State laws blocking taxpayer-funded church repairs are discrimination

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Associate Justices of the Supreme Court including Brett Kavanaugh, from left, Neil Gorsuch, Elena Kagan Samuel Alito Jr., Ruth Bader Ginsburg and Chief Justice John Roberts, listen during a Presidential Medal of Freedom ceremony in the East Room of the White House in Washington, D.C., U.S., on Friday, Nov. 16, 2018.

The Supreme Court on Monday declined to review cases concerning whether it is lawful for the government to block historic preservation funds from going to religious buildings such as churches.

The cases concerned a decision from the New Jersey Supreme Court last year that said a grant program in the state unlawfully used state funds to repair churches. Because the nation’s top court will not review the matter, that decision will remain standing.

But the Supreme Court’s decision, announced in an order, is unlikely to be the justices’ last word on the matter. Justice Brett Kavanaugh made that clear in a statement in which his fellow conservatives Justice Samuel Alito and Justice Neil Gorsuch joined. Gorsuch, like Kavanaugh, was appointed to the court by President Donald Trump.

“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,” Kavanaugh wrote.

Kavanaugh, who voted to deny the cases on technical grounds, wrote that preventing preservation funds from going to religious organizations “simply because the organizations are religious” raised “serious questions.”

“Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion,” he wrote.

The nation’s top court last addressed the matter in 2017, when it found that it was discriminatory for states to block taxpayer funds to religious schools, but limited their opinion in a footnote to the very specific case of playground resurfacing. Justices Clarence Thomas and Gorsuch at the time took issue with that limitation.

In its ruling, the New Jersey top court declined to extend the Supreme Court’s reasoning to historic preservation grants, saying that the cases are distinct because playground resurfacing is not a religious use, but church repairs are.

“The Churches are not being denied grant funds because they are religious institutions; they are being denied public funds because of what they plan to do — and in many cases have done: use public funds to repair church buildings so that religious worship services can be held there,” wrote Stuart Rabner, the top judge on the New Jersey court.

Kavanaugh seemed to take issue with that interpretation, decrying what he called the “No religious organizations need apply” rule that he said “appears similar” to the playground case.

But Kavanaugh said that it was correct not to review the cases because of certain issues particular to the cases at hand, and because there was not yet sufficient case law in the lower courts on the question.

The nation’s top court is currently reviewing a separate notable religion dispute. On Wednesday, the justices heard arguments in a case concerning a towering Latin cross maintained by a government agency in Maryland. The justices seemed poised to let the cross stand, though oral arguments laid bare a deep religious divide on the nine-justice panel.

The Freedom From Religion Foundation, which was the respondent in the cases brought by the Morris County Board of Chosen Freeholders and by the churches, immediately celebrated the court’s order.

FFRF tweet