A New Jersey court's determination that fixing furnaces or repairing broken plumbing in historic church buildings is "religious" is being appealed to the U.S. Supreme Court, which ruled last year a church cannot be excluded from a program generally available to the public.
The Becket Fund is representing Morris County, New Jersey, in its lawsuit over a longstanding program to grant to historic buildings funding for repairs or preservation projects.
The grants cannot be used for any religious activities at the historic structures.
The state Supreme Court said the grants, issued based on neutral criteria to houses of worship and other structures, constituted a religious "activity." That would mean the court considers basic repairs to essential systems, whether water or sewer, are religious.
And that determination appears to conflict with U.S. Supreme Court's 2017 Trinity Lutheran ruling, which said churches could not be excluded from programs that are available to the public solely because of their religious status. The court said such exclusion would violate the First Amendment's requirement that the government remain neutral on matters of religion.
Lower courts have been divided on the issue, with some ruling historic preservation funding cannot go to churches under any circumstances and others deciding churches cannot constitutionally be excluded.
"Time does not discriminate," commented Diana Verm, a legal counsel at Becket.
"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."
New Jersey itself has a long history of helping preserve historic buildings, including churches.
"One of the state's earliest grants was to the 1850 Solomon Wesley Church, an active house of worship originally built to serve a community of freed slaves," Becket said.
"In Morris County, we want to preserve all of our historical sites, including our magnificent houses of worship, some of which date back to the 1700s and were designed by the leading architects of their time," said Doug Cabana, the freeholder director of Morris County. "Preserving the character and beauty of our county is a critical element of the county's cultural and economic success."
Becket's petition this week asks the Supreme Court to protect the county's program.
The filing argues the state court's ruling in the lawsuit "cannot be squared with the court's ruling in Trinity Lutheran v. Comer that forcing a house of worship to 'renounce its religious character' to 'participate in an otherwise generally available public benefit program, for which it is fully qualified' triggers 'the 'most rigorous' scrutiny.''"
The brief explains the disagreement stems from a footnote in the Trinity case that was about resurfacing a playground.
In that case, several justices in the majority said they were deciding only based on "playground resurfacing."
"Petitioners therefore respectfully ask the court to grant their petition and set this matter for plenary review or, in the alternative, to summarily reverse and confirm that excluding houses of worship from New Jersey's historic preservation program violates the First Amendment."
Among the area's historic churches are First Reformed, built in 1771, and a Roman Catholic church built in 1839.
The state program was designated for "all historic sites within the state," the brief explains.
The grants are allowed to be used for documenting a building's history, developing preservation plans, preparing construction documents and funding preservation work.
Recipients have included cemeteries, libraries, schoolhouses and houses of worship, with the latter restricted to repairs for exterior elements and structural systems.
But the Freedom From Religion Foundation sued.
Becket argues that this case is the next logical step following the Supreme Court's decision in Trinity Lutheran.