Editor’s note: Earlier this week, Morris County announced it is asking the U.S. Supreme Court to overturn New Jersey’s highest court and allow historic preservation grants to houses of worship.
On Thursday, attorneys for a dozen area churches–including St. Peter’s Episcopal Church, the Presbyterian Church, the Episcopal Church of the Redeemer and Assumption Church in Morristown–said they, too, have asked the Supreme Court to hear an appeal.
“This is a national problem, as historic church structures are an important part of the country’s heritage. Denying them access to preservation funding threatens the integrity of the historic districts of which they are crucial elements,” Kenneth Wilbur, a partner in Drinker Biddle of Florham Park, said in a statement on behalf of the churches.
Madison resident David Steketee and the Freedom From Religion Foundation have enlisted a leading academic figure to argue against these requests.
Erwin Chemerinsky, dean of the University of California at Berkeley School of Law and author of 10 books, will file a response soon asking the high court to reject the appeal, according to the Wisconsin-based nonprofit Foundation.
Chemerinsky, a fellow of the American Academy of Arts and Sciences, was named America’s most influential legal educator by National Jurist magazine last year. The Harvard Law grad has argued several cases before the Supreme Court.
The New Jersey Supreme Court in April ordered a halt to church participation in Morris County’s grant program after Steketee and the Foundation challenged the practice, which allocated $4.6 million to historic houses of worship for renovations between 2012 and 2015.
“We’re confident that the U.S. Supreme Court will either deny review or will accept the case only to clarify that the New Jersey Supreme Court got the case exactly right,” Foundation Co-President Dan Barker said in a statement.
“Ultimately, this case is not about religion; it’s about the law,” added Steketee. “We should have no lesser expectation of our elected officials than that they follow the law. It is an expression of great arrogance and hubris that the freeholders continue to argue this case and express disagreement with the plain language of the state constitution they are sworn to uphold.”
Below are statements from both sides.
STATEMENT FROM THE CHURCHES’ LEGAL TEAM:
Arguing that “there is nothing religious about a slate roof,” a group of twelve Morris County churches have asked the United States Supreme Court to overturn the New Jersey Supreme Court’s April 2018 decision categorically excluding churches from historic preservation programs.
In their Petition requesting that the Court hear the case, the defendant churches rely on the U.S. Supreme Court’s decision in Trinity Lutheran that the right to free exercise of religion guaranteed by the First Amendment is violated if qualified applicants for a government program are put to the choice of being a church or participating in the program.
New Jersey recognizes historic preservation as an essential State function for which public funds are available through competitive grant programs with strict secular criteria.
Under the State Supreme Court’s decision, the only way they could receive the funds for which they qualified would be to cease being churches. Trinity Lutheran holds that this kind of “no churches need apply” rule is repugnant to the Constitution.
Speaking for the churches, their attorney, Drinker Biddle partner Kenneth Wilbur explained, “This is a national problem, as historic church structures are an important part of the country’s heritage. Denying them access to preservation funding threatens the integrity of the historic districts of which they are crucial elements.”
The Petition discusses as one example of this preservation grants to churches in the early planned community of Mountain Lakes, explaining “the decision below would create a false history, permitting preservation of only the secular elements of Hapgood’s planned community despite churches also being a part of that plan.”
In less than a year, the highest courts of three states have struggled to apply Trinity Lutheran to historic preservation grants to active houses of worship, and the majority, plurality, concurring and dissenting opinions in these cases are in extreme conflict. The Petition asks the Court will grant certiorari to bring needed clarity to this area.
Given the important secular benefits of historic preservation, the rationale for the State Supreme Court’s decision on the First Amendment, that “this case does not involve the expenditure of taxpayer money for non-religious uses” turns a blind eye to reality.
It is based on the fiction that any money given to a church will somehow, directly or indirectly, be diverted to advance religion. This fiction is at odds with Trinity Lutheran’s premise that churches “are members of the community, too.”
In fact, the County program is carefully structured to ensure that no applicant, secular or religious, can use the grants for routine repairs or to subsidize operating expenses.
Funding is limited to partial reimbursement of the same significant added costs, above and beyond functional repairs, faced by any owner of a historic structure, secular or religious, who undertakes the additional burden of complying with stringent historic preservation standards.
The County has also filed a Petition seeking to overturn the State Court’s decision.
STATEMENT FROM THE FREEDOM FROM RELIGION FOUNDATION:
The Freedom From Religion Foundation will be represented by renowned legal scholar Erwin Chemerinsky in opposing a request today by Morris County, N.J., asking the Supreme Court to overturn FFRF’s resounding victory this spring against taxpayer subsidy of churches.
Morris County, defended by the Catholic Becket Fund, is asking the U.S. Supreme Court to take its appeal of FFRF’s firm victory, and overrule the state supreme court’s decision against funding religious worship.
The New Jersey Supreme Court unanimously held in April that state taxpayers cannot be forced to pay to repair active houses of worship, several of which explicitly sought taxpayer funds in order to further their worship services.
This decision will save New Jersey taxpayers many millions of dollars and protects the religious liberty of all New Jersey residents.
Morris County churches are arguing that they are entitled to taxpayer funds, even though the state constitution specifically forbids this religious use of taxpayer funds.
One of these churches sought and received a grant to allow the church’s “continued use by our congregation for worship services.” Another received funds “to ensure continued safe public access to the church for worship.”
At the heart of the lawsuit, argued in New Jersey state court, is the New Jersey Constitution’s guarantee: “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.” Art. I, Para. 3.
This taxpayer protection predates the creation of the United States and is a principle Founders, including Thomas Jefferson, saw as an essential guarantee to prevent the government from forcing citizens to support religions in which they disbelieve.
Morris County is asking the Supreme Court to extend a 2017 case, Trinity Lutheran v. Comer, which held that Missouri could not exclude a church-owned playground from a secular funding program.
The county made the same unpersuasive arguments before the New Jersey Supreme Court, which soundly rejected the county’s arguments. The state high court crucially noted that this case “does not involve the expenditure of taxpayer money for nonreligious uses, such as the playground resurfacing in Trinity Lutheran.”
FFRF, with the help of University of California at Berkeley School of Law Dean Erwin Chemerinsky, will soon file a response to the county’s petition, urging the high court court to deny cert. (reject the requested review).
“We’re confident that the U.S. Supreme Court will either deny review or will accept the case only to clarify that the New Jersey Supreme Court got the case exactly right,” comments FFRF Co-President Dan Barker.
Plaintiffs in the case are David Steketee, an FFRF member, and FFRF itself. In New Jersey state court, Steketee and FFRF were represented by outside counsel Paul Grosswald and FFRF attorneys Andrew Seidel and Ryan Jayne, who will continue as co-counsel. Chemerinsky is one of the most cited legal scholars of all time and has argued several cases before the Supreme Court.
FFRF is a state/church watchdog comprised of mostly nonreligious 32,000 members nationwide, including 600-plus in New Jersey. It is celebrating its 40th year as a national group.