Today, the Supreme Court denied review in a pair of cases raising a troubling fact pattern:  In New Jersey, counties may distribute historic preservation funds to help preserve local buildings—so long as those buildings are not religious buildings. 

            The petitioners argued that the State’s exclusion of religious buildings from historic preservation programs constituted unconstitutional discrimination in violation of the First and Fourteenth Amendments.  Justice Kavanaugh took the highly unusual step of issuing a statement agreeing with the Supreme Court’s denial of certiorari (because he thought the record was not clear enough for review) in order to highlight the constitutional principles at stake and to indicate that he found much to agree with in the petition. 

Justice Kavanaugh, joined by Justices Alito and Gorsuch, found that the New Jersey Supreme Court decision upholding the State’s discrimination against religious buildings, was “in serious tension with this Court’s religious equality precedents.”  In Justice Kavanaugh’s view, the “same principle of religious equality applies to governmental benefits or grants programs in which religious organizations or people seek benefits or grants on the same terms as secular organizations or people—at least … so long as the government does not fund the training of clergy.” 

As Justice Kavanaugh pointed out, the Constitution “protects religious observers against unequal treatment.”  Indeed, the Supreme Court explained the principle of religious equality in governmental benefits just a few years ago in a case coming out of Missouri.  In Trinity Lutheran, Missouri allowed secular private schools to obtain grants to improve their playgrounds, but barred religious schools.  Missouri’s law, the Court wrote, reflected the unconstitutional policy: “No churches need apply.”  The Supreme Court had little patience for this practice holding that discrimination against religious schools simply because they are religious “is odious to our Constitution.”

Justice Kavanaugh wrote separately today to emphasize the similarities between the Missouri and New Jersey programs: “New Jersey’s ‘No religious organizations need apply’ for historic preservation grants appears similar to, for example, Missouri’s ‘No religious schools need apply’ for school playground grants.”  As a result, Justice Kavanaugh thought the New Jersey case an easy one, “Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.”

            To those who thought then-Judge Kavanaugh’s views on religious liberty “troubling”—today’s strong Statement from the Justice respecting the denial of certiorari should put doubts to rest.