By Kevin Coughlin -

The U.S. Supreme Court has declined to hear an appeal by Morris County and a dozen churches– including four in Morristown– to overturn last year’s state Supreme Court decision barring churches from receiving historic preservation grants from the county.

It means that historic Morris churches now must raise their own funds for costly exterior repairs and maintenance–which is how it should be, according to atheist groups.

“I feel pretty good about it, I suppose,” said Madison resident David Steketee, who challenged the county grant program along with the Freedom from Religion Foundation. “This is an affirmation of citizens’ rights not to have to support religious institutions they might not agree with.”

“That’s why many immigrants came here: To get away from tithing to churches against their will,” added Annie Laurie Gaylord, co-president of the Wisconsin-based nonprofit foundation.

Area clergy, whose houses of worship received $4.6 million in county grants between 2012 and 2015, expressed disappointment with Monday’s denial by the U.S. Supreme Court, though they found some solace in a statement by Justices Brett Kavanaugh, Samuel Alito and Neil Gorsuch.

“In my view, the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents,” Kavanaugh wrote.

“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. In the words of Justice Brennan, the ‘government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits,'” the Justice wrote.

But Kavanaugh cited two reasons for not hearing this case: Ambiguities about the type of buildings covered by Morris County’s grant program, and a lack of case law regarding historic preservation grants to churches since the high court’s recent Trinity Lutheran ruling.

In Trinity Lutheran, the U.S. Supreme Court said Missouri could not exclude a religious school from obtaining the same state grants for playgrounds that were available to secular schools.

The Justices “would prefer to have the cleanest possible case,” and more lower court rulings, before tackling this issue, said Ken Wilbur, the Florham Park attorney who represented the Morris churches pro bono.

These churches now must see whether a similar case emerges elsewhere in the United States and finds its way to the U.S. Supreme Court.

“It sounds like the Justices are inclined to agree with our arguments, they just didn’t have the data they need to make a definitive ruling,” said Rector Cynthia Black of Morristown’s Episcopal Church of Redeemer.

Black’s congregation, “which is about celebrating love and doing justice,” will have to devote more time to fundraising, she said. “We tend to lead with our hearts. This obviously will give us pause.”

Rector Janet Broderick of St. Peter’s Episcopal Church in Morristown said the result of the rejected appeal is that “funds needed to maintain these historic buildings will not be available, and thus potentially deprive the public of these valuable treasures.”

However, Broderick said the churches are gratified the high court “recognized the serious risk, which we believe to be the case, that we have been discriminated against solely on the grounds of religious belief.

“We have not asked to be treated specially from everyone else, we only want to be treated equally. But, as New Jersey’s own great Supreme Court Justice William Brennan once said, ‘It appears that the court is afraid of too much equality.'”

Assumption Church and the Presbyterian Church in Morristown also were named in the initial lawsuit.

CRUSADE STARTS AT SOUP KITCHEN

Morris County Freeholder Director Doug Cabana shared the churches’ disappointment with the outcome of the appeal.

“The U.S. Supreme Court’s denial binds the county to the New Jersey Supreme Court’s ruling which excludes religious organizations from applying for and/or receiving county historic preservation program grants,” Cabana said in a statement.

“We believe that the county’s preservation program was created for a secular purpose: To preserve all historic landmarks. Our preservation grant program was created for all historic sites, including our magnificent houses of worship, some of which date back to the 1700s,” the freeholders said.

The New Jersey Supreme Court’s unanimous 2018 opinion found that the state Constitution bars use of tax dollars to repair and restore churches.

A lower state court previously sided with the county, noting the money strictly was for historic purposes and did not promote religion. Denying churches grants offered to all historical venues would be discriminatory, according to that decision.

The grants funded repairs of everything from bell towers and stained glass windows to roofs and ventilation systems. They were challenged in 2015 by Steketee and the Freedom From Religion Foundation. Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, headed the foundation’s legal team for this case.

The Freeholders were represented by the Washington DC-based, donor-funded Becket Fund for Religious Liberty.

Applauding the U.S. Supreme Court’s denial, Richard B. Katskee of the Americans United for Separation of Church and State said “public funds should support buildings and programs that benefit all members of the community, not build or repair churches that are used primarily by members of one faith. Historic preservation is a worthwhile cause, but it cannot come at the expense of our core constitutional promise of the separation of religion and government.”

But Katskee was troubled by Justice Kavanaugh’s comments, which suggest “a hostility toward our fundamental American value of church-state separation, which has protected religious freedom for all.”

Steketee, 42, acknowledged he had been nervous about the county’s appeal, because of “the recent conservative shift of Justices on the court.”

Born into the Jewish faith, Steketee said he became an atheist at the age of 8.

“I never felt I got satisfactory answers from the religious community…about questions I had about the world and the universe,” said Steketee, who works in information technology for a global accounting firm.

His crusade against Morris County’s grant program started at the Church of the Redeemer’s parish house, where he said he volunteered a couple of times at the Community Soup Kitchen.

As he was walking from the parish house, he said, he noticed a sign out front announcing a sizable county grant for renovations.

Steketee began researching the grant program, established in 2003. Clearly, he told the freeholders, the church awards violated the state constitution. A clause dating to 1776 declares no person shall 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…”

When the church grants continued, Steketee filed his lawsuit.

The soup kitchen “is a great program, a fantastic opportunity to help people in need,” Steketee said. “If that building were never used for religious purposes, I wouldn’t have an objection” to the county grants.

Steketee said the churches maintained themselves prior to the grant program, and he is not worried about their future. “They haven’t withered and crumbled for 200 years,” he said.