SALT LAKE CITY — Can taxpayer money go toward repairs for historic churches?
The Supreme Court won't answer that question — at least not yet.
Justices announced Monday they won't hear a case involving a historic preservation grant program in Morris County, New Jersey, which has excluded churches since April 2018. In their petition to the court, officials and churches in the area argued that this ban on religious applicants represents unlawful discrimination.
"Excluding houses of worship from New Jersey's historic preservation program violates the First Amendment," Morris County officials claimed in their petition.
The Supreme Court's decision allows the lower court ruling that led to the exclusion of churches to stand, but doesn't affect historic preservation programs elsewhere. It also delays the resolution of a growing debate over when religious organizations should have access to government funds.
Some legal analysts say taxpayer money should never support religious activity, even indirectly.
"Public funds should support buildings and programs that benefit all members of the community, not build or repair churches that are used primarily by members of one faith," said Richard B. Katskee, legal director of Americans United for the Separation of Church and State, in a statement released Monday.
Others say the Constitution bans excluding religious groups from public grants simply because they're religious, pointing to a 2017 Supreme Court ruling that seems to support this view.
"Time does not discriminate," said Diana Verm, legal counsel at the Becket Fund for Religious Liberty, which represented Morris County in its petition to the Supreme Court, in a statement. "It takes its toll on all our historic structures, secular and religious alike. The county should not be forced to discriminate by favoring secular sites in its preservation efforts."
Rulings in related cases hold serious consequences for houses of worship nationwide, which are struggling with how to fund building upkeep amid declining membership. Some congregations have to relocate when they can't afford repairs to historic buildings and can't access public grant programs, as the Deseret News reported last year.
These moves affect more than church members, the article noted. Neighborhoods lose historic charm and character when old churches are demolished and replaced with condos or office buildings.
"Sacred buildings affect our orientation to society," said Julio Bermudez, director of the Sacred Space and Cultural Studies graduate concentration at the Catholic University of America School of Architecture and Planning, to the Deseret News last year. "Their presence and character lends us a sense of solemnity and respect."
The Morris County, New Jersey, historic preservation program acknowledged the significance of religious buildings, according to its supporters. Churches were allowed to apply for grant funds alongside secular buildings like libraries.
"From 2012 to 2015, Morris County, New Jersey, gave more than $4.6 million to 12 churches to fix facades, stained-glass windows and aging roofs under a historic preservation program limited to local government, charitable conservancies and religious institutions," The New York Times reported. Overall, more than $11 million in grant money was disbursed during this time period.
The case that the Supreme Court could have heard originated in December 2015, when the Freedom from Religion Foundation filed a complaint about the historic preservation program. It argued that giving grant money to churches violates the New Jersey Constitution's "religious aid clause," which protects residents from paying taxes to religious organizations.
Initially, a state court ruled in favor of Morris County officials, explaining that the New Jersey Constitution supports "benevolent neutrality" toward faith groups.
"Excluding 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," the ruling explained.
But the New Jersey Supreme Court overturned that decision last year, stating that the grant program unlawfully entangles the government with religious activity.
These grants sustain "the continued use of active houses of worship for religious services and finance repairs to religious imagery. In our judgement, those grants constitute an impermissible religious use of public funds," wrote Chief Justice Stuart Rabner on behalf of the New Jersey Supreme Court.
The case involved competing interpretations of the Supreme Court's 2017 ruling in Trinity Lutheran Church v. Comer, which dealt with a playground safety program. Justices said a religiously affiliated preschool should be eligible for the safety grant, since exclusion would represent religious discrimination.
"The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution," wrote Chief Justice John Roberts.
Although the ruling included a footnote aimed at limiting its application, Becket and other religious freedom advocacy groups have used it to argue that religious organizations can't be left out of a variety of funding programs, including those governing the disbursement of federal disaster relief funds.
They wanted the Supreme Court to hear the Morris County case and clarify how to apply the Trinity Lutheran ruling moving forward.
Hearing the case "would allow the court to … clarify that the use of generally available government funds to repair or restore historic houses of worship is not a 'religious use' outside the scope of Trinity Lutheran," argued the Morris County officials' petition.
In a statement accompanying the Supreme Court's order, Justice Brett Kavanaugh wrote that while he agrees with the court's decision not to hear the case, the Supreme Court should act soon to address confusing funding laws. The Constitution and legal precedent does not support excluding religious organizations from public grant programs simply because they're religious, he argued.
"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," Kavanaugh wrote.
However, he added that confusion in the legal record over who is eligible for the Morris County historic preservation grants and the short period of time that's passed since the Trinity Lutheran decision make it an inopportune time for the Supreme Court to hear the case.
"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," Kavanaugh wrote.
His statement was joined by Justices Samuel Alito and Neil Gorsuch.