Claiming that they lost based largely on a “false factual premise,” a dozen Morris County churches are asking the New Jersey Supreme Court to reconsider last month’s unanimous decision ending county historic preservation grants to the houses of worship.
The ruling relied heavily on citations taken out of context by the plaintiff, the Freedom from Religion Foundation, according to a 12-page brief to the high court filed this week by the churches’ attorney, Ken Wilbur.
“The implication that the County program is a lifeline sustaining churches is false. None of the applicants asked for, or received, grants because they need the funds to continue
hosting religious services,” wrote Wilbur, whose clients include St. Peter’s Episcopal Church, the Episcopal Church of the Redeemer, Assumption Church and the Presbyterian Church, all in Morristown.
Andrew Seidel, counsel for the Wisconsin-based Freedom From Religion Foundation, described the churches’ counter-argument as “weak.”
“They argue that all seven Justices in a well-thought-out 60-page opinion were acting in a very arbitrary, capricious and unreasonable manner. To suggest all seven Justices were acting that way is not something I personally would want to argue, nor do I think the Justices would agree to,” Seidel said.
Persuading the New Jersey Supreme Court to reverse itself is a very tall order, said Joseph Bell IV, an attorney for Bell & Shivas in Rockaway who is not connected to this case.
“It would be unusual to ask the Supreme Court for a reconsideration, and it would be even more unusual for the Supreme Court to grant it,” Bell said. “Usually, it must be based on a clear error in fact or a mistake in law.”
While the churches can keep $4.6 million in grants received between 2012 and 2015, they may not receive any more money from the Morris County Preservation Trust Fund, the state Supreme Court ruled, citing a provision of the state Constitution that bars use of taxpayer funds to repair and restore churches.
State Supreme Court Chief Justice Stuart Rabner also noted statements by St. Peter’s, Redeemer, the Presbyterian Church, and other churches, acknowledging how repairs to roofs, bell towers and other facilities would help them continue conducting worship services.
“None of the cited statements, however, actually says this,” Wilbur said in his request for reconsideration.
“What is cited are answers to grant application questions asking for general information about the applicant’s existing activities and/or how these activities might be impacted by the work. Unsurprisingly, the churches responded their existing activities, including holding religious services, would continue. This does not mean, however, that the grants were needed or awarded for the purpose of enabling the churches to continue to hold religious services.”
As an example, he cited a grant application by the Presbyterian Church in Morristown. Portions omitted by the plaintiffs are in italics:
8. Describe any impact of proposed project
on existing use of site:
This Phase of construction is dedicated to eliminating moisture infiltration and halting the resulting structural deterioration. The result will 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.
And, from the Church of the Redeemer:
8. Describe any impact of proposed project on existing use of site:
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
David Steketee, the Madison, NJ, resident who initiated the lawsuit against the churches and Morris County officials, said the churches’ reconsideration arguments are irrelevant.
“It doesn’t really matter if the intent is historic preservation or religious worship,” Steketee said. “The fact is, churches still are used as places of active worship by active congregations, and the state Constitution doesn’t have an grey areas in this regard…it doesn’t provide any exceptions for anything.”
Lawyers for Morris County still are reviewing the state Supreme Court’s decision, said county spokesman Lawrence Ragonese.
A central piece of the churches’ defense, which could form the basis of an appeal to the U.S. Supreme Court, was last year’s Trinity Lutheran ruling by the nation’s highest court.
That opinion said state funds could be used to renovate a playground on church property in Missouri. It did not address the issue of state funding for religious buildings. But U.S. Chief Justice John Roberts wrote: “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
Morris County’s grants “are for projects preserving architectural elements that are, without question, external and non-sectarian,” the churches’ motion states. It asks the state Justices to reconsider because “under Trinity Lutheran, houses of worship must be permitted to compete on an equal basis for funding awarded under neutral terms by government historic preservation programs.”
New Jersey Court Rules state that reconsideration:
..should be utilized only for those cases which fall into that narrow corridor in which either 1) the ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.
“Requesting this relief does not preclude pursuing other options,” Wilbur told MorristownGreen.com via email.
In seeking reconsideration, he said, “defendants look to clarify the record not only for its own sake, but because it may affect the outcome of the case under the First Amendment.”