In a case requiring it to square what the parties posed as competing constitutional provisions, the New Jersey Supreme Court has ruled that the award of $4.6 million in taxpayer funds by Morris County to churches violated the Religious Aide Clause of the state Constitution.

And asked whether that provision conflicts with the Free Exercise Clause of the U.S. Constitution, the court answered in the negative.

The grant recipients “are not being denied grant funds because they are religious institutions; they are being denied public funds because of what they plan to do—and in many cases have done: use public funds to repair church buildings so that religious worship services can be held there,” Chief Justice Stuart Rabner wrote for the court.

“This case does not involve the expenditure of taxpayer money for non-religious uses, such as the playground resurfacing in” the U.S. Supreme Court's 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, Rabner added.

One justice penned a concurring opinion.

Between 2012 and 2015, about $4.6 million of the Morris County Freeholder Board's $11.1 million in historic preservation grants went to 12 churches. The recipient properties had to be registered on the national and New Jersey registers of historic places, among other qualifications, and several recipients noted on their applications that the funds would be used to renovate houses of worship used for services, according to the court.

In late 2015, the Madison, Wisconsin-based Freedom From Religion Foundation, and David Steketee, a member of the organization and resident of Morris County, sued the freeholder board and other Morris County parties. The organization relied on the New Jersey Constitution's Religious Aide Clause, which provides that citizens can't be required ”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[.]”

The freeholders removed the case to federal court, but U.S. District Judge John Vazquez in 2016 remanded it. The county's motion for summary judgment was granted by Somerset County Superior Court Judge Margaret Goodzeit, who held that the county was not barred from awarding grants to churches.

The Supreme Court granted the foundation's motion for direct certification. Last October, it heard more than four hours of argument in this and a companion case, American Civil Liberties Union of New Jersey v. Hendricks, in which the Appellate Division previously ruled that the Christie administration violated the state constitution when it gave more than $11 million in grants to a Jewish rabbinical school and a Presbyterian seminary.

Appearing as amici in the Morris County case were the Americans United for Separation of Church and State, in support of the foundation's position, and the Becket Fund for Religious Liberty, in support of the county's and the grant recipients' position.

The court on Wednesday reversed Goodzeit, holding that the “plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and that Morris County's program ran afoul of that longstanding provision.”

The court rejected claims that the use of grants for those purposes thwarted freedom-of-religion rights of the U.S. Constitution.

Rabner distinguished the fact pattern from that of Trinity Lutheran, and said, “The appeal instead relates to grants that sustain the continued use of active houses of worship for religious services and finance repairs to religious imagery. In our judgment, those grants constitute an impermissible religious use of public funds.”

In a separate concurrence, Justice Lee Solomon took exception to majority's holding on Trinity Lutheran, which he said “ignores New Jersey's separate and substantial government interest at stake in this case—historical preservation.”

“I believe that had Morris County's program been applied in a fundamentally neutral manner, the Religious Aid Clause could not bar funding to an otherwise qualified religious institution,” Solomon wrote. ”Nevertheless, I am constrained to concur with the majority because … the grant program at issue here is neither facially neutral nor neutral in its application.”

Lawyers for the Freedom From Religion Foundation couldn't be reached, but the group issued a statement.

“It's shocking that it took a trip to the New Jersey Supreme Court to enforce such a plain constitutional command,” organization co-president Annie Laurie Gaylor said. “New Jersey taxpayers can breathe a sigh of relief that their constitutional religious liberty rights have been protected.”

Andrew L. Seidel, an in-house constitutional attorney for the organization, added: “This is not just a win for secular citizens, but for every New Jersey taxpayer. Governments in New Jersey cannot force Muslims to bankroll temples and yeshivas, compel Jews to subsidize Christian churches and Catholic schools, force Christians to fund mosques and madrassas or nonbelievers to support any religion. It's a win for all.”

John Bowens of Schenck, Price, Smith & King in Florham Park argued for the Morris County parties. He said in an email: “I was both surprised and disappointed by the decision. The County has not made any decision on how it will proceed in light of the decision. The opinion does, however, leave in place the grants awarded to date.”

Kenneth Wilbur of Drinker Biddle & Reath's Florham Park office, who argued for the Presbyterian Church in Morristown and other churches receiving the grants, sent a lengthy statement by email taking issue with several of the court's holdings.

“As Justice Solomon's concurrence notes, the majority decision fails to recognize that the purpose of these grants is not to aid religion, but to advance the government's secular interest in historic preservation,” Wilbur said. “Under the Court's reasoning, the State could not fund preservation of the exterior of Boston's Old North Church, if it happened to be in New Jersey.  The State also could no longer fund preservation of New Jersey's analog to Old North Church,  St. Michael's Episcopal Church in Trenton, despite Americans having fought and died for independence there during the Battle of Trenton.”