Opinions Relating to Orders - 2018

Morris County Bd. of Chosen Freeholders v. Freedom From Religion Foundation

The petitions for writs of certiorari are denied. Statement of JUSTICE KAVANAUGH, with whom JUSTICE ALITO and JUSTICE GORSUCH join, respecting the denial of certiorari. Morris County, New Jersey, distributes historic preservation funds to help preserve local buildings such as libraries, schoolhouses, performing arts centers, and museums. As part of that program, Morris County also distributes funds to help preserve religious buildings such as synagogues, temples, churches, and mosques. But it turns out that New Jersey law, as recently interpreted by the New Jersey Supreme Court, prohibits Morris County from awarding grants to preserve religious buildings. The petitioners here argue that the State’s exclusion of religious buildings—because they are religious—from Morris County’s historic preservation program constitutes unconstitutional discrimination against religion in violation of the First and Fourteenth Amendments to the United States Constitution. The New Jersey Supreme Court concluded that the State’s discrimination did not violate the First and Fourteenth Amendments. In my view, the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents. As this Court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Free Exercise Clause and the Equal Protection Clause. In the words of Justice Brennan, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” McDaniel v. Paty, 435 U. S. 618, 639 (1978) (opinion concurring in judgment). Under the Constitution, the government may not discriminate against religion generally or against particular religious denominations. See Larson v. Valente, 456 U. S. 228, 244 (1982). The principle of religious equality eloquently articulated by Justice Brennan in McDaniel is now firmly rooted in this Court’s jurisprudence. As Justice Kennedy later wrote for the Court, a law may not discriminate against “some or all religious beliefs,” and “a law targeting religious beliefs as such is never permissible.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532, 533 (1993). Put another way, the government may not “impose special disabilities on the basis of . . . religious status.” Employment Div., Dept. of Hum