- The Washington Times - Monday, March 4, 2019

The Supreme Court declined to hear a new religious liberty case Monday involving a ban on the use of public funds for secular purposes in houses of worship, but several justices warned the court will eventually have to address how far is too far when it comes to freezing out churches.

The case stemmed from New Jersey, where a state law prohibits taxpayer funds intended for the preservation of historic structures from going to synagogues, temples, mosques and churches because of their religious use.

That law was upheld by the state’s high court.

The Supreme Court declined to hear a challenge, but Justice Brett M. Kavanaugh, joined by Justices Neil M. Gorsuch and Samuel A. Alito Jr., issued a statement saying the court will eventually have to grapple with the issue.

They said the facts of the New Jersey law were too convoluted to make for a clear test case, but such a case will eventually present itself.

“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 Kavanuagh wrote in a statement.

Applicants for New Jersey’s funding had to comply with Department of Interior standards regarding historical properties and the tax dollars could only be used for “the exterior building elements, and the building’s structural, mechanical, electrical, and plumbing systems.”

New Jersey’s Morris County had been allowing money to flow to houses of worship, such as colonial and post-Revolutionary War era churches.

But the Freedom from Religion Foundation challenged the county, calling it a violation of law that entangled church and state. The state Supreme Court sided with FFRF, and Monday’s decision by the justices to stay out of the fight leaves that lower ruling in place.

“The Supreme Court made the right call in refusing to jettison the basic tenets of our Constitution,” said Dan Barker, co-president of FFRF.

Morris County had pointed to the Supreme Court’s 2017 ruling in Trinity Lutheran Church, where the justices ruled Missouri couldn’t withhold funds meant to improve a playground based on the fact the playground was on church property.

The Morris County case pushed that further, posing the question of whether taxpayer money can actually be spent on a church itself. The county over the last decade has earmarked millions of dollars to repair historic churches dating as far back as colonial times.

“Governments are not required to sit idly by while many of their communities’ greatest artistic and cultural achievements submit to the ravages of time,” the county had argued in briefs to the Supreme Court.

Justice Kavanaugh, in his statement Monday, said it’s fair for the Supreme Court to wait for more cases to develop in light of the 2017 Trinity Lutheran decision, but said laws like New Jersey’s will have to be settled at some point.

Douglas Laycock, a law professor at the University of Texas, said Justice Kavanaugh’s statement will invite more litigants, and one possible test could be on spending taxpayer money to rebuild churches or other houses of worship after natural disasters.

Richard Katskee, legal director for Americans United for Separation of Church and State, said Justice Kavanaugh’s statement was worrisome.

“This view suggests a hostility toward our fundamental American value of church-state separation, which has protected religious freedom for all,” he said.

But Eric Baxter, vice president at Becket-Religious Liberty for All, which represented the county and churches, said the statement suggests at least three justices view excluding religious organizations from government programs is “religious discrimination of the first order.”

“The statement suggests that the court is hesitant to take another case on this issue so soon after its Trinity Lutheran decision in 2017, but nonetheless sends a strong signal that religious discrimination has no place in our society,” Mr. Baxter said.

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