Kavanaugh Statement Adds Thorn To Rosy Supreme Court Outcome In New Jersey Church-Funding Case

This morning, the U.S. Supreme Court declined to review a New Jersey Supreme Court decision holding that taxpayer dollars cannot be used to fund the restoration or repair of houses of worship. The court’s denial is a win for church-state separation, but an accompanying statement by Justice Brett Kavanaugh is cause for concern.

Despite a provision in the New Jersey Constitution plainly prohibiting public money from being used for, among other things, building or repairing churches or places of worship, a county in New Jersey had awarded more than $4 million in historic-preservation grants to Christian churches over the course of a few years.

The New Jersey Supreme Court held that the grants violated the New Jersey Constitution’s no-aid clause, and that the no-aid clause did not violate the First Amendment. Americans United filed an amicus brief and AU Associate Legal Director Alex J. Luchenitser presented oral argument before the New Jersey Supreme Court in this case in support of New Jersey taxpayers who objected to their tax dollars being used to fund houses of worship.

Because of the U.S. Supreme Court’s refusal to hear the case, the holding of the New Jersey Supreme Court will stand, and it will continue to be unlawful to use taxpayer dollars to fund restoration or repair of houses of worship in New Jersey. The decision ensures that public funds will be used to support programs and facilities that benefit all, not just those of a particular faith. That’s the good news.

But Kavanaugh added a thorn to this otherwise rosy outcome in a written statement regarding the court’s denial, which Justices Samuel Alito and Neil Gorsuch joined. Kavanaugh agreed that the Supreme Court should not take up the case. But he nevertheless signaled that he thinks the case may have been wrongly decided. He wrote that, eventually, the court will have to decide whether the government can deny historical preservation funds to religious organizations “simply because the organizations are religious.” And for him and two other justices, doing so “would raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.”

It appears that Justice Kavanaugh wants to expand the narrow holding of Trinity Lutheran Church of Columbia v. Comer, a 2017 Supreme Court decision in which the court held that Missouri could not—based solely on the fact of its affiliation with a religious organization—preclude a church-run preschool from participating in a taxpayer-funded grant program that provided rubber surfaces for playgrounds.

But there are important distinctions between Trinity Lutheran and the historical-preservation funding case. Most crucially, in Trinity Lutheran, there was no evidence that the playground was used for any religious purpose. In the New Jersey case, on the other hand, the money was being used for quintessentially religious purposes:  maintenance of the very places in which religious worship is actively practiced, and, in at least one instance, the restoration of a stained-glass window depicting religious imagery. Thus, the no-aid clause of the New Jersey Constitution limited funding not on the basis of the identity of any grant recipient, but because of the use of the grant funds.

Kavanaugh’s statement signals that three of the justices are at least contemplating requiring government to fund religious organizations even in some circumstances that involve taxpayer dollars being put to religious uses. This would be a dangerous perversion of existing precedent and at odds with fundamental church-state values, among them the principle that the government cannot fund religious worship or activity.

AU will continue to fight to ensure that Trinity Lutheran is cabined to its proper place and that taxpayers are not compelled to fund religious worship and religious activities against their will.

(PHOTO: St. Peter Episcopal Church in Morristown, N.J., which received grant funds to repair the interior of its church tower. CREDIT: Jerrye & Roy Klotz MD)