Federal judge: Churches can receive "Historic Preservation Grants" in NJ county

Taxpayers will be on the hook for helping fix up historic churches in Morris County, New Jersey

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Some churches in New Jersey will now be eligible to receive public funding in the name of historic preservation after a federal judge said a prohibition on that is illegal.

They can receive the cash even if the churches are “currently used for religious purposes or functions,” which means faith leaders who might have spent money improving their buildings can now shuffle money around so that taxpayers cover those costs while the parts of their budget reserved for preaching and proselytizing get larger.

To make sense of the ruling, it’s important to understand why this rule was even in place, and for that, you have to go back over a decade.

Between 2012 and 2015, more than $5.5 million in “historic preservation grants” were given to a dozen churches in Morris County. They were presumed legal because they didn’t directly promote faith.

But as I just mentioned, giving churches money for general maintenance is promoting faith since it frees up funding that goes right back into worship. And people were still worshiping at these churches.

In 2015, David Steketee and the Freedom From Religion Foundation filed a lawsuit to put a stop to those grants. They said the state constitution bans public money from supporting religion. Specifically, Article 1, Section 3 says no one should “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.”

They lost at the district level but appealed the decision. It eventually landed in front of the state’s supreme court, and in 2018, all seven of the justices overturned the earlier decision. The unanimous opinion said that giving taxpayer dollars to active churches was clearly a violation of the law:

Here, the County awarded $4.6 million to twelve churches to repair active houses of worship — from roofs to bell towers, from stained glass windows to ventilation systems. The use of public funds to pay for those repairs violated the plain language of the Religious Aid Clause.

The judges noted that the U.S. Supreme Court’s decision in Trinity Lutheran—which allowed taxpayer funding for ostensibly secular projects like a playground even if it was on church property—didn’t apply here because the grants were not supporting secular projects. They needed to improve the buildings in order to continue using them for services.

… the public funds awarded in this case actually went toward “religious uses.” It is clear from the stipulated facts in the record that the Churches all “have active congregations that regularly worship, or participate in other religious activities,” and all hold “regular worship services in one or more of the structures that they have used, or will use,” taxpayer-funded grants to repair.

… a number of the applications expressly stated that churches sought funding for repairs to continue to conduct worship services.

…

This case does not involve the expenditure of taxpayer money for non-religious uses, such as the playground resurfacing in Trinity Lutheran.

The decision said it would be virtually impossible to figure out how much of the grant money was used for religious or non-religious purposes, so the judges allowed the old grants to remain in place—the ruling wasn’t retroactive and the churches could have the money already given to them—but they wouldn’t be able to receive the grants in the future.

It was a major victory for church/state separation advocates and one that would save taxpayers in the state millions of dollars that would otherwise have gone to promoting religious dogma.

Later, the “Morris County Board of Chosen Freeholders,” represented by the conservative legal group Becket, asked the Supreme Court to take up the case. They said that the buildings were historical and needed maintenance. In other words, they argued the grants were secular, not religious, therefore they should be allowed.

“In Morris County, we want to preserve all of our historical sites, including our magnificent houses of worship, some of which date back to the 1700s and were designed by the leading architects of their time,” said Doug Cabana, the freeholder director of Morris County. “Preserving the character and beauty of our county is a critical element of the county’s cultural and economic success.”

These weren’t just historical sites, though, because they were still being used as churches. The conservatives purposely ignored that distinction in order to muddy up the legal waters. Had the Supreme Court taken up the case, they would have had the opportunity to decide whether “generally available historic preservation funds” could go to houses of worship. (Did building repairs fall under “religious use”? Was it illegal to exclude active churches from such grants?)

Thankfully, they punted.

While their reasoning was not made public, three justices—Neil Gorsuch, Samuel Alito, and Brett Kavanaugh—wrote that, while they agreed this case shouldn’t be taken up, it was only because of the details in this particular instance, not because the questions didn’t need to be resolved.

To put it another way, the conservative judges wanted to change the law really badly, but the facts of this particular case didn’t let them do it. It was like they were begging for another lawsuit, with more convenient facts, to come their way, because in Morris County, the churches were demanding something so obviously illegal.

Indeed, the original grant application form in Morris County was nothing like Trinity Lutheran at all. It’s not like anyone could apply for grants. The application said the money had to be steered toward government buildings, historical sites, or churches. Other non-profits were out of luck. So this program violated the law from the beginning.

In fact, after the New Jersey Supreme Court decision, two other historical churches, which had since been converted to community spaces, received money from the state without a problem, which just went to show how the problem was never the buildings, but rather the way the money promoted religion.

(There was more legal drama after all this because Morris County didn’t want to pay FFRF’s legal expenses, which amounted to over $750,000. But a New Jersey Superior Court judge eventually ordered the County to pay up, to the tune of nearly $218,000. There were a variety of technical/legal reasons they didn’t have to pay the full amount requested, but it was another win for FFRF.)

There were two significant developments after that whole debacle.

First, Morris County changed how it distributed “historic preservation grants.” Religious buildings that were still in active use were “ineligible for Historic Preservation grant funding,” according to rule 5.6.4.

Second, the U.S. Supreme Court issued two rulings that changed the legal boundaries of church/state separation. In Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022), the Court’s conservatives essentially said that government programs giving taxpayer dollars to private institutions couldn’t exclude private religious institutions from participating.

With all that in mind, two churches decided to test the new laws.

In 2022 and 2023, the Mendham United Methodist Church and Zion Lutheran Church both applied for preservation grants in Morris County. They made very clear in their applications that they were churches “currently used for worship” and that worship couldn’t continue without some urgent fixes.

Both times, Morris County officials said no, specifically citing the revised rules: “As this building is currently used for religious purposes or functions, it is ineligible for Historic Preservation grant funding.”

The churches then sued Morris County, citing the Supreme Court’s two recent rulings. Quoting Kavanaugh, they said in their complaint, “Simply put, excluding otherwise-eligible religious organizations from public benefits solely because of the organizations’ religious exercise is ‘pure discrimination against religion.’”

And now they’ve gotten exactly what they wanted.

Last Wednesday, U.S. District Judge Evelyn Padin (a Biden appointee) ruled in favor of the churches, citing those recent Supreme Court cases in her decision. She said that Rule 5.6.4 violated the First Amendment's Free Exercise Clause. The immediate consequences are not yet apparent, though. It doesn’t mean the churches automatically get funding but rather that they can’t be excluded from receiving these grants just because they’re churches.

Padin also pointed out that there was a slippery slope in play here.

For example, one church wanted to fix its bell tower. But, she wrote, “the sound of church bells instinctively brings to mind a call to Christian worshippers to convene.” The other wanted to repair its stained glass windows, which would “reflect Christian iconography.” The judge pointed out that during oral arguments, the churches’ lawyers conceded that the state could theoretically be forced to pay for repairs for “gendered seating” in similar buildings. In other words, if the churches got what they wanted, taxpayers in New Jersey could one day be on the hook for funding faith-based discrimination.

“Naturally, the Court is concerned with such a broad interpretation,” Padin wrote.

She also said that the state could reject grants that supporting “purely religious iconography or purposes” but the two churches in this case were asking for something different—something broader—and she therefore had no choice but to rule in their favor. (It seems problematic that a judge, or a grant-giving authority, may have to decide which aspects of a church “count” as religious or secular.)

Zion Lutheran Church (via Google Maps)

Again, it doesn’t mean they get the grants. But barring a change in the application process, they’ll be eligible to apply for those grants in the future. If a historic museum with maintenance needs would have received the money, a church can now make the same request without worrying it’ll be automatically rejected on account of its religious label.

That also means taxpayers in Morris County are on the hook, possibly to the tune of millions of dollars, for the upkeep of older churches that are still being used today. Even if that money goes toward maintaining faith-based segregation.

Sam Grover, an attorney with FFRF, told me yesterday that the group was “disappointed” with the judge’s ruling, but that they saw an opening in her decision:

Despite the court's suggestion that the rule could be made more narrow, FFRF maintains that the current rule is, in fact, constitutional, given New Jersey's well-established historic interest in avoiding compelled taxpayer support of churches. FFRF briefed the district court on this point and will continue to monitor the case as it moves through this court and through the appeals process, for additional opportunities to advocate on behalf of the taxpayers we represented in the prior lawsuit.

David Steketee echoed many of those same points in an email, adding that this was part of a disturbing trend in Establish Clause rulings:

We've gone from not funding religious instruction in Locke and barring taxpayer subsidies for construction at church-related institutions schools in Tilton, to requiring funding for parochial schools in Carson and now potentially requiring funding directly to churches for building repairs.

He worries that if this ruling stands, “it would represent yet another chip in the wall of separation.”

(via Religion Clause)

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