The US Supreme Court denied certiorari Monday in Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, a case asking whether the state of New Jersey can use historic preservation funds to repair churches and religious institutions.
Morris County, New Jersey, gave around $4.6 million to various churches and religious institutions from the Morris County Historic Preservation Trust Fund between 2012 and 2015. The Morris County Historic Preservation Trust Fund was intended to be limited to local government, charitable conservancies and religious institutions. The funds allocated to the churches were used to repair stained glass windows, facades and roofs.
The Freedom From Religion Foundation filed this suit in 2015. The New Jersey Supreme Court held that, under New Jersey law, taxpayer funds could not be used for the repair of religious institutions. They additionally held that New Jersey’s prohibition on taxpayer funds did not violate the Free Exercise Clause of the First Amendment.
The Supreme Court denied certiorari with Justice Brett Kavanaugh filing a statement respecting the denial. Kavanaugh suggested that the court will likely have to address this question at some point as New Jersey’s discrimination against religion is unconstitutional. Kavanaugh agreed with the court’s denial, however, for two reasons. He found that the details of what buildings qualify for historic preservation are unclear and he found that there was not enough precedent from the recent Trinity Lutheran decision for the court to definitively answer.
The court heard oral argument last week in a similar case involving Maryland’s preservation of a World War I Memorial in the form of a 40-foot-tall Latin Cross.