitutionality under the Free Exercise Clause

of a scholarship program established by the State of Washington

that excluded otherwise eligible students who were pursuing

degrees in theology.
540 U.S. 712, 715-17 (2004). The Court

began by noting that the Free Exercise Clause and Establishment

Clause are often in tension with each other, but that there is

also “'room for play in the joints’ between them.” Id. at 718

(quoting Walz v. Tax Comm’n of N.Y.C.,
397 U.S. 664, 669

(1970)). The Court then explained that Washington’s state

constitution “has been authoritatively interpreted as

24
prohibiting even indirectly funding religious instruction that

will prepare students for the ministry.” Id. at 719. Thus,

Washington’s constitution “draws a more stringent line than that

drawn by the United States Constitution.” Id. at 722. The

question was therefore whether the scholarship program violated

the Free Exercise Clause. Id. at 719.

The Court examined Washington’s scholarship program, noting

that “[t]he program permits students to attend pervasively

religious schools, so long as they are accredited,” and that

students were “still eligible to take devotional theology

courses.” Id. at 724-25. The Court therefore held:

[W]e find neither in the history or text of
Article I, § 11 of the Washington
Constitution, nor in the operation of the
[State of Washington’s] Scholarship Program,
anything that suggests animus towards
religion. Given the historic and substantial
state interest at issue, we therefore cannot
conclude that the denial of funding for
vocational religious instruction alone is
inherently constitutionally suspect.

Without a presumption of unconstitutionality,
Davey’s claim must fail. The State’s interest
in not funding the pursuit of devotional
degrees is substantial and the exclusion of
such funding places a relatively minor burden
on [scholarship recipients]. If any room
exists between the two Religion Clauses, it
must be here. We need not venture further
into this difficult area in order to uphold
the . . . Scholarship Program as currently
operated by the State of Washington.

[Id. at 725.]

25
Locke was distinguished by the Supreme Court’s recent

decision in Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. ___,
137 S. Ct. 2012 (2017). We scrutinized that case

in Freedom From Religion Foundation, ___ N.J. ___ (slip op. at

1), in our determination of whether historical trust grants

provided for the repair of churches with active congregations

violated the Religious Aid Clause of our State Constitution. In

Freedom From Religion Foundation, we noted that Footnote 3 of

the Court’s opinion, in which four Justices joined, appeared to

create a distinction between religious identity and religious

use, and that the Court explained in that footnote that it was

“not address[ing] religious uses of funding or other forms of

discrimination.” Id. at ___ (slip op. at 39) (quoting Trinity

Lutheran,
137 S. Ct. at 2024 n.3). Moreover, Chief Justice

Roberts’s majority opinion explained that the difference between

the facts at issue in Trinity Lutheran and the facts of Locke

was that the scholarship recipient in Locke “was not denied a

scholarship because of who he was; he was denied a scholarship

because of what he proposed to do -- use the funds to prepare

for the ministry.” Trinity Lutheran,
137 S. Ct. at 2023.

Our task in this matter will eventually require an

assessment of whether the grant distributions to the Yeshiva and

to the Seminary are more like the program at issue in Locke or

more like the one at issue in Trinity Lutheran, and of how the

26
Religious Aid Clause’s prohibition against “maintenance of any

minister or ministry” comports with that assessment.

At present, we are ill-equipped to answer those questions

based on the uncertainties in the factual record. Because

resolution of those factual matters is a necessary basis for the

additional claims, this matter similarly requires factual

development prior to undertaking any analysis of the state

Establishment Clause, Donation Clause, and LAD claims raised in

the complaint and which are, as yet, undecided.

With respect to the Religious Aid Clause issue -- the only

claim of plaintiffs’ to be decided by the Appellate Division,

whose judgment is under review -- we see only one appropriate

course of action. Rather than address a matter of

constitutional importance on an insufficiently developed record,

the better course is to remand the matter for an evidentiary

hearing to bring the relevant factual material into better

focus. Among the questions to be explored are those previously

identified based on the contrary views of the parties concerning

(1) the sectarian nature of these institutions of higher

education; (2) whether, in the setting of the curriculum and

training programs of these particular institutions, the grant

funds will necessarily be used in the “maintenance of any

minister or ministry”; and (3) the adequacy of promised

27
restrictions, or other curbs, against sectarian use of the grant

proceeds at present and into the future.

This case comes before us under Rule 2:2-3(a)(2) as an

appeal from final agency action. An action that comes to us as

a result of final agency action must have a fully developed

record so that a reviewing court may engage in meaningful

appellate review. See, e.g., In re Issuance of Permit by DEP,

120 N.J. 164, 173 (1990) (explaining that reviewing court “has

no capacity to review [administrative action] at all unless

there is some kind of reasonable factual record developed by the

administrative agency” (quoting State v. Atley,
157 N.J. Super.
157, 163 (App. Div. 1978))). Where the agency record is

insufficient, we may order a remand to the agency to more fully

develop the record. See R. 2:5-5(b) (“At any time during the

pendency of an appeal from a state administrative agency, if it

appears that evidence unadduced in the proceedings below may be

material to the issues on appeal, the appellate court, on its

own motion or on the motion of any party, may order, on such

terms as it deems appropriate, that the record on appeal be

supplemented by the taking of additional evidence and the making

of findings of fact thereon by the agency below . . . .”); see

also, Noble Oil Co. v. DEP,
123 N.J. 474, 475 (1991) (holding

that administrative record was inadequate for review and

28
remanding to agency to supplement record). We conclude that

this is a case requiring such action.

The record does not reveal enough about the nature of the

educational training and curriculum offered by the Yeshiva and

Seminary and how it is delivered, nor does the record present

sufficient detail about how the grant fund projects will be put

to use in the institutions’ respective settings. It is

imperative that those issues be more fully developed below,

through the crucible of an adversarial process, before the

constitutional questions raised in this matter are addressed.

Accordingly, we will remand to the Secretary for the development

of a record in accordance with this opinion.

The judgment of the Appellate Division is necessarily

vacated, and the matter is remanded to the Secretary for

proceedings consistent with this opinion. We leave in place the

Consent Order entered by the trial court.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON and TIMPONE join in this opinion. CHIEF JUSTICE RABNER
did not participate.

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