Posted by: Patricia Salkin | April 25, 2018

NJ Supreme Court Finds County Historic Preservation Grants Awarded to Churches Violated the State Constitution

This post was authored by Amy Lavine, Esq.

The New Jersey Supreme Court held in April that county historic preservation grants awarded to churches violated the Religious Aid Clause in the state constitution. Additionally, the effect of the Religious Aid Clause in prohibiting such grants did not discriminate against religion in violation of the federal Free Exercise Clause, because the exclusion of grants to churches was not based on their status as religious organizations, but rather because the grants had been awarded for religious uses. Freedom from Religion Found. v. Morris Cty. Bd. of Chosen Freeholders, 2018 WL 1832631 (4/18/18)

From 2012 to 2015, the Morris County Historic Preservation Trust Fund awarded $4.6 million to twelve churches to fund historic preservation projects. All twelve churches were Christian denominations, had active congregations, and held services in one or more of the buildings for which grant funds were used. Several of the churches stated that the grant funds were necessary to continue offering religious services, and at least one church used the grant funds to finance the restoration of religious imagery.

In 2015, the Freedom from Religion Foundation and a Morris County resident filed a complaint alleging that the grants violated the Religious Aid Clause in the New Jersey Constitution. That provision states that no person shall: “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.”

The trial court found that the grants were examples of “benevolent neutrality” and thus did not violate the Religious Aid Clause, which had to be interpreted “in conjunction with the State’s longstanding tradition of neutrality in church-state relations.” The trial court also found that the Religious Aid Clause was preempted by the First Amendment, as excluding churches from the grant program “would be tantamount to impermissibly withholding… general benefits to certain citizens on the basis of their religion.”

The New Jersey Supreme Court reversed on appeal. The court began its analysis with a history of the state’s religious policies and explained that the Religious Aid Clause, as first included in the state’s 1776 constitution, expressed an intent that “the freedom from being compelled to fund religious institutions through taxation — including the repair of churches — was a grant of personal liberty….” The court also emphasized the historical roots of the state’s “longstanding and vigorous commitment to religious liberty and freedom from compelled support.” In light of this historical context, and based on the plain language of the provision, the county’s award of historic preservation grants to the churches violated the Religious Aid Clause. As the court stated:
for more than 240 years, the Religious Aid Clause has banned the use of public funds to build or repair any place of worship…. The clause does not ask about the governing body’s intent — that is, whether the authorities meant to fund repairs to churches, to preserve history and promote tourism, or both…. In short, there is no exception for historic preservation.

The court also rejected the argument that “repairs” under the Religious Aid Clause could be distinguished from “restoration” activities such as historic preservation, as the terms “repair” and “restoration” have the same general meaning and nothing in the history or caselaw suggested such a distinction.

Having determined that the grants violated the Religious Aid Clause, the next question was whether the Religious Aid Clause was preempted by the Free Exercise Clause, such that grants to churches would have to be permitted. The U.S. Supreme Court addressed a similar claim in 2017, and its decision in Trinity Lutheran was that government grant programs cannot categorically disqualify otherwise eligible applicants solely based on their status as religious organizations. Trinity Lutheran was limited to disqualification based on an applicant’s religious status, however, and did not extend to disqualifications based on an applicant’s religious use of the funding. Applying this distinction to the county’s historic preservation program, the court found that the grants were prohibited under the Religious Aid Clause not because they were awarded to religious entities, but because the grants were awarded for proposals that were religious in nature. As the court explained: “This case does not involve the expenditure of taxpayer money for non-religious uses, such as the playground resurfacing in Trinity Lutheran. 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…. We therefore find that the application of the Religious Aid Clause in this case does not violate the Free Exercise Clause.”

Freedom from Religion Found. v. Morris Cty. Bd. of Chosen Freeholders, 2018 WL 1832631  (N.J. 4/18/18)


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