National law firm takes on Morris County appeal of ban on grants to historic churches

MORRISTOWN — A non-profit law firm with a long record of defending religious institutions has agreed to represent Morris County in its appeal to the U.S. Supreme Court of a bar against awarding historic preservation grants to churches.

The freeholders approved a resolution Monday night to have Washington, D.C.—based Becket Fund for Religious Liberty file an appeal with the nation's highest court. The firm, also known for representing military personnel and prisoners, will work for free.

The U.S. Supreme Court will now decide whether to hear the appeal which seeks to overturn an April ruling by the state Supreme Court that found Morris County freeholders' 16-year practice of awarding historic preservation grants to churches violates the Religious Aid Clause of the state Constitution.

"The board of freeholders believes the state Supreme Court made the wrong decision in ending that funding eligibility," Freeholder Director Douglas Cabana said through a statement. "Board members believe the historic religious structures in Morris County are critical to the county community, the county's economy and to the county's history."

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Cabana said the board wouldn't comment further because of the pending litigation.

The Becket Fund had intervened as a "friend of the court" when the freeholders were sued in December 2015 by non-profit, Wisconsin-based Freedom From Religion Foundation and Madison resident David Steketee. The suit challenged the more than $4.6 million awarded by the freeholders in historic preservation grants from 2012 through 2015 to 12 houses of worship in the county.

The 12 houses of worship, which were also named in the suit, have asked the state Supreme Court to reconsider its ruling through their attorney, Ken Wilbur.

The state Supreme Court on April 18 unanimously ruled that awarding historic preservation grants to houses of worship violated the Religious Aid Clause which states, in part, that citizens cannot be compelled to pay for churches. Chief Justice Stuart Rabner, who wrote the opinion, noted that some of the church grant applications specifically referenced religious objectives or repair of religious artifacts such as stained glass windows. But Wilbur contends the application's remarks were taken out of context.

The Becket Fund, in a summary of its interest in the Morris County case, posted on its website the following:

"Historic buildings are an important part of our national heritage, from Independence Hall, George Washington’s home in Mount Vernon, Virginia, and the Ebenezer Baptist Church where Martin Luther King served as pastor until his death. These buildings need frequent restoration to remain available for public and future use."

The summary states: "The state of New Jersey also has a long history of funding historic preservation for buildings including churches. One of the earliest grants was to the 1850 Solomon Wesley Church, an active house of worship originally built to serve as a community of freed slaves. In 2002, Morris County, New Jersey created a historic preservation fund to help restore beautiful, historic buildings in the area. The program is part of a competitive grant program funded by property taxes and requires applicants – both secular and religious – to establish the historic significance of the building."

According to officials, the appeal will rely, at least in part, on a June 2017 U.S. Supreme Court decision in Trinity Lutheran v. Comer, a Missouri case, that the state can't deny church schools from eligibility for widely available public benefit programs. The ruling found the state can’t deny church schools from participating in a shredded-tire resurfacing program to make playgrounds safer for kids.

Rabner wrote in his opinion: "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."

The freeholders had won the first round in January 2017 when a Superior Court judge in Somerset County ruled in their favor and against Freedom From Religion Foundation. The foundation turned to the appellate division but the Supreme Court then agreed to hear a direct appeal, recognizing the statewide implications of the grant-giving practice.

Siding with the Supreme Court on its ruling were Americans United for Separation of Church and State, the ACLU of New Jersey, and the national ACLU.

“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, in April.

The Becket Fund, which has advocated since 1994 for the free exercise of all faiths in accord with the Constitution's First Amendment, counts among its victories, according to its website: a ruling that Sikh soldiers in the U.S. military can wear essential articles of faith; that churches damaged by disasters are eligible for federal relief aid; and that prisoners of Muslim faith can grow short beards in accord with their faith.

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