                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4399-13T2

AMERICAN CIVIL LIBERTIES UNION
OF NEW JERSEY, UNITARIAN
UNIVERSALIST LEGISLATIVE MINISTRY
OF NEW JERSEY, GLORIA SCHOR             APPROVED FOR PUBLICATION
ANDERSEN, PENNY POSTEL, and
WILLIAM FLYNN,                                May 26, 2016

                                          APPELLATE DIVISION
     Appellants,

v.

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.
_____________________________________

         Argued April 11, 2016 – Decided May 26, 2016

         Before Judges Sabatino, Accurso and Suter.

         On appeal from New Jersey Department of
         Education, Office of the Secretary of Higher
         Education.

         Edward L. Barocas (American Civil Liberties
         Union of New Jersey Foundation) argued the
         cause for appellants (Barry, Corrado &
         Grassi, P.C.; Lenora Lapidus (American Civil
         Liberties Union Women's Rights Project);
         Galen Sherwin (American Civil Liberties
         Union - Women's Rights Project) of the New
         York Bar, admitted pro hac vice; Daniel Mach
         (American Civil Liberties Union Program on
            Freedom of Religion and Belief) of the
            District of Columbia bar, admitted pro hac
            vice; Ayesha Khan (Americans United for
            Separation of Church and State) of the
            District of Columbia bar, admitted pro hac
            vice, and Alex Luchenitser (Americans United
            for Separation of Church and State) of the
            District of Columbia bar, admitted pro hac
            vice, attorneys; Mr. Barocas, Jeanne M.
            LoCicero, Frank L. Corrado, Ms. Lapidus, Ms.
            Sherwin,    Mr.   Mach,    Ms.   Khan,   Mr.
            Luchenitser, on the briefs).

            Stuart M. Feinblatt, Assistant Attorney
            General, argued the cause for respondents
            (Robert Lougy, Acting Attorney General,
            attorney; Mr. Feinblatt, of counsel and on
            the brief; Jennifer J. McGruther, Deputy
            Attorney General, and Laura M. Console,
            Deputy Attorney General, on the brief).

    The opinion of the court was delivered by

SABATINO, P.J.A.D.

    Appellants,          the   American    Civil     Liberties    Union     of    New

Jersey     ("ACLU-NJ"),        the    Unitarian     Universalist       Legislative

Ministry    of     New     Jersey     ("UULM-NJ"),      and   three    individuals

challenge the Department of Higher Education's award of public

grants     to    two     sectarian     institutions     of    higher    education.

Specifically,          appellants     contest     two    grants       for   capital

improvements totaling over $10 million the Department awarded to

Beth Medrash Govoha ("the Yeshiva"), and three grants totaling

$645,323    it    awarded      to    Princeton    Theological     Seminary     ("the

Seminary").




                                          2                                 A-4399-13T2
    Appellants contend the grants violate Article I, Paragraph

3 of the New Jersey Constitution because the recipients will use

the grant funds to support religious instruction, including the

preparation      of     candidates     for   ministries     respectively          in   the

Jewish and Christian faiths.                 Appellants further contend that

the grants violate other provisions in the State Constitution.

Lastly,     they      argue    the      grants    violate       the       Law    Against

Discrimination        ("LAD"),       N.J.S.A.    10:5-1   to    -49,      because      the

recipient institutions engage in gender-based or religion-based

discriminatory practices.

    As we explain in this opinion, the constitutional analysis

under Article I, Paragraph 3 is controlled by the New Jersey

Supreme Court's opinion in Resnick v. East Brunswick Township

Board of Education, 77 N.J. 88 (1978) (construing Article I,

Paragraph    3     to    bar   public      schools   from      allowing         religious

organizations to use their school facilities in the evenings and

on weekends for religious instruction unless the users fully

reimburse the public for the costs of providing such access).

Applying that binding precedent here, we conclude that Resnick

compels the invalidation of these grants of public funds to the

Yeshiva and the Seminary.

    In doing so, we acknowledge that the intended meaning of

Article   I,     Paragraph       3    of   the   Constitution         –   a     provision




                                             3                                   A-4399-13T2
included in our State's first Constitution in 1776 and readopted

in the 1844 and 1947 Constitutions – is not entirely clear.                             We

also are mindful that the Court did not discuss the provision's

history at length in Resnick.                Nevertheless, we 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.

                                            I.

The Bond Act and the Grant Process

      On    August    7,    2012,     the    Governor       signed       into   law    the

"Building Our Future Bond Act" ("GO Bond Act"), L. 2012, c. 41,

a   measure   dedicated       to    capital       improvement      projects     for    New

Jersey     institutions       of    higher       education.       Pursuant      to    that

initiative, a $750 million public referendum in November 2012

authorized    the     State    to    issue       and    direct    bond    proceeds     for

capital improvements to the higher education sectors.

      The   Governor       thereafter       authorized      the    Secretary     of    the

Department of Higher Education to promulgate rules and approve

grants that would make use of GO Bond Act funds, along with four

other    State-supported       bond     programs        administered       by   the    New

Jersey Educational Facilities Authority ("NJEFA").                         The State's

commitment    to     capital       investment      in   higher    education     through




                                             4                                  A-4399-13T2
these    initiatives         totaled      $1,316,905,000.            That     amount     was

comprised       of    $750    million       under       the   GO     Bond     Act     Fund;

$191,905,000 under the Higher Education Capital Improvement Fund

("CIF");    $220      million      under    the    Higher     Education        Facilities

Trust    Fund    ("HEFT");        $55    million    under     the    Higher    Education

Technology Infrastructure Fund ("HETI"); and $100 million under

the Higher Education Equipment Leasing Fund ("ELF").1

     A "Solicitation for Grant Applications" for these programs

was issued by the Secretary for what was known as the "Spring

2013 Cycle."         The Solicitation explained that GO Bond Act funds

would    provide      grants       for    projects      to    construct       and     equip

academic    facilities,           and    would     be   allocated       by    sector       as

follows:     $300 million for public research universities; $247.5

million for state colleges and universities; $150 million for

county     colleges;        and    $52.5     million      for       private     nonprofit

institutions with endowments less than $1 billion.                           Institutions

receiving       GO   Bond    Act    funds    would       be   required        to    provide

matching funds equal to twenty-five percent of the cost of the

proposed project.           See N.J.A.C. 9A:18-1.3(c).




1
  Because the issues raised in this appeal involve grants made
only under the GO Bond Act and the HETI Act, those are the only
programs that we discuss in any detail.



                                             5                                     A-4399-13T2
    The Solicitation announced that applications for GO Bond

Act funds would be reviewed and compared with others within each

sector pursuant to the following criteria:

         1.   the advancement of student education in
         the State of New Jersey;

         2.   the   improvement   and   expansion        of
         educational opportunities for students;

         3.   the promotion of academic research
         excellence, workforce readiness and the
         enhancement of the State's academic and
         economic competitiveness and prosperity by
         assisting in the production of a highly
         skilled workforce;

         4.   the    promotion        of   innovation    and
         improvement   in   the       delivery   of   higher
         education;

         5.   the advancement of study at all levels
         in science, technology, engineering and
         mathematics education;

         6.   consistency   with        the   institution's
         educational mission;

         7.   consistency   with   the        institution's
         long-range facilities plan;

         8.   the cost-effectiveness of the Project;

         9.   consistency of the Project with the
         State's goals and priorities for development
         and redevelopment, including the promotion
         of industry clusters, job and business
         opportunities in areas designated by the
         State for growth, transportation choice and
         efficient mobility of goods and people, and
         promotion of access to opportunity for all
         New Jersey residents;




                                  6                            A-4399-13T2
           10. the demonstrated commitment of the
           institution over the past ten years to
           appropriate    maintenance   of   facilities
           previously funded by the State of New Jersey
           grant programs; and

           11. serving the best interests of             higher
           education in the State as a whole.

These   criteria   mirror   those   enumerated   under   N.J.A.C.    9A:18-

1.6(b).

    The Solicitation explained that HETI funds were available

to public or private nonprofit institutions of higher education

eligible to receive State aid.           Grants would be awarded for

technology infrastructure projects that "advance the institution

toward the next level in establishing integrated voice, video

and data networks."     See N.J.A.C. 9A:13-1.3(a)(4).       Applications

for HETI funds would be reviewed under the same criteria as

those considered under the GO Bond Act, with the exception that

"the demonstrated commitment of the institution over the past

ten years to appropriate maintenance of facilities previously

funded by the State of New Jersey grant programs" was not a

factor.   See N.J.A.C. 9A:13-1.5(b).       Institutions receiving HETI

funds would be required to provide matching funds equal to the

amount of the grant requested.       See N.J.A.C. 9A:13-1.3(a)(6).

    In response to the Solicitation, forty-six higher education

institutions   submitted    applications    proposing     more    than    250

capital improvement projects totaling $2.1 billion.               On April



                                     7                              A-4399-13T2
29,     2013,     the    Governor      announced        that    the   Secretary     had

transmitted to the Legislature a list of 176 projects that were

recommended for awards.             Because the Legislature failed to take

action to preclude the grants within the prescribed time limits,

the   list      was   deemed    approved    and    authorized.         See    N.J.A.C.

9A:13-1.6(c) (as to HETI); N.J.A.C. 9A:18-1.7(d) (as to GO Bond

Act).

Beth Medrash Govoha ("the Yeshiva")

      The Yeshiva is a private institution of higher education

located      in   Lakewood      that     specializes       in    advanced     Talmudic

scholarship.          According to its grant applications, the Yeshiva

"is an independent institution rooted in Jewish tradition.                            It

has     no   formal      affiliation       to     any     hierarchical       religious

organization."

      The    Yeshiva      has     over   6000     undergraduate        and    graduate

students.             According     to    its     applications,        the     Yeshiva

"represents 59% of Lakewood's families and 74% of Lakewood's

married couples."         The Yeshiva asserts that its emergence in the

Lakewood community and the jobs it has provided have contributed

significantly to the area's economic and demographic growth over

the last twenty years.

      The Yeshiva offers an undergraduate program culminating in

a Bachelor of Talmudic             Studies degree.             The twelve required




                                           8                                  A-4399-13T2
courses in the undergraduate curriculum all involve the study of

the    Talmud.     The     Yeshiva   describes        the     Talmud   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."

       The   Yeshiva       acknowledged        that   its     curriculum    includes

"religious study."          Its grant applications defined the term as

"the    study    of    religious     beliefs,         behaviors,       texts,    [and]

institutions" because "portions of the curriculum may utilize

texts with religious origins."                 Undergraduates at the Yeshiva

may take elective courses in Ethics and Hebrew Language and

Literature.      The Yeshiva offers graduate programs conferring a

Master of Talmudic Studies, a Graduate Talmudic Diploma, or an

Advanced Graduate Talmudic Diploma.                   There is also what the

Yeshiva characterizes as a "small program available to advanced

students" that leads to ordination as a rabbi.                      According to the

Yeshiva, fewer than 5% of its enrolled students participate in

its ordination program.

       Admission      to   the   Yeshiva       is   limited    to    qualified   men,

regardless of their religious affiliation, national or ethnic

origin, age, race, color, or disability.                 The faculty are all of

the Jewish faith, although that is not a formal requirement.

The Yeshiva staff are not all of the Jewish faith, however, and




                                           9                                 A-4399-13T2
the   Yeshiva's      employment      policy      asserts     that    it    "does    not

discriminate    on    the    basis    of    race,    color,       creed,     religion,

gender,     pregnancy,      marital     status,       age,     national        origin,

ethnicity, ancestry, handicap or disability, atypical hereditary

cellular or blood trait, or service in the Armed Forces of the

United States or status as a veteran of the Vietnam Era."

      The   Secretary       recommended         awarding    two     grants     to   the

Yeshiva from GO Bond Act funds totaling $10,635,747.                         The first

grant was for the construction of a new library and research

center that would also house the Department of Hebrew Studies,

the   Department     of   Adult   and      Continuing      Education,      internship

advisors, career and academic counselors, and a writing resource

center.     The second grant was for the renovation of an existing

building to create fourteen new classrooms, a reference library,

a computer room, faculty offices, and academic support space.

      In July 2013, the Secretary formally notified the Yeshiva

that its applications for grant funding had been approved.                             A

corresponding grant agreement was ultimately executed between

the Yeshiva and the NJEFA in June 2015 while this case was

pending.

Princeton Theological Seminary ("the Seminary")

      The Seminary is a private institution of higher education

in Princeton, having what it describes as "an historical and




                                           10                                 A-4399-13T2
continuing     relationship    with   the   Presbyterian       Church    (USA)."

The Seminary's stated mission is to "prepare[] 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."                  According

to its Mission Statement, the Seminary

           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.     This
           tradition shapes the instruction, research,
           practical training, and continuing education
           provided by the Seminary, as well as the
           theological scholarship it promotes.

      As a professional and graduate school, the Seminary offers

degrees   in    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).                The school also offers

continuing education programs through conferences, initiatives,

institutes, summer courses, and inter-institutional agreements.

      The Seminary acknowledges that "[r]eligious instruction is

a   mandatory   component     of   [its]    Master    of    Divinity    program;

students in the other Masters programs and the Ph.D. program can




                                      11                                A-4399-13T2
arrange       their    course      work     and     may       opt    out     of    religious

instruction      altogether."           A   review      of     the    Seminary's      course

catalog reveals comparatively few offerings that do not entail

study of the Bible; religious literature; hymns; art or poems;

religious      philosophy;        spirituality;         the     ecumenical         movement;

Christian       ethics;        evangelism;        pastoral      care;        ministry;       or

denominational doctrines.

    According to the Seminary, it "does not discriminate on the

basis    of    race,    color,        ancestry,     sex,       age,       marital     status,

national or ethnic origin, sexual orientation, gender identity,

or disability in its admissions policies."                          As to religion, all

degree students and faculty at the Seminary are expected to be

of the Christian faith.            However, staff and participants in non-

degree     programs       at    the    Seminary         are    not        required    to     be

Christians.

    The        Secretary       recommended        awarding          the    Seminary     three

grants from HETI funds totaling $645,323.                       The proposed projects

would (1) upgrade the IT infrastructure of the Luce Library to

allow    for    expanded       historical     and       theological         research;      (2)

install technology in a training room to allow for on-site and

distance       training    of     students        and   staff;        and    (3)     equip    a

conference room with multimedia functionality to expand online

education and strengthen interaction with other universities.




                                            12                                       A-4399-13T2
      The Seminary indicated in its grant application that the

Luce Library is open to any member of the public, whether or not

he or she is affiliated with the Seminary.                            Such persons may

access   the    library's        collections         for    educational,      religious,

historical, or other purposes.                     According to the Seminary, the

enhancement     of    the    library's         IT     infrastructure      would      "make

available sizeable portions of the Library collection in digital

form to users located anywhere in the world via the internet."

The   Seminary       planned      to     use       the     proposed    corporate-style

computer training room to train employees on commercial software

programs   such      as   Microsoft       applications,            although    the    room

potentially     could       be    used    for        software      programs    in     both

religious instruction and religious study.                      The upgrades to the

"Cooper"   conference        room      were    intended      "to    facilitate      remote

learning   as     part      of    [the    Seminary's]          continuing     education

programming, which includes religious instruction and religious

study . . . as well as non-religious subjects."2

      In July 2013, the Secretary notified the Seminary that its

application for grant funding had been approved.                              A related

grant agreement was executed between the Seminary and the NJEFA

in June 2015.

2
  The State asserts in its brief that the Seminary withdrew its
application to upgrade the conference room after it had been
approved, and only pursued its other two projects.



                                              13                                 A-4399-13T2
Other Grant Recipients

      The record indicates that several other higher education

institutions with religious affiliations received grants from

the   Secretary        as    part   of    the       2013    Solicitation,        including

approximately      $11.7       million        to    Seton       Hall    University,        $2.8

million    to    St.    Peter's     University,          and     $2.4    million      to    the

College of St. Elizabeth.                Appellants have not challenged those

other grants.          Their counsel acknowledged at oral argument that

the   constitutional          analysis        as    to     those   institutions          might

differ    from    the       analysis     of   the    present       case,      which     solely

concerns the Yeshiva and the Seminary.

This Litigation

      The ACLU-NJ, UULM-NJ, and Gloria Schor Andersen filed in

the Chancery Division a verified complaint for injunctive and

declaratory relief in June 2013, along with a request for a

temporary restraining order in July 2013, against the Secretary

and the State Treasurer.                 The complaint sought a declaration

that the State's grants to the Yeshiva and the Seminary, which

had been approved by the Secretary and were then pending before

the Legislature, violated Article I, Paragraph 3 and Paragraph 4

(what is known as the State "Establishment Clause"), and Article

VIII,    Section   3,       Paragraph     3    (what       is   known    as    the    "Public




                                              14                                      A-4399-13T2
Purpose Clause") of the New Jersey Constitution, as well as the

LAD.   No federal claims were asserted.

       The complaint sought to enjoin defendants from issuing any

check or otherwise providing the challenged funding to the grant

recipients.     The   complaint   did   not   name   the   Yeshiva   or    the

Seminary as co-defendants, and they have not sought to intervene

in this matter.3      The State denied that the grants violated the

New Jersey Constitution or the LAD.4




3
  At oral argument on the appeal, counsel represented that the
Yeshiva and the Seminary are aware of this challenge to their
respective grants, and have nonetheless chosen not to seek to
intervene.    All counsel agree that the recipients are not
indispensable parties because the funds have not been disbursed,
and the Attorney General as counsel to the Secretary and State
Treasurer is advocating the propriety of the grants consistent
with the interests of the Yeshiva and the Seminary.      See R.
4:28-1(a).
4
  In defense to the LAD claim, the State relies on the LAD's
religious exemption in N.J.S.A. 10:5-5(l) ("Nothing herein
contained shall be construed to include or apply to . . . any
educational facility operated or maintained by a bona fide
religious or sectarian institution[.]"). Appellants, meanwhile,
contend that the religious exemption is unavailing to authorize
grants of public funds to private institutions that practice
discrimination, pointing to footnote seven of the New Jersey
Supreme Court's opinion in Dale v. Boy Scouts of America, 160
N.J. 562, 593 n.7 (1999), rev'd on other grounds, 530 U.S. 640,
120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000), which observes that
"New Jersey governmental entities are . . . bound by the LAD,"
and that "[t]heir sponsorship of, or conferring of special
benefits on, an organization that practices discrimination would
be prohibited."   We do not reach this statutory issue of first
impression because we nullify the grants in this case on another
legal basis.



                                   15                                A-4399-13T2
      In   July    2013,       the    trial     court     entered    a    consent     order

memorializing       the    parties'        agreement       that     appellants        would

withdraw    their       request      for   a    temporary     restraining         order    in

consideration      for    the     State's       promise    to     provide    appellants'

counsel    with    fourteen       days'    advance        written    notice       prior    to

disbursing any funds under the challenged grants.                             Appellants

thereafter      filed     an    amended        verified    complaint       adding     Penny

Postel and William Flynn as plaintiffs.

      Subsequently, the trial court transferred this dispute to

the jurisdiction of this court pursuant to Rule 2:2-3(a)(2).

During the briefing stages of this transferred appeal, a panel

of this court denied appellants' motion to remand this matter

for   additional        fact-finding           to   explore     more      fully    certain

details    of     the    grant       review     process     and     the    programs       and

activities at the two recipient institutions.                       Meanwhile, as was

confirmed at oral argument, the disbursement of the grant funds

continues to be held in abeyance.5




5
  It has come to our attention that the Secretary had issued
another solicitation that closed in January 2016, which appears
to be essentially identical to the content of the Spring 2013
Solicitation. The 2016 solicitation is not before us.



                                               16                                  A-4399-13T2
                                          II.

                                           A.

       As their primary argument, appellants contend that the GO

Bond and HETI grants violate Article I, Paragraph 3 of the New

Jersey Constitution because the funds will be used to support

the "ministries" of the Yeshiva and the Seminary.                       They assert

that    both   the     Yeshiva     and    the    Seminary   are,     fundamentally,

religious      schools      because       they     train    ministers      of      their

particular     sects,      and    provide       religious   instruction         to    all

degree students.           They contend that if properly construed and

applied, Article I, Paragraph 3 prohibits the use of New Jersey

tax     revenues     for    the     maintenance       of    a   religious        group,

regardless of whether such subsidies are provided on an equal

basis to other organizations.               To support that contention, they

rely on the Supreme Court's decision in Resnick, supra, 77 N.J.

88, as well as the history of Article I, Paragraph 3 itself.

       The State responds that the grants do not violate Article

I, Paragraph 3 because they will be used to fund classrooms,

libraries, and computer and audio-visual equipment, not places

of worship or "ministries."               Presenting its own review of the

history of the New Jersey Constitution's religion clauses, the

State    maintains      that     the     government    is   not      precluded       from

providing      funds    for      religious       instruction    or    to   sectarian




                                           17                                   A-4399-13T2
schools.      Further,     the    State    contends    that   appellants          read

Resnick too broadly, and that the Court's decision in that case

must be interpreted in light of the generally more stringent

judicial     approach     to     evaluating     public      aid    to        religious

organizations that existed at the time thirty-eight years ago.

                                          B.

       We   begin   our   examination      by   focusing    upon       the    text    of

Article I, Paragraph 3:

                  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 (emphasis added).]

"This paragraph is nearly verbatim from Article XVIII of the

1776 Constitution.        It appeared as Article I, Section 3, in the

1844    Constitution       and     was     carried     over       in     the      1947

Constitution."        Robert      F.   Williams,      The   New    Jersey        State

Constitution, A Reference Guide 32 (1997).

       Given the haste and informality surrounding the adoption of

the 1776 Constitution while British warships were gathering off



                                          18                                  A-4399-13T2
the coast of Sandy Hook,6 little is known of the intent of its

drafters.      Id. at 1-5; John Bebout, Introduction to Proceedings

of the New Jersey State Constitutional Convention of 1844, at

xvi   (N.J.    Writers'    Project,   Work    Projects       Admin.   ed.,     1942)

("1844    Proceedings");       1   Proceedings        of      the     New    Jersey

Constitutional Convention of 1947, at v ("1947 Proceedings").

Although the 1776 Constitution contained no separate Bill of

Rights,   it    included    important       rights    within    its    structural

provisions.       Williams, supra, at 2.             In particular, Articles

XVIII and XIX of the 1776 Constitution "reflected early notions

of religious freedom."         Id. at 3; see also 1844 Proceedings,

supra, at xv (noting that "religious liberty was guaranteed,

except to papists").

      Article XVIII was incorporated into the Bill of Rights of

the State Constitution of 1844 after amendments proposing to

place    limits    on   individuals'    "dictates       of    conscience"        were

briefly debated and then rejected.             1844 Proceedings, supra, at

52, 141-42.       No other discussion of the provision, which became




6
  See John Bebout, Introduction to Proceedings of the New Jersey
State Constitutional Convention of 1844, at xvi (N.J. Writers'
Project, Work Projects Admin. ed., 1942) (citing Charles R.
Erdman, Jr., The New Jersey Constitution of 1776, at 49
(Princeton Univ. Press, 1929)).



                                       19                                   A-4399-13T2
Article    I,    Section     3,     was    apparently       preserved     in   the    1844

record.7

       However, there was considerable discussion in 1844 about

drafting   a    constitutional            article    to   create     "common     schools"

that would be free for all classes and sects.                          Id. at 345-47,

405.     Amendments were proposed that would prohibit the School

Fund8 from being used to promote sectarian views of religion.

Debate focused on the sectarian strife that might arise from the

creation of such common schools.                    Id. at 345-47, 400-05, 550.

Even though no article was ultimately adopted to create common

schools, these discussions are significant because they arguably

support the State's contention that the framers of the 1844

Constitution did not interpret Article I, Section 3, as barring

the    State    from    providing     public        funds   to     sectarian     schools.

Rather,    it   is     at   least    some     evidence      that    the   1844    framers

7
  The 1942 publication, sponsored by the New Jersey State House
Commission, summarized the 1844 proceedings after a gap of
almost a full century. The volume is derived from stenographic
reporters' notes of the debates that were published daily in
newspapers during the 1844 Convention. Williams, supra, at 143.
8
  The State School Fund was established by the Legislature in
1818.   L. 1817, c. 26, as amended by L. 1818, c. 100; see
Everson v. Bd. of Educ., 133 N.J.L. 350, 353 (E. & A. 1945)
(discussing history of the School Fund), aff'd, 330 U.S. 1, 67
S. Ct. 504, 91 L. Ed. 711 (1947). The permanency, proper use,
and administration of the School Fund was ensured through the
adoption of a constitutional provision in 1844. N.J. Const. of
1844, art. IV, § 7, ¶ 6.




                                             20                                  A-4399-13T2
believed      a    specific    constitutional         amendment     was     required     to

prevent such a result.

       Free public schools were once again a topic of deliberation

by the 1873 New Jersey Constitutional Commission.                          See Peter J.

Mazzei    &   Robert      F.   Williams,     "Traces         of   Its    Labors":       The

Constitutional Commission, The Legislature, and Their Influence

on the New Jersey Constitution, 1873-1875, at 117-74 (2012).9

The    1873       Commission     considered        an    amendment        to    the    1844

Constitution that would provide for free, public schools, and

debated the inclusion of a prohibition that "'[n]o money . . .

be paid to any creed, religion, church or sectarian association

. . . .'"          Id. at 145 (quoting The Constitutional Commission,

Daily St. Gazette, Oct. 30, 1873).                   Further, the 1873 Commission

discussed amendments defining "free schools" or "public schools"

as excluding "schools controlled by or under the influence of

any creed or religious society, or denomination whatever," and

prohibiting        the   appropriation       of      money    for   the     use   of    any

seminary      or    other      institution      of      learning        "when   the    said

institution        is    controlled   by     any      creed,      sect     or   religious

society."         Id. at 148 (quoting The Constitutional Commission,

Daily St. Gazette, Nov. 14, 1873).




9
    Available at https://statecon.camden.rutgers.edu/books.



                                           21                                     A-4399-13T2
       As Mazzei and Professor Williams have commented:                             "It is

absolutely clear, based on the [1873] Commission's proceedings

and    report,      that     the    Commission         ultimately          agreed      with

[Commissioner      Jacob     L.]   Swayze's     original     intent        that     public

schools     were    free     and   that    religious,        private        or    college

preparatory schools would not be eligible for state funds."                             Id.

at 154 (emphasis added).           Hence, the Commission's report to the

1874     Legislature       proposed    adding        text   to   the       School     Fund

provision, N.J. Const. of 1844, art. IV, § 7, ¶ 6, establishing

public    schools    and    defining      "free      schools"    as    not       including

religious schools.         Mazzei & Williams, supra, at 159.

       Senators took issue with various aspects of the proposed

amendment, but there appeared to be no recorded objection to the

exclusion of sectarian schools from receiving school funds.                             Id.

at 161, 166, 168.          However, the amendment that ultimately passed

in 1874 by the Legislature, which provided for a thorough and

efficient system of "free public schools," contained no specific

reference to sectarian schools.10                 Id. at 171.              The Catholic

Church    nevertheless       interpreted       the    amendment       as   barring      the




10
   The "thorough and efficient" clause that was passed by the
Legislature and adopted after a special election remains a vital
part of the current constitution. N.J. Const., art. VIII, § 4,
¶ 1.    See generally Abbott v. Burke, 100 N.J. 269 (1985);
Robinson v. Cahill, 69 N.J. 133 (1975).



                                          22                                      A-4399-13T2
diversion of public funds to parochial schools and strenuously

opposed its adoption in the 1875 election.                  Id. at 211-213.

       Like the drafters of the Constitution of 1844, the members

of     the      1873    Constitutional      Commission       never      conclusively

resolved whether Article I, Section 3 prevented the State from

providing funds to religious schools.                  Rather, they sought to

attain that result by limiting the fund recipients to "free

public schools."

       A     century    later,    the    delegates     at    the     Constitutional

Convention of 1947 incorporated               Article I, Section 3 of the

Constitution of 1844 into the 1947 Constitution's final draft,

doing      so    with    little    discussion.         3    Proceedings      of    the

Constitutional Convention of 1947, at 167.                   Similar to the 1844

convention, however, there were deliberations in 1947 concerning

state        funding      of      religious      educational            institutions,

particularly with regard to busing students to parochial school.

5 Proceedings of the Constitutional Convention of 1947, at 791-

807.       As at the prior convention, these deliberations in 1947

focused         on   financial    matters     rather       than    on    fundamental

religious liberties.

       A proposal to bar the State from expending public money to

aid any school or institution under the control of any religious

denomination was originally submitted at the 1947 Convention by




                                         23                                  A-4399-13T2
a citizens' group to the Bill of Rights Committee.                            However,

that   proposal    was     transferred         to    the   Taxation     and    Finance

Committee.      Id.   at    791-92.       During      public    comment       over   the

proposal, a representative of the Presbyterian Church, William

E. Dickey, asserted that Article I, Paragraph 3 prohibited the

use of public funds to support the Catholic Church.                     Id. at 799.

His argument apparently provoked no action, however, and efforts

to include language expressly prohibiting the State from paying

public funds to assist religious schools died in committee.                          Id.

at 800-06.

       The State argues that "[i]t is clear that the framers of

the 1947 [C]onstitution did not interpret [Article I, Paragraph

3] to prohibit aid to sectarian schools.                       Had that been the

case, there would have been no need for Committee discussion on

whether    to     include    such     a        new    provision    in     the        1947

Constitution."        Appellants      respond         that   the   1947       proposed

amendment to prohibit funding of religious schools was "rejected

because it was not deemed necessary, as aid to religious schools

was already prohibited" by Article I, Paragraph 3.                        Appellants

partly base that contention on a statement of the Committee

Secretary recorded in the 1947 proceedings, noting that "[t]he

parochial school system [had] developed without any public aid




                                          24                                   A-4399-13T2
whatsoever and it will continue to develop without any public

aid." Id. at 805.

    This mixed constitutional history does not easily reveal

whether    Article   I,   Paragraph     3    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.    The parties have each asserted substantial competing

interpretations.

    The State presents a plausible argument that the provision

was not intended to ban such public grants and expenditures

because the 1844 Delegates and 1873 Commissioners were concerned

that funds could still be diverted to sectarian schools, and

therefore took care to define "public schools" in such a way as

to exclude institutions controlled by religious sects.                      Later,

the 1947 Delegates seemingly rejected the notion that Article I,

Paragraph    3   prohibited   public        funding     of   sectarian     schools,

first by transferring the proposed amendment barring religious-

school aid from the Bill of Rights Committee to the Tax and

Finance Committee, and then by discussing the merits of the

proposed amendment without ever expressing an opinion in the

record that it was unnecessary.

    The     Committee     Secretary's       remarks     in   1947    are   open    to

differing reasonable interpretations.              The Committee Secretary,




                                      25                                   A-4399-13T2
who was a Catholic, listened to several commentators condemn the

Catholic Church and accuse parochial schools of invading the

public purse.        When a speaker asked the Committee Secretary "why

is your church asking for [transportation aid]?" the Committee

Secretary responded that the parochial schools were doing fine

and the Catholic Church wanted no public control or supervision.

Id. at 805-06.        The Committee Secretary added that the Catholic

people simply believed that their children were entitled to free

public-funded bus transportation.                 Id. at 806.         His statements

could reasonably be construed to signify a belief that public

funding      of   sectarian    schools      was     not    already    prohibited       by

Article I, Paragraph 3.             Such an interpretation is consistent

with   the    Committee    Secretary's          assertion     that    students      were

entitled to free transportation to parochial schools.

       On the other hand, appellants have presented substantial

arguments in favor of the hypothesis that the 1844 Delegates,

the 1873 Commissioners, and the 1947 Delegates did not adopt any

proposals     to    explicitly      ban    public    aid    to    religious    schools

because those respective drafters implicitly were satisfied that

Article      I,    Paragraph   3,    as    originally       drafted    by   the    1776

framers, already prohibited such financial support.                           Although

the    Committee       Secretary      in    1947     was     in    favor      of   free

transportation to parochial schools, he repeatedly responded to




                                           26                                  A-4399-13T2
constitutional           criticisms          raised         by        various        speakers      by

questioning whether such transportation could even be considered

public "aid" or "support" of those schools or their affiliated

religions.          Id. at       797-98,          800-01,        804,        806.    In    essence,

appellants contend that years later the Court in Resnick, which

we     discuss          infra,        appropriately              enforced           the    intended

prohibition        of    Article       I,    Paragraph           3    by     striking      down   the

public subsidy afforded to sectarian groups in that case.

       We    do    not    resolve          this    historical           dispute        here.      Our

reluctance        to     do    so     is    founded         in       part    by     principles      of

statutory         construction.             Generally,           courts        should      exercise

caution     when       considering         the     import        of    a     legislative       body's

rejection of proposed amendments to a codified scheme.                                     Although

the failure to adopt an amendment can, at times, indicate a

conscious decision to reject the amendment's provisions, see,

e.g., State v. Crawley, 90 N.J. 241, 246 (1982) (finding that

the    Legislature's           rejection          of    a   proposed          amendment      to   the

criminal code indicated "a conscious decision" not to include

the provision), such inaction conversely may signal that the law

as written already achieves the sought-after objective.                                           See

generally 2A Norman J. Singer & J.D. Shambie Singer, Sutherland

Statutory Construction § 48:18 at 633-37 (7th ed. 2014).                                           We

need   not    decide          which    side's          historical           argument      concerning




                                                  27                                        A-4399-13T2
Article I, Paragraph 3 is more persuasive because the Supreme

Court    has    already     adopted   a     dispositive       construction          of   the

provision in Resnick.

    The        relevant    circumstances          in    Resnick     were    as    follows.

Defendant, the East Brunswick Township School Board, had a long-

standing policy of allowing local groups, including religious

organizations, to rent its school facilities during non-school

hours at below cost.           Resnick, supra, 77 N.J. at 93-94.                    Various

religious       organizations        used        the    facilities         for   worship,

religious instruction, prayer meetings, social gatherings, and

Hebrew     language       classes.        Id.      at    94-95.          Some    religious

artifacts       and   Sunday    School       materials        were      stored      at   the

schools.       Id. at 95.

    The plaintiff in Resnick filed suit to enjoin the school

board's practice of allowing the religious organizations to use

the public school facilities below cost.                      The plaintiff argued

that such action violated Article I, Paragraph 3's prohibition

against     public    expenditures          in    support      of       religion.        The

plaintiff also alleged violations of the Establishment Clause of

the First Amendment of the United States Constitution and that a

statutory       provision,     N.J.S.A.          18A:20-34,       did     not    authorize

public     school     buildings       to     be        used   for       such     religious

activities.




                                            28                                    A-4399-13T2
      The trial judge in Resnick found that N.J.S.A. 18A:20-34

neither contemplated nor allowed the public schools to be used

by religious groups for worship services.                    Id. at 96; see also

Resnick v. E. Brunswick Twp. Bd. of Educ., 135 N.J. Super. 257,

262 (Ch. Div. 1975).           However, the judge did find that the

statute permitted the schools to be used for Hebrew instruction

and Sunday School.        Resnick, supra, 77 N.J. at 96.                With respect

to the latter, the judge concluded that even such a limited

instructional activity involved an outlay of taxpayer funds for

utilities, and thereby violated the constitutional prohibition

in   Article   I,    Paragraph    3.        Ibid.      To    cure   the    statute's

constitutional       infirmity,      the   judge     ruled   that   the    religious

organizations were obligated to pay rent commensurate with the

school district's actual costs for utilities, administrative and

janitorial services.

      The    trial    judge    further          concluded    that   the    religious

organizations       use   of   the     schools       also    violated     the   First

Amendment.     Id. at 97; see also Resnick, supra, 135 N.J. Super.

at 268.     On this issue, the judge found the federal constitution

more restrictive than the state constitution and required the

board's program, even at rental rates equaling costs, to cease

within a year.        As a caveat, the judge noted that his decision

did not nullify leases of public school facilities to religious




                                           29                               A-4399-13T2
bodies at competitive market rates, nor did it bar the temporary

use of school facilities by religious groups during emergencies,

such as after a fire or flood.           Resnick, supra, 77 N.J. at 97.

This court affirmed the trial judge's decision, substantially

for the reasons he expressed in his published opinion.                  Ibid.;

see also Resnick v. E. Brunswick Twp. Bd. of Educ., 144 N.J.

Super. 474 (App. Div. 1976).

    The Supreme Court largely upheld the trial judge's decision

in Resnick, although a majority of the Justices voted to modify

the court's ruling to allow religious organizations to continue

to use the school district's facilities on a temporary basis so

long as those groups "fully reimburse school boards for related

out-of-pocket expenses[.]"       Resnick, supra, 77 N.J. at 120.            The

majority    found   that   the   trial    court   had   gone    too   far     in

requiring the sectarian groups to pay a commercial rental rate

and in placing a one-year limit on their continued use of the

school premises.     Ibid.

    Although Justice Clifford and Judge Conford dissented from

certain    facets   of   the   majority's   analysis    in     Resnick,     the

members of the Court were unanimous in striking down the school

board's existing leasing arrangement.             Justice Clifford stated

that the trial court's         ruling, which this court had upheld,

should be affirmed without modification, reinstating the market-




                                    30                                A-4399-13T2
value rental charge requirement because he considered the charge

mandated by the federal Establishment Clause to avoid improper

entanglement of church and state.                      Id. at 121-36 (Clifford, J.,

dissenting).       Judge Conford, sitting on the Court by temporary

designation,       went      even     further,         opining      that    "any   use     of

publicly     built      and      maintained          buildings,       especially      public

schools,     for       the    [religious             groups']      stated     purposes     is

antithetical to the fundamental principle of separation between

church     and    state       embedded      in       both    the    federal     and    State

constitutions."         Id. at 137 (Conford, J., dissenting).

    The     majority         opinion       in    Resnick     ruled     that     Article   I,

Paragraph 3, when "fairly read, specifically prohibits the use

of tax revenues for the maintenance or support of a religious

group."     Id. at 102.          The majority cautioned that the provision

should not be carried to "an extreme," and the State need not

withhold    police      or     fire    protection           because    of   a   property's

sectarian use.          Id. at 103 (citing Clayton v. Kervick, 56 N.J.

523, 529 (1970), vacated on other grounds, 403 U.S. 945, 91 S.

Ct. 2274, 29 L. Ed. 2d 854 (1971)).                         The majority provided no

further analysis of the issues under Article I, Paragraph 3,

other     than    to    repeat       its    holding         under     the   provision      as

signifying       that     "the      state       constitution        does    require      that

religious organizations be singled out among nonprofit groups in




                                                31                                 A-4399-13T2
general    as    being   ineligible      for    certain    benefits        which      are

partly    subsidized     by    tax-generated        funds[.]"        Id.   at     103-04

(emphasis added).11

       No reported New Jersey cases since Resnick have interpreted

the    "religious    aid"     prohibition      of    Article    I,    Paragraph         3.

Other reported state decisions discussing Article I, Paragraph 3

have arisen instead in the context of claimed violations of free

exercise of religion and, when doing so, interpreted                             it co-

extensively with the Federal Free Exercise Clause, U.S. Const.

amend. I.       See, e.g., S. Jersey Catholic Sch. Teachers. Org. v.

St. Teresa of the Infant Jesus Church Elementary Sch., 150 N.J.

575,    593-94    (1997)      (finding   that       allowing    lay    teachers        to

unionize did not infringe on a parochial school's free exercise

of religion); State v. Perricone, 37 N.J. 463, 471-74 (finding

that the administration of a blood transfusion to a child in

contradiction to the parents' deeply held religious beliefs did

not infringe on the parents' free exercise of religion), cert.


11
   In the portion of the majority's opinion that followed, the
Court noted that the State Constitution's version of the
Establishment Clause in Article I, Paragraph 4 is "less
pervasive" than the federal counterpart provision, and ruled
that the school board's leasing arrangements did not "appear to"
violate that provision, "since no one religious sect was
preferred over other sects." Id. at 104. Because our decision
concludes that the grants to the Yeshiva and the Seminary
violate Article I, Paragraph 3, we need not address the separate
issues posed by appellants under Article I, Paragraph 4.



                                         32                                     A-4399-13T2
denied, 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962);

Bethany Baptist Church v. Deptford Twp., 225 N.J. Super. 355,

362-63 (App. Div. 1988) (finding that requiring a church to pay

tax on property acquired after the yearly assessment date did

not impede its free exercise of religion); see generally William

F. Cook, Note, The New Jersey Bill of Rights and a "Similarity

Factors"      Analysis,       34   Rutgers       L.J.     1125,     1137-41     (2003)

(suggesting that Article I, Paragraph 3 may be more pervasive

than   its    federal    counterpart       and    thus       deserving   of   distinct

analysis).

       The    federal    court     had    occasion      to     discuss   Resnick      and

Article      I,   Paragraph    3   in    Pope    v.     East    Brunswick     Board   of

Education, 12 F.3d 1244 (3d Cir. 1993).                         In Pope, a student

challenged a school board's refusal to certify her Bible Club as

a student organization.            Id. at 1245.         After concluding that the

board's      action     violated    the     Federal       Equal    Access     Act,     20

U.S.C.A. §§ 4071-74, the Third Circuit briefly addressed the

board's argument that the costs it would incur from recognizing

the Bible Club would violate Article I, Paragraph 3 of the New

Jersey Constitution.           Id. at 1256.           Relying on the holding in

Resnick, the Circuit noted that New Jersey courts have held that

"off-hours use of school facilities by church groups did not

offend the state constitution."                 Ibid.        The Circuit then found




                                           33                                  A-4399-13T2
that the incidental cost of providing space for student meetings

was a de minimis expenditure of public funds.12               Ibid.

      Because the millions of dollars collectively involved in

the present case are surely not "de minimis," the reasoning in

Pope is not instructive.           Pope does reflect, however, that the

federal court recognized our Supreme Court's opinion in Resnick

as setting forth the authoritative interpretation of Article I,

Paragraph 3.

      The State attempts to distinguish Resnick from this case by

arguing that the grants to the Yeshiva and the Seminary would

benefit college and graduate students, who it asserts are not as

susceptible to religious indoctrination as the elementary school

students who used the East Brunswick public school facilities.

The   State    also       argues   that        providing   money    for   capital

improvements       does   not   equate    to     "maintaining   a   minister      or

ministry"     as    those    terms   are        commonly   understood     in    our

contemporary times.         But neither of these considerations was a

factor in Resnick, where the facilities were used both for the

religious instruction of children and for adult worship, prayer

meetings, and social gatherings.               Resnick, supra, 77 N.J. at 94-

12
   It is questionable whether the holding in Resnick truly
supports the Pope court's conclusion, since the difference
between the hourly rent charged and actual out-of-pocket costs
in Resnick was only about $2.25, which is arguably a de minimis
expense. Resnick, supra, 77 N.J. at 94 n.1.



                                          34                              A-4399-13T2
95.    Moreover, the Court made no analytic distinction in Resnick

that hinged upon the ages of the users, even if we were to agree

with     the    debatable         proposition       that     college       and    graduate

students       are     not        particularly       susceptible           to    religious

indoctrination.

      The school classrooms in Resnick did not lose their non-

sectarian character simply because they were used after hours at

times for religious purposes. At least one of the uses the Court

identified       in    Resnick      —    Hebrew     language      instruction       —    was

arguably non-religious in nature.                  However, it was the sectarian

nature of the groups renting the space for such instruction that

was    of   primary      concern        to   the   Court     in     striking     down    the

subsidized arrangement.

       Here, unlike other broad-based liberal arts colleges that

received grants, both the Yeshiva and the Seminary are sectarian

institutions.            Their     facilities       funded     by    the    Department's

grants      indisputably          will       be    used    substantially          if     not

exclusively      for     religious       instruction.         The     planned     uses    by

these sectarian institutions clearly fall within the prohibitory

ambit of Resnick.

       We      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-




                                              35                                  A-4399-13T2
funded grants to the Yeshiva and the Seminary.                          The fact that

most or many of the students at the Yeshiva and the Seminary do

not eventually become "ministers," rabbis, or other clergy does

not cure the constitutional infirmity, just as the fact that the

adults    and   children        who        received     religious      instruction       in

Resnick were laypeople did not alter the Court's analysis. Nor

does the fact that the Department's awards to these sectarian

schools     were   part     of    a        larger     competitive      grant     process

involving    non-sectarian         recipients           solve   the    problem.         The

public    school     buildings        in     Resnick     were   also    used    by     non-

religious    groups,      but    that       did   not    eliminate     the    district's

constitutional     violation          in    allowing     religious     groups     to   use

them on a subsidized basis.

    As an alternative to its attempt to distinguish Resnick,

the State argues that the Court's 1978 opinion is out of step

with more recent national trends in constitutional jurisprudence

concerning      religion,        particularly           case    law    involving        the

Establishment Clause.           More specifically, the State submits that

First    Amendment    jurisprudence           has     shifted   over    the    years     to

relax the circumstances under which government aid for religious

schools is permitted.            See generally, Ira C. Lupu et al., Pew

Research Ctr., Shifting Boundaries:                      The Establishment Clause




                                             36                                 A-4399-13T2
and Government Funding of Religious Schools and Other Faith-

Based Organizations (2009).13

      We will not speculate as to whether this asserted shift in

federal Establishment Clause jurisprudence, assuming there is

truly such a shift, affects the independent meaning and force of

the   New      Jersey        Constitution.           Indeed,   our    state    has    a   rich

tradition of sometimes construing our own state constitutional

protections        of        individual     rights      more    broadly       than   cognate

provisions in the United States Constitution.                               See Williams,

supra,      xix    (noting         that   the   New     Jersey       Supreme    Court     "has

continued          to         consider      interpretations            of      the        state

constitutional           rights      provisions        that    are    broader,       or    more

protective of citizens, than the decisions of the United States

Supreme Court interpreting the federal Constitution"); see also

State     v.      Hunt,       91   N.J.     338,      363-68    (1982)      (Handler,       J.,

concurring)        (identifying           "divergence     factors"       for    determining

whether     a     provision        within    the      State    Constitution      should      be

interpreted         more        broadly      than       its    federal        counterpart).

Moreover, the differences of viewpoint between the majority of




13
   Available            at    http://www.pewforum.org/files/2009/05/funding.
pdf.




                                                37                                   A-4399-13T2
the Justices and Justice Clifford's dissent14 in Resnick hinged

only upon the analysis under the federal Establishment Clause

and not over Article I, Paragraph 3, indicating that a proper

interpretation     of   the    latter    is    not   to   be   affected   by    the

federal jurisprudence. See Resnick, supra, 77 N.J. at 121-36

(Clifford, J., dissenting) (disagreeing only with the majority's

interpretation of the statute regarding boards of education and

the federal Establishment Clause).

      We acknowledge that the Court's discussion of Article I,

Paragraph 3 in Resnick was rather abbreviated.                  Resnick did not

delve into the extensive constitutional history that has been

presented to us by the parties and which we have canvassed in

this opinion.      We have set that history out at some length for

the   sake   of   completeness.         We    stop   there,    however,   because

Resnick remains the controlling Supreme Court precedent.

      Resnick has never been overruled or called into question by

the Court.    As an intermediate appellate court, we are bound by

the Court's holding.          See N. Jersey Media Grp., Inc. v. Twp. of

Lyndhurst, 441 N.J. Super. 70, 101 (App. Div. 2015) (citing

White v. Twp. of N. Bergen, 77 N.J. 538, 549-50 (1978)) (noting


14
  As we have noted, Judge Conford's more stringent approach in
his own dissent rested upon both the federal and state
constitutions. Resnick, supra, 77 N.J. at 137-38 (Conford, J.,
dissenting).



                                        38                                A-4399-13T2
that    "intermediate         appellate    courts     are    'bound,    under     the

principle of stare decisis, by formidable precedent'").

       For    these      reasons,    we    conclude    that     Resnick    compels

invalidation of the grants to the Yeshiva and the Seminary under

Article I, Paragraph 3 of the New Jersey Constitution.                    In light

of that disposition, we need not and do not reach appellants'

separate      claims     of   invalidity    under   Article     I,    Paragraph    4;

Article VIII, Section 3, Paragraph 3; and the LAD.                         We also

caution that our opinion should not be construed to adjudicate

fact patterns involving public grants to different religiously

affiliated institutions of higher education which have a broader

non-sectarian scope and thereby may be distinguishable from the

Yeshiva      and   the   Seminary,    including     the     other    recipients    of

grants from the 2013 Solicitation.15

       Reversed.




15
  As just one example of the limited scope of our opinion, it
should not be read to nullify under Article I, Paragraph 3
public   grants  to   broad-based  liberal arts colleges  and
universities just because they happen to have a Religious
Studies Department or a chapel on campus.



                                           39                              A-4399-13T2
