‘Harebrained Hail Mary’? Rebuffed by Supreme Court, Morris County tries again to restore historic grants to churches, and nix legal fees

Morristown's Church of the Assumption. Photo courtesy of the Morris County Freeholders
Morristown's Church of the Assumption, one of four local churches affected by this case. Photo courtesy of the Morris County Freeholders


To the victor go the spoils. That’s usually how it works with legal fees.

But the Morris County Freeholders say they have been shortchanged by the legal system, and are asking a federal court to spike $750,000 in legal fees sought by plaintiffs who sued to stop them from awarding millions in historic preservation grants to churches.

And the county is asking the court to overrule the New Jersey Supreme Court and restore the grant program– a “harebrained Hail Mary,” according to the Wisconsin-based Freedom from Religion Foundation, which brought the initial suit along with David Steketee of Madison, NJ.

“Twice the county has tried to take this issue to federal court, and twice it has been rebuffed,” said a statement from foundation Co-President Dan Barker, referring to a prior county attempt to shift the case to federal court, and to the U.S. Supreme Court’s refusal last month to hear the case.

“It’s absurd,” said Steketee.

In legal papers filed in the U.S. District Court of New Jersey, attorney John Bowens of Florham Park questions the state Supreme Court’s refusal to apply principles from the U.S. Supreme Court’s Trinity Lutheran ruling.

In that case, the nation’s high court said Missouri could not exclude a religious school from obtaining the same state grants for playgrounds that were available to secular schools.

Now, Bowens contends, the county “faces the imposition of substantial counsel fees based upon the erroneous decision of the New Jersey Supreme Court. The County is also compelled to deny grants to religious institutions in violation of the United States Constitution. The County has no adequate basis for relief in the New Jersey Courts.”

A dozen houses of worship across Morris County–including four in Morristown–received $4.6 million in county grants between 2012 and 2015 for exterior renovations.

When the U.S. Supreme Court declined to hear an appeal by the county and the churches, Justices Brett Kavanaugh, Samuel Alito and Neil Gorsuch dissented.

“As this Court has repeatedly held, governmental discrimination against religion —in particular, discrimination against religious persons, religious organizations, and religious speech —violates the Free Exercise Clause and the Equal Protection Clause,” Kavanaugh wrote.

Assumption Church, the Presbyterian Church in Morristown, the Episcopal Church of the Redeemer and St. Peter’s Episcopal Church are local churches affected by the state ruling.

Steketee accused the county of re-hashing a lost battle.

“The County continues to argue points already addressed by the NJ Supreme Court in its unanimous decision earlier this year. The Morris County Freeholders, led by Douglas Cabana, appear disinterested in following the court’s rulings.”

Freedom From Religion Foundation Co-President Annie Laurie Gaylor, labeled the county’s challenge as bizarre.

“We litigated this case fairly in court — and the county lost,” she said in a statement. “The lawsuit demonstrates religious privilege run amok.”

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  1. The district court just denied the County’s order to show cause and entered an order for the County to show cause why the Complaint shouldn’t be dismissed for lack of jurisdiction