New Jersey Supreme Court Says More Facts Needed To Decide Religious Capital Grants Challenge

In ACLU of New Jersey v. Hendricks, (NJ Sup. Ct., May 2, 2018), the New Jersey Supreme Court refused to decide on the record before it whether a $10.5 million grant to a Yeshiva and a $635,000 grant to a Christian theological Seminary violate the New Jersey Constitution.  The grants were awarded by the Secretary of Higher Education under  a state program designed to subsidize capital improvement projects at institutions of higher learning. The lower court held that the grants violated the Religious Aid Clause of the state constitution that prohibits using tax monies "for the maintenance of any minister or ministry".  However, the Supreme Court said:

Rather than address a matter of constitutional importance on an insufficiently developed record, the better course is to remand the matter for an evidentiary hearing to bring the relevant factual material into better focus. Among the questions to be explored are ... (1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the “maintenance of any minister or ministry”; and (3) the adequacy of promised restrictions, or other curbs, against sectarian use of the grant proceeds at present and into the future....

Accordingly, we will remand to the Secretary for the development of a record in accordance with this opinion.

Asbury Park Press reports on the decision.

Vermont Supreme Court: Grant For Church Repairs Is Likely OK

In Taylor v. Town of Cabot, (VT Sup. Ct., Oct. 6, 2017), the Vermont Supreme Court vacated a preliminary injunction that a trial court had issued to block a municipal grant to a historic church for repairs to its building.  The grant came from funds that originated with the federal government but now belonged to the town to use consistent with federal regulations. The court held that plaintiffs have municipal taxpayer standing to challenge the grant under the state constitution's prohibition on compelled support of any place of worship (Chapter I, Article Three). In remanding the case for further proceedings, the court said in part:

The fact that the ultimate recipient of these funds is a church does not itself establish a violation of the Compelled Support Clause; the critical question is whether the funds will support worship. Chittenden Town Sch. Dist., 169 Vt. at 325, 738 A.2d at 550. In fact, denying the UCC secular benefits available to other like organizations might raise concerns under the Free Exercise Clause of the United States Constitution. To meet these concerns, plaintiffs will have to demonstrate that painting the church building and assessing its sills is more like funding devotional training for future clergy, as in Locke, than paying for a new playground surface on church property, as in Trinity Lutheran. Specified repairs to the church building itself admittedly fall somewhere between these two poles. In making their case, plaintiffs must persuade the court either that the Compelled Support Clause categorically precludes the use of public funds to pay for any repairs to a building that serves as a place of worship, without regard to the breadth and neutrality of the program pursuant to which the funding is provided, or that the specific repairs funded under this grant are prohibited. The first proposition is legally questionable; the second is not supported by the record.