Whether a religious symbol or edifice needs to masquerade as a secular structure in order to escape Establishment Clause scrutiny is at issue in two major cases at the United State Supreme Court.


Last week the Supreme Court heard oral argument in a case that challenged a 40-foot World War I cross-shaped monument in Maryland. Yesterday, the Supreme Court declined to hear a case involving whether the state of New Jersey should be required to include churches in a historic preservation grant program.

Both cases were brought by humanist organizations – the American Humanist Association brought the cross case, and the historical preservation case was brought by the Freedom From Religion Foundation, an organization that promotes both “nontheism” and separation between religion and government.

A decision in the cross case is likely this summer but the Supreme Court’s decision to let stand a New Jersey Supreme Court opinion that paying for church preservation violated the state’s constitution prohibiting public funds from going to the upkeep of church buildings brought newly minted Justice Brett Kavanaugh’s first written opinion in a religion case at the High Court. (Justice Kavanaugh’s dissent begins on page 9.)

Joined by Justice Alito and Justice Gorsuch, Justice Kavanaugh appeared to agree with the petitioners that the exclusion of religious buildings from historical preservation grants “constitutes unconstitutional discrimination in violation of the First and Fourteenth Amendments to the United States Constitution.”

Justice Kavanaugh relied on the Court’s holding in Trinity Lutheran to argue that the Constitution “protects religious observers against unequal treatment.”

The dissent is interesting in that it is couched in terms of discrimination against religion, while the petition itself focuses on the secular value of preserving historical churches. While the petition argued that it constituted discrimination because the Presbyterian Church was unquestionably religious, it focused on the idea that “[t]here is nothing religious, let alone essentially religious, about a slate roof.” The church also argued that the program was designed to help historical buildings fund “a portion of the significantly higher cost of compliance with State historic preservation standards.”

Whether a religious symbol or edifice needs to masquerade as a secular structure in order to escape Establishment Clause scrutiny also featured in last week’s oral arguments in American Legion v. American Humanist Association  where counsel for the American Legion argued that the religious significance of the landmark had long-since faded, the American Humanist Association argued that the people who had been most offended by the concept of removal argued that it signified a religious expression in public life.

During the argument, counsel for the American Humanist Association, Monica Miller, pointed out that several Christian groups had argued that posting a cross devoid of religious meaning, or with national or military symbols, could amount to blasphemy.

While there are similarities between the cases, the preservation of historic churches is a bit tougher. The State of New Jersey has a statute that recognizes historic preservation as “an essential governmental function of the state,” but the state also has a constitutional provision that prohibits state funding from going to maintaining church buildings. New Jersey also provided preservation funding to church buildings that no longer housed active congregations.

In the Trinity Lutheran Church case, providing funding for recycled rubber playground surfacing would appear to be different from a program to maintain a historical edifice that is often part of a city’s skyline.

There can also be tension between government and churches where churches want to tear down old church buildings or modernize them, and the government opposes the change. In 2005, California state senator Carole Migden introduced a bill that would require the Archdiocese of San Francisco to maintain the St. Brigid Catholic Church, built in 1900, which had closed its doors in 1994. The Archdiocese wanted to tear down the church and sell the land to a condominium developer.

The bill, SB 169, which later failed to pass, would have exempted the historic building from a California statute that allows churches to opt out of religious preservation standards. The church argued that it could not afford to seismically retrofit the unused building, at the cost of $5 to $8 million and that it needed the money from the sale.

San Francisco Board of Supervisors President Aaron Pekin said, according to SFGate.com, "It's one of the great edifices of San Francisco. It connects us to our rich cultural and architectural history. It would be a shame to sit idly by and witness its destruction."

The Archdiocese eventually sold the church to the Academy of Art University. In 2007, San Francisco Mayor Gavin Newsom signed city legislation in place allowing for the “landmarking of publicly accessible interiors of privately-owned buildings.”

These kinds of issues have arisen across the United States as both religious and non-religious people have recognized the beauty that older houses of worship can bring to a community. But the cost of observing mandates requiring congregations to maintain, seismically retrofit or otherwise renovate these properties can be prohibitive.

Although Footnote 3 in the Trinity Lutheran decision attempted to limit its applicability to playground resurfacing, the precedent created a wide swath of opportunity for churches to argue that state-level Blaine Amendments prohibiting state funding of religion should not apply to their various needs, and historic preservation presents a relatively “easy case” for government funding.

As the Justice Kavanaugh statement notes, there is still no clear body of law on the subject of religious funding post-Trinity Lutheran and the denial of certiorari was appropriate. However, we can expect the Court to address the issue again soon.


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