NJ Supreme Court: Unconstitutional for taxpayer money to repair, restore churches

The state Supreme Court has ruled that Morris County's long-standing practice of giving taxpayer-funded historic preservation grants to churches violates the New Jersey Constitution.

Wednesday's 7-0 ruling, written by Supreme Court Chief Justice Stuart Rabner, reverses last year's lower court decision. The ruling now precludes churches from benefiting from the 16-year-old historic preservation grant program because it violates the Religious Aid Clause of the state Constitution.

"The plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and Morris County's program ran afoul of that long-standing provision," Rabner wrote.

The ruling does not require grants to be returned to the county, including those made in the past two years. It does bar churches and other houses of worship from being recipients in the future.

The Morris County freeholders won the first round in January 2017 when a Superior Court judge in Somerset County ruled in their favor and against the Wisconsin-based not-for-profit Freedom From Religion Foundation. The foundation's 2015 suit stemmed from $4.6 million in historical preservation grants awarded to 12 county houses of worship by freeholders from 2012 to 2015.

The Freedom from Religion Foundation appealed its initial loss to the state's appellate division. But recognizing the statewide implications of a ruling on all counties, the Morris County freeholders in 2017 asked the state Supreme Court to hear the direct appeal on whether its voter-approved practice of awarding historic preservation grants to churches was constitutional. The state's highest court agreed.

The initial lawsuit was transferred out of Morris County to Somerset County to avoid a potential conflict of interest.

Madison resident David Steketee had argued that the grants violated Article I, Paragraph 3 of the New Jersey Constitution, also called the Religious Aid Clause, which states, in part: "Nor shall any person 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, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform."

The Supreme Court ruling found that some of the churches specified religious objectives in their applications for grants, including repairs of stained-glass windows, a chapel and areas to meditate and worship.

"Here, the county awarded $4.6 million to 12 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 violates the plain language of the Religious Aid Clause," Rabner wrote.

Reactions

The freeholders expressed disappointment and said attorneys will review the ruling and consider further potential action. The next step would be an appeal to the federal court system.

"In Morris County, as in all counties in New Jersey and across the nation, churches and other religious buildings are a vital part of the historic fabric of where we live, interwoven in the history of how our county, state and nation developed," the freeholders' written statement reads.

Steketee, who said he's an atheist but not anti-religion, is the local plaintiff in the Freedom From Religion Foundation lawsuit.

"I'm happy. I'm kind of surprised the ruling was unanimous. The decision is very clear in its intent and language," Steketee said.

He had asked the freeholders to stop giving taxpayer funds to houses of worship and filed suit when they didn't. He said government leaders must follow the Constitution and "not pick and choose."

Americans United for Separation of Church and State, the ACLU of New Jersey and the national ACLU said the court made the right call.

“This a big win for the religious freedom of state taxpayers, who shouldn’t have to foot the bill for church construction and religious worship services,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief.



“This decision makes a powerful statement: Our taxpayer funds should not go to support religious worship,” said ACLU-NJ Legal Director Ed Barocas. “Awarding state grant money to refurbish active houses of worship would have undermined that fundamental constitutional principle.”

Attorney Kenneth Wilbur, who represented the 12 churches, called the decision disappointing and said the majority of justices failed to recognize "the purpose of these grants is not to aid religion but to advance the government's secular interest in historic preservation."

Wilbur said the Supreme Court's decision conflicts with a recent U.S. Supreme Court decision that allowed a religious institution, Trinity Lutheran Church in Missouri, to receive public funding for a playground.

"Trinity Lutheran clearly holds that churches cannot be categorically excluded from neutral public welfare programs. The county historic preservation grant program is a neutral public welfare program. Denying churches grants because they are churches, without regard to the purpose of the grant, is exactly the kind of categorical exclusion Trinity Lutheran prohibits," Wilbur said.

The Rev. David Holwick, pastor of First Baptist Church of Ledgewood, said his congregation received a $120,000 grant last year to restore its bell tower. The church, he said, is 100 years old and still in relatively good shape, but predicts older churches will either forgo repairs or pay for cheaper renovations that will cause structures to lose character.

"Costs are escalating. I think we'll still be able to repair our church, but not with the fine detail," Holwick said. Churches with stained glass, he said, will likely replace them with ordinary glass if they break so that a special feature will eventually be gone from some churches.

A spokeswoman for the state Department of Environmental Protection, which oversees the state Office of Historic Preservation, said the department had no comment on the ruling.

What does the ruling mean?

Historic preservation experts say the inability of churches to get public funding could potentially lead to the loss of history in communities where religious institutions serve more as landmarks that add character to their communities than houses of worship.

“I feel that it will have a detrimental effect on the character of municipalities,” said Tim Adriance, a recipient of Bergen County’s award for lifetime achievement in historic preservation. “I understand the argument to keep the distinction [between church and state]. But the architecture is part of our community and belongs to all the people in the community, not only the congregants.”

Rod Leith, the Rutherford borough historian and vice chairman of the Rutherford Historic Preservation Committee, said some of the oldest historic structures in his community are churches, and they played a significant role in the borough's history.

"We didn't feel we were supporting religion; we were promoting and supporting historic preservation," said Leith. "This decision is unfortunate, because we look at the churches, especially in Rutherford, as examples of historic preservation."

Elaine Gold, administrator of the Bergen County Historic Trust Fund, said that since she has been at the helm of the fund, she has not received any applications in support of the preservation of a religious property. The county historic preservation element of the Open Space Trust Fund has funded 11 project at six religious properties in Bergen County in the past, she said.

Lower court ruling overturned

In the initial lower court decision, Judge Margaret Goodzeit ruled:

"Morris County desires to sustain historic landmarks, not just historic churches ... Just because the religious groups have put Morris County on notice that they intend to use their churches for worship does not mean that Morris County is somehow inextricably entangled with religion."

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The defendants

The lawsuit was originally filed only against the freeholders and then was amended to include the 12 churches that received historic preservation grants since 2012.

The 11-member Morris County Preservation Trust Fund Review Board, which reviews grant applications and makes recommendations to the county, was also a defendant in the lawsuit.

The churches named as defendants in the lawsuit are Presbyterian Church in Morristown, First Presbyterian Church of New Vernon, St. Peter's Episcopal Church, First Reformed Church of Pompton Plains, Church of the Redeemer, Community of St. John the Baptist, Stanhope United Methodist Church, Church of the Assumption of the Blessed Virgin Mary, First Presbyterian Church of Boonton, St. Peter's Episcopal Church in Mountain Lakes, Ledgewood Baptist Church, and Community Church of Mountain Lakes.

Other county grants

In November 2002, county voters in a referendum overwhelmingly approved a measure that expanded the existing Open Space Trust Fund. The vote authorized the freeholders to consider grant applications from municipal governments and nonprofit corporations whose missions include exterior preservation of historic structures.

Since 2003, more than $22 million has been awarded to a host of grant applicants, including churches, which account for receipt of about 32 percent of the grant funds. The recipients must pay 20 percent of the cost of restoration, and grants have to be used for the stated projects, not on salaries, religious materials or restoring altars.

North Jersey Record Staff Writer Melanie Anzidei contributed to this article.

Staff Writer Peggy Wright: 973-267-1142; pwright@GannettNJ.com.