The U.S. Supreme Court today denied review in the companion cases of
Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation, (Docket No.18-364) and
Presbyterian Church in Morristown v. Freedom From Religion Foundation, (Docket No. 18-365) (certiorari denied 3/4/2019). (
Order List [scroll to pg. 9]). In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution. That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The New Jersey Supreme Court concluded that there is no implied exception to this prohibition for historical preservation, and that this is consistent with the Free Exercise Clause of the U.S. Constitution. (See
prior posting.) In the U.S. Supreme Court today, Justice Kavanaugh, joined by Justices Alito and Gorsuch, filed a statement concurring in the denial of review, but contending that:
the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents.
However they agreed that certiorari should be denied in this case both because of unclear factual details and because
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.
