Supreme Court avoids new religious liberty case from New Jersey

March 4, 2019

The Supreme Court declined to hear a new religious liberty case Monday over taxpayer assistance to houses of worship for secular purposes, but several of the justices issued a statement warning that they will eventually have to confront how far localities are able to go in refusing to help out churches.

The case stemmed from New Jersey, where a state law prohibited taxpayer funds intended for preservation of historic structures from going to synagogues, temples, mosques and churches because of their religious use.

That law was upheld by the state’s high court.

The justices declined to hear a challenge, but Justice Brett M. Kavanaugh, joined by Justices Neil M. Gorsuch and Samuel A. Alito Jr., issued a statement saying the court will eventually have to grapple with the issue.

They said the facts of the New Jersey law were too convoluted to make for a clear test case, but such a case will eventually present itself.

“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,” Justice Kavanaugh wrote.

He said denying a house of worship access to taxpayer money because it’s affiliated with a religious organization would be troubling.

“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,” he wrote.

Applicants for New Jersey’s funding had to comply with the U.S. Department of Interior’s standards regarding historical properties and the money could only be used for “the exterior building elements, and the building’s structural, mechanical, electrical, and plumbing systems.”

Morris County had been allowing money to flow to houses of worship, such as colonial and post-Revolutionary War era churches.

But the Freedom from Religion Foundation challenged the county’s policy, saying it violated the state law and entangled church and state.

The county pointed to the U.S. Supreme Court’s 2017 ruling in Trinity Lutheran Church, where the justices ruled Missouri couldn’t withhold funds meant to improve a playground based on the fact the playground was located at a church.

“While the aid at issue here moves from church playgrounds to church buildings, the aid is still generally available and serves a legitimate secular purpose,” the county argued in court documents.

“Governments are not required to sit idly by while many of their communities’ greatest artistic and cultural achievements submit to the ravages of time,” it added.

Justice Kavanaugh, in his statement Monday, said it’s fair for the Supreme Court to wait for more cases to develop in light of the 2017 Trinity Lutheran decision, but said laws like New Jersey’s will have to be settled at some point.