March 6, 2019
In a series of two cases, the New Jersey state supreme court decided that the state constitution requires the exclusion of churches from state historic preservation grants. The state’s high court reached that conclusion even in light of the Supreme Court case from 2017, Trinity Lutheran Church of Columbia, Inc. v. Comer. The Court had held that it was a violation of the First Amendment’s Free Exercise Clause to exclude a church from a state playground resurfacing program just because the playground was run by a church.
The New Jersey grantmaking authorities that were sued for distributing grants to churches appealed the decision to the Supreme Court, but the Court denied review. While it is discouraging that a church can be cut off from public aid just because it is a church, a statement from Justice Kavanaugh and joined by Justices Alito and Gorsuch holds promise for the future: “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.”
So why did the entire Court agree to deny review? As one outlet explains, although “Kavanaugh agreed with the court’s decision to decline to hear the case,” he noted “that factual uncertainty and the recency of his colleagues’ decision in Trinity Lutheran meant that neither the time nor the case was right for consideration.”
In other words, Justices Kavanaugh, Alito, and Gorsuch said it was the time to wait rather than act. In the meantime, it is important to emphasize why this is an important legal issue. In Trinity Lutheran, Chief Justice Roberts wrote that the consequence of the church’s exclusion from the playground resurfacing program was, “in all likelihood,” merely “a few extra scraped knees.” Similarly, the denial of historic preservation grants means that some churches will just have to ask private donors to take care of the termites, the rust, or the floorboards. However, as the Chief Justice reminded us, discrimination against religion in the public square would not be tolerated and is unconstitutional: the church’s exclusion “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.”