WASHINGTON — The U.S. Supreme Court has declined to hear an appeal out of New Jersey surrounding whether or not it is permissible for a county to grant funds to historic churches for repair of their facilities. However, Justice Brett Kavanaugh, along with Justices Samuel Alito and Neil Gorsuch, opined that the case is of interest and that the subject matter should be decided “at some point” as it seemingly “raises serious questions” about equality and wrongful “discrimination against religion.”
“In my view, the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents,” Kavanaugh wrote. “As this court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Free Exercise Clause and the Equal Protection Clause.”
“Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion,” he stated.
As previously reported, the Wisconsin-based Freedom From Religion Foundation (FFRF) and FFRF member David Steketee had filed suit against Morris County, New Jersey in 2015 to challenge the allotment of funds to churches in the county through the Historic Preservation Trust Fund. The organization specifically challenged the $1.04 million granted to St. Peter’s Episcopal Church and the Presbyterian Church in Morristown.
St. Peter’s had stated in its application that the funds would be used to “ensure continued safe public access to the church for worship, periods of solitude and meditation during the week, and several concerts throughout the year, as well as the treasures the church and tower contain.”
The Presbyterian Church had similarly outlined that grant money would help “historically preserve the building allowing its continued use by our congregation for worship services as well as by the community and many other outside organizations that use it on a regular basis.”
In 2017, Superior Court Judge Margaret Goodzeit sided with the County, stating that the allotments were permissible because they were granted to various historic entities, not just religious ones.
“Morris County desires to sustain historic landmarks, not just historic churches,” she wrote. “Just because the religious groups have put Morris County on notice that the intend to use their churches for worship does not mean that Morris County is somehow inextricably entangled with religion.”
“Excluding historical churches from receipt of reimbursements available to all historical buildings would be tantamount to impermissibly withholding general benefits to certain citizens on that basis of their religion and would be inconsistent with the spirit of our state and federal Constitutions,” Goodziet concluded.
Goodzeit considered the constitutionality of the practice in light of Article I, Paragraph 3 of the New Jersey Constitution, which reads:
“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.”
She found that the statute was not to be read in a literal sense or in a vacuum, but to be taken in light of pertinent case law and “in conjunction with the State’s longstanding tradition of neutrality in Church-State relations.” Goodzeit deduced that the County was exercising neutrality in that it wasn’t granting funds exclusively to religious entities, but a variety of historic locations that applied for the program.
However, the New Jersey Supreme Court disagreed, stating that the churches’ notation that the funds would serve to keep the buildings usable for worship violates the cited constitutional provision known as the Religious Aid Clause.
“[F]or more than 240 years, the Religious Aid Clause has banned the use of public funds to build or repair any place of worship. Here, the County awarded $4.6 million to twelve churches to repair active houses of worship—from roofs to bell towers, from stained glass windows to ventilation systems. The use of public funds to pay for those repairs violated the plain language of the Religious Aid Clause,” Chief Justice Stuart Rabner wrote last April on behalf of the seven-judge panel.
He said that there are no exceptions to the rule, including for historic preservation of buildings.
On Monday, while the U.S. Supreme Court declined to hear an appeal of the case, three out of the five conservative justices said that the court should issue an opinion on such subject matter in the future.
Justice Kavanaugh outlined that the reason for denying certiorari in the Morris County case is simply because additional information is needed, and because the lower courts have not issued much case law in light of the favorable U.S. Supreme Court ruling in Trinity Lutheran Church of Columbia v. Comer, which determined that religious entities may not be excluded from secular aid programs.
“At some point, this court will need to decide whether governments that distribute historic preservation funds may deny funds to religious organizations simply because the organizations are religious,” he wrote.
“As always, a denial of certiorari does not imply agreement or disagreement with the decision of the relevant federal court of appeals or state supreme court,” Kavanaugh noted. “In my view, prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this court’s precedents and the Constitution’s fundamental guarantee of equality.”
Read his opinion in full here.
FFRF says that it disagrees with Kavanaugh, as it views the case not as a matter of discrimination, but rather surrounding “the right of taxpayers not to be forced to fund active houses of worship”—with “active” being the emphasis.
“The New Jersey Supreme Court’s decision did not require discrimination against religious organizations. In fact, Morris County provides funds to church-owned secular historic buildings—and even to historic churches that are not in use as houses of worship. Such funding was neither challenged by FFRF nor prohibited by the New Jersey Supreme Court,” the organization remarked in a press release.
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