Morris Freeholders plan U.S. Supreme Court appeal of church ruling

Good Friday 2018 procession at the Episcopal Church of the Redeemer. Photo by Rector Cynthia Black
Good Friday 2018 procession at the Episcopal Church of the Redeemer. Photo by Rector Cynthia Black


The Morris County Freeholders plan to ask the U.S. Supreme Court to overturn last month’s New Jersey Supreme Court decision prohibiting historic preservation grants to churches.

“The Board of Freeholders believes the State Supreme Court made the wrong decision in ending that funding eligibility. Board members believe the historic religious structures in Morris County are critical to the county community, the county’s economy, and to the county’s history,” Freeholder Director Doug Cabana said in a statement released Tuesday.

Monday night in Boonton, the freeholders unanimously approved a resolution to retain lawyers from the Washington DC-based Becket Fund for Religious Liberty to file an appeal to the nation’s highest court. 

There will be no cost to county taxpayers, according to Cabana and the Becket Fund, which is supported by private donors.

But if Becket loses on appeal, its pro bono claim could boomerang to bite taxpayers to cover legal fees of the Freedom from Religion Foundation, that organization countered.

Calling the U.S. Supreme Court appeal “unlikely” at best and potentially “reckless,” Foundation attorney Andrew Seidel said the Foundation already has racked up fees of $250,000, a figure that “could easily stretch to over $1 million” if the appeal is heard by the high court.

In a unanimous decision last month, the state Supreme Court sided with the Freedom from Religion Foundation and Madison resident David Steketee, who sued the churches and Morris County officials contending historic preservation grants to religious institutions violate the state constitution.

A dozen churches — including St. Peter’s Episcopal Church, the Presbyterian Church, the Episcopal Church of the Redeemer, and Assumption Church in Morristown–received $4.6 million from the county freeholders between 2012 and 2015 to repair roofs, bell towers, ventilation systems and, in at least one case, a stained glass window.

“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 long-standing provision,” New Jersey Chief Justice Stuart Rabner wrote in the 62-page opinion.

Although further grants are barred, the churches are not required to repay what they have received.

Steketee declined to comment on the appeal. Seidel described it as a costly gamble for the county.

“They’re skyrocketing costs in a reckless manner…given that [the case] centers on the New Jersey constitution, and the New Jersey Supreme Court was emphatic in its interpretation of that constitution, this will just cost the county more money,” Seidel said.

Ken Wilbur, lawyer for the churches, said last week the churches would ask the state Supreme Court to reconsider its decision. He could not immediately be reached for comment on Tuesday about the appeal.

Established in 1994 by former Justice Department attorney Kevin Hasson, and named for Saint Thomas Becket, who was martyred in 1170 by knights of King Henry II for defending the church, the nonprofit Becket Fund has won three religious freedom cases before the U.S. Supreme Court.

In Holt vs. Hobbs (2015), the high court upheld the right of a Muslim inmate in Arkansas to grow a beard in accordance with his religious practices. 

In Burwell vs. Hobby Lobby (2014), Becket lawyers successfully defended a family owned business that objected on religious principles to providing government-mandated contraceptives in its health plan.

And in 2012, Becket represented the Hosanna-Tabor Evangelical Lutheran Church, which was sued by a teacher fired for violating one of its tenets. The case affirmed the freedom of churches, not government, to choose their leadership, according to the Becket Fund.

Asserting that the Freedom from Religion Foundation “would love to scratch the words ‘under God’ from the Lincoln Memorial,” Becket Fund Vice President and Senior Counsel Eric Baxter said his organization believes “religion is part of human life, part of culture.

“Religion was important in the founding of our country, it was important in the Civil Rights movement. We should remember that, just like any other significant influence.”

Morris County’s appeal — if the U.S. Supreme Court agrees to hear it–will argue that the New Jersey decision runs counter to last year’s Trinity Lutheran opinion.

In that case, which centered on public funding for a church playground in Missouri, the U.S. Supreme Court determined that “everybody has to be treated on equal terms,” Baxter said.

With narrow exceptions, he said, government cannot discriminate against religious institutions when awarding public funds for secular purposes.

“We want to help Morris County adhere to its First Amendment obligation,” Baxter  said.

Although the U.S. Supreme Court only takes about 80 cases a year, he said, he is optimistic because Massachusetts and Vermont courts also have wrestled with how to view public grants to houses of worship.

“I do think it’s an issue the [Supreme] Court is interested in,” Baxter said. If the appeal is accepted this fall, it could be heard over the winter or next spring, with a decision by June 2019, he said.

Cabana said the county’s preservation program “was created for a secular purpose: to preserve historic landmarks.

Established in 2002 by public referendum, the preservation trust fund has long allowed religious institutions to seek grants for historic projects, the freeholder director said.

“It has not differentiated between religious and secular organizations when it comes to our history,” he said.

This story has been updated to include comments from the Freedom from Religion Foundation.

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  1. “There will be no cost to county taxpayers, according to Cabana and the Becket Fund, which is supported by private donors.”

    No, when the FFRF wins, the COUNTY TAXPAYERS will have to pay the FFRF’s legal costs, which, for a supreme court appeal, would probably be over a million dollars. The Becket Fund won’t pay it.

    Look into other municipalities that took up “free” legal representation to defend Christian hegemony — they always cost money when they lose.

  2. The voters and the voters only should have a say for each and every public-money grant used for churches. I, a Christian, am one that does not support public funds being used for non-public buildings. There are many people in the area that donate millions of dollars each year for for hospitals, drug/alcohol recovery programs, art promotion, etc. The Freeholders should begin a program to solicit funds from these people for the town’s historic buildings. I say, leave the public’s money for public use.