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`1
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`Cite as: 586 U. S. ____ (2019)
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`KAVANAUGH, J., dissenting
`Statement of KAVANAUGH, J.
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`SUPREME COURT OF THE UNITED STATES
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`
` MORRIS COUNTY BOARD OF CHOSEN
` FREEHOLDERS, ET AL.
`
`
`v.
`
`FREEDOM FROM RELIGION
`
`FOUNDATION, ET AL.
`
`18–364
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`18–365
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`THE PRESBYTERIAN CHURCH IN
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`MORRISTOWN, ET AL.
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`
`v.
`FREEDOM FROM RELIGION
`
`FOUNDATION, ET AL.
`
`ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME
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`COURT OF NEW JERSEY
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` Nos. 18–364 and 18–365. Decided March 4, 2019
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` The petitions for writs of certiorari are denied.
`Statement of JUSTICE KAVANAUGH, with whom JUSTICE
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` ALITO and JUSTICE GORSUCH join, respecting the denial of
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` certiorari.
`Morris County, New Jersey, distributes historic preser-
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`vation funds to help preserve local buildings such as li-
`braries, schoolhouses, performing arts centers, and muse-
`ums. As part of that program, Morris County also
`distributes funds to help preserve religious buildings such
`as synagogues, temples, churches, and mosques. But it
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`turns out that New Jersey law, as recently interpreted by
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`the New Jersey Supreme Court, prohibits Morris County
`from awarding grants to preserve religious buildings.
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`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 viola-
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`tion of the First and Fourteenth Amendments to the United
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`2
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` MORRIS COUNTY BD. OF CHOSEN FREEHOLDERS v.
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`FREEDOM FROM RELIGION FOUNDATION
`Statement of KAVANAUGH, J.
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`States Constitution. The New Jersey Supreme Court
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`concluded that the State’s discrimination did not violate
`the First and Fourteenth Amendments.
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`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 dis-
`crimination against religion—in particular, discrimination
`against religious persons, religious organizations, and
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`religious speech—violates the Free Exercise Clause and
`In the words of Justice
`the Equal Protection Clause.
`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
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`Constitution, the government may not discriminate
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`against religion generally or against particular religious
`denominations. See Larson v. Valente, 456 U. S. 228, 244
`(1982).
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`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 reli-
`gious beliefs as such is never permissible.” Church of
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`Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532,
`533 (1993). Put another way, the government may not
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`“impose special disabilities on the basis of . . . religious
`status.” Employment Div., Dept. of Human Resources of
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`Ore. v. Smith, 494 U. S. 872, 877 (1990).
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`We have applied that bedrock principle of religious
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`equality in numerous cases. See, e.g, Trinity Lutheran
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`Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017);
`Good News Club v. Milford Central School, 533 U. S.
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`98 (2001); Rosenberger v. Rector and Visitors of Univ. of
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`Va., 515 U. S. 819 (1995); Lamb’s Chapel v. Center
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`3
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` Cite as: 586 U. S. ____ (2019)
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`Statement of KAVANAUGH, J.
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`Moriches Union Free School Dist., 508 U. S. 384 (1993);
`McDaniel, 435 U. S. 618.
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`For example, in McDaniel, a Tennessee statute disquali-
`fied ministers from serving as delegates to Tennessee’s
`constitutional convention. The Court ruled the statute
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`unconstitutional, explaining that the Constitution does
`not allow the government to discriminate against religious
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`persons by prohibiting their service in a public office. See
`435 U. S., at 629.
`In Good News, a school district in New York allowed
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`residents to use the local public high school for social,
`civic, and recreational events. But the school district
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`prohibited a religious organization from using the school,
`simply because the organization was religious. This Court
`held that the school district’s exclusion of the religious
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`organization was unconstitutional discrimination against
`religion. See 533 U. S., at 109.
`That same principle of religious equality applies to
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`governmental benefits or grants programs in which reli-
`gious organizations or people seek benefits or grants on
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`the same terms as secular organizations or people—at
`least, our precedents say, so long as the government does
`not fund the training of clergy, for example. See Trinity
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`Lutheran, 582 U. S., at ___ (slip op., at 13); Locke v. Davey,
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`540 U. S. 712, 721, 725 (2004).
`In Trinity Lutheran, Missouri barred a religious school
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`from obtaining a state funding grant for the school’s play-
`ground. By contrast, Missouri allowed secular private
`schools to obtain state funding grants for their schools’
`playgrounds. This Court held that Missouri’s law was
`unconstitutional. The Court stated that the Constitution
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`“protects religious observers against unequal treatment.”
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`582 U. S., at ___ (slip op., at 6) (alterations omitted). In
`the Court’s description, Missouri’s law reflected an uncon-
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`stitutional policy of “No churches need apply.” Id., at ___–
`___ (slip op., at 13–14). The Court minced no words: Dis-
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`4
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` MORRIS COUNTY BD. OF CHOSEN FREEHOLDERS v.
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`FREEDOM FROM RELIGION FOUNDATION
`Statement of KAVANAUGH, J.
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`criminating against religious schools because the schools
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`are religious “is odious to our Constitution.” Id., at ___
`(slip op., at 15).
`In this case, New Jersey’s “No religious organizations
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`need apply” for historic preservation grants appears simi-
`lar to, for example, Missouri’s “No religious schools need
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`apply” for school playground grants and New York’s “No
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`religious clubs need apply” for use of school facilities and
`Tennessee’s “No ministers need apply” for state office.
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`To be clear, this is not a case like Lee v. Weisman, 505
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`U. S. 577 (1992); Marsh v. Chambers, 463 U. S. 783 (1983);
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`or County of Allegheny v. American Civil Liberties Union,
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`Greater Pittsburgh Chapter, 492 U. S. 573 (1989), where
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`the government itself is engaging in religious speech, such
`as a government-sponsored prayer or a government-
`sponsored religious display. Nor is this a case like Bur-
`well v. Hobby Lobby Stores, Inc., 573 U. S. 682 (2014), or
`Smith, 494 U. S. 872, where a religious group or person is
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`asking for an accommodation or exemption from a gener-
`ally applicable law. Under the Court’s precedents, both of
`those categories of cases can pose difficult questions. This
`kind of case, by contrast, should not be as difficult: Bar-
`ring religious organizations because they are religious
`from a general historic preservation grants program is
`pure discrimination against religion.
`*
`*
`*
`At some point, this Court will need to decide whether
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`governments that distribute historic preservation funds
`may deny funds to religious organizations simply because
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`the organizations are religious. But at this point and in
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`this case, it is appropriate to deny certiorari, for two main
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`reasons. First, the factual details of the Morris County
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`program are not entirely clear. In particular, it is not
`evident precisely what kinds of buildings can be funded
`under the Morris County program. That factual uncer-
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`5
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` Cite as: 586 U. S. ____ (2019)
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`Statement of KAVANAUGH, J.
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`tainty about the scope of the program could hamper our
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`analysis of petitioners’ religious discrimination claim.
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`Second, this Court decided Trinity Lutheran only recently,
`and there is not yet a robust post-Trinity Lutheran body of
`case law in the lower courts on the question whether
`governments may exclude religious organizations from
`general historic preservation grants programs.
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`For those reasons, denial of certiorari is appropriate. As
`always, a denial of certiorari does not imply agreement or
`disagreement with the decision of the relevant federal
`court of appeals or state supreme court.
`In my view,
`prohibiting historic preservation grants to religious organ-
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`izations simply because the organizations are religious
`would raise serious questions under this Court’s prece-
`dents and the Constitution’s fundamental guarantee of
`equality.
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