A recent unanimous decision by the New Jersey Supreme Court, interpreting the state constitution's Religious Aid clause (Art. I, ¶ 3) illustrates the sometimes complex relationship between the state constitution and the United States Constitution. The state constitutional provision states:  “[n]o person shall … be obligated to pay … taxes … for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry.”

Over a period of years, Morris County awarded millions of dollars in taxpayer-funded grants to functioning churches, whose houses of worship were considered historic, to repair and upgrade their buildings. A number of churches stated in their grant applications that the funds would allow them to better deliver their religious teachings. In Freedom From Religion Foundation, Inc. v. Morris County Board of Chosen Freeholders, the court struck down these grants to churches as violating the “plain language” of Article I, paragraph 3 of the New Jersey Constitution.

Language similar to the Religious Aid Clause's limitation on governmental assistance to religion has existed since New Jersey's July 2, 1776 Constitution, and even dates from earlier colonial documents. Chief Justice Rabner, for the court, reviewed this state constitutional history in detail. The chief justice emphasized that these particular grants of taxpayers' money were utilized by the churches directly to improve their religious facilities, rather than for some independent secular purpose. By contrast, the churches had argued that historic preservation was the purpose of the grants, and not to enhance facilities for religious purposes. The court rejected this argument.

The churches, however, were able to mount an additional, federal, constitutional argument, this time based on the United States Constitution's First Amendment. Relying on last year's United States Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Morris County churches argued that denying churches access to historic preservation grant funds discriminated against churches because of their religious activities. The Trinity Lutheran court overturned a Missouri Supreme Court decision prohibiting the church from competing for governmental grant funds to resurface its playground with safer material. The Supreme Court majority saw this as a secular purpose despite the fact that it was a church preschool daycare playground, whereas the Missouri court saw it as violating the Missouri Constitution's Aid to Religion clause. The Supreme Court based this decision on the First Amendment's Free Exercise clauses.

The Supreme Court emphasized the secular purpose of the grant, “an available public benefit,” so that it was able to portray the Missouri Supreme Court's decision as discriminating against the church simply because it was a church.

Missouri's state constitutional provision, Article I, § 7, was worded differently from New Jersey's, but provided a similar limitation on public funds. Justice Sotomayor's dissent noted that the similar state constitutional provisions in 39 states, including New Jersey's, were at least partially invalidated under the Supremacy Clause by the majority's decision. Many of us, like Justice Sotomayor, were concerned that our historic church/state separation had been badly damaged, and it may have been. But Chief Justice Rabner emphasized that the funds the Morris County churches (all Christian) sought and obtained were put to a religious use. The Missouri churches, by contrast, sought taxpayer funds for an arguably secular use (this was contested by Missouri officials) but were rejected because of their religious status. Therefore, the New Jersey Supreme Court rejected the churches' claim that enforcing New Jersey's Religious Aid Clause in this context would violate the First Amendment's Free Exercise Clause.

We will see if the Morris County churches petition the U.S. Supreme Court to review the matter under Trinity Lutheran. Of course, the Supreme Court takes very few matters to review; often waits a period of years before it accepts cases after a major constitutional ruling; and does not consider itself a court for the correction of errors by lower federal and state courts. In any event, we do not believe Chief Justice Rabner's decision is “in error,” and is a convincing distinction between federal constitutional doctrine (the supreme law of the land) and state constitutional law.

The New Jersey Supreme Court has, of course, been a leader in interpreting our state constitution to be more protective than the federal constitution. In those cases, the loser (often the state or local government) cannot seek Supreme Court review because of the “Adequate and Independent State Ground” doctrine. Here, we have a less common situation where the loser under the state constitution might seek to prevail in the Supreme Court under the federal constitution. We are pleased that did not work, so far, in this case.