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