Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders

Annotate this Case
Justia Opinion Summary

From 2012 to 2015, Morris County, New Jersey awarded $4.6 million in taxpayer funds to repair twelve churches, as part of a historic preservation program. This appeal raised two questions for the New Jersey Supreme Court's consideration: 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 New Jersey Supreme Court found the Religious Aid Clause has been a part of New Jersey’s history since the 1776 Constitution. The clause guaranteed 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.” The clause reflected a historic and substantial state interest. The Court found the plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and that Morris County’s program "ran afoul of that longstanding provision." Morris County and the grant recipients claimed that to withhold grants from eligible churches would violate their rights under the Free Exercise Clause of the First Amendment. The County and the churches relied heavily on Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017), as grounds for their argument. The New Jersey Court determined that all of the defendant churches had active congregations, and all conducted regular worship services in one or more structures repaired with grant funds. Several churches specifically explained that they sought funds in order to be able to continue to host religious services. "We do not believe Trinity Lutheran would require that grants be considered and extended to religious institutions under those circumstances." Therefore the New Jersey Court reversed the trial court’s decision to uphold the grants.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

   Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders (A-71-16) (079277)

Argued October 23, 2017 -- Decided April 18, 2018

RABNER, C.J., writing for the Court.

          From 2012 to 2015, Morris County awarded $4.6 million in taxpayer funds to repair twelve churches, as
part of a historic preservation program. This appeal raises 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.

         In 2002, the voters of Morris County authorized the County Freeholder Board to permit historic
preservation funding under a trust funded by a county property tax. Only four kinds of entities could apply for
grants: municipal governments within Morris County; Morris County government; charitable conservancies whose
purpose includes historic preservation; and religious institutions. A review board evaluated applications and made
recommendations to the Freeholder Board, which approved final awards. Certain conditions applied to grant
recipients. Successful applicants that received construction grants of more than $50,000 cumulatively had to
execute a thirty-year easement agreement with the County. Grantees were also required to provide public access to
properties that received grant funds. The County and the grant recipient were to “negotiate the days and hours that
the property [would] be open to the public.” Applicants who received funding also had to list their property on the
National and New Jersey Registers of Historic Places.

         From 2012 to 2015, the Freeholder Board approved a total of $11,112,370 in grants from the trust fund.
The Board awarded 41.7 percent to twelve churches. The grants funded the preparation of construction documents
and plans, and the restoration of church buildings, towers, parish houses, windows, and other items. All twelve
churches “have active congregations” and all “have conducted regular worship services in one or more of the
structures” for which grant funds have been or will be used. All twelve are Christian churches. Several successful
applicants specifically stated that funds were needed to allow the church to offer religious services.

          On December 1, 2015, the Freedom from Religion Foundation (FFRF) and David Steketee, a member of
the group and a Morris County resident and taxpayer, (plaintiffs), filed a complaint in Superior Court that named the
Freeholder Board, the review board, and the Morris County Treasurer, in his official capacity, (collectively, Morris
County), as defendants. Defendants removed the matter to the United States District Court for the District of New
Jersey. The District Court later granted plaintiffs’ motion to remand the case to state court. The court observed that
plaintiffs “opted to allege a violation of their state rights, placing this case squarely within the state court.” After the
remand, plaintiffs amended the complaint to include the twelve churches as defendants (Churches).

        All parties moved for summary judgment. The trial court granted defendants’ motion and denied plaintiffs’
cross-motion. The Court granted plaintiffs’ motion for direct certification. 
230 N.J. 478 (2017).

HELD: The plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches,
and Morris County’s program ran afoul of that longstanding provision. Based on its understanding of the current state
of the law, including the United States Supreme Court’s recent decision in Trinity Lutheran Church of Columbia, Inc. v.
Comer, 582 U.S. ___, 
137 S. Ct. 2012 (2017), the Court concludes that that the application of the Religious Aid Clause
in this case does not violate the Free Exercise Clause.

1. The Religious Aid Clause 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.” N.J. Const. art. I, ¶ 3.
That text has deep roots in New Jersey’s history. (pp. 12-24)

                                                             1
2. The Religious Aid Clause does not preclude the provision of services tied to general public safety. Instead, 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. In short, there is no exception for historic preservation.
Nothing in the prior case law requires a departure from the plain language of the Religious Aid Clause. Nor do the
other provisions about religion in the State Constitution. See N.J. Const. art. I, ¶¶ 4, 5. The Churches point to a debate
at the Constitutional Convention of 1947 in response to the decisions by the Court of Errors and Appeals and the United
States Supreme Court in Everson v. Board of Education of Ewing, 
133 N.J.L. 350 (E. & A. 1945), aff’d, 
330 U.S. 1
(1947). The debate did not relate to the Religious Aid Clause’s prohibition against the use of taxpayer funds to repair
churches. Defendants and amici also suggest that Article VIII of the State Constitution affects the plain meaning of the
Religious Aid Clause. Article VIII addresses funding for historic preservation and does not conflict with the clause.
The County’s grants ran afoul of the State Constitution’s Religious Aid Clause. (pp. 29-34)

3. The question before the Supreme Court in Trinity Lutheran was whether the policy of the Missouri Department
of Natural Resources “of categorically disqualifying churches and other religious organizations from receiving
grants under its playground resurfacing program . . . violated the rights of Trinity Lutheran [Church] under the Free
Exercise Clause of the First Amendment.” 
137 S. Ct.  at 2017. The Court held that the Department’s policy violated
the Free Exercise Clause by “expressly denying a qualified religious entity a public benefit solely because of its
religious character.” Id. at 2024. The Court distinguished between Missouri’s policy and the scholarship
restrictions in Locke v. Davey, 
540 U.S. 712 (2004). Id. at 2022-23. Of particular note in this case, in Locke,
“Washington’s choice was in keeping with the State’s antiestablishment interest in not using taxpayer funds to pay
for the training of clergy; in fact, the Court could 'think of few areas in which a State’s antiestablishment interests
come more into play.’” Id. at 2023 (quoting Locke, 
540 U.S. at 722). The Court returned to the central problem
raised by Missouri’s program: that Trinity Lutheran’s status as a church—not its intended use of the funds—
prevented it from participating in the grant program. Id. at 2024. The Court, however, did not opine on whether that
key principle—that “a qualified religious entity” cannot be denied “a public benefit solely because of its religious
character,” ibid.—extends to religious uses of funding, id. at 2024 n.3. The Court concluded that “Missouri’s policy
preference for skating as far as possible from religious establishment concerns” could not “qualify as compelling.”
Id. at 2024. The state’s interest was “limited by the Free Exercise Clause.” Ibid. (pp. 35-42)

4. The public funds awarded in this case actually went toward “religious uses.” 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—and in many cases have done: use public funds to repair church buildings so that religious worship services can
be held there. Those grants constitute an impermissible religious use of public funds. New Jersey’s Religious Aid
Clause and the grants awarded in this matter stand in stark contrast to the setting in Trinity Lutheran. As in Locke,
New Jersey’s antiestablishment interest in not using public funds to build or repair churches or maintain any
ministry “lay at the historic core of the Religion Clauses.” See Trinity Lutheran, 
137 S. Ct.  at 2023. Also as in
Locke, the antiestablishment interest New Jersey expressed in 1776 did not reflect animus toward any religion. See
Locke, 
540 U.S.  at 725. The holding of Trinity Lutheran does not encompass the direct use of taxpayer funds to
repair churches and thereby sustain religious worship activities. See 
137 S. Ct.  at 2024 n.3. The application of the
Religious Aid Clause in this case does not violate the Free Exercise Clause. (pp. 42-50)

5. Had the Free Exercise Clause permitted the awards, it would be necessary to evaluate them under the
Establishment Clause. The grant program poses questions under any articulation of the current standard. (pp. 50-51)

6. The Court does not unwind the awards. The principles outlined above will apply prospectively. (p. 52)

         The judgment of the trial court is REVERSED. Summary judgment in favor of plaintiffs is GRANTED.

         JUSTICE SOLOMON, CONCURRING, writes separately to express 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 and
Trinity Lutheran. Had Morris County’s program been applied in a fundamentally neutral manner, the Religious Aid
Clause could not bar funding to an otherwise qualified religious institution, in Justice Solomon’s view.

      JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in
CHIEF JUSTICE RABNER’s opinion. JUSTICE SOLOMON filed a separate, concurring opinion.

                                                          2
                                    SUPREME COURT OF NEW JERSEY
                                      A-
71 September Term 2016
                                              079277

FREEDOM FROM RELIGION
FOUNDATION and DAVID
STEKETEE,

    Plaintiffs-Appellants,

         v.

MORRIS COUNTY BOARD OF CHOSEN
FREEHOLDERS, THE MORRIS
COUNTY PRESERVATION TRUST
FUND REVIEW BOARD, JOSEPH A.
KOVALCIK, JR., in his
official capacity as Morris
County Treasurer, THE
PRESBYTERIAN CHURCH IN
MORRISTOWN, FIRST
PRESBYTERIAN CHURCH OF NEW
VERNON, ST. PETER’S EPISCOPAL
CHURCH, FIRST REFORMED CHURCH
OF POMPTON PLAINS, CHURCH OF
THE REDEEMER, COMMUNITY OF
ST. JOHN BAPTIST, STANHOPE
UNITED METHODIST CHURCH,
CHURCH OF THE ASSUMPTION OF
THE BLESSED VIRGIN MARY,
FIRST PRESBYTERIAN CHURCH OF
BOONTON, ST. PETER’S
EPISCOPAL CHURCH IN MOUNTAIN
LAKES, LEDGEWOOD BAPTIST
CHURCH, and COMMUNITY CHURCH
OF MOUNTAIN LAKES,

    Defendants-Respondents.

         Argued October 23, 2017 – Decided April 18, 2018

         On appeal from the Superior Court, Chancery
         Division, Somerset County.

         Paul S. Grosswald argued the cause for
         appellants Freedom from Religion Foundation


                                1
and David Steketee (Paul S. Grosswald, on
the brief, and Andrew L. Siedel and Ryan D.
Jayne, of the Wisconsin bar, admitted pro
hac vice, on the briefs).

John M. Bowens argued the cause for
respondents Morris County Board of Chosen
Freeholders, the Morris County Preservation
Trust Fund Review Board, and Joseph A.
Kovalcik, Jr., in his official capacity as
Morris County Treasurer (Schenck, Price,
Smith & King, attorneys; John M. Bowens, on
the briefs).

Kenneth J. Wilbur argued the cause for
respondents The Presbyterian Church in
Morristown, et al. (Drinker Biddle & Reath,
attorneys; Kenneth J. Wilbur and Justin M.
Ginter, on the briefs).

Alex J. Luchenitser (Americans United for
Separation of Church and State) a member of
the District of Columbia bar, admitted pro
hac vice, argued the cause for amici curiae
American Civil Liberties Union, American
Civil Liberties Union of New Jersey, and
Americans United for Separation of Church
and State (American Civil Liberties Union of
New Jersey; Barry, Corrado & Grassi;
Americans United for Separation of Church
and State; and American Civil Liberties
Union Foundation, attorneys; Edward L.
Barocas, Jeanne M. LoCicero, Rebecca
Livengood, Frank Corrado, Alex J.
Luchenitser, Richard B. Katskee, a member of
the District of Columbia and Maryland bars,
admitted pro hac vice, and Daniel Mach, a
member of the District of Columbia and New
York bars, admitted pro hac vice, on the
brief).

Cameryn J. Hinton, Deputy Attorney General,
submitted a brief on behalf of amicus curiae
New Jersey Historic Trust (Christopher S.
Porrino, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General,
of counsel, Cameryn J. Hinton and Susan M.


                      2
         Scott, Deputy Attorney General, on the
         brief).

         Thomas A. Gentile submitted a brief on
         behalf of amicus curiae The Becket Fund for
         Religious Liberty (Wilson Elser Moskowitz
         Edelman & Dicker and The Becket Fund for
         Religious Liberty, attorneys; Thomas A.
         Gentile, on the brief, and Hannah Clayson
         Smith, Luke William Goodrich, and Diana
         Marie Verm, members of the Court of Appeals
         of the District of Columbia bar, admitted
         pro hac vice, on the brief).


    CHIEF JUSTICE RABNER delivered the opinion of the Court.

    From 2012 to 2015, Morris County awarded $4.6 million in

taxpayer funds to repair twelve churches, as part of a historic

preservation program.   This appeal raises 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 has been a part of New Jersey’s

history since the 1776 Constitution.   The clause guarantees 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, ¶ 3.   The clause reflects a historic and

substantial state interest.   We find that the plain language of

the Religious Aid Clause bars the use of taxpayer funds to



                                 3
repair and restore churches, and that Morris County’s program

ran afoul of that longstanding provision.

    Morris County and the grant recipients claim that to

withhold grants from eligible churches would violate their

rights under the Free Exercise Clause of the First Amendment.

The County and the churches rely heavily on Trinity Lutheran

Church of Columbia, Inc. v. Comer, 582 U.S. ___, 
137 S. Ct. 2012

(2017), for support.

    In the case before us, all of the churches have active

congregations, and all have conducted regular worship services

in one or more structures repaired with grant funds.    Several

churches specifically explained that they sought funds in order

to be able to continue to host religious services.     We do not

believe Trinity Lutheran would require that grants be considered

and extended to religious institutions under those

circumstances.

    We therefore reverse the trial court’s decision to uphold

the grants.

                               I.

                               A.

    In 1992, the voters of Morris County approved a referendum

to create a trust for open space and farmland preservation.        The

trust was funded by a county property tax.   Ten years later, the

voters authorized the County Freeholder Board to permit historic


                                4
preservation funding under the trust.   Today, the trust is known

as the Morris County Open Space, Farmland, Floodplain Protection

and Historic Preservation Trust Fund.

    At the time of the grants in question, the trust considered

applications to stabilize, repair, rehabilitate, renovate,

restore, improve, protect, or preserve historic properties.      To

be eligible for consideration, a property had to be located in

Morris County and either be listed on the National or New Jersey

Register of Historic Places or be eligible for listing by the

State historic preservation office.

    Only four kinds of entities could apply for grants:

municipal governments within Morris County; Morris County

government; charitable conservancies whose purpose includes

historic preservation; and religious institutions.

    A review board evaluated applications and made

recommendations to the Freeholder Board.   Among other things,

the review board considered the significance of the property,

its physical condition and proposed use, the applicant’s ability

to match the funds requested, and the project’s relationship to

heritage education and tourism.

    The Freeholder Board approved final awards.      For religious

institutions, grants could fund assessment reports, preparation

of construction documents, construction projects for a




                                  5
building’s exterior as well as its mechanical, electrical, and

plumbing systems, and other items.

    Certain conditions applied to grant recipients.    Successful

applicants that received construction grants of more than

$50,000 cumulatively, over any number of funding cycles, had to

execute a thirty-year easement agreement with the County.   The

“easement is a deed restriction that is used to assure long-term

preservation of a historic property through proper maintenance

and by limiting changes in use or appearance and preventing

demolition of the property.”

    Grantees were also required to provide public access to

properties that received grant funds.   The County and the grant

recipient were to “negotiate the days and hours that the

property [would] be open to the public.”

    All work on a project had to be completed within two years

once a grant was awarded; a one-year extension could be sought.

Applicants who received funding also had to list their property

on the National and New Jersey Registers of Historic Places.

                               B.

    From 2012 to 2015, the Freeholder Board approved a total of

$11,112,370 in grants from the trust fund.   The Board awarded

$4,634,394, or 41.7 percent, to twelve churches.   The grants

funded the preparation of construction documents and plans, and




                                6
the restoration of church buildings, towers, parish houses,

windows, and other items.

    According to the parties’ joint statement of stipulated

facts, all twelve churches “have active congregations” and all

“have conducted regular worship services in one or more of the

structures” for which grant funds have been or will be used.

All twelve houses of worship are Christian churches.

    In addition to the stipulation, the record also includes

the grant applications that the churches submitted, which

detailed how the requested funds would be used and why they were

needed.   Several successful applicants specifically stated that

funds were needed to allow the church to offer religious

services.   The Presbyterian Church in Morristown, for example,

sought funds to restore the exterior of its chapel.    The Church

explained that a grant would “historically preserve the building

allowing its continued use by our congregation for worship

services as well as by the community and many other outside

organizations that use it on a regular basis.”   The Church

received a preservation grant to repair the chapel’s roof and

the air shaft in the church building; to pay for finishes,

moisture protection, and other costs; and to finance interior

carpentry, masonry, and concrete work.

    The Church of the Redeemer received grants for the

restoration of the exterior of its church building and parish


                                 7
house.   As to the building, the Church wrote in its application

that “[t]he impact of restoring the large slate roof and tower

is entirely positive.   It will restore a key structural element

that has failed and assist in assuring that the building can

continue in its existing use as a church and as an important

building in Morristown.”

    Saint Peter’s Episcopal Church of Morristown sought and

received funds to repair the interior of its church tower.     The

Church observed that the funding would “ensure continued safe

public access to the church for worship, periods of solitude and

meditation during the week, and several concerts throughout the

year, as well as the treasures the church and tower contain.”

    The First Baptist Church of Ledgewood received funds to

create preservation plans, in particular, for “the tower,

heating system, and the original stained glass window.”     The

application noted that “[p]reservation of the Ledgewood Baptist

Church will enable the congregation to continue to provide

religious and community activities to the county’s diverse

population.”

    At least one application reveals that grant funds financed

the restoration of religious imagery.   The First Presbyterian

Church of Boonton received funds to restore its “Rose Window”




                                 8
and “Walk to Emmaus” window.1   Interior photos of both windows

are in the record.   The Rose Window is above the entrance to the

chapel; the “long, arched” Emmaus Window is located directly in

front of the altar and depicts Jesus and two disciples.     The

Church explained in its application that “[p]reservation and

repair of stained glass windows increase the beauty and the

ambiance of the structure, as viewed from inside and outside.”

It is not clear from the record whether the stained glass

windows at the First Baptist Church of Ledgewood, noted above,

depict religious images.

                                C.

     On December 1, 2015, the Freedom from Religion Foundation

(FFRF) and David Steketee, a member of the group and a Morris

County resident and taxpayer, (plaintiffs), filed a complaint in

Superior Court.   The complaint named the Freeholder Board, the

review board, and the Morris County Treasurer, in his official

capacity, (collectively, Morris County), as defendants.

Plaintiffs asserted that the grants were unconstitutional and

violated Steketee’s substantive constitutional rights under the

New Jersey Civil Rights Act, 
N.J.S.A. 10:6-2(c).





1 In Luke 24:13-53 (King James), Jesus appears after the
Resurrection to two of his disciples as they walk from Jerusalem
to Emmaus.


                                 9
    Defendants removed the matter to the United States District

Court for the District of New Jersey.    The District Court later

granted plaintiffs’ motion to remand the case to state court.

The court observed that plaintiffs “opted to allege a violation

of their state rights, placing this case squarely within the

state court,” and explained that “[a]lthough Defendants’

arguments center around potential federal defenses they may

raise, that does not bring Plaintiffs’ original cause of action

within [federal] jurisdiction.”    After the remand, plaintiffs

amended the complaint to include the grant recipients -- the

twelve churches -- as defendants (Churches).

    All parties moved for summary judgment.     On January 9,

2017, the trial court granted defendants’ motion and denied

plaintiffs’ cross-motion.

    In a statement of reasons, the trial court noted that the

case implicated several provisions of the New Jersey

Constitution and centered on the Religious Aid Clause.     The

court concluded “that the only thing that is clear about [the

Religious Aid Clause’s] intended meaning is that it is not meant

to be read literally” and that the grants were examples of

“benevolent neutrality” on the part of the government,

consistent with “the spirit of our state and federal

Constitutions.”   For support, the court relied on Resnick v.

East Brunswick Township Board of Education, 
77 N.J. 88 (1978),


                                  10
Everson v. Board of Education of Ewing, 
133 N.J.L. 350 (E. & A.

1945), aff’d, 
330 U.S. 1 (1947), and American Atheists, Inc. v.

City of Detroit Downtown Development Authority, 
567 F.3d 278

(6th Cir. 2009), which are addressed below.

    “[T]o correctly interpret the meaning of [the Religious Aid

Clause] in this particular instance, given these particular

facts,” the trial court found that the provision must be read

“in conjunction with the State’s longstanding tradition of

neutrality in church-state relations . . . and the adoption of

pro-neutrality provisions of the State Constitution, such as

Art. I, Para. 4 and 5.”    The court added that the Religious Aid

Clause “must also be harmonized with” provisions in the

Constitution that allow for eminent domain and the funding of

historic preservation.

    The court also noted that “[e]xcluding historical churches

from receipt of reimbursements available to all historical

buildings would be tantamount to impermissibly withholding . . .

general benefits to certain citizens on the basis of their

religion,” contrary to federal law.

    We granted plaintiffs’ motion for direct certification.


230 N.J. 478 (2017).     We also granted the following motions for

leave to appear as amicus curiae:      a joint application by the

American Civil Liberties Union, the American Civil Liberties

Union of New Jersey, and Americans United for Separation of


                                  11
Church and State (collectively, ACLU); and individual

applications from the New Jersey Historic Trust (NJHT) and the

Becket Fund for Religious Liberty (Becket).

                                 II.

    This appeal involves a pure question of law.      We therefore

review the trial court’s grant of summary judgment to defendants

de novo.   See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,


140 N.J. 366, 378 (1995).

    To help frame the issues, we begin with an overview of

parts of the State and Federal Constitutions that are relevant

to this appeal.

                                 A.

    The modern Constitution of 1947 includes the Religious Aid

Clause.    N.J. Const. art. I, ¶ 3.    The clause 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.”     Ibid.

    The text of the Constitution has deep roots in our State’s

history.   The CONCESSIONS and Agreement of the Lords Propriators

of the Province of New Cesarea or New Jersey to and with all and

every the Adventurers and all such as shall settle or plant

there (Concessions), dated February 10, 1664, is considered the


                                 12
first document for the governance of what was then a province.

See Samuel Smith, The History of the Colony of Nova-Caesaria, or

New Jersey 61, 512-21 (1877).   It expressly guaranteed religious

liberty by recognizing that all persons may “fully have and

enjoy . . . their Judgments and Conciences in matters of

Religion throughout” the province.   Concessions ¶ 7,

https://www.njstatelib.org/wp-content/uploads/slic_files/

imported/Research_Guides/Historical_Documents/nj/CONCESS1.html.

At the same time, the document found that State-sponsored

religion was compatible with liberty of conscience, so long as

people could also support the religion of their choice.     To that

end, the General Assembly of the province was granted the power

to “appoint such and soe many Ministers or Preachers as they

shall think fitt, and to establish their maintenance.”     Id. ¶ 8.

    In the years that followed, charters were enacted for the

governance of East and West New Jersey, and each contained a

provision in support of religious freedom.   See Charter or

Fundamental Laws of West New Jersey ch. XVI (1676),

http://www.njstatelib.org/wp-content/uploads/slic_files/

imported/Research_Guides/Historical_Documents/nj/NJ05A.html;

Fundamental Constitutions for the Province of East New Jersey in

America art. XVI (1683), http://avalon.law.yale.edu/

17th_century/nj10.asp.   Despite the new charters, however, the

Concessions appear to have retained vitality, at least in East


                                13
Jersey.   See Edward Q. Keasbey, The Early Constitutions of New

Jersey, 
1 N.J. L. Rev. 20, 32-33 (1915).     Also, the lifespan of

the two charters was limited by the eventual surrender of both

Jerseys to the Crown in 1702.     See id. at 33; Carl H. Esbeck,

Dissent & Disestablishment:     The Church-State Settlement in the

Early American Republic, 2
004 BYU L. Rev. 1385, 1469 (2004).

    In that year, Edward Hyde, Lord Cornbury, was appointed

Governor of both New Jersey and New York.     Keasbey, 
1 N.J. L.

Rev. at 34.   The Crown provided Cornbury with detailed

instructions on how to govern; they included directions on

religious liberty:   “You are to permit a liberty of conscience

to all person (except Papists) so they may be contented with a

quiet and peaceable enjoyment of the same . . . .”     Instructions

for our Right Trusty and well beloved Edward Lord Cornbury ¶ 51

(1702), http://iplaw.rutgers.edu/statutes/LS/LS8.pdf#page=32.

    Notwithstanding the intervening Instructions and charters,

the Concessions remained an influential resource for the

drafters of the first Constitution in 1776.     See Charles R.

Erdman, Jr., The New Jersey Constitution of 1776 4 (1929).       It

appears, though, that the establishment of religion provided for

in the Concessions was successful on paper only.     Esbeck, 2
004

BYU L. Rev. at 1470-71.   In reality, “a diverse array of

religious traditions” took hold in New Jersey and “produced a

spirit of toleration and liberty by the time independence was


                                  14
declared.”   Id. at 1468.   And “in 1776, New Jersey settled any

lingering uncertainty concerning church-state affairs by

expressly prohibiting in its constitution the establishment of

religion.”   Id. at 1472.

    New Jersey’s first Constitution, adopted on July 2, 1776,

rejected the establishment of and compelled support for religion

in two clauses.   The first clause contains an express guarantee

of the right to freedom from compelled support.     The Religious

Aid Clause in the 1776 Constitution provided as follows:

          That no Person shall ever within this Colony
          be deprived of the inestimable Privilege of
          worshipping Almighty God in a Manner agreeable
          to the Dictates of his own Conscience; nor
          under any Pretence whatsoever compelled to
          attend any Place of Worship, contrary to his
          own Faith and Judgment; nor shall any Person
          within this Colony ever be obliged to pay
          Tithes, Taxes, or any other Rates, for the
          Purpose of 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 or voluntarily engaged
          himself to perform.

          [N.J. Const. of 1776        art. XVIII (emphasis
          added).]

    The second provision contains language similar to the

federal Establishment Clause:

          That there shall be no Establishment of any
          one religious Sect in this Province in
          Preference to another; and that no Protestant
          Inhabitant of this Colony shall be denied the
          Enjoyment of any civil Right merely on Account
          of his religious Principles; but that all


                                 15
          Persons, professing a Belief in the Faith of
          any   Protestant   Sect,  who   shall   demean
          themselves peaceably under the Government as
          hereby established, shall be capable of being
          elected into any Office of Profit or Trust, or
          being a Member of either Branch of the
          Legislature, & shall fully & freely enjoy
          every Privilege & Immunity enjoyed by others
          their Fellow-Subjects.

          [N.J. Const. of 1776 art. XIX (second emphasis
          added).]

The two clauses, in combination, reveal that (1) the freedom

from being compelled to fund religious institutions through

taxation -- including the repair of churches -- was a grant of

personal liberty, and (2) unlike other rights, that freedom was

not limited to Protestants.

    The fact that New Jersey’s first Constitution included a

Religious Aid Clause is highly significant.   First, it

underscores the fundamental nature of the religious freedom

clauses in our State’s history.    The 1776 Constitution is a

brief document that outlines the organization of government and

the powers of the executive, the legislative council, and the

general assembly.   The document guarantees only a few distinct

rights:   the right to vote, id. art. IV; the right to religious

freedom, id. arts. XVIII-XIX; the right of an accused to have

counsel and call witnesses, id. art. XVI; and the right to trial

by jury, id. art. XXII.   Viewed in that context, it is telling




                                  16
that the founders devoted careful attention to religious liberty

in the first Constitution.

    Second, of the twelve states that adopted constitutions

from 1776 to 1780, none included a compelled support clause as

precise and clear as the Religious Aid Clause.   South Carolina

adopted a compelled support provision in its second

constitution, which it framed exclusively in terms of worship:

“No person shall, by law, be obliged to pay towards the

maintenance and support of a religious worship that he does not

freely join in, or has not voluntarily engaged to support.”

S.C. Const. of 1778 art. XXXVIII.

    Pennsylvania and Vermont adopted compelled support clauses

that are similar to each other; both are more expansive than

South Carolina’s but less detailed than New Jersey’s.     See Pa.

Const. of 1776, Decl. of Rights, art. II (“[N]o man ought or of

right can be compelled to attend any religious worship, or erect

or support any place of worship, or maintain any ministry,

contrary to, or against, his own free will and consent . . .

.”); Vt. Const. of 1777 ch. I, ¶ 3 (“[N]o man ought, or of right

can be compelled to attend any religious worship, or erect, or

support any place of worship, or maintain any minister, contrary

to the dictates of his conscience . . . .”).




                               17
    North Carolina’s first constitution, which took effect

several months after New Jersey’s, contained a provision most

like the Religious Aid Clause:

         [N]either shall any person, on any pre[t]ence
         whatsoever, be compelled to attend any place
         of worship contrary to his own faith or
         judgment, nor be obliged to pay, for the
         purchase of any glebe, or the building of any
         house of worship, or for the maintenance of
         any minister or ministry, contrary to what he
         believes right, [or] has voluntarily and
         personally engaged to perform[.]

         [N.C. Const. of 1776 art. XXXIV.]

Even that relatively detailed clause, though, does not mention

the “repair” of houses of worship or ban payment of “taxes.”

See N.J. Const. of 1776 art. XVIII.   New Jersey’s Religious Aid

Clause thus stands out as particularly specific for its time.

    It is also worth noting that among the first states to

adopt a constitution, some did not prohibit compelled support.

Maryland’s first constitution permitted the legislature to

collect tax dollars “for the support of the Christian religion.”

Md. Const. of 1776, Decl. of Rights, art. XXXIII.

Massachusetts, the last of the earliest states to disestablish,

Esbeck, 2
004 BYU L. Rev. at 1458, permitted towns, “at their own

expense,” to support “the institution of the public worship of

God” and “Protestant teachers of . . . religion.”   Mass. Const.

of 1780 art. III.




                                 18
     The Religious Aid Clause in New Jersey’s first Constitution

also stands out in the broader context of the process states

followed to ban the establishment of and compelled support for

religion.   That process reflected the views of some “religious

sects [that] opposed establishment on the ground that it injured

religion and subjected it to the control of civil

authorities.   Guaranteed state support was thought to stifle

religious enthusiasm and initiative.”    Michael W. McConnell, The

Origins and Historical Understanding of Free Exercise of

Religion, 
103 Harv. L. Rev. 1409, 1438 (1990).

     “Disestablishment was not an abrupt legal development

brought about at the national level as a consequence of the

Revolution,” but rather a change that “unfolded . . . gradually,

state by state, and somewhat differently in each state,

depending on the state’s unique colonial background.”     Esbeck,

2
004 BYU L. Rev. at 1393.   The process began in the Middle

Colonies such as New Jersey and Delaware, which both adopted

constitutions in 1776, and continued through 1833.    Id. at 1393,

1457-58.    The States thus disestablished individually, in

response to their own experiences, well before the religion

clauses of the First Amendment were applied to the States.2


2  “[T]he Free Exercise Clause was expressly deemed incorporated
into the Fourteenth Amendment in 1940 in Cantwell v.
Connecticut, 
310 U.S. 296,” while “[t]he Establishment Clause
was not incorporated in the Fourteenth Amendment until


                                 19
     “Most States that sought to avoid an establishment of

religion around the time of the founding placed in their

constitutions formal prohibitions against using tax funds to

support the ministry.”   Locke v. Davey, 
540 U.S. 712, 723

(2004).   Most also adopted “a prophylactic rule against the use

of public funds for houses of worship.”     Trinity Lutheran, 
137 S. Ct.  at 2036 (Sotomayor, J., dissenting).     Such prohibitions

are commonly known as “compelled support clauses” and were

initially “enacted to address the colonists’ concern for church

and state separation.”   Ellen M. Halstead, Note, After Zelman v.

Simmons-Harris, School Voucher Programs Can Exclude Religious

Schools, 
54 Syracuse L. Rev. 147, 170 (2004).

     Today, twenty-nine constitutions, including New Jersey’s,

have compelled support clauses.3     Ten other constitutions simply



Everson[,] 
330 U.S. 1, was decided in 1947.”     Walz v. Tax Comm’n
of N.Y.C., 
397 U.S. 664, 702 (1970).

3  The following states adopted compelled support clauses to
their constitutions in the years listed in parentheses; the
citations are to the current constitutions: Ala. Const. art. I,
§ 3 (1819); Ark. Const. art. II, § 24 (1836); Colo. Const. art.
II, § 4 (1876); Conn. Const. art. VII (1818); Del. Const. art.
I, § 1 (1792); Idaho Const. art. I, § 4 (1890); Ill. Const. art.
I, § 3 (1818); Ind. Const. art. I, § 4 (1816); Iowa Const. art.
I, § 3 (1846); Kan. Const., Bill of Rights, § 7 (1861); Ky.
Const., Bill of Rights, § 5 (1792); Md. Const., Decl. of Rights,
art. XXXVI (1776); Mich. Const. art. I, § 4 (1835); Minn. Const.
art. I, § 16 (1857); Mo. Const. art. I, § 6 (1820); Neb. Const.
art. I, § 4 (1866); N.M. Const. art. II, § 11 (1911); Ohio
Const. art. I, § 7 (1803); Pa. Const. art. I, § 3 (1776); R.I.
Const. art. I, § 3 (1843); S.D. Const. art. VI, § 3 (1889);


                                20
prohibit the use of public money in aid of religion.4

     Thus, although the States eventually included

disestablishment and compelled support provisions in their

constitutions, see Trinity Lutheran, 
137 S. Ct.  at 2036

(Sotomayor, J., dissenting), New Jersey did so early on and in

quite concrete terms.     The Religious Aid Clause’s precision

stressed New Jersey’s departure from the Concessions, see

Esbeck, 2
004 BYU L. Rev. at 1457, and, perhaps, from authority

in other states at the time.    The clause also highlighted that

New Jersey was at the forefront of a historic and substantial

change, and signaled its longstanding and vigorous commitment to

religious liberty and freedom from compelled support.

                                  B.

     New Jersey adopted its Second Constitution in 1844.     The

document began with a detailed list of individual rights and,

among other things, moved the Religious Aid Clause to a new

Article I, Paragraph 3:


Tenn. Const. art. I, § 3 (1796); Tex. Const. art. I, § 6 (1845);
Vt. Const. ch. I, art. III (1777); Va. Const. art. I, § 16
(1830); W. Va. Const. art. III, § 15 (1863); Wis. Const. art. I,
§ 18 (1848); see also N.H. Const., Bill of Rights, art. 6
(1784).

4  See Ariz. Const. art. II, § 12; Cal. Const. art. XVI, § 5;
Fla. Const. art. I, § 3; Ga. Const. art. I, § 2, ¶ 7; Mass.
Const., Amends., art. XVIII, § 2 (as amended by Amends., arts.
XLVI, CIII); Okla. Const. art. II, § 5; Or. Const. art. I, § 5;
Utah Const. art. I, § 4; Wash. Const. art. I, § 11; Wyo. Const.
art. I, § 19.


                                  21
         No person shall be deprived of the inestimable
         privilege of worshipping Almighty God in a
         manner agreeable to the dictates of his own
         conscience; nor under any pretence whatever be
         compelled to attend any place of worship
         contrary to his faith and judgment; nor shall
         any person 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 words “other” and “the purpose of” do not appear in the

Religious Aid Clause in the second Constitution, and no record

explains those edits.

    A streamlined Establishment Clause, which removed all

restrictions to Protestants, can be found at Paragraph 4:

         There shall be no establishment of one
         religious sect in preference to another; no
         religious test shall be required as a
         qualification for any office or public trust;
         and no person shall be denied the enjoyment of
         any civil right merely on account of his
         religious principles.

         [N.J. Const. of 1844 art. I, ¶ 4.]

                               C.

    The Religious Aid Clause and the rest of Paragraph 3 were

left virtually untouched in the modern Constitution of 1947.     A

revised Establishment Clause, along with strong non-

discrimination language inspired by a similar provision in the

New York Constitution, see 3 Proceedings of the Constitutional

Convention of 1947 (Proceedings) 451, appears in Paragraphs 4


                               22
and 5.   The text of those provisions remains unchanged since

1947:

          3.   No person shall be deprived of the
          inestimable privilege of worshipping Almighty
          God in a manner agreeable to the dictates of
          his own conscience; nor under any pretense
          whatever be compelled to attend any place of
          worship contrary to his faith and judgment;
          nor shall any person 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.

          4.   There shall be no establishment of one
          religious sect in preference to another; no
          religious or racial test shall be required as
          a qualification for any office or public
          trust.

          5.   No person shall be denied the enjoyment
          of any civil or military right, nor be
          discriminated against in the exercise of any
          civil or military right, nor be segregated in
          the militia or in the public schools, because
          of religious principles, race, color, ancestry
          or national origin.

          [N.J. Const. art. I, ¶¶ 3 to 5.]

    The above history makes clear that New Jersey’s Religious

Aid Clause can be traced to the establishment of an independent

government in the State in the 1700s.   The provision was not

inspired by the “Blaine Amendment”; nor was it a response to

anti-immigrant or anti-Catholic bias.

    “[T]he Blaine Amendment is a remnant of nineteenth-century

religious bigotry promulgated by nativist political leaders who


                                23
were alarmed by the growth of immigrant populations and who had

a particular disdain for Catholics.”    Joseph P. Viteritti,

Blaine’s Wake:   School Choice, the First Amendment, and State

Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657, 659 (1998).

The label stems from a failed federal constitutional amendment

introduced by Maine Congressman James G. Blaine in 1875.       Id. at

670.    The proposed amendment nevertheless “propelled” a movement

among the states; fourteen “had enacted legislation prohibiting

the use of public funds for religious schools” by 1876, and

twenty-nine “had incorporated such provisions into their

constitutions” by 1890.    Id. at 670-73.

       As the United States Supreme Court has observed, Blaine

Amendments have “a shameful pedigree that we do not hesitate to

disavow.”   Mitchell v. Helms, 
530 U.S. 793, 828 (2000)

(plurality opinion).    New Jersey’s Religious Aid Clause long

pre-dated the Blaine Amendments and reflected a concern for

religious freedom, not discrimination or hostility toward a

particular religion.

                                 D.

       The parties also reference two other clauses in the State

Constitution which provide for funding for historic

preservation.    See N.J. Const. art. VIII, § 2, ¶¶ 6, 7.

Paragraph 6 of Article VIII was adopted in 1996 and amended

several times; paragraph 7 was adopted in 1998.    Neither offers


                                 24
any details about the meaning or scope of “historic

preservation” projects, and the provisions make no mention of

religious institutions.

     Amicus NJHT also references two statutes meant to preserve

historic resources:   the New Jersey Historic Trust, 
N.J.S.A.

13:1B-15.111 to -15.127, and the Garden State Preservation Trust

Act, 
N.J.S.A. 13:8C-1 to -57.    Neither act, however, refers to

religious institutions.   Cf. 54 U.S.C. § 302905(a) (sanctioning

federal grants for the preservation of religious properties

listed on the National Register if the grant’s purpose “does not

promote religion”).

                                 E.

     The First Amendment to the United States Constitution, of

course, also protects religious freedom.    The Free Exercise

Clause provides that “Congress shall make no law . . .

prohibiting the free exercise” of religion.     U.S. Const. amend.

I.   The Establishment Clause states that “Congress shall make no

law respecting an establishment of religion.”    Ibid.   Both are

discussed below.

     Under the Supremacy Clause, the Federal Constitution is

“the supreme Law of the Land.”   U.S. Const. art. VI, cl. 2.

State “constitutional provisions that conflict with the Federal

Constitution are 'without effect.’”    Comm. to Recall Robert

Menendez From the Office of U.S. Senator v. Wells, 
204 N.J. 79,


                                 25
103 (2010) (quoting Maryland v. Louisiana, 
451 U.S. 725, 746

(1981)).

                                III.

    Plaintiffs argue that the plain language of the Religious

Aid Clause prohibits the use of tax revenues to repair churches

with active congregations and that no other state constitutional

provisions require a departure from that plain-language reading.

According to plaintiffs, the challenged grants fall squarely

within the Religious Aid Clause’s prohibition and are

unconstitutional.

    In plaintiffs’ view, the Federal Constitution does not

compel a different result.   Plaintiffs assert that the Religious

Aid Clause does not violate either the Free Exercise or the

Equal Protection Clauses.    “Trinity Lutheran’s free exercise

protections do not apply to this case,” plaintiffs contend,

because “[b]uilding or repairing houses of worship directly

advances religion, even if that is not the government’s intent.”

Plaintiffs distinguish between church buildings that are active

houses of worship and facilities that either never were or are

no longer used for religious purposes.

    In addition, plaintiffs contend that the County’s program

would be unlikely to pass muster under the federal Establishment

Clause.




                                 26
    The ACLU agrees with plaintiffs’ interpretation of the

Religious Aid Clause and adds that the history of the clause

does not support an exception for “historical preservation.”

The ACLU also submits that no other part of the State

Constitution overrides the Religious Aid Clause.     Like

plaintiffs, the ACLU maintains that the Free Exercise Clause

does not compel funding of historic-preservation grants that

support religious worship.   In addition, the ACLU argues that

the federal Establishment Clause would not permit the grants.

    The Churches dispute plaintiffs’ interpretation of the

Religious Aid Clause.   They assert that the clause, read in

context, permits religious institutions to participate in

programs that advance secular government interests and are

governed by neutral criteria.   According to the Churches, the

language of the Religious Aid Clause cannot properly be read in

isolation.

    The Churches also argue that plaintiffs’ interpretation of

the Religious Aid Clause violates the First Amendment under

Trinity Lutheran.   According to the Churches, the grants

challenged in this case cannot be distinguished from the program

at issue in Trinity Lutheran.

    The Churches add that the federal Establishment Clause does

not call for a different result.     Finally, the Churches maintain

that there are no grounds to order them to refund the grants.


                                27
    Like the Churches, the Morris County defendants focus on

Trinity Lutheran and argue that “the First Amendment

jurisprudence of the United States Supreme Court requires” that

the grants be upheld.    Morris County adds that excluding

churches from the list of eligible grant applicants “would force

the County to deny religious institutions equal protection under

the Fourteenth Amendment to the United States Constitution.”

They join the Churches in asking the Court to uphold the grant

program and affirm the trial court.

    Becket agrees with defendants that the grant program here

is governed by Trinity Lutheran because it “is a generally

available public benefit whose recipients are selected through a

competitive grant application process based on secular criteria

and . . . is open to 'all historic sites within the State’

without reference to religious status.”    Becket stresses that to

exclude religious groups from the program “because of their

religious status” would “violate[] the Free Exercise Clause

under Trinity Lutheran.”   According to Becket, “New Jersey’s

anti-establishment interest” in this matter “is nil,” and any

such state interest “would be insufficient because the grant

program does not even come close to violating the federal

Establishment Clause.”

    The NJHT represents that it has awarded “grant funds for

historic preservation of eligible properties owned by religious


                                 28
institutions for decades.”    To exclude religious institutions

from public benefits “based solely on their religious status,”

the NJHT asserts, would conflict with the State and Federal

Constitutions and related case law.     The NJHT contends that “the

trial court aptly analogized Morris County’s program to

Detroit’s revitalization program considered in” American

Atheists.    The NJHT also argues that because the programs have a

“neutral public purpose and are administered in a way that

ensures secular use of funds,” the programs pass muster under

the religion clauses.

                                 IV.

    The first step in our analysis is to determine whether the

historic preservation grants awarded to repair twelve churches

violated the Religious Aid Clause of the State Constitution.      In

light of the plain language of the clause, the question answers

itself.

    To determine the meaning of a constitutional provision,

courts look first to the language the drafters used.     State v.

Buckner, 
223 N.J. 1, 15 (2015).     If it is clear, the words “must

be given their plain meaning.”    State v. Trump Hotels & Casino

Resorts, 
160 N.J. 505, 527 (1999).     With that in mind, we return

to the text of the Religious Aid Clause:

            No person shall . . . be obliged to pay tithes,
            taxes, or other rates for building or
            repairing any church or churches, place or


                                  29
           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.

           [N.J. Const. art. I, ¶ 3.]

The clause does not prevent local or State authorities from

providing taxpayer-funded police, fire, and emergency services

to houses of worship.    See Resnick, 
77 N.J. at 103.   Nor does it

preclude the provision of other services tied to general public

safety.    Instead, for more than 240 years, the Religious Aid

Clause has banned the use of public funds to build or repair any

place of worship.

       Here, the County awarded $4.6 million to twelve churches to

repair active houses of worship -- from roofs to bell towers,

from stained glass windows to ventilation systems.      The use of

public funds to pay for those repairs violated the plain

language of the Religious Aid Clause.

       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

fact, the change from the 1776 Constitution to the 1844

Constitution removed the bracketed phrase “no taxes . . . for

[the purpose of] building or repairing any church.”     Compare

N.J. Const. of 1776 art. XVIII, with N.J. Const. of 1844 art. I,

¶ 3.    Thus, for most of its existence, the Religious Aid Clause



                                 30
has banned public funding to repair a house of worship without

regard to some other non-religious purpose.5    In short, there is

no exception for historic preservation.

     Nor is there a basis to distinguish between “restoration”

and “repair” under the Religious Aid Clause.    The terms mean the

same thing.   See Oxford English Dictionary (3d ed. 2009)

(defining “repair” as “[t]o restore (a damaged, worn, or faulty

object or structure) to good or proper condition by replacing or

fixing parts; to mend, fix”; and noting that definition was in

place before and after 1776).

     There is very little case law that construes the Religious

Aid Clause, and no case is directly on point.    Some cases have

focused on the prohibition against “the maintenance of a

minister or ministry,” not the “repair” of “any church.”    See

Resnick, 
77 N.J. at 102-04 (relating to a school board’s

permitting a religious group to rent school property for


5  The Massachusetts Constitution, by comparison, bars the
“grant, appropriation or use of public money . . . for the
purpose of founding, maintaining or aiding any church, religious
denomination or society.” Caplan v. Town of Acton, 
92 N.E.3d 691, 693 (Mass. 2018) (ellipsis in original) (emphasis added)
(quoting Mass. Const., Amends., art. XVIII, § 2 (as amended by
Amends., arts. XLVI, CIII)). To assess whether a grant of
public funds to renovate an active church is constitutional
under the Massachusetts Constitution, the Supreme Judicial Court
adopted a three-factor test. Id. at 694. The test, in part,
requires judges to consider the purpose and effect of the grant.
Ibid. The plain language of the New Jersey Constitution does
not call for that type of inquiry about the expenditure of
public funds to repair a church.


                                31
religious instruction and services during non-school hours);

Everson, 
133 N.J.L. at 366-67 (Case, J., dissenting) (relating

to the use of public funds to reimburse parents for the cost of

bus transportation to private and parochial schools).

    Thus, nothing in the prior case law requires a departure

from the plain language of the Religious Aid Clause.    Nor do the

other provisions about religion in the State Constitution.      See

N.J. Const. art. I, ¶¶ 4, 5.   Neither Paragraph 4 nor Paragraph

5 addresses the allocation of tax dollars for the repair of

active houses of worship, a practice forbidden by the Religious

Aid Clause.

    The Churches point to a debate at the Constitutional

Convention of 1947 in response to the decisions by the Court of

Errors and Appeals and the United States Supreme Court in

Everson.   In that case, the New Jersey high court upheld public

funding for transporting students to Catholic parochial schools.


133 N.J.L. at 356.   The United States Supreme Court affirmed

that judgment.   
330 U.S.  at 18.

    Opponents of the decisions proposed a Blaine Amendment at

the Convention, see 
5 Proceedings 789-806, and the proposal did

not succeed, 
2 Proceedings 1247-49.     We do not glean much from

the discussion and believe that the debate has little impact on

the meaning of the Religious Aid Clause.




                                   32
    The proposal before the Committee on Taxation and Finance

centered on school funding.    No consideration was given to the

interplay between the proposal and other constitutional

provisions, including the repair language of the Religious Aid

Clause.   In other words, the debate did not relate to the

Religious Aid Clause’s prohibition against the use of taxpayer

funds to repair churches.     Those in opposition instead alluded

to the tension between the proposal and the Everson decisions.


5 Proceedings 794-98, 804-06.    To be sure, had the debate ended

differently, no State constitutional amendment could have

overruled the United States Supreme Court’s extension of public

welfare legislation to religious schools.    
330 U.S.  at 16.   The

1947 Constitution, in fact, added a provision to “provide for

the transportation of children . . . to and from any school.”

N.J. Const. art. VIII, § 4, ¶ 3.

    Defendants and amici also suggest that Article VIII of the

State Constitution affects the plain meaning of the Religious

Aid Clause.   Article VIII addresses funding for historic

preservation and does not conflict with the clause.    The

relevant provisions do not even mention historic preservation of

houses of worship.   See N.J. Const. art. VIII, § 2, ¶¶ 6, 7.

Because the two Articles do not compete and readily co-exist,

there is no need to harmonize their provisions.    See State v.

Muhammad, 
145 N.J. 23, 44 (1996) (“[C]ompeting clauses of a


                                  33
constitution should be harmonized to give [them] effect . . .

.”).

       Similarly, Article VIII neither expressly overrides the

Religious Aid Clause nor repeals it by implication.     See Mahwah

v. Bergen Cty. Bd. of Taxation, 
98 N.J. 268, 281 (1985) (“Every

reasonable construction should be applied to avoid a finding of

implied repealer [of a statute].”); see also City & County of

San Francisco v. County of San Mateo, 
896 P.2d 181, 186 (Cal.

1995) (“Implied repeals are disfavored.    So strong is the

presumption against implied repeals that we will conclude one

constitutional provision impliedly repeals another only when the

more recently enacted of two provisions constitutes a revision

of the entire subject addressed by the provisions.”     (citations

and internal quotation marks omitted)).    Just the same, the

statutes amici cite do not address houses of worship and, in any

event, could not override a constitutional guarantee.     See


N.J.S.A. 13:1B-15.111 to -15.127; 
N.J.S.A. 13:8C-1 to -57.

       We therefore find that the County’s grants ran afoul of the

State Constitution’s Religious Aid Clause.

                                 V.

       We turn now to a more challenging question:   whether New

Jersey’s Religious Aid Clause is at odds with the Federal

Constitution.    If so, the clause cannot stand, notwithstanding

its history.    Comm. to Recall Robert Menendez, 
204 N.J. at 105


                                 34
(“Bound as we are to adhere to the supreme law of the land, we

cannot permit a provision of the State Constitution to remain in

force if it conflicts with the Federal Constitution.”     (citing

Chamber of Commerce of U.S. v. State, 
89 N.J. 131, 141 (1982)

(citing, in turn, U.S. Const. art. VI, cl. 2))).   Based on our

understanding of the current state of the law, including the

United States Supreme Court’s recent decision in Trinity

Lutheran, we conclude that the Religious Aid Clause does not

conflict with the Free Exercise Clause.

                                A.

    The question before the Supreme Court in Trinity Lutheran

was whether the policy of the Missouri Department of Natural

Resources “of categorically disqualifying churches and other

religious organizations from receiving grants under its

playground resurfacing program . . . violated the rights of

Trinity Lutheran [Church] under the Free Exercise Clause of the

First Amendment.”   
137 S. Ct.  at 2017.

    Missouri’s Scrap Tire Program offered “reimbursement grants

to qualifying nonprofit organizations that purchase playground

surfaces made from recycled tires.”   Ibid.   The Department

awarded grants “on a competitive basis to those scoring highest

based on several criteria.”   Ibid.

    In 2012, the Trinity Lutheran Church Child Learning Center

(Center), “a preschool and daycare center” that operated under


                                35
the auspices of Trinity Lutheran Church, applied for a grant.

Ibid.   The Department ranked the application fifth among 44

applicants and awarded 14 grants that year, but it declared the

Center “categorically ineligible to receive a grant.”      Id. at

2018.   The Department explained “that, under Article I, Section

7 of the Missouri Constitution, the Department could not provide

financial assistance directly to a church.”     Ibid.   That section

of the Missouri Constitution provides

          [t]hat no money shall ever be taken from the
          public treasury, directly or indirectly, in
          aid of any church, sect or denomination of
          religion, or in aid of any priest, preacher,
          minister or teacher thereof, as such; and that
          no preference shall be given to nor any
          discrimination made against any church, sect
          or creed of religion, or any form of religious
          faith or worship.

          [Mo. Const. art. I, § 7.]

    Trinity Lutheran filed a complaint against the Director of

the Department in Federal District Court and asserted that the

Department’s policy violated the Free Exercise Clause.      Trinity

Lutheran, 
137 S. Ct.  at 2018.   The District Court found the case

indistinguishable from Locke, 
540 U.S. 712, in which the Court

“upheld against a free exercise challenge the State of

Washington’s decision not to fund degrees in devotional theology

as part of a state scholarship program.”   Ibid.   The District

Court therefore dismissed the action.   Ibid.   A majority of the

Eighth Circuit panel that heard the appeal affirmed.     Ibid.


                                36
    The Supreme Court reversed.       Id. at 2025.   The Court’s

opinion focused on the Free Exercise Clause because, unlike in

this case, the parties agreed that the Establishment Clause did

not prevent Missouri from awarding the challenged grant.       Id. at

2019.

    The Court held that the Department’s policy violated the

Free Exercise Clause by “expressly denying a qualified religious

entity a public benefit solely because of its religious

character.”   Id. at 2024.

    The Court stressed that “laws that target the religious for

'special disabilities’ based on their 'religious status’” must

be subject “to the strictest scrutiny.”      Id. at 2019 (quoting

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 
508 U.S. 520, 533 (1993)).   In that regard, the Court emphasized “that

denying a generally available benefit solely on account of

religious identity imposes a penalty on the free exercise of

religion that can be justified only by a state interest 'of the

highest order.’”    Ibid. (quoting McDaniel v. Paty, 
435 U.S. 618,

628 (1978) (plurality opinion)).

    The Court found that “[t]he Department’s policy expressly

discriminate[d] against otherwise eligible recipients by

disqualifying them from a public benefit solely because of their

religious character.”   Id. at 2021.    By doing so, the Department

forced an untenable choice:   “participate in an otherwise


                                 37
available benefit program or remain a religious institution.”

Id. at 2021-22.   The Court underscored that “[t]he express

discrimination against religious exercise here is not the denial

of a grant, but rather the refusal to allow the Church -- solely

because it is a church -- to compete with secular organizations

for a grant.”   Id. at 2022.

    The Court distinguished between Missouri’s policy of

excluding religious organizations from the Scrap Tire Program

and the scholarship restrictions in Locke v. Davey.      Id. at

2022-23.   “Washington’s restriction on the use of its

scholarship funds was different,” the Court noted, because the

claimant in Locke “was not denied a scholarship because of who

he was; he was denied a scholarship because of what he proposed

to do -- use the funds to prepare for the ministry.”      Id. at

2023.   By contrast, the Court continued, “[h]ere there is no

question that Trinity Lutheran was denied a grant simply because

of what it is -- a church.”    Ibid.

    Of particular note in the case before us, the Court added

that, in Locke, “Washington’s choice was in keeping with the

State’s antiestablishment interest in not using taxpayer funds

to pay for the training of clergy; in fact, the Court could

'think of few areas in which a State’s antiestablishment

interests come more into play.’”      Ibid. (quoting Locke, 
540 U.S.

at 722).   The Court observed that the funding sought in Locke


                                 38
was “for an 'essentially religious endeavor . . . akin to a

religious calling as well as an academic pursuit,’ and

opposition to such funding 'to support church leaders’ lay at

the historic core of the Religion Clauses.”       Ibid. (alteration

in original) (quoting Locke, 
540 U.S. at 721-22).

       The Court then returned to the central problem raised by

Missouri’s program:     that Trinity Lutheran’s status as a church

-- not its intended use of the funds -- prevented it from

participating in the grant program.       “[T]here is no dispute that

Trinity Lutheran is put to the choice between being a church and

receiving a government benefit.    The rule is simple:     No

churches need apply.”     Id. at 2024.

       The Court, however, did not opine on whether that key

principle -- that “a qualified religious entity” cannot be

denied “a public benefit solely because of its religious

character,” ibid. -- extends to religious uses of funding.

Footnote 3 of the majority opinion states that “[t]his case

involves express discrimination based on religious identity with

respect to playground resurfacing.       We do not address religious

uses of funding or other forms of discrimination.”       Id. at 2024

n.3.    Four members of the Court joined footnote 3:     Chief

Justice Roberts and Justices Kennedy, Alito, and Kagan.

       Next, the Court concluded that “Missouri’s policy

preference for skating as far as possible from religious


                                  39
establishment concerns” could not “qualify as compelling.”      Id.

at 2024.     The state’s interest, therefore, was “limited by the

Free Exercise Clause.”     Ibid. (quoting Widmar v. Vincent, 
454 U.S. 263, 276 (1981)).

    There were three concurring opinions and one dissent.

Justices Thomas and Gorsuch, who joined the majority opinion

aside from footnote 3, each filed a concurrence in which the

other joined.    Justice Thomas expressed doubts about the Court’s

holding in Locke but noted that no party had asked the Court to

reconsider it.    Id. at 2025 (Thomas, J., concurring).   Justice

Gorsuch questioned the majority’s distinction between “religious

status and religious use” to distinguish Locke.     Ibid. (Gorsuch,

J., concurring).    Justice Gorsuch also expressed concern that

footnote 3 might be “mistakenly read . . . to suggest that only

'playground resurfacing’ cases, or only those with some

association with children’s safety or health, or perhaps some

other social good we find sufficiently worthy, are governed by

the legal rules recounted in and faithfully applied by the

Court’s opinion.”     Id. at 2026.

    Justice Breyer concurred in the judgment but wrote

separately to “emphasize[] the particular nature of the 'public

benefit’ here at issue.”     Ibid. (Breyer, J., concurring in

judgment).    He noted that in Everson, the Court made clear that

a state could not exclude church schools from services like


                                     40
police and fire protection.    Id. at 2027.   Justice Breyer saw

“no significant difference” between that and Trinity Lutheran’s

“participation in a general program designed to secure or to

improve the health and safety of children.”      Ibid.   “Public

benefits come in many shapes and sizes,” Justice Breyer added,

noting that he “would leave the application of the Free Exercise

Clause to other kinds of public benefits for another day.”

Ibid.

    Justice Sotomayor, joined by Justice Ginsburg, dissented

from the opinion as a whole.   The dissent first noted that

“[t]he Establishment Clause [did] not allow Missouri to grant

the Church’s funding request because the Church uses the

Learning Center, including its playground, in conjunction with

its religious mission.”   Id. at 2028 (Sotomayor, J.,

dissenting).   The dissent declined to accept the parties’

agreement that the Establishment Clause posed no issue and

remarked that “[c]onstitutional questions are decided by this

Court, not the parties’ concessions.”    Ibid.

    The dissent then turned to the Free Exercise Clause and

focused in particular on the state’s interest in denying the

grant in question.   Justice Sotomayor “looked to history for

guidance” and reviewed the “Nation’s early experience with, and

eventual rejection of, established religion.”     Id. at 2032.     The

dissent canvassed efforts across the states “to end the public


                                 41
funding of religion” and the “powerful” reasons for those steps

-- “all stemming from the basic premise that the practice harmed

both civil government and religion.”   Id. at 2033-35.    The

dissent concluded that, “as in Locke, Missouri’s Article I, §7,

is closely tied to the state interests it protects.”     Id. at

2038.   The dissent found those interests “weighty.”   Id. at

2041.

    Justice Sotomayor disagreed with the Court’s decision to

use strict scrutiny to evaluate Missouri’s program, as well as

the Court’s application of the test.   Id. at 2038-41.    The

dissent also questioned whether Missouri’s Scrap Tire Program,

which Justice Sotomayor described as “a selective benefit for a

few recipients each year,” was a “generally available benefit.”

Id. at 2040.

                                B.

    Trinity Lutheran’s scope is important because the facts of

this case extend well beyond playground resurfacing.     Indeed,

the public funds awarded in this case actually went toward

“religious uses.”   It is clear from the stipulated facts in the

record that the Churches all “have active congregations that

regularly worship, or participate in other religious

activities,” and all hold “regular worship services in one or

more of the structures that they have used, or will use,”

taxpayer-funded grants to repair.


                                42
    In addition to the stipulation, a number of the

applications expressly stated that churches sought funding for

repairs to continue to conduct worship services.   As noted

earlier, The Presbyterian Church in Morristown, for example,

sought and received a grant to “historically preserve the

building allowing its continued use by our congregation for

worship services as well as by the community and many other

outside organizations that use it on a regular basis.”

(emphasis added).   The Church of the Redeemer sought and

received funding to repair the slate roof -- “a key structural

element that has failed” -- to “assist in assuring that the

building can continue in its existing use as a church and as an

important building in Morristown.”   (emphasis added).   Saint

Peter’s Episcopal Church of Morristown similarly requested and

received funds to repair the interior of the church tower to

“ensure continued safe public access to the church for worship,

periods of solitude and meditation during the week, and several

concerts throughout the year, as well as the treasures the

church and tower contain.”   (emphasis added).

    In certain cases, public funds were used to repair stained

glass windows.   The First Presbyterian Church of Boonton sought

and received grant monies to repair religious imagery above the

church altar -- a stained glass window that depicts Jesus and

two disciples on their walk from Jerusalem to Emmaus.    The


                                43
Church also received funds to repair a second stained glass

window above the entry door to the Church.

    The First Baptist Church of Ledgewood received funds to

develop a preservation plan for several areas of the church

building -- both exterior and interior space -- including the

“tower, heating system, and the original stained glass windows,”

which “increase the beauty and the ambiance of the structure, as

viewed from inside and outside.”     The application noted that a

preservation grant “will enable the congregation to continue to

provide religious and community activities.”

    As that grant reveals, restoration awards were not limited

to repairs to the exterior of church structures but also to

finance repairs to interior space where prayer services were

held.   Saint Peter’s Episcopal Church of Morristown, for

example, also received funds for interior work to its

ventilation system.

    In light of the record in this case, Trinity Lutheran’s

analysis of Locke is particularly instructive.    Once again, as

the Court noted, “Davey was not denied a scholarship because of

who he was; he was denied a scholarship because of what he

proposed to do -- use the funds to prepare for the ministry.”

Trinity Lutheran, 
137 S. Ct.  at 2023.     The same construct

applies here:   the Churches are not being denied grant funds

because they are religious institutions; they are being denied


                                44
public funds because of what they plan to do -- and in many

cases have done:   use public funds to repair church buildings so

that religious worship services can be held there.

    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.   See Comm. for Pub. Educ. & Religious

Liberty v. Nyquist, 
413 U.S. 756, 774 (1973) (invalidating under

the Establishment Clause the “maintenance and repair” provision

of a New York law that allowed grants of state funds to

nonpublic schools -- “given largely without restriction on

usage” -- on ground that funds could be used to pay “salaries of

employees who maintain the school chapel, or the cost of

renovating classrooms in which religion is taught, or the cost

of heating and lighting those same facilities,” which would have

“a primary effect that advances religion in that it subsidizes

directly the religious activities of sectarian . . . schools”);

Tilton v. Richardson, 
403 U.S. 672, 683-84, 689 (1971)

(recognizing that funding “chapel[s]” or buildings “otherwise

used to promote religious interests” would “have the effect of

advancing religion,” and therefore striking down under the


                                45
Establishment Clause the twenty-year limit obligating

institutions not to use facilities built with federal grant

money “for sectarian instruction or religious worship”).

Nyquist and Tilton seem at odds with defendants’ claim that,

even when active houses of worship need repairs to continue

hosting religious services, “there is nothing inherently

religious about roofing.”

    Trinity Lutheran also read Locke to mean that

            Washington’s choice was in keeping with the
            State’s antiestablishment interest in not
            using taxpayer funds to pay for the training
            of clergy; in fact, the Court could “think of
            few areas in which a State’s antiestablishment
            interests come more into play.”     Locke, 540 U.S.  at 722.    The claimant in Locke sought
            funding for an “essentially religious endeavor
            . . . akin to a religious calling as well as
            an academic pursuit,” and opposition to such
            funding “to support church leaders” lay at the
            historic core of the Religion Clauses. Id. at
            721-22. Here nothing of the sort can be said
            about a program to use recycled tires to
            resurface playgrounds.

            [
137 S. Ct.  at 2023 (alteration in original).]

As a result, the Court in Trinity Lutheran did not find the

state interest in Article I, Section 7 of the Missouri

Constitution sufficiently compelling to survive strict scrutiny.


137 S. Ct.  at 2024; see also Widmar, 
454 U.S.  at 276.

    New Jersey’s Religious Aid Clause and the grants awarded in

this matter stand in stark contrast to the setting in Trinity

Lutheran.    As the history of the New Jersey Constitution


                                 46
reveals, the interest the Clause seeks to advance “is scarcely

novel.”   See Locke, 
540 U.S.  at 722.   The Religious Aid Clause

reflects a substantial concern of the State’s founders in 1776:

to ensure that taxpayer funds would not be used to build or

repair houses of worship, or to maintain any ministry.     That

choice reversed the approval of established religion in the

earlier Concessions; it also diverged from the practice of other

states that allowed established religion at the time.

    The Religious Aid Clause reflects the experience of many of

the nation’s earliest settlers:

               A large proportion of the early settlers
          of this country came here from Europe to
          escape the bondage of laws which compelled
          them to support and attend government-favored
          churches. . . . With the power of government
          supporting them, at various times and places,
          Catholics    had    persecuted    Protestants,
          Protestants    had    persecuted    Catholics,
          Protestant   sects    had   persecuted   other
          Protestant sects, Catholics of one shade of
          belief had persecuted Catholics of another
          shade of belief, and all of these had from
          time to time persecuted Jews. In efforts to
          force loyalty to whatever religious group
          happened to be on top and in league with the
          government of a particular time and place, men
          and women had been fined, cast in jail,
          cruelly tortured, and killed.       Among the
          offenses for which these punishments had been
          inflicted were such things as speaking
          disrespectfully of the views of ministers of
          government-established      churches,     non-
          attendance at those churches, expressions of
          non-belief in their doctrines, and failure to
          pay taxes and tithes to support them.




                                  47
              These practices of the old world were
         transplanted to and began to thrive in the
         soil of the new America. The very charters
         granted   by   the   English  Crown   to   the
         individuals and companies designated to make
         the laws which would control the destinies of
         the colonials authorized these individuals and
         companies to erect religious establishments
         which all, whether believers or non-believers,
         would be required to support and attend. An
         exercise of this authority was accompanied by
         a repetition of many of the old-world
         practices and persecutions. . . . And all of
         [the] dissenters were compelled to pay tithes
         and taxes to support government-sponsored
         churches . . . .

              . . . . The imposition of taxes to pay
         ministers’ salaries and to build and maintain
         churches and church property aroused [the]
         indignation    [of     “the    freedom-loving
         colonials”].

              It was these feelings which found
         expression in the First Amendment. . . .
         [P]eople [throughout the Colonies] reached the
         conviction that individual religious liberty
         could be achieved best under a government
         which was stripped of all power to tax, to
         support, or otherwise to assist any or all
         religions, or to interfere with the beliefs of
         any religious individual or group.

         [Everson, 
330 U.S.  at 8-11 (emphases added).]

    As in Locke, New Jersey’s antiestablishment interest in not

using public funds to build or repair churches or maintain any

ministry “lay at the historic core of the Religion Clauses.”

See Trinity Lutheran, 
137 S. Ct.  at 2023.   New Jersey’s historic

and substantial interest against the establishment of, and




                               48
compelled support for, religion is indeed “of the highest

order.”   See McDaniel, 
435 U.S.  at 628.

      Also as in Locke, the antiestablishment interest New Jersey

expressed in 1776 did not reflect animus toward any religion.

See Locke, 
540 U.S.  at 725.     The Religious Aid Clause was

enacted before the Federal Constitution; it is not a Blaine

Amendment.   No history of discrimination taints the provision.

Cf. Am. Atheists, 567 F.3d   at 301 (noting that Article I,

Section 4 of the Michigan Constitution “grows out of the Blaine

Amendments, the product of a mid-nineteenth century political

movement with no roots in the Religion Clauses of the United

States Constitution”).

      At oral argument and in the briefs, the parties and amici

compared the grants in this appeal to Detroit’s revitalization

program in American Atheists.    In that case, the Sixth Circuit

upheld grants to several churches as part of a program to

“refurbish[] the exteriors of downtown buildings and parking

lots . . . in a discrete section of downtown Detroit” in

anticipation of the 2006 Super Bowl.     Id. at 281.   Projects at

three churches were among the ninety-one completed.     Id. at 281-

84.   In total, “[t]he three churches received about $737,000

from the agency,” or “6.4% of the $11.5 million in

reimbursements.”   Id. at 284.




                                  49
       The parties recognize that the Sixth Circuit upheld the

grants against a challenge under the Establishment Clause.

There are other key differences as well.    The revitalization

grants did not enable religious worship services to continue or

fund repairs to religious imagery.    In short, the grants did not

involve religious uses of funding.

       The holding of Trinity Lutheran does not encompass the

direct use of taxpayer funds to repair churches and thereby

sustain religious worship activities.    See 
137 S. Ct.  at 2024

n.3.   We therefore find that the application of the Religious

Aid Clause in this case does not violate the Free Exercise

Clause.

                                 C.

       Had the Free Exercise Clause permitted the awards, we would

need to evaluate the grants under the federal Establishment

Clause.    In that regard, we believe that the grant program poses

questions under any articulation of the current standard.       See

Town of Greece v. Galloway, 572 U.S. ___, 
134 S. Ct. 1811, 1818-

20 (2014); Zelman v. Simmons-Harris, 
536 U.S. 639, 648-49, 662-

63 (2002); Mitchell, 
530 U.S.  at 844-45 (O’Connor, J.,

concurring); Agostini v. Felton, 
521 U.S. 203, 218, 234 (1997);

Nyquist, 
413 U.S. at 770-74; Tilton, 
403 U.S. at 677-78; Lemon

v. Kurtzman, 
403 U.S. 602, 612-13 (1971); McKelvey v. Pierce,


173 N.J. 26, 40-41 (2002).


                                 50
    Morris County’s preservation grants are not one-time awards

of the type the Sixth Circuit reviewed in American Atheists.       In

this case, recipients of grants that totaled more than $50,000

embarked on a thirty-year relationship with the County marked by

an easement agreement between each church and local authorities.

Grantees were required to negotiate with the County as to when

their property would be open to the public.     They also had to

register their buildings on the National and New Jersey historic

registers.

    That said, because we need not reach the question in this

appeal, we refrain from conducting a detailed analysis of the

Establishment Clause.

                                  D.

    Finally, we note Morris County’s argument that denying

grants to the Churches would violate the Equal Protection Clause

of the Fourteenth Amendment.     Defendants do not offer persuasive

legal support for that theory.     Courts, in general, approach

religious discrimination claims through the First Amendment

religion clauses.   See Bernadette Meyler, The Equal Protection

of Free Exercise:   Two Approaches and Their History, 
47 B.C. L.

Rev. 275, 283-85 (2006); see also Eulitt v. Me. Dep’t of Educ.,


386 F.3d 344, 353-54 (1st Cir. 2004) (rejecting effort to frame

a free exercise claim under “the rubric of equal protection” as

a “crabbed approach [that] will not wash” because the Free


                                  51
Exercise Clause “defines the scope of the fundamental right to

religion incorporated by the Fourteenth Amendment’s equal

protection guarantee”).

    The Churches’ brief reliance on the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. §

2000cc(b)(1), is also unavailing.     The Churches’ conclusory

assertion that “[t]he County program is a landmarking law” that

subjects it to RLUIPA does not persuade us that the statute

applies here.

                                VI.

    Today’s opinion clarifies and reaffirms the vitality of the

Religious Aid Clause in light of more recent federal case law.

The County awarded the grants in question from 2012 to 2015.     We

do not know the extent to which those funds have already been

spent in good faith reliance on the grant process and the trial

court’s ruling.   As a result, we do not attempt to unwind the

awards at this late date.   For all of those reasons, the

principles outlined above will apply prospectively.

                               VII.

    We reverse the judgment of the trial court and enter

summary judgment in favor of plaintiffs.



     JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and
TIMPONE join in CHIEF JUSTICE RABNER’s opinion. JUSTICE SOLOMON
filed a separate, concurring opinion.


                                52
                                      SUPREME COURT OF NEW JERSEY
                                         A-
71 SEPTEMBER TERM 2016
                                                 079277


FREEDOM FROM RELIGION
FOUNDATION and DAVID
STEKETEE,

    Plaintiffs-Appellants,

         v.

MORRIS COUNTY BOARD OF CHOSEN
FREEHOLDERS, THE MORRIS
COUNTY PRESERVATION TRUST
FUND REVIEW BOARD, JOSEPH A.
KOVALCIK, JR., in his
official capacity as Morris
County Treasurer, THE
PRESBYTERIAN CHURCH IN
MORRISTOWN, FIRST
PRESBYTERIAN CHURCH OF NEW
VERNON, ST. PETER’S EPISCOPAL
CHURCH, FIRST REFORMED CHURCH
OF POMPTON PLAINS, CHURCH OF
THE REDEEMER, COMMUNITY OF
ST. JOHN BAPTIST, STANHOPE
UNITED METHODIST CHURCH,
CHURCH OF THE ASSUMPTION OF
THE BLESSED VIRGIN MARY,
FIRST PRESBYTERIAN CHURCH OF
BOONTON, ST. PETER’S
EPISCOPAL CHURCH IN MOUNTAIN
LAKES, LEDGEWOOD BAPTIST
CHURCH, and COMMUNITY CHURCH
OF MOUNTAIN LAKES,

    Defendants-Respondents.

    JUSTICE SOLOMON, concurring.

    I join with the majority in reversing the trial court’s

decision to uphold the monetary grants to defendant religious


                                1
institutions.   I agree that under the facts of this case the

distribution of the grant money to the religious institutions

was contrary to the plain language of the Religious Aid Clause,

N.J. Const. art. I, ¶ 3.   I write separately 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 of

Columbia, Inc. v. Comer, 582 U.S. ___, 
137 S. Ct. 2012 (2017).

    Pursuant to the Supremacy Clause of the United States

Constitution, “a provision of [a] State Constitution [cannot]

remain in force if it conflicts with the Federal Constitution.”

Comm. to Recall Robert Menendez From the Office of U.S. Senator

v. Wells, 
204 N.J. 79, 105 (2010).   Thus, a state constitutional

provision that conflicts with the United States Constitution is

preempted.   See U.S. Const. art. VI, cl. 2.

    The First Amendment to the United States Constitution

provides in pertinent part that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof.”   U.S. Const. amend. I.     The Free Exercise

Clause “'protect[s] religious observers [and religious entities]

against unequal treatment’ and subjects to the strictest

                                 2
scrutiny laws that target the religious for 'special

disabilities’ based on their 'religious status.’”   Trinity

Lutheran, 
137 S. Ct.  at 2019 (quoting Church of Lukumi Babalu

Aye, Inc. v. City of Hialeah, 
508 U.S. 520, 533, 542 (1993)

(first alteration in original)).

     Therefore, while the majority, in discussing the plain

language of the Religious Aid Clause, correctly notes that,

“[t]he clause does not ask about the governing body’s intent,”

ante at ___ (slip op. at 30), and concludes that “there is no

exception for historic preservation,” ante at ___ (slip op. at

31), application of the limiting provisions of the Religious Aid

Clause is restricted by the Free Exercise Clause of the United

States Constitution, see U.S. Const. art. VI, cl. 2.

                                I.

     In Trinity Lutheran, the United States Supreme Court

determined that a categorical ban “disqualifying churches and

other religious organizations from receiving grants under [a

state/governmental] playground resurfacing program” violated the

Free Exercise Clause.   
137 S. Ct.  at 2017.   Accordingly, a

“generally available benefit” cannot be denied to an

organization based solely on its religious identity.
1 Id. at

 1  However, not all government action that intersects with a
citizen’s religious beliefs is contrary to the Free Exercise
Clause. Government action that does not “coerce individuals
into acting contrary to their religious beliefs” does not run
                                3
2019; see also McDaniel v. Paty, 
435 U.S. 618, 629 (1978)

(striking down statute which disqualified ministers from serving

as state legislators).     “At a minimum, the protections of the

Free Exercise Clause pertain if the law at issue discriminates

against some or all religious beliefs or regulates or prohibits

conduct because it is undertaken for religious reasons.”

Lukumi, 
508 U.S.  at 532.    It is in this context that the United

States Supreme Court examined the words and purpose of local

ordinances in Lukumi.    See ibid.; see also Locke v. Davey, 
540 U.S. 712, 715-16 (2004).

    Lukumi, though not directly applicable to the case at hand,

is instructive.   That case concerned local ordinances

prohibiting animal sacrifices.    
508 U.S.  at 526.   The Court

noted that “if the object of a law is to infringe upon or

restrict practices because of their religious motivation, the

law is not neutral and . . . is invalid unless it is justified

by a compelling interest and is narrowly tailored to advance



afoul of the Free Exercise Clause. Lyng v. Nw. Indian Cemetery
Protective Assoc., 
485 U.S. 439, 449 (1988) (finding that
decision to harvest timber for construction on tract of land
with religious significance to Native American tribe was not
prohibited by Free Exercise Clause). Additionally, generally
applicable laws passed without regard to religion do not offend
the tenets of the Free Exercise Clause. Emp’t Div., Dep’t of
Human Res. of Or. v. Smith, 
494 U.S. 872, 872 (1990) (rejecting
Free Exercise claim and finding that members of religious
organization were not entitled to dispensation from criminal law
which prohibited use of peyote).

                                  4
that interest.”   Id. at 533 (citation omitted).   Application of

that principle requires examining the purpose of the law, which

in turn requires scrutinizing its text to determine whether it

is neutral on its face -- but the text is not determinative.

Id. at 533-34.    “Masked” “governmental hostility” is also

invalid, and examination of a statute’s underlying purpose is

appropriate.   Id. at 534.   In examining the challenged law, the

Court found that the ordinances were “consistent with the claim

of facial discrimination” and, more importantly, that they were

passed to “suppress[] . . . the central element of [a

religion].”    Ibid.   Thus, the purpose underlying passage of the

ordinances was impermissible.    Id. at 534-35.

    More recently, in Locke, 
540 U.S.  at 715, the Supreme Court

balanced the limitations of the Free Exercise Clause against

Washington State’s “antiestablishment interest” as expressed in

its state constitution.    In that case, Joshua Davey, a student

pursuing a double major in pastoral ministries and business

management/administration at a private, Christian college

received a scholarship from a state-run scholarship program that

prohibited the disbursement of funds to a qualified student

pursuing a degree in devotional theology.    Id. at 716-17.   The

Court found that the program did not violate the Free Exercise

Clause, noting that the state’s “antiestablishment interest” --

its interest in not supporting the ministry or “funding the

                                  5
pursuit of [a] devotional degree[]” -- “is scarcely novel.”
2 Id.

at 722-23, 725.   In distinguishing the ordinances at issue in

Lukumi from the program in Locke, the Court explained that the

program “goes a long way toward including religion in its

benefits” because scholarship recipients may “attend pervasively

religious schools” and “are still eligible to take devotional

courses.”   Id. at 724-25.   The Court concluded that

“neither . . . the history or text of Article I, § 11 of the

Washington Constitution, nor . . . the operation of the

[scholarship program] . . . suggests animus towards religion.”

Id. at 725.   Finally, the Court noted that the “historic and

substantial state interest at issue” also weighed against

finding that the program was unconstitutional.    Ibid.3

Importantly, the only state interest considered by the United

States Supreme Court in Locke was Washington State’s

“antiestablishment interest” which was balanced against the

boundaries of the Free Exercise Clause.    Id. at 720-22.




2  In noting the commonality of this interest, the Court
references other similar state constitutional provisions,
including Article XVIII of the New Jersey Constitution of 1776.
Locke, 
540 U.S.  at 723.

3  I note that Justice Scalia’s dissent in Locke illustrates a
discord in the test’s application, asserting that the program
“facially discriminates against religion.” 
540 U.S.  at 726
(Scalia, J., dissenting).
                                 6
    Most recently, in Trinity Lutheran, the Court considered

the Trinity Lutheran Church Child Learning Center’s application

for a state grant administered by the Missouri Department of

Natural Resources (the Department) to reimburse qualifying

nonprofit organizations that install playground surfaces made

from recycled tires.    
137 S. Ct.  at 2017.   “[T]he Department had

a strict and express policy of denying grants to any applicant

owned or controlled by a church, sect, or other religious

entity.”   Ibid.   The State rejected the application citing

Article I, Section 7 of the Missouri Constitution, which states:

“[N]o money shall ever be taken from the public treasury,

directly or indirectly, in aid of any church, sect or

denomination of religion . . . .”     Ibid. (quoting Mo. Const.

art. I, § 7).   In concluding that the Department’s denial of the

application violated the Free Exercise Clause, the Court noted,

“only a state interest 'of the highest order’ can justify the

Department’s discriminatory policy.”    
137 S. Ct.  at 2024

(quoting McDaniel, 
435 U.S. at 628).    The Court found that the

purported interest -- the “policy preference for skating as far

as possible from establishment concerns” -- was unavailing

because the doctrine of separation between Church and State “is

limited by the Free Exercise Clause.”     Ibid. (quoting Widmar v.

Vincent, 
454 U.S. 263, 276 (1981)).     Thus, the Court found that

the State’s pursuit of its antiestablishment policy went “too

                                  7
far” in “denying a qualified religious entity a public benefit

solely because of its religious character.”   Ibid.

                                II.

     Consistent with the precedent established in Lukumi and

Locke and reaffirmed in Trinity Lutheran, a state’s

antiestablishment interest is not without its limits.     Thus, I

believe that the Free Exercise Clause requires an examination of

the enabling legislation and underlying motive or purpose of

state action aimed at benefiting a house of worship.4    See

Trinity Lutheran, 
137 S. Ct.  at 2024.

     New Jersey’s Constitution recognizes the preservation of

historic structures as an important government purpose by

“providing funding, including loans or grants . . . for historic

preservation.”   N.J. Const. art. VIII, § II, ¶ 7.    Pursuant to




4  In Caplan v. Town of Acton, 
92 N.E.3d 691, 693–94 (Mass.
2018), the Supreme Judicial Court of Massachusetts analyzed the
disbursement of grant funds to an active church, which was
characterized as a “historic resource.” In assessing the
constitutionality of the grant under the State’s anti-aid
amendment, the court applied a three-factor test: (1) is “a
motivating purpose of each grant . . . to aid the church”; (2)
“whether the grant will have the effect of substantially aiding
the church”; and (3) “whether the grant avoids the risks of the
political and economic abuses that prompted the passage of the
anti-aid amendment.” Id. at 694. Although the Massachusetts
Court distinguished its case from Trinity Lutheran, as the anti-
aid amendment did not impose a categorical ban on the grant of
funds to a religious institution, and applied its own test to
determine the validity of the grants, see id. at 704-05, I find
its analysis informative.


                                 8
that important government purpose and 
N.J.S.A. 40:12-15.2,5

“[t]he Morris County Board of Chosen Freeholders created the

Morris County Historic Preservation Trust Fund . . . to help

support the preservation of the county’s exceptional abundance

of historic resources.”    Morris County Office of Planning &

Preservation, Historic Preservation (2018), https://planning.

morriscountynj.gov/divisions/prestrust/historic/.    The expressed

purpose of Morris County’s program is to advance New Jersey’s

substantial interest in historic preservation.

     New Jersey’s substantial interest in historic preservation

as expressed in our Constitution distinguishes this case from

Locke.    In Locke, the Court found that the state’s decision not

to fund devotional degrees was constitutional given the state’s

antiestablishment interest.    
540 U.S.  at 722-23, 725.   However,

the Court made clear in Trinity Lutheran that a state’s reliance

on antiestablishment principles, even those grounded in the

state’s constitution, is not without limits.    
137 S. Ct.  at
 2024.    Thus, an antiestablishment interest cannot justify the

categorical ban of a religious institution from a public benefit

based solely on its religious character.    Ibid.   Here, New

Jersey’s interest in historic preservation, N.J. Const. art.



5 N.J.S.A. 40:12-15.2(a)(1)(e) allows the submission of a
referendum to county voters to authorize the “imposition of an
annual levy” for “historic preservation of historic properties,
structures, facilities, sites, areas, or objects.”
                                  9
VIII, § II, ¶ 7, counters its antiestablishment interest

expressed in the Religious Aid Clause.      I believe, therefore,

that New Jersey’s antiestablishment interest is less compelling

than was the state’s interest in Locke.

       The majority concludes that the present case exceeds the

scope of Trinity Lutheran since Morris County’s taxpayer-funded

grants “went toward 'religious uses.’”      Ante at ___ (slip op. at

42).   In reaching this conclusion, the majority refers for

support to Footnote 3 of the Trinity Lutheran decision, 
137 S. Ct.  at 2024 n.3.    However, that conclusion ignores New Jersey’s

separate and substantial government interest at stake in this

case -- historical preservation.      I believe that had Morris

County’s program been applied in a fundamentally neutral manner,

the Religious Aid Clause could not bar funding to an otherwise

qualified religious institution.

       Nevertheless, I am constrained to concur with the majority

because as the majority points out:      there will be a protracted

relationship between Morris County and defendant religious

institutions; 41.7 percent of the grant money was awarded to

twelve churches which, in some instances, sought funding to

continue religious services; and the program’s Rules and

Regulations explicitly name religious institutions as eligible

applicants.   Therefore, the grant program at issue here is

neither facially neutral nor neutral in its application.

                                 10