By Nikita Biryukov, New Jersey Monitor, August 11, 2023
A religious liberty group’s efforts to overturn New Jersey’s constitutional ban on public funding for houses of worship may face opposition from the atheist group that saw such a practice declared unconstitutional in Morris County.
A federal lawsuit lodged in April by two Morris County churches and aided by the First Liberty Institute, a Texas-based conservative Christian nonprofit that provides legal services, seeks to overwrite a portion of New Jersey’s constitution that bars using tax dollars to fund maintenance and repairs for houses of worship, contending it violates First and 14th Amendment protections.
Now, the Freedom From Religion Foundation, whose 2017 suit saw New Jersey’s highest court bar a Morris County historical preservation program from awarding funds to churches and other houses of worship, is seeking to join the case.
“We will act to preserve the rights and interests of New Jersey taxpayers,” said Annie Laurie Gaylor, the Wisconsin-based foundation’s co-president. “We won’t merely sit by and watch while religious entities maneuver to get the official funding spigot opened again.”
The churches are challenging a unanimous 2018 New Jersey Supreme Court ruling that found the state’s constitution made unambiguously clear that taxpayer dollars cannot be used to fund the repair or maintenance of churches and other religious buildings.
That case centered around a Morris County historic preservation program that, between 2003 and 2017, issued roughly 42% of its awards to churches, including to restore religious artwork and enable the houses of worship to provide religious services.
The program stopped issuing grants to churches after the state Supreme Court ruling, which found such expenditures violated the Religious Aid Clause of the state’s constitution. Among other things, the provision bars taxpayer funding for repairs and maintenance of houses of worship.
The U.S. Supreme Court declined to hear the case, though three of its then-five conservative justices signaled skepticism over the constitutional provision’s legality.
“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,” Justice Brett Kavanaugh wrote at the time.
The Mendham Methodist Church and the Zion Lutheran Church Long Valley charge the prohibition, which has existed in some form since colonial times, amounts to religious discrimination.
“All forms of religious discrimination by the government are unconstitutional, including the denial of historic preservation grants to historic churches,” Jeremy Dys, senior counsel for the First Liberty Institute, said in April.
The Freedom From Religion Foundation argued in 2018 that requiring residents to fund religious institutions they disagreed with through taxes violated those residents’ rights.
The foundation filed to intervene in the new case Thursday.
“The New Jersey Supreme Court’s decision is out of step with the Constitution and multiple recent U.S. Supreme Court decisions,” said Jeremy Dys, the First Liberty Institute’s senior counsel. “It is unfortunate that the Freedom From Religion Foundation wants to delay the inevitable and continue court-mandated discrimination against churches.”