We Deserve Preservation, Too .

The Supremacy Clause of the United States Constitution provides the federal constitution is the “supreme law of the land,” notwithstanding any state laws to the contrary. Thus, under the doctrine of constitutional avoidance, this Court has long interpreted New Jersey law to avoid any conflict with federal law.

Here, however, plaintiffs seek an interpretation of the New Jersey Constitution that would violate controlling Supreme Court precedent. Just three weeks ago, the United States Supreme Court held that excluding an otherwise eligible religious organization from a public benefits program solely because of its religious status “is odious to our Constitution … and cannot stand.”

The implications of Trinity Lutheran for this case and ACLU v. Hendricks are clear: government cannot exclude religious organizations from neutral grant programs without surviving strict scrutiny under the Free Exercise Clause of the United States Constitution. In Trinity Lutheran, Missouri’s Department of Natural Resources offered reimbursement grants to public and private schools, nonprofit day cares and other nonprofit entities that resurfaced their playgrounds using recycled shredded tires.

But Missouri interpreted its constitution to require it to “categorically disqualify” churches and other religious organizations from its public benefits program. Even though Trinity Lutheran Learning Center ranked fifth out of 44 applicants and would have otherwise received funding, its application was rejected solely because it is a church.

The Supreme Court held that the department’s policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

Such discrimination “imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.”

The Court rejected the government’s argument that there was no serious burden on the free exercise of religion where the state merely denied a subsidy that it “had no obligation to provide in the first place,” and did not directly punish any religious act.

As the Court explained, “the Free Exercise Clause protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.'” Just because a religious institution is free to continue operating as a religious institution, that freedom cannot come “at the cost of automatic and absolute exclusion from the benefits of a public program for which the [religious organization] is otherwise fully qualified.”

Conditioning the availability of a benefit “upon [a recipient’s] willingness to … surrender his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.” The Court found that Trinity Lutheran was not claiming “any entitlement to a subsidy,” but rather “a right to participate in a government benefit program without having to disavow its religious character.”

Moreover, the “express discrimination” at issue there was “not the denial of a grant” but instead “the refusal to allow the church—solely because it is a church—to compete with secular organizations for a grant.”

The grant program at issue in this case (and in the accompanying case ACLU v. Hendricks) is governed by Trinity Lutheran. Here, Morris County’s historic preservation grant program is a generally available public benefit whose recipients are selected through a competitive grant application process based on secular criteria and which is open to “all historic sites within the State” without reference to religious status.