Churches Press Supreme Court on New Public Funding Question

By Patrick L. Gregory

A dispute over public funding for historic preservation of churches could entice the U.S. Supreme Court to answer questions left unaddressed in a major ruling, and provide clarity for lower courts on the separation of church and state.

Twelve active churches that lost their fight to receive historic preservation grants, along with county officials who issued them, filed two petitions asking the U.S. Supreme Court to get involved.

The case could be a follow-on to the high court’s 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, which ruled that a church couldn’t be denied public playground funds. This time the court’s newest member, Justice Brett M. Kavanaugh, would have a chance to weigh in.

Justice Anthony M. Kennedy, whom Kavanaugh replaced and who joined the majority in Trinity Lutheran, “was pretty sympathetic” toward public funding for religious purposes, Douglas Laycock, a professor at the University of Virginia School of Law, who has written extensively about religious liberty law, told Bloomberg Law.

We “don’t know about Kavanaugh,” but it’s “a reasonable guess that he will be even more sympathetic,” Laycock said.

The court showed its continued interest in church-state controversies this month, when it agreed to hear a controversy involving a public World War I memorial in Maryland, which features a 40-foot tall Latin cross.

The petitions here raise First Amendment questions about religious uses of neutrally distributed public funds that are “certainly” worthy of review after Trinity Lutheran, Laycock said.

Courts have been split on how to apply Trinity Lutheran.

Millions in Grants

The churches here are challenging the New Jersey Supreme Court’s ruling this year that Morris County, N.J., violated the state constitution when it gave them $4.6 million in historic preservation grants, in Freedom From Religion Found. v. Morris Cty. Bd. of Chosen Freeholders.

The churches and officials are asking the high court to decide whether the “categorical exclusion” of active houses of worship from the grants violates the U.S. Constitution.

The petitions raise First Amendment establishment and free exercise clause issues that the court will need to resolve eventually, William P. Marshall, a professor at the University of North Carolina School of Law, Chapel Hill, N.C., told Bloomberg Law by telephone.

Religious Use?

The central question is whether the use of taxpayer money for historic preservation should be considered a religious use of public funds, Caroline Mala Corbin, a professor who teaches constitutional law at the University of Miami School of Law, told Bloomberg Law by telephone.

The New Jersey Supreme Court, in a ruling that prompted the petitions here, distinguished the barring of historic preservation grants from the denial of playground grants in Trinity Lutheran.

In Trinity Lutheran, a church was excluded because of its status as a church, not because of how the playground grant would be used, the state court said.

But the New Jersey Constitution’s banning of the preservation grants was based on how the churches planned to use them: to repair church buildings so that religious worship services could be held in them, the court said.

Barring the grants to churches therefore didn’t violate the First Amendment’s free exercise clause, the court ruled.

The court ruled in favor of the Freedom From Religion Foundation, which is the respondent here and which seeks to promote the separation of church and state.

That ruling conflicts with Trinity, which rejected the argument that funding used for church property was inherently religious, the petitioners say.

Looking Ahead

The Supreme Court in Trinity Lutheran “carefully reserved the question of religious uses of neutrally distributed money,” Laycock said.

It “was thinking about religious schools” when it did so, but “preservation of churches presents a variant on the same issue,” he said.

Marshall said one possible answer here is that there’s sufficient room between the bounds of the free exercise clause and the establishment clause to allow a state government to decide itself whether funding church preservation is appropriate, Marshall said.

Drinker Biddle & Reath LLP represents the churches. The Becket Fund for Religious Liberty represents the county officials.

Erwin Chemerinsky of the University of California, Berkeley School of Law represents Freedom From Religion Foundation.

The cases are Morris Cty. Bd. of Chosen Freeholders v. Freedom From Religion Found., U.S., No. 18-364, petition for review filed 9/18/18 and The Presbyterian Church in Morristown v. Freedom From Religion Found., U.S., No. 18-365, petition for review filed 9/18/18.