U.S. Supreme Court building in Washington, D.C. – Diego M. Radzinschi/ALM

On March 4, 2019, the Supreme Court of the United States denied petitions for writs of certiorari to the Supreme Court of New Jersey in the case of Freedom from Religion Foundation v. Morris County Board of Chosen Freeholders, decided April 18, 2018. From the year 2012 to 2015, Morris County had awarded $4.6 million in taxpayer funds for the restoration and preservation of the religious properties and facilities of 12 churches in the county. Writing for the unanimous court, Chief Justice Rabner stated that the case raised two questions: “… whether the grant program violated the Religious Aid Clause of the New Jersey Constitution and, if so, whether the Religious Aid Clause conflicts with the Free Exercise Clause of the United States Constitution.”

The Religious Aid Clause states that “[n]o person shall … be obliged 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.” (N.J. Const. art. I, par. 3). The court provided a scholarly and detailed history of the clause in question and also contrasted it with similar clauses in other states. The conclusion of the court was that the plain language of the New Jersey constitutional provision in question clearly prohibited Morris County's grants. The court also rejected the plaintiffs' contention that New Jersey's Religious Aid Clause conflicted with the Free Exercise Clause of the United States Constitution.

In order to reach its conclusion, the court analyzed in detail the decision of the United States Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Comer, 532 U.S. ___, 137 S. Ct. 2012 (2017). In that case, Trinity Lutheran Church had applied for and received a state grant to reimburse qualifying nonprofit organizations that installed playground surfaces for skating made from recycled tires. The Missouri department in question had a policy of denying grants to any applicant owned or controlled by a church sector or other religious entity. Accordingly, the application of Lutheran Church was rejected on the ground that under the Missouri Constitution, no money could be taken from the state treasury in aid of any church or religion.

The United States Supreme Court reversed, concluding that the Missouri department's denial of the application violated the Free Exercise Clause of the United States Constitution, observing that, “only a state interest 'of the highest order' can justify the Department's discriminatory policy.” It was further determined by the United States Supreme Court that the policy preference for skating was as far removed as possible from any established religion concerns, and that therefore Missouri's pursuit of its anti-establishment policy had gone too far to deny a religious entity a public benefit solely because the applicant was a religious entity.

In conclusion, the New Jersey Supreme Court reversed the trial court's earlier ruling in favor of the plaintiffs and held that the Morris County grant violated the New Jersey Constitution. Because the grant spans such a long period of time, and because there was no indication of whether the funds that had been awarded had already been spent in good faith, the court made its decision prospective only. Justice Solomon joined with the majority but wrote a concurrence “… to express my opinion that the Religious Aid Clause cannot categorically bar churches with active congregations from receiving funds that promote a substantial government purpose, such as historic preservation. Such a blanket exclusion violates the Free Exercise Clause of the United States Constitution and the United States Supreme Court's opinion in Trinity Lutheran Church …”

We agree with and support the New Jersey Supreme Court decision in the Morris County case and also the decision of the United States Supreme Court to deny certiorari. However, we wish to emphasize that in a statement fixed to the denial of certiorari, Justice Kavanaugh, joined by Justices Alito and Gorsuch, stated that certiorari was denied in part because the record did not make clear what kinds of buildings in Morris County could be funded under the program. Justice Kavanaugh said, “That factual uncertainty about the scope of the program could hamper our analysis of petitioners' religious discrimination claim.” In addition, Justice Kavanaugh said that a “robust … body of case law” from the lower courts had not yet emerged on the question of “… whether governments may exclude religious organizations from general historic preservation grants programs.” The statement concluded with the observation that, “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.”

Based on the comments in Justice Kavanaugh's statement, it is not unlikely that when an appropriate case is before it, the United States Supreme Court will rule that a constitutional provision such as New Jersey's is violative of the Free Exercise Clause of the First Amendment of the United States Constitution.

Editorial Board member Robert Bartkus recused from this editorial.