State v. Cameron

CLIFFORD, Justice,

concurring in result.

Ordinarily I would adhere to the time-honored maxim that half a loaf is better than none, express my approval of the result reached by the Court, and await another opportunity to unburden myself of the views that at once separate me from my colleagues in the majority and yet lead me to join in their judgment of reversal. The temptation to take that course is great, for the Court comes tantalizingly close to the right answer. It hints at it. But by avoiding coming to grips directly with the profound underlying issue — namely, whether a municipality can prevent residents from preaching, praying, singing hymns, and coming together in the name of their Lord *603in a private residential dwelling — the Court fails to put to rest an important and troublesome issue, and, the worse for this defendant, perhaps encourages the municipality to pursue, as it has thus far pursued with single-minded tenacity, its misguided purpose of forbidding defendant from engaging in the activity that resulted in his conviction, today mercifully reversed by this Court. I would end this bizarre episode once and for all by declaring that constitutional considerations beyond “vagueness” foreclose any use of any of Franklin Township’s powers to prohibit the foregoing activities in defendant’s home between 11:00 a.m. and noon on Sundays.

I

We were told at oral argument that Robert J. Cameron is a full-time student. He lives with his family in a single-family dwelling, owned not by his church but by him, located at 305 West Point Avenue, Somerset, Franklin Township. The property is in an R-15 zone, in which the zoning ordinance permits single-family dwellings on minimum-lot sizes of 15,000 square feet, a restriction with which the Cameron residence complies. So far as the record reveals, the structure is what one might expect to find in such a residential zone: modest in size, with living-room, dining-room, bedrooms, kitchen, bath, and a small addition in the nature of a recreation room — a home in which the Cameron family did what families do: ate, slept, grew, worked, relaxed — in short, lived.

They also prayed. In addition to pursuing his education, defendant acts as minister of a formative congregation known as the Mount Carmel Reformed Episcopal Church (Mount Car-mel). Mr. Cameron was graduated from the Theological Seminary of the Reformed Episcopal Church in Philadelphia, and was ordained as a Deacon in 1978 and as a Presbyter in 1980. The Reformed Episcopal Church is a Protestant denomination, having broken away from the Protestant Episcopal Church in 1873 after a generation of struggling between those influenced *604by the Oxford Movement (high churchmen) and the Evangelicals (low churchmen). In the 1960’s total membership of the Reformed Episcopal Church was reported at 7,085. At the end of 1980 there were 6,176 members and a total of seventy churches, generally in the areas of Illinois, Florida, New Jersey, New York, Pennsylvania, and South Carolina. At last count the clergy totalled 101.

Mount Carmel’s is hardly an affluent congregation. It cannot afford to rent a location for its services, not even the $350 per month that 1000 feet of store-front space would cost. It therefore meets in the humble residence of its minister, traditionally a practice of new congregations. One should therefore erase from the mind any image of, say, the Most Reverend and Right Honorable Robert Alexander Kennedy Runde, M.C., D.D., 102nd Archbishop of Canterbury and Primate of all England, plopping down Canterbury Cathedral in the middle of bucolic Somerset County, or of the Camerons’ neighborhood being transformed into St. Peter’s Square. We are talking about a few folks gathering at someone’s home.

Every Sunday, from 11:00 a.m. until noon, Mr. Cameron invites into his residence those with whom he shares mankind’s deepest beliefs. His purpose is to pray and sing with his invited guests, a group whose numbers have not exceeded twenty-five, and, as leader of the group, to deliver a message of inspiration. There is no amplification, no parking lot, no sign, no cross, no defacement of the neighborhood. The offensive effect of the group’s conduct, as testified to at the municipal court hearing, amounted to no more than a complaint by one of Cameron’s neighbors that singing could be heard from a distance of eighty feet away and that on one occasion a guest’s car was parked in front of his house. The might, majesty, dominion, and power of the State of New Jersey are marshalled to combat these conditions, through enforcement of a zoning restriction against churches in a residential zone, in order to stifle the religious activities described above.

*605Passing strange it is that the United States Supreme Court permits possession, within the confines of the home, of obscene movies, see Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L.Ed.2d 542 (1969); that this Court disallows prosecution, as violating a constitutional right of privacy, of group fornication in an automobile parked in a deserted lot, see State v. Saunders, 75 N.J. 200 (1977); that this Court overrules a regulatory agency’s disciplining of a licensed tavern that permits apparent homosexuals to congregate at a bar, see One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Beverage Control, 50 N.J. 329 (1967); and yet the State, in disregard of the thrust of all these decisions, resorts to Franklin Township’s zoning ordinance — which bears all the earmarks of having been drafted with no thought whatsoever to the problem before us — to prohibit private religious observances within the confines of one’s own home.

II

For reasons not entirely clear to me, the State and our dissenting colleagues have attempted to squeeze into the case the larger issue of whether a municipality can, through its zoning power, exclude from residential zones churches and similar places of worship. The point was not raised by defendant in the Appellate Division nor is it included in his statement of questions presented to this Court. Considered and deliberate resolution of that provocative and portentous issue calls for far more extensive briefing, far more exacting scrutiny, and far more discussion and hard thought than has been accorded it in these proceedings. The question remains an open one in this state and I would leave it that way for now, as does the majority by not even referring to it. Particularly would I avoid the dissenters’ course of adopting, on this record, what is acknowledged to be the minority view on a non-issue in the case, see post at 613-18; Note, “Land Use and the Free Exercise Clause,” 84 Colum.L.Rev. 1562, 1569 n. 42 (1984).

*606But even if one were to accept that proposition, one must recognize that the power to affect, through zoning, religious activity in a residential area surely has its limits. Like any other aspect of the police power, the zoning authority must be exercised for the general welfare of the community, see Southern Burlington County N.A.A.C.P. v. Mt. Laurel Township, 92 N.J. 158, 208 (1983) (Mt. Laurel II), and “must be exercised within constitutional limits.” Moore v. City of E. Cleveland, 431 U.S. 494, 514, 97 S.C't. 1932, 1943, 52 L.Ed.2d 531, 546 (1977) (Stevens, J., concurring in judgment). Moreover, courts have held that religious activity itself is in furtherance of public morals and the general welfare, see Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 154 N.Y.S.2d 849, 136 N.E.2d 827 (1956), and that religious institutions enjoy a highly-favored and protected status, which severely curtails the permissible extent of governmental regulation in this area. Westchester Reform Temple v. Brown, 22 NY.2d 488, 293 N.Y.S.2d 297, 239 N.E.2d 891 (1968). In enforcing the Franklin Township ordinance so as to forbid defendant’s conduct, the State has therefore exceeded the limits of its authority.

[Z]oning regulations, like all police power legislation, must be reasonably exercised — the regulation must not be unreasonable, arbitrary or capricious, the means selected must have a real and substantial relation to the object sought to be obtained, and the regulation or proscription must be reasonably calculated to meet the evil and not exceed the public need * * *.
[Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971).]

The free-exercise clauses of the United States'and New Jersey Constitutions extend to all lawful conduct founded in religious belief.1 See Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 1535, 2 L.Ed.2d 15, 27-28 (1972); Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 101 *607S.Ct. 1425, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 402-03, 83 S.Ct. 1790, 1792-93, 10 L.Ed.2d 965, 969-70 (1963). Deprivation of the protections afforded thereby requires the State to demonstrate some “overriding governmental interest,” United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127, 132 (1982), that justifies the “substantial infringement of appellant’s First Amendment right” and to show that “no alternative forms of regulation would combat such abuses without infringing First Amendment rights.” Sherbert, supra, 374 U.S. at 406-07, 83 S.Ct. at 1795, 10 L.Ed.2d at 972; see also New Jersey Bd. of Higher Educ. v. Shelton College, 90 N.J. 470, 483 (1982) (state regulation of higher education must choose least restrictive means that will accommodate free exercise of religion).

It could scarcely be clearer that the State has failed to make any such showing in this case. The complaint that hauled Cameron into court was prompted by concerns of noise and crowding (although my search of the record fails to uncover proof of the offensive nature of either) — concerns that can be addressed adequately, as the Court recognizes, by existing local ordinances dealing with parking, noise, or health. In dealing with matters of privacy and other liberties, this Court has consistently supported the right of our citizens to be secure in the home, without the disruptive arm of the State intruding into their personal affairs. See, e.g., State v. Baker, 81 N.J. 99 (1979). Nothing can be more deeply personal than Mr. Cameron’s desire to worship in the manner at issue here. He is at home. He is in prayer. He is with friends. He is entitled to be left alone.

Ill

For the foregoing reasons I agree with the Court’s decision to vacate defendant’s conviction for violating the zoning ordinance in effect at the time he was charged. Likewise do I concur in the conclusion that the recently-enacted ordinance *608could not support a conviction based on the same activities as produced this brouhaha. But because of Franklin Township’s determination to outlaw those activities, a word about the latest ordinance is in order.

The new ordinance became effective after the oral argument in this Court. Under that ordinance, “churches and similar places of worship” are now a conditional use in an R-15 zone, and a church is defined as a “building or structure where persons regularly assemble for worship, which by design and construction are primarily intended for the conducting of organized religious services and accessory uses associated therewith.”

The passage of the latest ordinance prompted correspondence between the Court and counsel directed to the effect on this appeal of the “time of decision” rule (see Kruvant v. Cedar Grove, 82 N.J. 435 (1980)). From that correspondence the municipality’s position is abundantly clear: “Although a church is now a conditional use in a R-15 Zone, whereas in the prior ordinance it was prohibited, the acreage requirement would still prohibit the use in the present case due to insufficient area * * * ” (letter of July 23, 1984, from attorney for municipality); and “[i]f the * * * appropriate zoning official [had] to resolve the permissibility of the subject property’s use under the new Zoning Ordinance, the official in question could only deny such use.” (Letter of October 2, 1982, from attorney for municipality).

As I have sought to make clear, I do not believe there is any legitimate definition of “church” or indeed any other permissible provision of a municipal zoning ordinance or any other kind of ordinance that can furnish a basis for prohibiting the activities that took place in this defendant’s home. The municipality’s stated intention, however, is to persist in its effort to close the doors of the Cameron household to the protected Sunday-morning religious observances conducted there — this, despite the ordinance’s definitional requirement that for a building to *609be a church, it must be “primarily intended for the conducting of organized religious services * * * ” (emphasis added), and the Cameron household was used for religious activity for only Vi68 of the week. The Court therefore correctly invalidates any application of the new ordinance to this defendant’s conduct, ante at 597, although again limiting its ruling to “vagueness” grounds. I would use the occasion to leave no doubt in the minds of the municipal officials that their misguided effort must fail and that further prosecution on any basis is entirely unwarranted, as would be any application for injunctive relief.

In the effort to vindicate his rights defendant has already appeared as pro se in the Municipal Court on several occasions; has undergone the expense of a trial de novo in the Law Division; has had to mount an appeal to the Appellate Division; and, finally, has borne the additional cost of an appeal to this Court. The municipality has signalled its intention to continue to tell defendant that he is wrong. We should not tolerate more of the same when, to me at least, defendant has been right all along. Enough, as the saying goes, is enough.

V

Recently in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Supreme Court echoed Justice Douglas’s observation that “[w]e are a religious people whose institutions presuppose a Supreme Being.” Id. at -, 104 S.Ct. at 1360, 79 L.Ed.2d at 611 (quoting Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954, 962 (1952)). The Court reminded us of the rich diversity of our religious beliefs, and that by accommodating all forms of religious expression, “governmental action has ‘follow[ed] the best of our traditions’ and ‘respect[ed] the religious nature of our people’ ” Lynch, supra, 465 U.S. at -, 104 S.Ct. at 1361, 79 L.Ed.2d at 613 (quoting Zorach, supra, 343 U.S. at 314, 72 S.Ct. at 684, 96 L.Ed. at 962). It is worth remembering that the forefathers of many of us came to these shores to escape, among other things, govern*610ment regulation of their forms of worship. Local governments have more than enough to keep them busy in the legitimate exercise of the zoning power, delegated to them for the general welfare. See Mt. Laurel II, supra, 92 N.J. 158. That power should not be squandered in the prevention of prayer meetings conducted by invitation in the privacy of one’s home.

I join in the reversal of the judgment of conviction.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * U.S. Const, amend. I. “No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience * * N.J. Const. art. 1, para. 3.