Kavanaugh Criticizes 'Pure Discrimination' Against Churches

Supreme Court Justice Brett Kavanaugh criticized a state court ruling that bars churches from getting historic-preservation grants from a New Jersey county, aligning himself with conservative justices on public funding for religious activities.

Kavanaugh said the New Jersey Supreme Court ruling was “in serious tension” with past U.S. Supreme Court decisions. His five-page statement came as the high court declined Monday to hear an appeal in the New Jersey case.

“Barring religious organizations because they are religious from a general historic-preservation grants program is pure discrimination against religion,” Kavanaugh wrote, in a statement joined by Justices Samuel Alito and Neil Gorsuch.

Kavanaugh said he agreed with the high court’s decision not to take the case, in part because “factual uncertainty” about the scope of the Morris County grant program might hamper the court’s ability to analyze the issues.

Morris County awarded $4.6 million to churches from 2012 to 2015 as part of a broader program funded by property taxes. The New Jersey Supreme Court said the grants violated a state constitutional provision that bars tax dollars from being used to construct or repair churches.

The Supreme Court ruled in 2017 that under the U.S. Constitution churches must be allowed to participate in a Missouri program that paid for new playground surfaces. The high court said Missouri’s categorical ban violated the Constitution’s guarantee of free exercise of religion. In the appeal rejected Monday, Morris County officials and a group of local churches asked the Supreme Court to extend the 2017 ruling.

The court is already hearing a major religion case in its current term. That case centers on a 40-foot-high (12 meter) cross erected almost a century ago as a World War I memorial, which now sits on public land in the middle of a Maryland intersection.

The cases are Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation, 18-364, and Presbyterian Church in Morristown v. Freedom From Religion Foundation, 18-365.