N.J. Exclusion of Churches from Broadly Available Historical Restoration Grants Violates Free Exercise Clause

So holds Judge Evelyn Padin (D.N.J.) in today's Mendham Methodist Church v. Morris County. The court applies recent Supreme Court cases, such as Carson v. Makin (2022) and Espinoza v. Montana Department of Revenue (2020), which hold that "a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits." And it in the process rejects the New Jersey Supreme Court's decision in Freedom From Religious Foundation v. Morris County Board of Chosen Freeholders (N.J. 2018), which interpreted the New Jersey Constitution as mandating such exclusion; FFRF, the court holds, is inconsistent with the more recent Espinoza and Carson cases.

This oversimplifies matters in some measure, but it should offer a good general summary. For more, see the full opinion. Mark M. Roselli of Roselli Griegel Lozier & Lazzaro, PC represents plaintiffs.

Comments

[Gunstar1]

If I understand things correctly, this should be unpublished.

[Eugene Volokh]

?

[ReaderY]

I have long had a view that the Free Exercise contains broad protection for religious conduct, not just belief or status, but nonetheless does not create a right to exercise religion at public expense. Thus I find myself at odds with the Court’s current jurisprudence on both sides. On the one hand, I disagree with Smith and think government’s ability to prohibit religious conduct is more limited than current jurisprudence. On the other hand, I think government can decide not to subsidize religion and am skeptical of recent jurisprudence requiring it. In addition, I think that government and courts can require more evidence of sincerity to get exemptions than current jurisprudence indicates.

In particular, I think the state can’t condition receiving a subsidy on a church abandoning its doctrines or conforming them to state-established values. For example, I think the Catholic Church is entitled to conduct adoptions according to Catholic doctrine, including preferring married couples as Catholics understand marriage. I think that only subsidizing religious adoption agencies whose doctrines of marriage conform to the State’s view is Establishment at its most basic, fundamental meaning. To avoid this, I think the state should be entitled to have a choice of either subsidizing all religious adoption agencies and not imposing counter-doctrinal rules, or being neutral among religons by not subsidizing any religious adoption agencies, to avoid treating the ones it doesn’t like differently from the ones it does.

I think the Court’s current jurisprudence, which generally requires the state to subsidize religious bodies to avoid “discrimination,” but then lets the state impose rules that requie nonconforming religions to abandon their doctrines if they want the subsidy, is the absolute worst of all possible worlds, entangling the state and religion and letting the state use cash as an incentive to get nonconforming religions to become more agreeable. That’s the heart, the core, of what Establishment is. I think the Court’s current jurisprudence simply ignores this and, by doing so, rides roughshod over the Establishment clause.

[Josh R]

Under your theory, can the state generally offer subsidies to religious and secular organizations alike while withholding that subsidy to religious and secular organizations that practice human sacrifice?

[ReaderY]

I think human sacrifice is a compelling interst, but private discrimination is not. I think Heart of Atlanta Motel, the seminal case upholding federal anti-discrimination laws, was correct in characterizing discrimination laws as a species of morals laws and explicitly comparing them to federal laws against, gambling, prostitution, etc. And I don’t think government has a compelling interest in enforcing morals laws as a general category.

Professor Volokh suggests religion isn’t really subject to compelling interest, that the actual pre-Smith standard was a lower one. Perhaps so. So far the Court has held that religious liberty doesn’t trump racial discrimination laws, but has not so held for anything else. There are many religions that, for example, allow only male ministers or priests.

[Josh R]

In his Smith opinion, Scalia noted that courts ruled against religious liberty after Verner (which establish strict scurinty test for the Free Exericse in 1963) in military service, taxation, minimum wage, vaccinations, drugs, child neglect. child labor, animal cruelty, environmental protection and racial discrimination.

Hosanna-Tabor (2011) established the ministerial exception which extends to racial discrimination.

[JoeFromtheBronx]

I don't think James Madison would be a fan of this rule.

My position has long been that original understanding should not be our guide. History and tradition can be informative.

So, Madison -- who disagreed with many practices acceptable to the majority of his time -- doesn't determine the question.

Still, I think it is bad law to require the government to equally fund religious institutions. State governments should have the discretion to choose a reasonable more separatist path.

Freedom From Religion Foundation has some interesting programs, including a weekly radio show. I'm more of a freethinker than a "freedom from religion" sort, but do regularly listen/watch.

https://ffrf.org/news/radio/

[It's only a paper moon, Nominalists]

This is legally like the 10 Commandments cases. As Prof Francis Beckwith has said : the power to call something "religious" and thus totally take it off the table is THE POWER of POWERS
Killing a baby in the womb is murder even if that view is also held by religious folks.
The unexpected result of this is all the secular anti-abortion groups springing up
CHOICES4LIFE.ORG <======= Pro-life children of rape, protesting the lack of help given by feminists

SECULAR PRO-lIFE

University Faculty for Life
A multidisciplinary association of scholars speaking out for human life

POST-ROE Generation

PRO-LIFE ALLIANCE OF GAYS AND LESBIANS +
HUMAN RIGHTS START WHEN HUMAN LIFE BEGINS

THE AMERICAN ASSOCIATION OF
PRO-LIFE OBSTETRICIANS AND GYNECOLOGISTS
BOARD CERTIFIED. PROFESSIONAL.
MEDICAL EXPERTS IN THE PRO-LIFE MOVEMENT SINCE 1973

Democrats for Life

PRogressive Anti-abortion Uprising

Feminsts for Life

SPUC: Society for the Protection of Unborn Children

 Care Net (http://care-neturban.org)
 CEC for Life (pro-life arm of the Charismatic Episcopal Church at http://www.cecforlife.org)
 Focus on the Family (www.family.org)
 Citizens Link (http://www.citizenlink.com)
 Human Life International (www.hli.org)
 LEARN (Life Education and Resource Network at http://www.LearnInc.org)
 Vitae Caring Foundation (www.vitaecaringfoundation.org)
 National Black Prolife Coalition (www.blackprolifecoalition.org)
 Heartbeat International (https://www.heartbeatinternational.org)

[SimonP]

Someone more serious than anyone currently writing at the VC should consider whether the Supreme Court's expansive approach to the Free Exercise Clause in recent cases threatens to read the Establishment Clause out of the Constitution altogether. The OP's summary relevantly omits that the NJ Supreme Court decision that the district court rejects is actually just a very straightforward application of the NJ Constitution's own religious freedom clause - specifically:

No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.

This case considers an historical preservation trust that is available to all comers (and was, until 2018, available even for those seeking to restore churches). But I see no principled reason why its reasoning wouldn't essentially invalidate the bolded language, above - which is just trying to give some particular substance to what it means to "establish" a religion. At the same time, we can easily see from the language itself that it is also primarily driven by a concern for religious liberty.

Put another way - what about my religious freedom, in not having my taxes or efforts being applied to promote religions with which I vehemently disagree? Isn't the Establishment Clause a kind of negative Free Exercise Clause - a way of balancing your freedom of religion against my freedom not to practice or participate in your religion? But if we read the Establishment Clause out of the Constitution - by applying the Free Exercise Clause so broadly and so strictly that any practical attempt to avoid "establishment" is deemed unconstitutional - where does that leave my freedom to reject Christianity's moral corruption?

[SRG2]

whether the Supreme Court's expansive approach to the Free Exercise Clause in recent cases threatens to read the Establishment Clause out of the Constitution altogether.

Basically, you can't discriminate against religious institutions, etc. but you may be required to exempt them from some laws, hence discriminating in favour of them.

[SimonP]

You can't be forced to profess to be Christian, nor can you be forced to attend a Christian church.

But you can be forced to abide by Christian moral rules. You can be forced to provide financial support to Christian institutions. You can be forced to send your kids to schools where Christian beliefs are taught and Christian prayer and religious practice has an official imprimatur. You can be forced to hire Christians, to provide grants to Christians, to enter into business arrangements with Christians.

One wonders how close to an "establishment" one can get without crossing a line that the Supreme Court will acknowledge.

[Kleppe]

You think not being allowed to discriminate against applicants based on their religion (any religion) is equivalent to the state establishing a religion? The mind of the leftist, folks.

[Commenter_XY]

The lack of self awareness of Leftists is truly something to behold.

[SimonP]

And the inability to read carefully or respond rationally is a typical MAGA trait. You're all so tiresomely stupid.

[Josh R]

You did say:

You can be forced to hire Christians.

That sounds like you believe the Establishment Clause should invalidate Title VII's prohibtion against discriminating on the basis of religion.

[JoeFromtheBronx]

The result requires people to fund religion.

A Jew's tax dollars could go to help pay for a Catholic church as part of some general funding law.

James Madison would have been concerned. He famously opposed a law that would in a non-discriminatory matter fund religion. The state constitutional provision is one of many that broadly denied tax dollars to fund religious institutions.

It is not just a 'leftist' thing, except as that term is tossed around in an empty way.

[Bored Lawyer]

The result requires people to fund religion.
A Jew's tax dollars could go to help pay for a Catholic church as part of some general funding law.

I always found that kind of argument dubious as a Constitutional matter. My tax dollars go to fund all kinds of things I oppose. There are public universities in my state that teach students that Israel is a colonialist-settler enterprise that should be dismantled, and that Hamas and other groups seeking to "liberate" it are freedom fighters. I find that highly offensive, yet no Constitutional doctrine allows me to object to the public funding of that institution. Ditto teaching of Marxism, Critical Race Theory, and a whole host of other pernicious doctrines.

And, if general expenditures offend the Establishment Clause, then there are many other examples where general expenditures benefit religion. The state hands out welfare checks to poor people; they may and do use some of those funds to practice or support religion. Or, the state paves roads, including the roads in front of houses of worship, which makes it easier to drive to them. For that matter, if the contractor for the road-paving is a religious person, who may well donate some of this profits to his religious institution.

These and many other examples of general expenditures benefit religion, but no one has ever thought they violate the Establishment Clause.

[Josh R]

Carson and Espinoza did not turn on whether the funding violated the Estabishment Clause. Rather, is there an option not to fund? That is, are there instances when the government can choose to fund without violating the Establishment Clause or choose not to fund without violating the Free Exercise Clause?

The Court said no. The dissent said yes.

[Bored Lawyer]

I was addressing the argument that "The result requires people to fund religion." That sounds like an Establishment Clause argument.
As I said below, the only thing the government forces you to do is pay taxes. It then spends that on all kinds of things, some of which the taxpayer may find offensive or foolish.

[Josh R]

I was addressing the argument that "The result requires people to fund religion."

It's a Free Exercise argument. The Establishment Clause cannot require funding religion. It can only prohibit it.

[Bored Lawyer]

Which is an even weaker argument, for the same reason.

I have a First Amendment right to speak my opinion, and a concomitant right not to be forced by the state to express opinions I don't believe in. Yet the state can tax me and use those funds to express opinions I disagree with.

So, again, the "I'm being forced to spend money on things I don't believe in" is a weak argument, IMO.

[Josh R]

You are still framing the question incorrectly as whether the state can use tax dollars to fund some religious conduct. It can.

Instead, the question is whether the state must fund that conduct if it funds comparable secular conduct. SCOTUS held the Free Exercise Clause demands such funding on an equal basis. So, the conclusion that the "result requires people [taxpayers] to fund religion" is an accurate description of the law (without regard to whether you agree or disagree with SCOTUS).

[ReaderY]

Well, the Rev. Martin Luther King said non-discrimination was part of the Christian moral code. Atlanta Motel essentially agreed.

Did the Civil Rights laws establish religion? Are they unconstitutional? Or are only moral values you disagree with susceptible to being characterized as violating the Establishment. Clause, while moral values you agree with are exempt?

The Supreme Court has repeatedly said that moral values in general, beliefs about how humans should behave, are secular matters not subject to the Establishment Clause, whether or not they coincide with the beliefs of some or all religions.

[JoeFromtheBronx]

Not "moral values in general." He said "Christian moral rules."

“Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey. Accord: Lawrence v. Texas.*

This sort of gotcha where he specifically referenced government support of religion & we are led to the idea that this calls into question anti-discrimination law, in general, is dubious.

Religion is treated differently, in both directions. People have exemptions from neutral laws based on their religious beliefs. Not all types of beliefs. You can refuse to work on the Sabbath and still get unemployment benefits. OTOH, if you have to stay home to watch your children, it might not be enough.

This is not discriminatory under the law since religion is special.

==

* To toss in something else the Supreme Court said about morals.

[Josh R]

Exemptions from neutral laws derive from statute, not the First Amendment.

[Bored Lawyer]

Not "moral values in general." He said "Christian moral rules."

Can you give an example of something that is not a general moral value but IS specifically a Christian one?

[Bored Lawyer]

But you can be forced to abide by Christian moral rules. You can be forced to provide financial support to Christian institutions. You can be forced to send your kids to schools where Christian beliefs are taught and Christian prayer and religious practice has an official imprimatur. You can be forced to hire Christians, to provide grants to Christians, to enter into business arrangements with Christians.

None of this is true. What you can be forced to do is pay taxes to the state, which in turn spends your taxes, along with those of others, on all sorts of things, which you may or may not agree with. The state in turn can't spend the money in a discriminatory manner. If it spends money to pave roads, and asks for bids on a contract, it can't have a policy of "No Catholics may apply" any more than it can have a policy of "No Blacks may apply" or "No Democrats may apply."

[MatthewSlyfield]

"Isn't the Establishment Clause a kind of negative Free Exercise Clause"

That is the way that modern legal doctrine seems to interpret the establishment clause, but I would argue that this is wrong.

The original intent was to prevent the federal government from establishing a singular state supported church (see the Church of England), nothing more.

It should be noted that at the time that 1A was ratified, most of the original 13 states had established churches at the state level, and I think this is important for evaluating the meaning of the establishment clause.

[SimonP]

The "original intent" of the Free Exercise Clause likely wasn't to require states to provide public benefits to religious institutions on the same terms offered to secular institutions - and to preempt state constitutions explicitly prohibiting doing so - either. But here we are.

So you can GTFOH with your selective originalism.

[TwelveInchPianist]

Well, the government speech doctrine already requires you to directly fund speech with which you might vehemently disagree. The establishment clause carves out religious speech from the government speech doctrine, and there's no danger of that being read out of the Constitution. If you don't want to fund religious speech through generally applicable subsidies to historic buildings, you can oppose such subsidies.

[Bored Lawyer]

Isn't the Establishment Clause a kind of negative Free Exercise Clause - a way of balancing your freedom of religion against my freedom not to practice or participate in your religion?

And the recent jurisprudence reflects that. Recall that under Employment Div. v. Smith, the state can force someone to violate their religion through generally applicable laws. (So long as it's not a sham, which is what the Babalu Aye case was about.)

The flip side of that is that the state cannot discriminate against religion in generally applicable laws or expenditures. If the state chooses to fund, say, safety improvements to children's playgrounds, it can't deny those funds to a playground because it happens to be owned by a church that has a nursery school with a playground.

So, yes, the two doctrines mirror each other.

[It's only a paper moon, Nominalists]

You have the same feedom as a Mormon does in regard to bigamy, you can think whatever you want but you have to obey the law.
Your childish panreligious-hate can only be indulged so far.
I know people like you and they always want attention (virtually all).

[Jett's Pop]

"And it in the process rejects the New Jersey Supreme Court's decision in Freedom From Religious Foundation v. Morris County Board of Chosen Freeholders (N.J. 2018), which interpreted the New Jersey Constitution as mandating such exclusion; FFRF, the court holds, is inconsistent with the more recent Espinoza and Carson cases."

This is a little confusing. It suggests that the district court disagreed with the NJ Supreme Court's interpretation of the NJ Constitution, which, of course, it cannot and did not do. Rather, the district court disagreed with the NJ Supreme Court's conclusion that the requirements of the NJ Constitution and the US Constitution were not incompatible.

[ReaderY]

Hypothetical. An old Orthodox synagogue in New Jerrsey has a divider between men and women which is part of its historical architecture. Let’s suppose it’s aesthetically interesting in its design. . It becomes Conservative and takes the divider down. It becomes Orthodox again and wants to restore the historical divider.

Can it require the stste to pay for restoring it with historical restoration funds?

Same with an historically Catholic or Greek Orthodox church that becomes Protestant and takes down the old statues or icons or whatever, then changes again and wants to restore them. Must the state pay for reproductions of the historical icons?

It would seem that historical restoration funds, by their nature, would tend to favor architecture reflecting older religious denominations and doctrines than more recent ones.

[SRG2]

I am reminded of the joke of the IRS phoning a rabbi, "Rabbi Mandelbaum, according to the return of one of your congregants, Abraham Levy, he donated $50.000 to your temple's restoration fund last year. Is that correct?" Replies the rabbi "if you call me back tomorrow, it will be".

[MatthewSlyfield]

"Can it require the stste to pay for restoring it with historical restoration funds?"

Of course not. The state is not obligated to provide any historical restoration funds to anyone.

[Bored Lawyer]

Yes, that's the part many are missing. Nothing in the Constitution requires states to spend money on these things. But if it does, then it can't disallow religious institutions merely on the basis that they are religious.

[It's only a paper moon, Nominalists]

This is just amnesia about the total obliteration in the courts of the Blaine Amendment. If you contest a law based on YOU calling it 'religious' you should lose ipso facto. The Constitution is suffused with rejection of arguments dismissing a law because it is 'religioius'. THe power to call something 'religious' and take it off the table was -- to my memory-- universally rejected at the Founding. Prof Francis Beckwith has documented this beyond argument.