Two N.J. churches win round in case over public funding of churches

A federal judge has temporarily overturned a state constitutional provision that barred public funding for houses of worship, ruling it runs afoul of federal constitutional protections of religious freedom.

Judge Evelyn Padin in her decision said barring houses of worship from receiving public dollars under a Morris County historic preservation program violates the U.S. Constitution’s free exercise clause, finding the state prohibition is not narrow enough to pass constitutional muster.

The decision is a win for two Morris County churches who had argued the state’s policy was tantamount to religious discrimination. Jeremy Dys is senior counsel at First Liberty, which represented the churches.

“We’re very grateful that the court has issued that preliminary injunction that allows Morris County to be able to issue the funding I think they wanted to give in the first place. That means great things for our clients who just simply want to be treated like the Masonic lodge not too far away from the churches that happens to be also in a former church building,” Dys said. “It’s great that the court has issued this ruling, and we hope that the whole state of New Jersey will follow the same example.”

The ruling pauses a unanimous 2018 New Jersey Supreme Court ruling that found the religious aid clause of the state’s constitution unambiguously bars the use of taxpayer funds to repair or maintain churches and other religious buildings. In effect, the state’s high court found awards of public funds to churches were effectively a mandate for residents to support a religion they may oppose.

Between 2003 and 2017, roughly 42% of the program’s funding was awarded to churches, including to restore religious artworks and enable the houses of worship to provide religious services. Awards to houses of worship under the program went almost exclusively to Christian churches.

After the New Jersey Supreme Court ruling, the Mendham Methodist Church and the Zion Lutheran Church Long Valley sued, alleging the proscription, which has existed in some form since colonial times, amounted to religious discrimination.

Padin appeared to agree, likening the state’s forbidding to a Faustian bargain — a deal with the devil.

“To gain public benefits, you must forgo your faith. But the bargain depends on the bargainer. So, too, could the calculus read: to benefit from the results of public funding, you must endorse a faith to which you do not belong,” she wrote.

Padin said a prohibition on state funding for some purely religious purposes — like sectarian iconography — could pass constitutional muster, but added New Jersey’s ban was not focused so narrowly.

Her preliminary injunction will allow the churches to seek public funding while the case continues. It’s not clear whether the attorney general, who is defending the prohibition, will appeal the preliminary injunction.

The Freedom from Religion Foundation, whose 2017 suit spurred New Jersey’s high court to bar awards of public dollars to churches and which has joined the federal case as a friend of the court, expressed frustration at Padin’s decision.

“FFRF is disappointed with the preliminary ruling by the district court judge despite its temporary nature and its limited reach,” said Sam Grover, the foundation’s senior counsel. “FFRF maintains that the current rule is, in fact, constitutional, given New Jersey’s well-established historic interest in avoiding compelled taxpayer support of churches.”