New Jersey: Establishing Religion Brick by Brick

Historic buildings are obviously old, and many are in disrepair, but have inherent beauty that is hard to and or rarely replicated today. With that in mind, Morris County, New Jersey formulated a program to award grants to applicants with the goal of preserving the historic and beautiful buildings within their county lines. To receive these grants, funded by property taxes, applicants were required to cite the historic significance of their building. The grant is open to any building, religious or non-religious. However, religious buildings, like churches and synagogues, are only allowed to use funds to address structural and façade problems, as well as mechanical systems like church bells. This clause was created to prevent an establishment of religion by the program. Between 2012 and 2015, the state approved 55 applications, consisting of both religious and non-religious buildings.

The Freedom from Religion Foundation (FFRF) got wind of this policy and decided to take action. In December of 2015, they filed suit in the case FFRF v. Morris County Board of Freeholders.The FFRF suit claimed that the Morris County policy constituted an impermissible establishment of religion by providing funds to renovate some religious buildings. They cited the New Jersey Constitution whose Article One, Section Threestates: “Nor shall any person be obliged to pay tithes, taxes, or other rates for buildings or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry […].” In January of 2017, a New Jersey District Court sided with Morris County.

In the decision, Justice Margaret Goodzeit held that the program did not establish any religion, citing the failure of the FFRF to consider other sections of Article One, which state that no religion shall be preference over another and no one shall be denied enjoyment of public services because of, among other things, their religion. Likewise, the Justice claimed that their interpretation of Section Three was far too literal. In addition to the misinterpretations of New Jersey’s Constitution, the justice cites Everson v.Board of Educationin the opinion. Everson, which also occurred in New Jersey, ruled that it was constitutional for the state to reimburse parents for their children’s transportation costs to parochial schools. In the majority opinion for Everson, Justice Black remarked that if the purpose of government funding towards religious institutions was, “separate and so indisputably marked off from the religious function,” then it would be constitutional. Although this case does not deal with a school, the principle remains the same; this aid was separate of any religious function, and the law appears to be facially neutral and generally applicable. Frankly, it would be hostile towards religion and against legal and historic precedent to deny the constitutionality of this act.

Further, pertinent precedent to apply would be Trinity Lutheran Church v. Comer. This case is similar because the church, Trinity Lutheran, applied for a state grant for playground equipment, but was denied because the Missouri Constitution had a similar clause to Section Three of New Jersey’s Constitution. The case allowed the Supreme Court to answer the question of whether excluding religious institutions from otherwise neutral aid programs was constitutional. The court sided in favor of the church, holding that a generally applicable and neutral law that discriminates against otherwise eligible institutions only on the basis of religion is impermissible. While the law in question did not prevent religious practice, it denied a group a general benefit from the government that a secular institution would have qualified for, which was sufficient enough to garner a tag of religious discrimination.

When Trinity precedent is applied to the case at hand, the parallels are readily apparent. Both laws are facially neutral and generally applicable, and in both cases, the government or plaintiffs seek to restrict benefits for organizations solely based on their religious affiliation, even when the government benefits would not directly impact benefit the practice of religion. In Trinity, the Supreme Court ultimately sided with the church for the aforementioned reasons, and in this case, the New Jersey Supreme Court should ultimately rule in favor Morris County.

However, just this week, the New Jersey Supreme Court reversed the district court’s decision, ruling the program unconstitutional. In the majority opinion, Justice Stuart Rabner reasoned, “The churches are not being denied grant funds because they are religious institutions; they are being denied public funds because of what they plan to do […] use public funds to repair church buildings so that religious worship services can be held there.” The court found serious issue with the idea that the funds would be supporting churches with active congregations, and those congregations and their religious warship would be the primary beneficiaries of the repairs, opposed to the intended purpose of the act, which is to preserve the aesthetic beauty of the county. The justice argued that it would be different than giving a religious organization funds for a playground, which could not be used for warship (theoretically), in an attempt to dispel the precedent from Trinity.

I firmly believe this case should be ruled in favor of Morris County. Their policy is supported by strong legal precedent from a landmark case and has strong parallels with another important, recent decision. Justice Lee Solomon, in his dissent, explained, “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.”In no way is this policy directly aiding religion, it is simply aimed at preserving the aesthetic beauty of Morris County which is a legitimate compelling interest. If the government is providing aid to groups, it should be doing so in a facially neutral and generally applicable manner, which this law does. If the state were to deny a group funding solely based on religion, that would constitute not only hostility towards religion, but discrimination, which is protected against in the 14thamendment. In my mind, the continuance of this policy inflicts no harm to the principles of the First Amendment, given the precedent that has been set in the cases of Everson, Trinity, etc.