SCOTUS deals defeat to Morris County’s historic preservation fund program

MORRISTOWN, N.J. — Morris County government’s effort to continue distributing historic preservation funds to religious buildings has hit a U.S. Supreme Court brick wall.

On Monday, writing for the High Court, Justice Brett Kavanaugh appeared to express some sympathy for the county freeholder board’s position while nevertheless denying its petition to take up the case which brought Morris County into conflict with New Jersey’s state constitution.


“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,” wrote Kavanaugh. “But at this point and in this case, it is appropriate to deny certiorari, for two main reasons…

First, the factual details of the Morris County program are not entirely clear. In particular, it is not evident precisely what kinds of buildings can be funded under the Morris County program. That factual uncertainty about the scope of the program could hamper our analysis of petitioners’ religious discrimination claim. Second, this Court decided Trinity Lutheran only recently, and 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.”

“For those reasons, denial of certiorari is appropriate. As always, a denial of certiorari does not imply agreement or disagreement with the decision of the relevant federal court of appeals or state supreme court,” the Justice concluded. “In my view, prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.”

Click here to read the Court’s full opinion.

New Jersey’s constitution specifically provides “nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship.”

Nevertheless, between a three year period from 2012 to 2015, Morris County gave $4.6 million to a dozen local places of worship to affect repairs.

Morris’s politicians appear prepared to let the matter lie where SCOTUS just left it.

“We believe that the county’s preservation program was created for a secular purpose: to preserve all historic landmarks,” said the Freeholder Board in an official statement. “Our preservation grant program was created for all historic sites, including our magnificent houses of worship, some of which date back to the 1700s. The county’s program has never differentiated between religious and secular organizations when it comes to our history. Morris County’s historic preservation program will continue in 2019, however, per the court rulings, religious institutions will not be eligible to apply for or receive county historic preservation trust fund grants.”

The Freeholder Board further noted that it would “have no further comment” in the future on this controversy.