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DYS: Paint, Primer, And Religious Discrimination

By  Jeremy

The white-washed churches of New England have captured the imagination of painters and photographers everywhere. Contrasted against the reds and yellows of fall foliage and the azure ocean often beckoning within eyesight of their steeples and bells, it is easy to understand why.

Many of these same historic houses of worship are now ineligible for public funding. Despite being listed as historic places, worthy of preservation for future generations, local agitators would often rather prefer that they be left to decay than to allow public funding to replace the shingles or protect them with a new coat of paint.

Earlier this week, the Supreme Court of the United States declined an opportunity to review one of these legal cases.

In one of the cases appealed to the Supreme Court of the United States, the Morris County freeholders board in New Jersey funded something called the “Historic Preservation Trust Fund.” The program allowed local organizations to apply for a grant to repair things like shingles, paint, or mechanical work, but not hymn books, altar pieces, or Sunday school lessons. Importantly, Morris County, New Jersey funds only 80% of the work for historic churches, synagogues, mosques, and temples — therefore requiring the private organizations to raise the additional 20%.

But the New Jersey Supreme Court determined that houses of worship are ineligible for funding because they are religious in nature. Such religious discrimination, to quote Justice Brett Kavanaugh, writing for Justices Samuel Alito and Neil Gorsuch, in a special statement respecting the denial of Supreme Court review, “is in serious tension with [the U.S. Supreme Court’s] religious equality precedents.”

A perplexed, and unequivocal, Justice Kavanaugh continued, “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.” Indeed, it is difficult to conceive of more unvarnished religious discrimination.

Despite this, four justices of the Supreme Court were unwilling to grant review of the case, waiting instead for further factual development in the case and, more generally, further development of the relevant law in the lower federal courts.

That is regrettable. The government deciding that religious organizations are ineligible to participate equally in the public square merely because they are religious is precisely the type of religious discrimination the Founders sought to prevent. Justice Kavanaugh is absolutely right in declaring this to be “pure discrimination against religion.” No state official should discriminate against people of faith, or the religious organizations they operate, based merely on their religious status.

One wonders why the 2017 decision by the Supreme Court in Trinity Lutheran v. Comer did not settle the issue. There, Missouri state officials declared churches to be ineligible for the funding of playground mulch. Chief Justice John Roberts declared at the time that excluding churches “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”

The distinction between Missouri’s program in Trinity Lutheran and New Jersey’s is a matter of degree, not kind. Whereas Missouri denied a church’s participation in a public benefit over playground surface material, New Jersey funded historic preservation of aging houses of worship. But, the point remains: No state program should discriminate against people of faith, or the religious organizations they operate, based merely on their religious status.

Justice Kavanaugh noted in his statement that the Court needs more information about the other buildings Morris County’s program funds. Assuming it funds secular buildings in the same way it funds religious buildings, this case could return to the Supreme Court soon.

More than that, Justice Kavanaugh noted that the Court may be inclined to hear such a case in the future, once the lower courts have had a chance to develop a “robust” body of law on the topic.

In other words, religious organizations need to present more of these challenges — a challenge in which we at First Liberty Institute are only too ready to assist.

Jeremy Dys is Deputy General Counsel for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at

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