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Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders

Supreme Court of New Jersey

April 18, 2018

FREEDOM FROM RELIGION FOUNDATION and DAVID STEKETEE, Plaintiffs-Appellants,
v.
MORRIS COUNTY BOARD OF CHOSEN FREEHOLDERS, THE MORRIS COUNTY PRESERVATION TRUST FUND REVIEW BOARD, JOSEPH A. KOVALCIK, JR., in his official capacity as Morris County Treasurer, THE PRESBYTERIAN CHURCH IN MORRISTOWN, FIRST PRESBYTERIAN CHURCH OF NEW VERNON, ST. PETER'S EPISCOPAL CHURCH, FIRST REFORMED CHURCH OF POMPTON PLAINS, CHURCH OF THE REDEEMER, COMMUNITY OF ST. JOHN BAPTIST, STANHOPE UNITED METHODIST CHURCH, CHURCH OF THE ASSUMPTION OF THE BLESSED VIRGIN MARY, FIRST PRESBYTERIAN CHURCH OF BOONTON, ST. PETER'S EPISCOPAL CHURCH IN MOUNTAIN LAKES, LEDGEWOOD BAPTIST CHURCH, and COMMUNITY CHURCH OF MOUNTAIN LAKES, Defendants-Respondents.

          Argued October 23, 2017

          On appeal from the Superior Court, Chancery Division, Somerset County.

          Paul S. Grosswald argued the cause for appellants Freedom from Religion Foundation and David Steketee (Paul S. Grosswald, on the brief, and Andrew L. Siedel and Ryan D. Jayne, of the Wisconsin bar, admitted pro hac vice, on the briefs).

          John M. Bowens argued the cause for respondents Morris County Board of Chosen Freeholders, the Morris County Preservation Trust Fund Review Board, and Joseph A. Kovalcik, Jr., in his official capacity as Morris County Treasurer (Schenck, Price, Smith & King, attorneys; John M. Bowens, on the briefs).

          Kenneth J. Wilbur argued the cause for respondents The Presbyterian Church in Morristown, et al. (Drinker Biddle & Reath, attorneys; Kenneth J. Wilbur and Justin M. Ginter, on the briefs).

          Alex J. Luchenitser (Americans United for Separation of Church and State) a member of the District of Columbia bar, admitted pro hac vice, argued the cause for amici curiae American Civil Liberties Union, American Civil Liberties Union of New Jersey, and Americans United for Separation of Church and State (American Civil Liberties Union of New Jersey; Barry, Corrado & Grassi; Americans United for Separation of Church and State; and American Civil Liberties Union Foundation, attorneys; Edward L. Barocas, Jeanne M. LoCicero, Rebecca Livengood, Frank Corrado, Alex J. Luchenitser, Richard B. Katskee, a member of the District of Columbia and Maryland bars, admitted pro hac vice, and Daniel Mach, a member of the District of Columbia and New York bars, admitted pro hac vice, on the brief).

          Cameryn J. Hinton, Deputy Attorney General, submitted a brief on behalf of amicus curiae New Jersey Historic Trust (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel, Cameryn J. Hinton and Susan M. Scott, Deputy Attorney General, on the brief).

          Thomas A. Gentile submitted a brief on behalf of amicus curiae The Becket Fund for Religious Liberty (Wilson Elser Moskowitz Edelman & Dicker and The Becket Fund for Religious Liberty, attorneys; Thomas A. Gentile, on the brief, and Hannah Clayson Smith, Luke William Goodrich, and Diana Marie Verm, members of the Court of Appeals of the District of Columbia bar, admitted pro hac vice, on the brief).

          RABNER, C.J., writing for the Court.

         From 2012 to 2015, Morris County awarded $4.6 million in taxpayer funds to repair twelve churches, as part of a historic preservation program. This appeal raises two questions: whether the grant program violated the Religious Aid Clause of the New Jersey Constitution and, if so, whether the Religious Aid Clause conflicts with the Free Exercise Clause of the United States Constitution.

         In 2002, the voters of Morris County authorized the County Freeholder Board to permit historic preservation funding under a trust funded by a county property tax. Only four kinds of entities could apply for grants: municipal governments within Morris County; Morris County government; charitable conservancies whose purpose includes historic preservation; and religious institutions. A review board evaluated applications and made recommendations to the Freeholder Board, which approved final awards. Certain conditions applied to grant recipients. Successful applicants that received construction grants of more than $50, 000 cumulatively had to execute a thirty-year easement agreement with the County. Grantees were also required to provide public access to properties that received grant funds. The County and the grant recipient were to "negotiate the days and hours that the property [would] be open to the public." Applicants who received funding also had to list their property on the National and New Jersey Registers of Historic Places.

         From 2012 to 2015, the Freeholder Board approved a total of $11, 112, 370 in grants from the trust fund. The Board awarded 41.7 percent to twelve churches. The grants funded the preparation of construction documents and plans, and the restoration of church buildings, towers, parish houses, windows, and other items. All twelve churches "have active congregations" and all "have conducted regular worship services in one or more of the structures" for which grant funds have been or will be used. All twelve are Christian churches. Several successful applicants specifically stated that funds were needed to allow the church to offer religious services.

         On December 1, 2015, the Freedom from Religion Foundation (FFRF) and David Steketee, a member of the group and a Morris County resident and taxpayer, (plaintiffs), filed a complaint in Superior Court that named the Freeholder Board, the review board, and the Morris County Treasurer, in his official capacity, (collectively, Morris County), as defendants. Defendants removed the matter to the United States District Court for the District of New Jersey. The District Court later granted plaintiffs' motion to remand the case to state court. The court observed that plaintiffs "opted to allege a violation of their state rights, placing this case squarely within the state court." After the remand, plaintiffs amended the complaint to include the twelve churches as defendants (Churches).

         All parties moved for summary judgment. The trial court granted defendants' motion and denied plaintiffs' cross-motion. The Court granted plaintiffs' motion for direct certification. 230 N.J. 478 (2017).

         HELD: The plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and Morris County's program ran afoul of that longstanding provision. Based on its understanding of the current state of the law, including the United States Supreme Court's recent decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S.Ct. 2012 (2017), the Court concludes that that the application of the Religious Aid Clause in this case does not violate the Free Exercise Clause.

         1. The Religious Aid Clause states that no person shall "be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform." N.J. Const. art. I, ¶ 3. That text has deep roots in New Jersey's history. (pp. 12-24)

         2. The Religious Aid Clause does not preclude the provision of services tied to general public safety. Instead, for more than 240 years, the Religious Aid Clause has banned the use of public funds to build or repair any place of worship. The clause does not ask about the governing body's intent. In short, there is no exception for historic preservation. Nothing in the prior case law requires a departure from the plain language of the Religious Aid Clause. Nor do the other provisions about religion in the State Constitution. See N.J. Const. art. I, ¶¶ 4, 5. The Churches point to a debate at the Constitutional Convention of 1947 in response to the decisions by the Court of Errors and Appeals and the United States Supreme Court in Everson v. Board of Education of Ewing, 133 N.J.L. 350 (E. & A. 1945), aff'd, 330 U.S. 1 (1947). The debate did not relate to the Religious Aid Clause's prohibition against the use of taxpayer funds to repair churches. Defendants and amici also suggest that Article VIII of the State Constitution affects the plain meaning of the Religious Aid Clause. Article VIII addresses funding for historic preservation and does not conflict with the clause. The County's grants ran afoul of the State Constitution's Religious Aid Clause. (pp. 29-34)

         3. The question before the Supreme Court in Trinity Lutheran was whether the policy of the Missouri Department of Natural Resources "of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program . . . violated the rights of Trinity Lutheran [Church] under the Free Exercise Clause of the First Amendment." 137 S.Ct. at 2017. The Court held that the Department's policy violated the Free Exercise Clause by "expressly denying a qualified religious entity a public benefit solely because of its religious character." Id. at 2024. The Court distinguished between Missouri's policy and the scholarship restrictions in Locke v. Davey, 540 U.S. 712 (2004). Id. at 2022-23. Of particular note in this case, in Locke, "Washington's choice was in keeping with the State's antiestablishment interest in not using taxpayer funds to pay for the training of clergy; in fact, the Court could 'think of few areas in which a State's antiestablishment interests come more into play.'" Id. at 2023 (quoting Locke, 540 U.S. at 722). The Court returned to the central problem raised by Missouri's program: that Trinity Lutheran's status as a church-not its intended use of the funds- prevented it from participating in the grant program. Id. at 2024. The Court, however, did not opine on whether that key principle-that "a qualified religious entity" cannot be denied "a public benefit solely because of its religious character, " ibid.-extends to religious uses of funding, id. at 2024 n.3. The Court concluded that "Missouri's policy preference for skating as far as possible from religious establishment concerns" could not "qualify as compelling." Id. at 2024. The state's interest was "limited by the Free Exercise Clause." Ibid. (pp. 35-42)

         4. The public funds awarded in this case actually went toward "religious uses." The Churches are not being denied grant funds because they are religious institutions; they are being denied public funds because of what they plan to do-and in many cases have done: use public funds to repair church buildings so that religious worship services can be held there. Those grants constitute an impermissible religious use of public funds. New Jersey's Religious Aid Clause and the grants awarded in this matter stand in stark contrast to the setting in Trinity Lutheran. As in Locke, New Jersey's antiestablishment interest in not using public funds to build or repair churches or maintain any ministry "lay at the historic core of the Religion Clauses." See Trinity Lutheran, 137 S.Ct. at 2023. Also as in Locke, the antiestablishment interest New Jersey expressed in 1776 did not reflect animus toward any religion. See Locke, 540 U.S. at 725. The holding of Trinity Lutheran does not encompass the direct use of taxpayer funds to repair churches and thereby sustain religious worship activities. See 137 S.Ct. at 2024 n.3. The application of the Religious Aid Clause in this case does not violate the Free Exercise Clause. (pp. 42-50)

         5. Had the Free Exercise Clause permitted the awards, it would be necessary to evaluate them under the Establishment Clause. The grant program poses questions under any articulation of the current standard. (pp. 50-51)

         6. The Court does not unwind the awards. The principles outlined above will apply prospectively. (p. 52)

         The judgment of the trial court is REVERSED. Summary judgment in favor of plaintiffs is GRANTED.

          JUSTICE SOLOMON, CONCURRING, writes separately to express that the Religious Aid Clause cannot categorically bar churches with active congregations from receiving funds that promote a substantial government purpose, such as historic preservation. Such a blanket exclusion violates the Free Exercise Clause and Trinity Lutheran. Had Morris County's program been applied in a fundamentally neutral manner, the Religious Aid Clause could not bar funding to an otherwise qualified religious institution, in Justice Solomon's view.

          JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in CHIEF JUSTICE RABNER's opinion.

          OPINION

          RABNER CHIEF JUSTICE.

         From 2012 to 2015, Morris County awarded $4.6 million in taxpayer funds to repair twelve churches, as part of a historic preservation program. This appeal raises two questions: whether the grant program violated the Religious Aid Clause of the New Jersey Constitution and, if so, whether the Religious Aid Clause conflicts with the Free Exercise Clause of the United States Constitution.

         The Religious Aid Clause has been a part of New Jersey's history since the 1776 Constitution. The clause guarantees that "[n]o person shall ... be obliged to pay . . . taxes . . . for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry." N.J. Const, art. I, ¶ 3. The clause reflects a historic and substantial state interest. We find that the plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and that Morris County's program ran afoul of that longstanding provision.

         Morris County and the grant recipients claim that to withhold grants from eligible churches would violate their rights under the Free Exercise Clause of the First Amendment. The County and the churches rely heavily on Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S.Ct. 2012 (2017), for support.

         In the case before us, all of the churches have active congregations, and all have conducted regular worship services in one or more structures repaired with grant funds. Several churches specifically explained that they sought funds in order to be able to continue to host religious services. We do not believe Trinity Lutheran would require that grants be considered and extended to religious institutions under those circumstances.

         We therefore reverse the trial court's decision to uphold the grants.

         I.

         A.

         In 1992, the voters of Morris County approved a referendum to create a trust for open space and farmland preservation. The trust was funded by a county property tax. Ten years later, the voters authorized the County Freeholder Board to permit historic preservation funding under the trust. Today, the trust is known as the Morris County Open Space, Farmland, Floodplain Protection and Historic Preservation Trust Fund.

         At the time of the grants in question, the trust considered applications to stabilize, repair, rehabilitate, renovate, restore, improve, protect, or preserve historic properties. To be eligible for consideration, a property had to be located in Morris County and either be listed on the National or New Jersey Register of Historic Places or be eligible for listing by the State historic preservation office.

         Only four kinds of entities could apply for grants: municipal governments within Morris County; Morris County government; charitable conservancies whose purpose includes historic preservation; and religious institutions.

         A review board evaluated applications and made recommendations to the Freeholder Board. Among other things, the review board considered the significance of the property, its physical condition and proposed use, the applicant's ability to match the funds requested, and the project's relationship to heritage education and tourism.

         The Freeholder Board approved final awards. For religious institutions, grants could fund assessment reports, preparation of construction documents, construction projects for a building's exterior as well as its mechanical, electrical, and plumbing systems, and other items.

         Certain conditions applied to grant recipients. Successful applicants that received construction grants of more than $50, 000 cumulatively, over any number of funding cycles, had to execute a thirty-year easement agreement with the County. The "easement is a deed restriction that is used to assure long-term preservation of a historic property through proper maintenance and by limiting changes in use or appearance and preventing demolition of the property."

         Grantees were also required to provide public access to properties that received grant funds. The County and the grant recipient were to "negotiate the days and hours that the property [would] be open to the public."

         All work on a project had to be completed within two years once a grant was awarded; a one-year extension could be sought. Applicants who received funding also had to list their property on the National and New Jersey Registers of Historic Places.

         B.

         From 2012 to 2015, the Freeholder Board approved a total of $11, 112, 370 in grants from the trust fund. The Board awarded $4, 634, 394, or 41.7 percent, to twelve churches. The grants funded the preparation of construction documents and plans, and the restoration of church buildings, towers, parish houses, windows, and other items.

         According to the parties' joint statement of stipulated facts, all twelve churches "have active congregations" and all "have conducted regular worship services in one or more of the structures" for which grant funds have been or will be used. All twelve houses of worship are Christian churches.

         In addition to the stipulation, the record also includes the grant applications that the churches submitted, which detailed how the requested funds would be used and why they were needed. Several successful applicants specifically stated that funds were needed to allow the church to offer religious services. The Presbyterian Church in Morristown, for example, sought funds to restore the exterior of its chapel. The Church explained that a grant would "historically preserve the building allowing its continued use by our congregation for worship services as well as by the community and many other outside organizations that use it on a regular basis." The Church received a preservation grant to repair the chapel's roof and the air shaft in the church building; to pay for finishes, moisture protection, and other costs; and to finance interior carpentry, masonry, and concrete work.

         The Church of the Redeemer received grants for the restoration of the exterior of its church building and parish house. As to the building, the Church wrote in its application that "[t]he impact of restoring the large slate roof and tower is entirely positive. It will restore a key structural element that has failed and assist in assuring that the building can continue in its existing use as a church and as an important building in Morristown."

         Saint Peter's Episcopal Church of Morristown sought and received funds to repair the interior of its church tower. The Church observed that the funding would "ensure continued safe public access to the church for worship, periods of solitude and meditation during the week, and several concerts throughout the year, as well as the treasures the church and tower contain."

         The First Baptist Church of Ledgewood received funds to create preservation plans, in particular, for "the tower, heating system, and the original stained glass window." The application noted that "[p]reservation of the Ledgewood Baptist Church will enable the congregation to continue to provide religious and community activities to the county's diverse population."

         At least one application reveals that grant funds financed the restoration of religious imagery. The First Presbyterian Church of Boonton received funds to restore its "Rose Window" and "Walk to Emmaus" window.[1] Interior photos of both windows are in the record. The Rose Window is above the entrance to the chapel; the "long, arched" Emmaus Window is located directly in front of the altar and depicts Jesus and two disciples. The Church explained in its application that "[p]reservation and repair of stained glass windows increase the beauty and the ambiance of the structure, as viewed from inside and outside." It is not clear from the record whether the stained glass windows at the First Baptist Church of Ledgewood, noted above, depict religious images.

         C.

         On December 1, 2015, the Freedom from Religion Foundation (FFRF) and David Steketee, a member of the group and a Morris County resident and taxpayer, (plaintiffs), filed a complaint in Superior Court. The complaint named the Freeholder Board, the review board, and the Morris County Treasurer, in his official capacity, (collectively, Morris County), as defendants. Plaintiffs asserted that the grants were unconstitutional and violated Steketee's substantive constitutional rights under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c).

          Defendants removed the matter to the United States District Court for the District of New Jersey. The District Court later granted plaintiffs' motion to remand the case to state court. The court observed that plaintiffs "opted to allege a violation of their state rights, placing this case squarely within the state court, " and explained that "[a]lthough Defendants' arguments center around potential federal defenses they may raise, that does not bring Plaintiffs' original cause of action within [federal] jurisdiction." After the remand, plaintiffs amended the complaint to include the grant recipients -- the twelve churches -- as defendants (Churches).

         All parties moved for summary judgment. On January 9, 2017, the trial court granted defendants' motion and denied plaintiffs' cross-motion.

         In a statement of reasons, the trial court noted that the case implicated several provisions of the New Jersey Constitution and centered on the Religious Aid Clause. The court concluded "that the only thing that is clear about [the Religious Aid Clause's] intended meaning is that it is not meant to be read literally" and that the grants were examples of "benevolent neutrality" on the part of the government, consistent with "the spirit of our state and federal Constitutions." For support, the court relied on Resnick v. East Brunswick Township Board of Education, 77 N.J. 88 (1978), Everson v. Board of Education of Ewing, 133 N.J.L. 350 (E. & A. 1945), aff'd, 330 U.S. 1 (1947), and American Atheists, Inc. v. City of Detroit Downtown Development Authority, 567 F.3d 278 (6th Cir. 2009), which are addressed below.

         "[T]o correctly interpret the meaning of [the Religious Aid Clause] in this particular instance, given these particular facts, " the trial court found that the provision must be read "in conjunction with the State's longstanding tradition of neutrality in church-state relations . . . and the adoption of pro-neutrality provisions of the State Constitution, such as Art. I, Para. 4 and 5." The court added that the Religious Aid Clause "must also be harmonized with" provisions in the Constitution that allow for eminent domain and the funding of historic preservation.

         The court also noted that "[e]xcluding historical churches from receipt of reimbursements available to all historical buildings would be tantamount to impermissibly withholding . . . general benefits to certain citizens on the basis of their religion, " contrary to federal law.

         We granted plaintiffs' motion for direct certification. 230 N.J. 478 (2017). We also granted the following motions for leave to appear as amicus curiae: a joint application by the American Civil Liberties Union, the American Civil Liberties Union of New Jersey, and Americans United for Separation of Church and State (collectively, ACLU); and individual applications from the New Jersey Historic Trust (NJHT) and the Becket Fund for Religious Liberty (Becket).

         II.

         This appeal involves a pure question of law. We therefore review the trial court's grant of summary judgment to defendants de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

         To help frame the issues, we begin with an overview of parts of the State and Federal Constitutions that are relevant to this appeal.

         A.

         The modern Constitution of 1947 includes the Religious Aid Clause. N.J. Const, art. I, ¶ 3. The clause states that no person shall "be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform." Ibid.

         The text of the Constitution has deep roots in our State's history. The CONCESSIONS and Agreement of the Lords Propriators of the Province of New Cesarea or New Jersey to and with all and every the Adventurers and all such as shall settle or plant there (Concessions), dated February 10, 1664, is considered the first document for the governance of what was then a province. See Samuel Smith, The History of the Colony of Nova-Caesaria, or New Jersey 61, 512-21 (1877). It expressly guaranteed religious liberty by recognizing that all persons may "fully have and enjoy . . . their Judgments and Conciences in matters of Religion throughout" the province. Concessions ¶ 7, https://www.nj statelib.org/wp-content/uploads/slic_files/ imported/Research_Guides/Historical_Documents/nj/C0NCESS1.html. At the same time, the document found that State-sponsored religion was compatible with liberty of conscience, so long as people could also support the religion of their choice. To that end, the General Assembly of the province was granted the power to "appoint such and soe many Ministers or Preachers as they shall think fitt, and to establish their maintenance." Id. ¶ 8. In the years that followed, charters were enacted for the governance of East and West New Jersey, and each contained a provision in support of religious freedom. See Charter or Fundamental Laws of West New Jersey ch. XVI (1676), http://www.nj statelib.org/wp-content/uploads/slic_files/ imported/Research_Guides/Historical_Documents/nj/NJO5A.html; Fundamental Constitutions for the Province of East New Jersey in America art. XVI (1683), http://avalon.law.yale.edu/ 17th_century/nj10.asp. Despite the new charters, however, the Concessions appear to have retained vitality, at least in East Jersey. See Edward Q. Keasbey, The Early Constitutions of New Jersey, 1 N.J. L. Rev. 20, 32-33 (1915). Also, the lifespan of the two charters was limited by the eventual surrender of both Jerseys to the Crown in 1702. See id. at 33; Carl H. Esbeck, Dissent & Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. Rev. 1385, 1469 (2004) .

         In that year, Edward Hyde, Lord Cornbury, was appointed Governor of both New Jersey and New York. Keasbey, 1 N.J. L. Rev, at 34. The Crown provided Cornbury with detailed instructions on how to govern; they included directions on religious liberty: "You are to permit a liberty of conscience to all person (except Papists) so they may be contented with a quiet and peaceable enjoyment of the same . . . ." Instructions for our Right Trusty and well beloved Edward Lord Cornbury ¶ 51 (1702), http://iplaw.rutgers.edu/statutes/LS/LS8.pdf#page=32.

         Notwithstanding the intervening Instructions and charters, the Concessions remained an influential resource for the drafters of the first Constitution in 1776. See Charles R. Erdman, Jr., The New Jersey Constitution of 1776 4 (1929). It appears, though, that the establishment of religion provided for in the Concessions was successful on paper only. Esbeck, 2004 BYU L. Rev, at 1470-71. In reality, "a diverse array of religious traditions" took hold in New Jersey and "produced a spirit of toleration and liberty by the time independence was declared." Id. at 1468. And "in 1776, New Jersey settled any lingering uncertainty concerning church-state affairs by expressly prohibiting in its constitution the establishment of religion." Id. at 1472.

         New Jersey's first Constitution, adopted on July 2, 1776, rejected the establishment of and compelled support for religion in two clauses. The first clause contains an express guarantee of the right to freedom from compelled support. The Religious Aid Clause in the 1776 Constitution provided as follows:

That no Person shall ever within this Colony be deprived of the inestimable Privilege of worshipping Almighty God in a Manner agreeable to the Dictates of his own Conscience; nor under any Pretence whatsoever compelled to attend any Place of Worship, contrary to his own Faith and Judgment; nor shall any Person within this Colony ever be obliged to pay Tithes, Taxes, or any other Rates, for the Purpose of building or repairing any Church or Churches, Place or Places of Worship, or for the Maintenance of any ...

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