Breathe a sigh of relief. The Supreme Court said this morning it will not hear a pending case from Morris County (New Jersey) that could have allowed churches to renovate their buildings using taxpayer funds.

To make sense of the ruling, you need to know a little about the case’s history.

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

But 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.

That’s why plaintiff David Steketee and the Freedom From Religion Foundation filed a lawsuit in 2015 saying the grants were illegal.

Unfortunately, a judge ruled against them in January of 2017. If the decision wasn’t appealed, there was a good chance other churches would’ve taken advantage of the loophole, taking whatever money was in their budgets for maintenance, repair, and other structural issues and putting them into programming, knowing that they could just replete their accounts courtesy of state taxpayers.

FFRF appealed the decision and it eventually landed in front of the state’s supreme court. In April of last year, thankfully, all seven of the justices overturned the earlier decision.

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 this was clearly not a secular project.

… 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 judges said it would be virtually impossible to figure out how much of the grant money was used for religious or non-religious purposes at this point, so they allowed the old grants to remain in place. The ruling wasn’t retroactive. The churches could have the money already given to them, but the good news was that 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.

But then, the “Morris County Board of Chosen Freeholders,” represented by conservative legal group Becket, asked the Supreme Court to take up the case:

“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 aren’t just historical sites, though, because they’re still being used as churches. They purposely ignored that distinction in order to muddy up the legal waters. Had the Supreme Court taken up the case, they would get 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?

Today, the Supreme Court said they would not taken up this case. We don’t know each justice’s reasons for that, but three of them — Neil Gorsuch, Samuel Alito, and Brett Kavanaugh — issued a statement (written by Kavanaugh) saying that, while they agree this case shouldn’t be taken up, it’s only because of the details in this particular instance, not because the questions don’t need to be resolved.

At some point, this Court will need to decide whether governments that distribute historic preservation funds may deny funds to religious organizations simply because the organizations are religious. But at this point and in this case, it is appropriate to deny certiorari, for two main reasons. First, the factual details of the Morris County program are not entirely clear. In particular, it is not evident precisely what kinds of buildings can be funded under the Morris County program. That factual uncertainty about the scope of the program could hamper our analysis of petitioners’ religious discrimination claim. Second, this Court decided Trinity Lutheran only recently, and there is not yet a robust post-Trinity Lutheran body of case law in the lower courts on the question whether governments may exclude religious organizations from general historic preservation grants programs. … In my view, prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.

What Kavanaugh neglects to mention there is that important distinction between historical buildings that are not being used and “historical buildings” that still function as churches.

It’s also interesting to see how these conservative activist judges are broadcasting to the world that they want to change the law really badly, but the facts of this particular case don’t let them do that. It’s like they’re begging for another lawsuit, with more convenient facts, to come their way, because in Morris County, the law was so obviously broken.

Indeed, the original grant application form in Morris County was nothing like Trinity Lutheran at all — it wasn’t open to everyone. It was only open to government buildings, historical sites, and churches. Other non-profits were out of luck. So this program was violating the law from the beginning. (Since the New Jersey Supreme Court voted down the grants, two other historical churches, which have since been converted to community spaces, have received money from the state without a problem. It just goes to show you the problem wasn’t the buildings, but rather the money promoting religion.)

For now, it’s a relief that this conservative court will not get a chance to extend Trinity Lutheran from covering secular projects run by churches to “secular projects” that allow churches to re-appropriate funds to promote worship.

The Freedom From Religion Foundation issued this statement to me immediately after hearing about the decision:

The Supreme Court made the right call. The most fundamental principle of religious liberty is that the government cannot tax, and thereby coerce, citizens into supporting religions to which they do not adhere. Morris County was violating this core tenet and the New Jersey Supreme Court was correct when it unanimously struck down that violation. None of this would have been possible without brave citizens like David [Steketee] willing to stand up for true religious freedom.

Remember: This issue isn’t fully resolved. It’s just a matter of the conservative justices finding a better test case.

***Update***: Atheist David Steketee, who initially sued Morris County over this matter, sent me this statement:

I was elated to see the ruling this morning. Whether or not my fellow New Jersey residents agree with the outcome or not, they have never the less had their rights protected. The clarity of the NJ Supreme Court decision will no doubt be referenced by other courts as they wrestle with continued challenges to the wall of separation between church and state. I’m proud and deeply honored by all the hard work lawyers from the FFRF, our local counsel Paul Grosswald, and Erwin Chermerinsky put into this case over the years. The millions of residents throughout New Jersey and I are forever in their debt for helping us to stand up for our rights.

(Image via Shutterstock. Large portions of this article were published earlier)

