concurring and dissenting. I concur in the Court’s judgment to the limited extent that it permits the plaintiff to deliver newspapers for two and one-half hours on Sunday mornings. However, I believe that the Court, in its eagerness to save Ocean Grove’s existing form of government, has seriously undermined two fundamental guarantees of the First Amendment. By restricting its holding to the plaintiff’s right to deliver newspapers before 2:30 a.m. on Sundays, the Court fails to fully vindicate his free speech and free press rights; this result surely casts a cloud on similar activities of others which should also be protected. More importantly, the Court strips the establishment clause of all meaning by sanctioning the public role of the Association’s trustees and approving Ocean Grove’s existing form of government.
I
My disagreement with the Court’s treatment of the free press issue raised by the plaintiff is two-fold. First, the majority unwarrantedly narrows the scope of its discussion to the two and one-half hours on Sunday morning when the plaintiff normally delivers newspapers to Ocean Grove’s residents. Although it also refers to the “early Sunday morning hours essential to plaintiff’s operations,” [emphasis supplied], the majority’s constricted view of the plaintiff’s claim suggests that these ordinances may be used in civil and quasi-criminal proceedings to prohibit deliveries by the plaintiff if he drives at other times. See ante at 250-251. But it is possible that on any given Sunday morning the plaintiff may be unable to complete his deliveries within that time. His sup*273pliers may be late; they may alter their schedules; his helpers may be ill. Is he to be subject to prosecution if he strays past the 3:30 a.m. deadline by an hour, or even a few hours? And is he to be foreclosed from changing his routine to make later deliveries during daylight hours? The plaintiff has made strenuous efforts to minimize the disruption in the early morning hours, but he has never yielded his constitutional right to carry on his business at other hours.1 I cannot agree with the notion that plaintiff’s right to sell or deliver newspapers wanes as the day progresses.
Second, the Court’s statement of the question to be decided, ante at 346-347, leaves the distinct impression that the plaintiff holds a special status which may not be shared by others. Anyone else seeking to distribute Sunday publications sought by subscribers in Ocean Grove should have equal' Eirst Amendment rights. Additionally, are those rights inapplicable to those who seek to enjoy such deliveries?2 Even with the majority’s exception, these ordinances cannot be reconciled as reasonable forms of regulation dealing with the “time, place and manner” of such activity. Given the special function of newspapers in providing a conduit for informa*274tion and ideas, see Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 252, 94 S. Ct. 2831, 2837, 41 L. Ed. 2d 730, 738 (1974); New York Times Co. v. Sullivan, 376 U. S. 254, 266, 84 S. Ct. 710, 718, 11 L. Ed. 2d 686, 698 (1964), I think that these ordinances are nndnly restrictive and impermissible forms of regulation, even as qualified by the majority’s ruling today.
Because I consider any exercise of public powers by Ocean Grove’s governing body to be invalid under the establishment clause, see infra at 272 (Pashman, J., concurring and dissenting), I would vote to strike down ail of its ordinances in their entirety. However, even apart from the establishment issue, I believe that the ordinances, as presently construed, impermissibly restrict the freedom of the press. Since the majority declines to construe the ordinances in question to comport with plaintiff’s unqualified right to distribute newspapers, cf. Borough of Collingswood v. Ringgold, 66 N. J. 350, 365-67 (1975), I would strike down Section 1B of Ordinance 73-2. Similarly, Ordinance 30, which prohibits the use of a vehicle on Sundays, should have been declared unconstitutional, at least as applied to persons who are required to operate vehicles in order to deliver publications. Nevertheless, as I have already stated, this form of judicial pruning would be available only if the ordinances had been passed by a lawfully constituted municipality, a conclusion which I respectfully reject.
II
Returning to the establishment issues posed by this case, I cannot agree with the majority’s conclusion that the statute conferring governmental powers upon a religious group is constitutional. In my view, there are few cases that could present a more flagrant and glaring violation of the establishment clause than is posed by this set of facts.
The majority’s analysis of Ocean Grove’s constitutionality under the establishment clause is inconsistent with the *275philosophy and the history of enforcement which that clause has enjoyed. The First Amendment to the Federal Constitution proclaims that the government “shall make no law respecting an establishment of religion.” Art. 1, ¶ 4 of this State’s Constitution similarly prohibits “establishment of one religious sect in preference to another” and forbids the requirement of a “religious . . . test ... as a qualification for any office or public trust.”3 At the very least, these constitutional provisions mean that religious affiliation cannot be a prerequisite to holding public office or exercising governmental powers. Furthermore, I fail to see how they do not preclude the enactment and enforcement, by a religious body, of municipal ordinances which promote that group’s sectarian beliefs. And yet today, by placing its imprimatur on Ocean Grove’s enabling legislation (N. J. S. A. 40 :97-1 et seq.), the Court implicitly authorizes a municipality to limit positions of public trust and authority to members of the United Methodist Church.4 It also gives its stamp of ap*276proval to a set of Sunday closing laws, promulgated by a religious group, which go far beyond the limits staked out in decisions of this Court and the United States Supreme Court. See McGowan v. Maryland, 366 U. S. 420, 81 S. Ct. 1106, 6 L. Ed. 2d 393 (1961); Two Guys from Harrison, Inc. v. Furman, 32 N. J. 199 (I960).5
The majority reviews Ocean Grove’s history and governance by trustees of the Ocean Grove Camp Meeting Association of the United Methodist Church, concluding that it was not irrational for the Legislature to act as it did.6 Apparently, the trustees have performed creditably over the last century in governing the camp ground. Ocean Grove now has the distinction of being enrolled in the National Begister of Historic places and, we are told, has earned the admiration of other citizens and public officials. However, these considerations are utterly irrelevant to the constitutionality *277of N. J. S. A. 40:97-1 et seq. The question is not whether Ocean Grove’s “way of life” deserves our approval or support; indeed, no one maintains that there is a necessary connection between Ocean Grove’s form of government and its distinctive customs. Rather, the issue before us is the legitimacy of ceding all essential governmental functions to a private, self-perpetuating religious group whose primary purpose is to provide a site for religious services.
The majority argues that the regulatory powers delegated! to the trustees were intended to fulfill the typical municipal tasks of securing public order and maintaining orderly development, not to promote the religious beliefs of the United Methodist Church. It finds that the primary purpose of this legislation is to guarantee a modicum of social peace and organization in an isolated locale with “unique” physical and social characteristics. Conceding that it may be “anomalous” to rely on a private association to perform this role for the State, the majority invokes the usual presumption of constitutionality and argues (1) that Ocean Grove’s governmental scheme should be respected as a venerable, century-old institution, (2) that it now poses “no threat” to our constitutional ideals and (3) that it will not happen again.
I find this elaborate defense wholly unconvincing. Unlike the school aid eases, where the challenged legislation usually represents a rather subtle departure from the ideal of official neutrality, this appeal presents a straightforward instance of governmental favoritism. As presently operated, Ocean Grove’s government violates the First Amendment by attaching a religious test to public office and by pursuing religiously-inspired policies. However, more important, its structure inevitably places the authority of the State behind the tenets of a particular sect by delegating the prerogatives of government to the trustees.
Both the statutory enabling legislation and the camp meeting association by-laws reflect more than a coincidence of secular and religious objectives. N. J. S. A. 40:97-5 *278confers law-making power upon the trustees of any camp meeting association and allows them to regulate the internal affairs of the community. Their responsibilities encompass construction and maintenance of public highways, streets, walks, parks, sewers and other municipal services. (N. J. S. A. 40:97-1, -2 and -3). They also hold a veto power over the construction of any public highway and public forms of transportation (N. J. S. A. 40:97-3), and they may enact laws to protect order, abate nuisances and preserve public health (N. J. S. A. 40:97-4).7 These laws, whether passed in the form of ordinances, by-laws or regulations, may be enforced by the municipal court established by the trustees (N. J. S. A. 40 :97-6 and -7) and are given the same effect as any municipal ordinance (N. J. S. A. 40:97-8).
The powers exercised by the trustees, then, are the virtual equivalent to those ordinarily delegated to local officials. By contrast, however, the trustees are not selected by traditional democratic procedures. The by-laws of the Association stipulate that the 26 trustees who manage the affairs of the corporation (and therefore exercise the authority delegated by the Legislature) shall include no less than ten ministers and ten laymen, all of whom “shall be and remain members of the United Methodist Church in good and regular standing.” By-Laws, Art. III, § 1. If any trustee ceases to be a member of the Church, his position may be declared vacant by a two-thirds vote of the remaining trustees present at a regular meeting. Ibid. The by-laws also make provision for the election of “associate” trustees who have the privilege of attending meetings, but not of voting. By-Laws, Art. III, § 5. These persons must *279be members of “a recognized Christian Church in good and regular standing.” Id. The trustees elect, from their membership, the officers and members of the executive and program committees. By-Laws, Art YI, §§ 1, 4; Art. YIII, § 2. The executive committee serves as the administrative arm of the board and represents the board in all official matters. By-Laws, Art. Y, § 2; Art. YII. The program committee organizes the religious services and meetings, and its chairman reports at each meeting of the executive committee. By-Laws, Art. YIII, §§ 2, 4.
This structure makes it impossible to segregate the religious duties of the trustees from their secular functions. As a group, the board of trustees has the single purpose of providing “a proper, convenient, and desirable permanent camp meeting ground and Christian seaside resort” for members of the United Methodist Church. By-Laws, Art. II. While their immediate objectives no doubt coincide with those of any governing body of a municipality, they are also committed to other ends which are peculiar to their religious orientation.
The existing arrangement stems from the original charter. That act of incorporation required the 26 trustees to be members in good standing of the church. It empowered them to pass by-laws and to appoint peace officers who could enforce their rules and regulations, L. 1870, c. 157, §§ 5, 7. In its essential features, little has changed in Ocean Grove’s governing council as successive acts have increased the board’s powers.8 See ante at 255-256. It is in*280conceivable that this fusion of civil and religious authority does not violate the underlying principles of the establishment clause, whether they are interpreted as erecting a “wall of separation between Church and State,” Everson v. Board of Education, 330 U. S. 1, 16, 67 S. Ct. 504, 512, 91 L. Ed. 711, 723 (1947); as forbidding “sponsorship, financial support and active involvement of the sovereign in religious activity,” Walz v. Tax Commission, 397 U. S. 664, 668, 90 S. Ct. 1409, 1411, 25 L. Ed. 2d 697, 701 (1970); or as commanding a benign neutrality of government toward religion, Zorach v. Clauson, 343 U. S. 306, 313-314, 72 S. Ct. 679, 96 L. Ed. 954 (1952).
The majority appears to suggest that this union of government and religion, rather than tending to “destroy government and degrade religion,” Engel v. Vitale, 370 U. S. 421, 431, 82 S. Ct. 1261, 1267, 8 L. Ed. 2d 601, 608 (1962), was “functionally appropriate” in view of Ocean Grove’s pattern of land ownership and social composition. Ante at 258. This is an interesting assertion, but it is constitutionally preposterous. It would be equally sensible for the Legislature to permit only Catholics or Jews to govern when they constitute the overwhelming majority, or simply to yield governmental powers to priests and rabbis in communities which respect them as moral leaders. Both the Eirst Amendment and Art. 1, ¶ 4 of the New Jersey Constitution foreclose that option, the latter by its express language (“no religious . . . test shall be required as a qualification for any office or public trust”) and the former by the Supreme Court’s decision in Torcaso v. Watkins, 367 U. S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 (1961). In Torcaso, the Court unanimously declared unconstitutional a provision in the Maryland Constitution which stated that “no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God. . . .” Writing for the Court, Justice Black rejected the
*281historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept.
[367 U. S. 488, 494, 81 S. Ct. 1680, 1683, 6 L. Ed. 2d 982, 987]
Clearly, the form of government now authorized by N. J. S. A. 40:97-1 et seq. favors members of the United Methodist Church over members of other religious sects and nonbelievers.9
Even though this aspect alone would be sufficient to justify invalidation of the challenged legislation, there are other factors which reinforce such a conclusion. The original charter proclaimed that the purpose of the camp meeting association was to provide a “Christian seaside resort” for members of the Methodist Episcopal Church, L. 1870, c. 157, § 1, and N. J. S. A. 40:97-1 currently refers to “any *282camp meeting association or other corporation heretofore or hereafter incorporated . . . for the purpose of providing any religious body or society with a permanent camp meeting ground or place for religious services.” This statutory pattern refutes any assertion that the Legislature’s delegation of municipal functions is valid as pertaining to a class of private associations or corporations uniquely suited to carrying out the duties of government under unusual local conditions.10 Only societies incorporated for the purpose of providing a locale for religious activities benefit from these enactments. Thus, it is impossible to analogize this statute with facially neutral provisions which supply essential services, such as police and fire protection, sanitation facilities and transportation to all groups without regard to religious affiliation. See Roemer v. Maryland Public Works Board, 426 U. S. 736, 745-748, 96 S. Ct. 2337, 2344-2345, 49 L. Ed. 2d 179, 187-188 (1976); Everson v. Board of Education, supra, 330 U. S. at 17-18, 67 S. Ct. at 512-513, 91 L. Ed. 2d at 724-725. Cf. Walz v. Tax Commission, supra.
Similarly, these enactments differ from the various acts authorizing certain named religious groups to exercise specified legal rights and to regulate their internal affairs (N. J. S. A. 16:1-1 et seq. through N. J. S. A. 16:19-1 et seq.). The latter are designed to give religious groups the same prerogatives afforded non-sectarian private associations. They offer an alternative to N. J. S. A. 15 :1-21 which permits religious societies to incorporate under the statutory sec*283tions applicable to nonprofit corporations and associations. To the extent that they assist particular religious sects by making special provision for their idosyncratic features, they are simply acting in accordance with the dictates of the free exercise clause.11
In fact, contrary to the majority’s suggestion that Ocean Grove’s history was marked by universal approval and internal harmony, as well as secular goals, its history belies both of these contentions. Numerous controversies in the early 1900’s arose from its peculiar status. See Brewer and McMahon, Perspectives on Ocean Grove, 1869—1949 at 62-70 (1939). Among these were several attempts to reconstitute Ocean Grove as a borough, including one such effort which almost succeeded.12 The events surrounding that effort resulted in .both legislative and judicial acknowledgement of Ocean Grove’s religious purpose. In 1920 the Legis*284lature did change Ocean Grove’s governmental structure to a purely secular one, but it made special provisions to preserve the “religious integrity” of the community by circumscribing the power of the newly elected officials in several areas. L. 1930, c. 96.13 Specifically, the act prohibited any change in the existing ban on Sunday vehicular traffic and ruled out any municipal approval for construction of public highways through the borough. L. 1930, c. 96, § 1. The law was challenged on numerous grounds, resulting in a declaration by the Court of Errors and Appeals that it was a special law regulating the internal affairs of a municipality in violation of N. J. Const. (1875), Art. 4, § 7, ¶ 11. McCran v. Ocean Grove, 96 N. J. L. 158 (E. & A. 1931). In refusing to excise the offending provisions of the Act, the Court expressly noted the fact that the legislation was intended to further religious goals:
[O]ne of the controlling motives which influenced the legislature in the enactment of the statute under review, was the preservation in the newly-created borough, among other things, of so much of the religious integrity of the earlier municipality as was exhibited in its action in keeping its street free from Sunday travel and in preventing any public highway or boulevard from passing through its territorial limits.
[96 N. J. L. at 164-165].
*285This ready concession of a legislative purpose to uphold the so-called “religious integrity” of Ocean Grove flatly contradicts the majority’s repeated assertions that the delegation of powers to the board of trustees was animated by secular objectives. In fact, the most persistent theme in Ocean Grove’s history is the steadfast defense of its Sunday laws by the local authorities. Even assuming that a legislative body may promote secular policies whose ends happen to coincide with sectarian practices, see Two Guys from Harrison, Inc. v. Furman, supra; McGowan v. Maryland, supra, it does not follow that it may design a municipal government whose primary goal is to safeguard religious customs. The majority suggests that the proper course to follow, if these Sunday closing laws were indeed involved, would be to strike down these regulations rather than dismantle the entire governmental apparatus. However, the Sunday closing rules adopted by the trustees and enforced vigilantly over the years constitute a primary — perhaps the sole — justification for this municipal scheme. Ocean Grove could be governed efficiently by a secular form of government, but any such change apparently has been resisted as a threat to the continued vitality of the Sunday closing laws.
When we turn to examine these local restrictions, enacted into law by Ordinance 73-2, we see that they cannot be rationalized by any conception of the general health, safety and welfare of Ocean Grove’s citizens.14 The list of prohibited acts in Ordinance 73-2 is not limited to guaranteeing a uniform day of rest and an opportunity for leisure and amusement for Ocean Grove’s residents. Rather, the sweep of its prohibitions, extending to virtually all forms *286of recreation and manual labor,15 suggests “orientation to a sectarian desire to protect the Sabbath as such against ‘desecration.’ ” Two Guys from Harrison, Inc. v. Furman, supra, 32 N. J. at 217. See Masters-Jersey v. Paramus, 32 N. J. 296, 301 (1960) (prohibition of all recreation raises a police power issue).
By contrast, in McGowan v. Maryland, supra, Chief Justice Warren emphasized the many exceptions to the Maryland Sunday closing laws, and the absence of a blanket prohibition against Sunday work or bodily labor. Id., 366 U. S. at 447-448, 81 S. Ct. at 1116-1117, 6 L. Ed. 2d at 411-412. He observed:
*287These provisions, along with those which permit various sports and entertainments on Sunday, seem clearly to be fashioned for the purpose of providing a Sunday atmosphere of recreation, cheerfulness, repose and enjoyment. Coupled with the general proscription against other types of work, we believe that the air of the day is one of relaxation rather than one of religion.
[Id., 366 U. S. at 448, 81 S. Ct. at 1117, 6 L. Ed. 2d at 412]
I do not believe that Ocean Grove’s custom of preserving Sunday as an occasion for rest and quiet need pass away altogether. Its historical character, now officially recognized by the Federal Government, would supply a rationale for local rules reflecting its long adherence to Sunday closing laws. However, they would have to make due allowance for nondisruptive activities. Moreover, they could not prohibit vehiclar traffic necessary for emergencies (such as ambulances or fire trucks) and reasonably required for constitutionally protected activities (such as the plaintiff’s deliveries). Without a local government susceptible to attack on First Amendment grounds, these rules would lose their sectarian character; in all likelihood, they would also be enforced in a more reasonable manner, thus preventing controversies such as the one giving rise to this litigation.
For these reasons, I am unconvinced by the majority’s argument that the long existence of this statutory plan is “a transcending consideration” which creates a heavy presumption against its invalidity. If I am correct in assuming that Ocean Grove can survive a transformation of its political system without losing its attractive features, then the most compelling reason for upholding its present status is a judicial deference to the legislative will. This general policy of judicial restraint has little force when a law has survived largely without close scrutiny of weighty constitutional claims. As the majority points out, the Court of Errors and Appeals gave only passing consideration to a similar argument in Percello v. Ocean Grove Camp Meeting Association, 100 N. J. L. 407, aff’g o. b. 2 N. J. Misc. 124 (Sup. Ct.), and even there, the Supreme Court’s opinion relied heavily *288on prior cases in which the issue had not been addressed. Id., 2 N. J. Misc. at 126-127.
The import of the majority’s reasoning seems to be that the failure of these early decisions to detect a constitutional flaw, where the issue had not been raised, prevents this Court from doing so now. This case differs radically from Walz v. Tax Commission, supra, where a similar argument was given considerable weight. Walz was a tax case16 which concerned a form of governmental assistance to religion dating from the earliest days of the Republic. As Justice Brennan observed in his concurring opinion: "Rarely if ever has this Court considered the constitutionality of a practice for which the historical support is so overwhelming.” Id., 397 U. S. at 681, 90 S. Ct. at 1418, 25 L. Ed. 2d at 709. Had the Court ruled differently, it would have exchanged one constitutional defect (financial assistance to churches) for another (excessive entanglement in financing). Rather than terminate this form of economic subsidy, the Court chose to maintain the mutual separation of Church and State by permitting the taxing authorities to treat church property like that of other private, non-profit associations organized to provide social services and to contribute to community well-being. Here, however, the Legislature has carved out a special place for a narrow class of private sectarian societies which fosters continual interplay between civil authorities and religious leaders.17 Invalidation of this legislation would restore Ocean Grove’s religious community to a *289status equivalent to all other sects, and end, once and for all, this fusion of government and religion.
Moreover, mere passage of time has no talismanic significance. The Pirst Amendment’s religious guarantees were not expressly incorporated into the Fourteenth Amendment until 1940 when Cantwell v. Connecticut, supra, was decided. Prior to McCollum v. Board of Education, 333 U. S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1947), “released time”18 arrangements had been widespread for more than 30 years. Id., 333 U. S. at 222-223, 68 S. Ct. at 470-471, 92 L. Ed. at 664-665 (Frankfurter, J., concurring). School prayer was not declared unconstitutional until 1962. Engel v. Vitale, supra. The suggestion that we are restricted today by a summary treatment of this issue in 1924 by a court interpreting our State Constitution overlooks the dramatic developments in the area of the Pirst Amendment. In any ease, Per-cello should be rejected to the extent that it holds that this statutory scheme does not violate Art. 1, ¶ 4 of this State’s Constitution. I would overrule Percello as a matter of state constitutional law since it is beyond argument that Ocean Grove currently attaches a religious test to those who would hold public office. Ante at 279, 284 (Pashman, J., concurring and dissenting).
IV
Admittedly, it is a rare, if not unprecedented occurrence, for the Court to be asked to rule upon such a glaring violation of settled principles. The normal inquiry in this area *290has been concerned with departures from the First Amendment which are far more subtle, as reflected in Chief Justice Burger’s remarks in Lamon v. Kurtzman, 403 U. S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971):
A law may be one ‘respecting’ the forbidden objective while falling short of its total realization. A law ‘respecting’ the proscribed result, that is, establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one ‘respecting’ that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment.
[403 U. S. at 612, 91 S. Ct. at 2111, 29 L. Ed. 2d at 755.]
Thus, normally a court is required to determine whether a legislative enactment tends to encourage or promote a single religion or all religions generally, Committee for Public Education v. Nyquist, 413 U. S. 756, 771, 93 S. Ct. 2955, 2965, 37 L. Ed. 2d 948, 962 (1973); McCollum v. Bd. of Education, supra, 333 U. S. at 211-212, 68 S. Ct. at 465, 466, 92 L. Ed. at 659, or in Chief Justice Burger’s words, “could lead to such establishment and hence offend the First Amendment.” [Supraj emphasis added.] But here, I am afraid that the majority’s myopic search for the subtle violation of the establishment clause has resulted in its overlooking the obvious flaw. Here the legislative enactment not only tends to encourage religion but also effectively institutes a church or creed as the official faith in Ocean Grove. The statute conferring powers upon that municipality implicitly limits public office to members of a specific religion, and hence allows the municipality to use governmental power to order the lives of its inhabitants in conformity with the orthodoxy of its religious tenets.
The doctrine of separation of church and state in this country is the result of a long history of experiences which confirm its wisdom. So strong has been our emphasis on the principles of civil liberty which underlie this doctrine — the right to practice one’s own religion free of governmental interference — that it has been considered one of the most *291fundamental of constitutional rights. The principle embodied in the establishment clause of the Eirst Amendment is based upon the settled precept that “[t]he place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind.” Abington School District v. Schempp, 374 U. S. 203, 226, 83 S. Ct. 1560, 1574, 10 L. Ed. 2d 844, 860-861 (1963). It upholds the -right to practice one’s religion free from governmental interference, but it also eliminates the right to seek the prerogatives of official status for one’s creed. I believe that the Court’s holding in this case amounts to a neglect of these principles, and the result of its failure to realize the implication of its own decision.
I cannot disagree more with the majority’s apparent belief that a decision striking down the statute conferring governmental powers on Ocean Grove would threaten that community’s way. of life. That view is based upon the entirely mistaken notion that spiritual or cultural habits which exist in Ocean Grove are the product of its form of government. They are not. The religious convictions which impel a community of persons to adopt practices similar to those in Ocean Grove are not the type which survive because of official edicts. They continue because of the strong personal convictions of the persons who live there. These attitudes and beliefs can only be harmed by a decision which allows governmental influence -to take the place of individual or church leadership.
Justice Schkgibek j'oins in this opinion.
Sullivan, J., concurring in the result.
For modification and remandment — Chief Justice Hughes, Justices, Mountain, Sullivan and Clieeokd and Judge Coneord — 5.
Concurring in part and dissenting in part-- — Justices Pashman- and SCHRETBER-2.
Admittedly, plaintiff’s narrower claim may have been reflected in our decision to remand to determine whether Ocean Grove was estopped from enforcing these ordinances. However, the original pleadings in this action sought injunctions against enforcement of Ocean Grove’s ordinances on the ground that they were unconstitutional and void. Hence, he has never abandoned his challenge on the broader issue.
Although this litigation has been framed in terms of the constitutional rights of the plaintiff as a distributor of publications, it is settled that the First Amendment also guarantees the right of citizens to have access to sources of communication or publications. See, e. g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976); Procunier v. Martinez, 416 U. S. 396, 408-409, 94 S. Ct. 1800, 1801-1809, 40 L. Ed. 2d 224, 237 (1974); Lamont v. Postmaster General, 381 U. S. 301, 305, 85 S. Ct. 1493, 1495, 14 L. Ed. 2d 398, 401 (1965); Martin v. Struthers, supra, 319 U. S. at 143-144, 63 S. Ct. at 863-864, 87 L. Ed. at 1317.
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” Its commands, having been incorporated into the Fourteenth Amendment, apply equally to the states. Meek v. Pittenger, 421 U. S. 349, 351, 95 S. Ct. 1753, 1756, 44 L. Ed. 2d 217, 224-225 (1975); Murdock v. Pennsylvania, 319 U. S. 105, 108, 63 S. Ct. 870, 872, 87 L. Ed. 1292, 1295 (1943); Cantwell v. Connecticut, 310 U. S. 296, 303, 60 S. Ct. 900, 903, 84 L. Ed. 1213, 1217-1218 (1940).
Art. 1, ¶ 4 provides:
There shall be no establishment of one religions sect in preference to another; no religious or racial test shall be required as a qualification for any office or public trust.
As discussed below, see infra at 278 (Pashman, J., concurring and dissenting), the by-laws of the Association stipulate that the trustees “shall be and remain members of the United Methodist Church in good and regular standing.” Association By-Laws, Art. III, § 1. A non-voting “associate” trustee must be a “member of a recognized Christian Church in good and regular standing.” Art. III, § 5. N. J. S. A. 40:97-5 confers the authority to exercise regulatory powers on the trustees, and N. J. S. A. 40:97-6 gives the trustees’ rules, by-laws, regulations, ordinances and resolutions the force of law.
Since the parties have not raised a direct challenge to the validity of Sunday closing legislation (N. J. S. A. 2A:171-1 et seq.), I assume for the purposes of this appeal that such regulation is a legitimate exercise of the police power. However, I intimate no view as to the continued vitality of Two Guys from Harrison, Inc. v. Furman, supra.
The Court’s rationale for even reaching this issue, in view of its discussion of the “rule of necessity,” ante at 250-252, is questionable. As long as the majority chooses to clothe itself in the mantle of judicial self-restraint in Part III of its opinion, it seems rather unbecoming to disrobe so abruptly in Part IV for the purpose of deciding a question the trial court “mistakenly” reached. If the Court is to be taken at its word, the defense of N. J. S. A. 40:97-1 et seq. is dicta which is unnecessary to the decision in this case. I note that State v. Celmer, 143 N. J. Super. 371 (Cty. Ct. 1976), holding Ocean Grove’s Municipal Court unconstitutional for establishment reasons, proceeded without the municipality’s participation, although it was given notice of the proceedings pursuant to R. 4:28-4. Id., 143 N. J. Super. at 373. I also point out that our decision today will not necessarily “lay to rest” this controversy. The majority leaves State v. Gelmer intact, ante at 252 n. 5, thus anticipating further litigation on this point. In such a case, of course, the United States Supreme Court would have appellate jurisdiction over any affirmance of a criminal conviction originally secured in Ocean Grove’s Municipal Court. See 28 U. S. C. § 1257(2).
N. J. S. A. 2A:171-6 gives additional powers to the trustees in counties whose voters have modified the Sunday closing laws by referendum. Like municipalities in such counties, they are permitted to regulate the conduct of various forms of recreation, sport and amusement, and their commercialization, by adopting rules or ordinances.
Although the current statute no longer contains a direct reference to the religious composition of Ocean Grove’s governing board, its provisions give the board’s by-laws “the force and effect of laws.” N. J. S. A. 40 :97-6. It is somewhat disingenuous for the majority to suggest that these self-imposed religious qualifications for selection of trustees can be severed from the underlying legislation. See ante at 260 n. 10. In any event, the original charter, which is still in effect, requires the trustees to be members in good standing of the church. See ante at 275 n. 4 (Pashman, J., concurring and dissenting).
It is no answer to say that Toreaso’s holding is based on the free exercise clause, and therefore inapposite to the plaintiff’s claim. See ante at 260 n. 10. The two religion clauses cannot be parsed so neatly: while each focuses on a different form of governmental interference with religious freedom, the clauses overlap substantially. Thus, in Torcaso, Justice Black criticized the Maryland constitutional provision requiring office holders to declare their belief in the existence of God because “the power and authority of the State of Maryland is thus put on the side of one particular sort of believers — those who are willing to say they believe in ‘the existence of God.’ ” Id., 367 U. S. at 490, 81 S. Ct. at 1681, 6 L. Ed. 2d at 984. He recounted the history of such religious tests in the colonies and observed that “The effect of all this was the formal or practical ‘establishment’ of particular religious faiths in most of the Colonies, with consequent burdens on the free ewereise of the faiths of nonfavored believers.” Id. (Emphasis supplied; footnote omitted). 8.ee also Engel v. Vitale, supra (free exercise clause and establishment clause overlap; no showing of coercion necessary to raise establishment claim).
Moreover, the Toreaso court did not address the plaintiff’s claim that Article VI of the Federal Constitution was applicable to state offices as well as federal offices. Its holding was based solely on the First and Fourteenth Amendments. Id., 367 U. S. at 489 n. 1, 81 S. Ct. at 1680, 6 L. Ed. 2d at 984.
As the majority recognizes, the legitimacy of delegating governmental powers to any private organization is highly questionable, or “anomalous.” Ante at 264. Its reference to Humane Soc. of U. S. v. N. J. State Fish and Game Council, 70 N. J. 565 (1976) highlights the doubly anomalous aspect of granting such powers to a religious sect, given the existing constitutional provisions prohibiting the use of “religious tests.” It seems incongruous to suggest that Ocean Grove’s government could be a violation of the equal protection or due process clauses, but not of the establishment clause.
When civil courts are called upon to decide property disputes of religious groups, they are constrained by the First Amendment to avoid undue entanglement in controversies of a doctrinal nature. Serbian Orthodox Diocese v. Milivojevich, 426 U. S. 696, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976); Presbyterian Church v. Hull Church, 393 U. S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969); Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, 73 S. Ct. 143, 97 L. Ed. 120 (1952). This is particularly so when the controversy revolves around the decision of a church which is hierarchical in structure. Since the courts will enforce decisions in accordance with the internal structure, or policy, of a sect (whether congregational, presbyterial or episcopal), it is natural for the legislature to fashion procedures which correspond to the structure of the sect. See generally, Note, “Church-Property Disputes,” 75 Harv. L. Rev. 1142 (1962) ; Gianella, “Religious Liberty, Nonestablishment, and Doctrinal Development,” 81 Harv. D. Rev. 513, 535-537 (1968).
The reform was organized by a group of the community’s leading citizens who engineered the passage of a bill through the Legislature subject to approval by local referendum. Gibbons, supra, at 64-65. The bill was overwhelmingly supported by the voters, and a special election was held to select local officials. However, another organization opposed to the new borough enlisted the aid of the Attorney General in challenging the act on constitutional grounds. The Oourt of Errors and Appeals struck down the statute. McCran v. Ocean Grove, 96 N. J. L. 158 (1921).
The preamble recited:
WHEREAS, The said association is willing to surrender such municipal control, but without violating the religious integrity of Oeean Grove, and is also desirous of preserving inviolate all those rights appertaining to and included in such religious integrity; and
WHEREAS, it is deemed advisable to separate the municipal and religious functions, except as this act provides; and
WHEREAS, It is the will and desire of the said Ocean Grove Gamp Meeting Association, the lessees, and the residents of the territory hereinafter particularly described, that a borough form of government shall be provided by law, but which shall have no authority to interfere with the said Ocean Grove Gamp Meeting Association in maintaining the religious character and integrity of Ocean Grove.
[Emphasis supplied]
This, of course, assumes that the Sunday closing laws upheld in Two Guys from Harrison, Inc. v. Furman, are valid exercises of the police power. See ante 276 n. 5, Pashman, J., concurring and dissenting.
The ordinance provides:
Section 1. The following shall be prohibited within the geographical limits of Ocean Grove on Sunday, also known as the Sabbath, throughout each year:
A. The riding, parking, or allowing to remain parked, of all vehicles, including bicycles, automobiles, buses, trucks, trailors, horses or other livestock, and wagons, except in enclosed areas.
B. The selling or delivering of newspapers, periodicals, advertising circulars, vending of any form of merchandise, including milk, prepared or unprepared foodstuffs, except when served by and consumed within a restaurant, coffee shop, or other establishment permitted to serve foodstuffs.
O. Ocean bathing.
D. Fishing, boating, sun bathing or the wearing of bathing apparel in public.
E. The building, repair or construction of buildings or structures, including the engaging in carpentry, painting, machinery and similar activities both inside and outside of said buildings or structures.
F. Athletic exercises; the playing of games in vacant lots, playgrounds, parks, streets, sidewalks or promenades; roller skating; ice skating; and similar activities.
G. The mowing and care of lawns, shrubbery and flowers.
H. The placing or exposure of clothing, bedding, or other articles on wash or drying lines or lines of similar character.
Section 2. Any person, persons or corporation violating any of the provisions of this ordinance shall, upon conviction, pay a fine not exceeding Two Hundred ($200.00) Dollars or be imprisoned in the County Jail for a period not exceeding Thirty (30) days, or both fine and imprisonment.
Each day that this ordinance shall be violated shall be deemed and taken to be a separate and distinct offense.
Hence, the relevance of Justice Holmes’ dictum in New York Trust Company v. Eisner, 256 U. S. 345, 349, 41 S. Ct. 506, 507, 65 L. Ed. 963, 982 (1921), referred to by the majority.
The plaintiffs in Walz argued that New York’s exemption of religious property from the ad valorem property tax was functionally a subsidy. Although the Court stressed the distinction between an exemption and a subsidy, it viewed them as economically equivalent.
The “entanglement” test, criticized by the majority, ante at 262 does seem superfluous in this context. For instance, it matters little that Ocean Grove’s citizens and neighbors approve its present constitution if its government leadership is limited by law to members *289of the United Methodist Church. Neither is there significant danger of governmental surveillance of religious activity. The evil here stems from the concentration of political power in the leadership of a religious group; thus, the integrity of the civil order is more threatened than the freedom of the religious sphere.
“Keleased time” arrangements permitted various groups to conduct religious classes on public school premises. These periods of religious instruction were substituted for study of secular subjects or for other extracurricular activities of a secular nature.