U.S. Supreme Court

Kavanaugh questions exclusion of churches from historic preservation funds

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Brett Kavanaugh

U.S. Supreme Court Justice Brett M. Kavanaugh.

U.S. Supreme Court Justice Brett M. Kavanaugh said in a statement Monday that banning religious organizations from a historic preservation program amounts to "pure discrimination against religion."

Kavanaugh questioned a New Jersey Supreme Court decision that upheld the exclusion of religious groups from a Morris County program. His statement, issued with a cert denial, was joined by Justices Samuel A. Alito Jr. and Justice Neil M. Gorsuch.

“In my view,” Kavanaugh wrote, “the decision of the New Jersey Supreme Court is in serious tension with this court’s religious equality precedents.”

Kavanaugh said the U.S. Supreme Court has repeatedly held that governmental discrimination against religion violates the free exercise cause and the equal protection clauses.

Among the cases cited by Kavanaugh was Trinity Lutheran Church of Columbia v. Comer. The 2017 Supreme Court decision held that a church’s free exercise rights were violated when it was denied a state grant to resurface its playground because it was a religious institution.

Kavanaugh said the Supreme Court at some point will have to decide whether governments may deny historic preservation funds to religious groups simply because they are religious.

But the cert denial in the New Jersey case is appropriate for a couple of reasons, Kavanaugh said. First, the factual details of the historic preservation program aren’t clear. Second, “there is not yet a robust post-Trinity Lutheran body of case law in the lower courts” dealing with the exclusion of religious groups from such programs.

Hat tip to SCOTUSblog.

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