Found v. Morris Cnty. Bd. of Chosen Freeholders

*994**547From 2012 to 2015, Morris County awarded $4.6 million in taxpayer funds to repair twelve churches, as part of a historic preservation program. This appeal raises two questions: whether the grant program violated the Religious Aid Clause of the New Jersey Constitution and, if so, whether the Religious Aid Clause conflicts with the Free Exercise Clause of the United States Constitution.

The Religious Aid Clause has been a part of New Jersey's history since the 1776 Constitution. The clause guarantees that "[n]o person shall ... be obliged to pay ... taxes ... for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry."

**548N.J. Const. art. I, ¶ 3. The clause reflects a historic and substantial state interest. We find that the plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and that Morris County's program ran afoul of that longstanding provision.

Morris County and the grant recipients claim that to withhold grants from eligible churches would violate their rights under the Free Exercise Clause of the First Amendment. The County and the churches rely heavily on Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ----, 137 S.Ct. 2012, 198 L.Ed.2d 551 (2017), for support.

In the case before us, all of the churches have active congregations, and all have conducted regular worship services in one or more structures repaired with grant funds. Several churches specifically explained that they sought funds in order to be able to continue to host religious services. We do not believe Trinity Lutheran would require that grants be considered and extended to religious institutions under those circumstances.

We therefore reverse the trial court's decision to uphold the grants.

I.

A.

In 1992, the voters of Morris County approved a referendum to create a trust for open space and farmland preservation. The trust was funded by a county property tax. Ten years later, the voters authorized the County Freeholder Board to permit historic preservation funding under the trust. Today, the trust is known as the Morris County Open Space, Farmland, Floodplain Protection and Historic Preservation Trust Fund.

At the time of the grants in question, the trust considered applications to stabilize, repair, rehabilitate, renovate, restore, improve, protect, or preserve historic properties. To be eligible for consideration, a property had to be located in Morris *995County and **549either be listed on the National or New Jersey Register of Historic Places or be eligible for listing by the State historic preservation office.

Only four kinds of entities could apply for grants: municipal governments within Morris County; Morris County government; charitable conservancies whose purpose includes historic preservation; and religious institutions.

A review board evaluated applications and made recommendations to the Freeholder Board. Among other things, the review board considered the significance of the property, its physical condition and proposed use, the applicant's ability to match the funds requested, and the project's relationship to heritage education and tourism.

The Freeholder Board approved final awards. For religious institutions, grants could fund assessment reports, preparation of construction documents, construction projects for a building's exterior as well as its mechanical, electrical, and plumbing systems, and other items.

Certain conditions applied to grant recipients. Successful applicants that received construction grants of more than $50,000 cumulatively, over any number of funding cycles, had to execute a thirty-year easement agreement with the County. The "easement is a deed restriction that is used to assure long-term preservation of a historic property through proper maintenance and by limiting changes in use or appearance and preventing demolition of the property."

Grantees were also required to provide public access to properties that received grant funds. The County and the grant recipient were to "negotiate the days and hours that the property [would] be open to the public."

All work on a project had to be completed within two years once a grant was awarded; a one-year extension could be sought. Applicants who received funding also had to list their property on the National and New Jersey Registers of Historic Places.

**550B.

From 2012 to 2015, the Freeholder Board approved a total of $11,112,370 in grants from the trust fund. The Board awarded $4,634,394, or 41.7 percent, to twelve churches. The grants funded the preparation of construction documents and plans, and the restoration of church buildings, towers, parish houses, windows, and other items.

According to the parties' joint statement of stipulated facts, all twelve churches "have active congregations" and all "have conducted regular worship services in one or more of the structures" for which grant funds have been or will be used. All twelve houses of worship are Christian churches.

In addition to the stipulation, the record also includes the grant applications that the churches submitted, which detailed how the requested funds would be used and why they were needed. Several successful applicants specifically stated that funds were needed to allow the church to offer religious services. The Presbyterian Church in Morristown, for example, sought funds to restore the exterior of its chapel. The Church explained that a grant would "historically preserve the building allowing its continued use by our congregation for worship services as well as by the community and many other outside organizations that use it on a regular basis." The Church received a preservation grant to repair the chapel's roof and the air shaft in the church building; to pay for finishes, moisture protection, and other costs; and to finance interior carpentry, masonry, and concrete work.

*996The Church of the Redeemer received grants for the restoration of the exterior of its church building and parish house. As to the building, the Church wrote in its application that "[t]he impact of restoring the large slate roof and tower is entirely positive. It will restore a key structural element that has failed and assist in assuring that the building can continue in its existing use as a church and as an important building in Morristown."

**551Saint Peter's Episcopal Church of Morristown sought and received funds to repair the interior of its church tower. The Church observed that the funding would "ensure continued safe public access to the church for worship, periods of solitude and meditation during the week, and several concerts throughout the year, as well as the treasures the church and tower contain."

The First Baptist Church of Ledgewood received funds to create preservation plans, in particular, for "the tower, heating system, and the original stained glass window." The application noted that "[p]reservation of the Ledgewood Baptist Church will enable the congregation to continue to provide religious and community activities to the county's diverse population."

At least one application reveals that grant funds financed the restoration of religious imagery. The First Presbyterian Church of Boonton received funds to restore its "Rose Window" and "Walk to Emmaus" window.1 Interior photos of both windows are in the record. The Rose Window is above the entrance to the chapel; the "long, arched" Emmaus Window is located directly in front of the altar and depicts Jesus and two disciples. The Church explained in its application that "[p]reservation and repair of stained glass windows increase the beauty and the ambiance of the structure, as viewed from inside and outside." It is not clear from the record whether the stained glass windows at the First Baptist Church of Ledgewood, noted above, depict religious images.

C.

On December 1, 2015, the Freedom from Religion Foundation (FFRF) and David Steketee, a member of the group and a Morris County resident and taxpayer, (plaintiffs), filed a complaint in Superior Court. The complaint named the Freeholder Board, the review board, and the Morris County Treasurer, in his official capacity, (collectively, Morris County), as defendants. Plaintiffs **552asserted that the grants were unconstitutional and violated Steketee's substantive constitutional rights under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c).

Defendants removed the matter to the United States District Court for the District of New Jersey. The District Court later granted plaintiffs' motion to remand the case to state court. The court observed that plaintiffs "opted to allege a violation of their state rights, placing this case squarely within the state court," and explained that "[a]lthough Defendants' arguments center around potential federal defenses they may raise, that does not bring Plaintiffs' original cause of action within [federal] jurisdiction." After the remand, plaintiffs amended the complaint to include the grant recipients-the twelve churches-as defendants (Churches).

All parties moved for summary judgment. On January 9, 2017, the trial court granted defendants' motion and denied plaintiffs' cross-motion.

In a statement of reasons, the trial court noted that the case implicated several provisions *997of the New Jersey Constitution and centered on the Religious Aid Clause. The court concluded "that the only thing that is clear about [the Religious Aid Clause's] intended meaning is that it is not meant to be read literally" and that the grants were examples of "benevolent neutrality" on the part of the government, consistent with "the spirit of our state and federal Constitutions." For support, the court relied on Resnick v. East Brunswick Township Board of Education, 77 N.J. 88, 389 A.2d 944 (1978), Everson v. Board of Education of Ewing, 133 N.J.L. 350, 44 A.2d 333 (E. & A. 1945), aff'd, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and American Atheists, Inc. v. City of Detroit Downtown Development Authority, 567 F.3d 278 (6th Cir. 2009), which are addressed below.

"[T]o correctly interpret the meaning of [the Religious Aid Clause] in this particular instance, given these particular facts," the trial court found that the provision must be read "in conjunction with the State's longstanding tradition of neutrality in church-state relations ... and the adoption of pro-neutrality provisions of **553the State Constitution, such as Art. I, Para. 4 and 5." The court added that the Religious Aid Clause "must also be harmonized with" provisions in the Constitution that allow for eminent domain and the funding of historic preservation.

The court also noted that "[e]xcluding historical churches from receipt of reimbursements available to all historical buildings would be tantamount to impermissibly withholding ... general benefits to certain citizens on the basis of their religion," contrary to federal law.

We granted plaintiffs' motion for direct certification. 230 N.J. 478, 169 A.3d 974 (2017). We also granted the following motions for leave to appear as amicus curiae: a joint application by the American Civil Liberties Union, the American Civil Liberties Union of New Jersey, and Americans United for Separation of Church and State (collectively, ACLU); and individual applications from the New Jersey Historic Trust (NJHT) and the Becket Fund for Religious Liberty (Becket).

II.

This appeal involves a pure question of law. We therefore review the trial court's grant of summary judgment to defendants de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).

To help frame the issues, we begin with an overview of parts of the State and Federal Constitutions that are relevant to this appeal.

A.

The modern Constitution of 1947 includes the Religious Aid Clause. N.J. Const. art. I, ¶ 3. The clause states that no person shall "be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what **554he believes to be right or has deliberately and voluntarily engaged to perform." Ibid.

The text of the Constitution has deep roots in our State's history. The CONCESSIONS and Agreement of the Lords Propriators of the Province of New Cesarea or New Jersey to and with all and every the Adventurers and all such as shall settle or plant there (Concessions ), dated February 10, 1664, is considered the first document for the governance of what was then a province. See Samuel Smith, The History of the Colony of Nova-Caesaria, or New Jersey 61, 512-21 (1877). It expressly guaranteed religious liberty by recognizing that all persons may "fully have and enjoy ... their Judgments and Conciences in matters of Religion throughout" the province. Concessions ¶ 7, https://www.njstate lib.org/wp-content/uploads/slic_files/imported/Research_Guides/Historical_Documents/nj/CONCESS1.html.

*998At the same time, the document found that State-sponsored religion was compatible with liberty of conscience, so long as people could also support the religion of their choice. To that end, the General Assembly of the province was granted the power to "appoint such and soe many Ministers or Preachers as they shall think fitt, and to establish their maintenance." Id. ¶ 8.

In the years that followed, charters were enacted for the governance of East and West New Jersey, and each contained a provision in support of religious freedom. See Charter or Fundamental Laws of West New Jersey ch. XVI (1676), http://www.njstatelib.org/wp-content/uploads/slic_files/imported/Research_Guides/Historical_Documents/nj/NJ05A.html; Fundamental Constitutions for the Province of East New Jersey in America art. XVI (1683), http://avalon.law.yale.edu/17th_century/nj10.asp. Despite the new charters, however, the Concessions appear to have retained vitality, at least in East Jersey. See Edward Q. Keasbey, The Early Constitutions of New Jersey, 1 N.J. L. Rev. 20, 32-33 (1915). Also, the lifespan of the two charters was limited by the eventual surrender of both Jerseys to the Crown in 1702. See id. at 33; Carl H. Esbeck, **555Dissent & Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. Rev. 1385, 1469 (2004).

In that year, Edward Hyde, Lord Cornbury, was appointed Governor of both New Jersey and New York. Keasbey, 1 N.J. L. Rev. at 34. The Crown provided Cornbury with detailed instructions on how to govern; they included directions on religious liberty: "You are to permit a liberty of conscience to all person (except Papists) so they may be contented with a quiet and peaceable enjoyment of the same ...." Instructions for our Right Trusty and well beloved Edward Lord Cornbury ¶ 51 (1702), http://iplaw.rutgers.edu/statutes/LS/LS8.pdf#page=32.

Notwithstanding the intervening Instructions and charters, the Concessions remained an influential resource for the drafters of the first Constitution in 1776. See Charles R. Erdman, Jr., The New Jersey Constitution of 1776 4 (1929). It appears, though, that the establishment of religion provided for in the Concessions was successful on paper only. Esbeck, 2004 BYU L. Rev. at 1470-71. In reality, "a diverse array of religious traditions" took hold in New Jersey and "produced a spirit of toleration and liberty by the time independence was declared." Id. at 1468. And "in 1776, New Jersey settled any lingering uncertainty concerning church-state affairs by expressly prohibiting in its constitution the establishment of religion." Id. at 1472.

New Jersey's first Constitution, adopted on July 2, 1776, rejected the establishment of and compelled support for religion in two clauses. The first clause contains an express guarantee of the right to freedom from compelled support. The Religious Aid Clause in the 1776 Constitution provided as follows:

That no Person shall ever within this Colony be deprived of the inestimable Privilege of worshipping Almighty God in a Manner agreeable to the Dictates of his own Conscience; nor under any Pretence whatsoever compelled to attend any Place of Worship, contrary to his own Faith and Judgment; nor shall any Person within this Colony ever be obliged to pay Tithes, Taxes, or any other Rates, for the Purpose of building or repairing any Church or Churches, Place or Places of Worship, or for the Maintenance of any Minister or Ministry, contrary to what he believes to be right, or has deliberately or voluntarily engaged himself to perform.

*999[N.J. Const. of 1776 art. XVIII (emphasis added).]

**556The second provision contains language similar to the federal Establishment Clause:

That there shall be no Establishment of any one religious Sect in this Province in Preference to another; and that no Protestant Inhabitant of this Colony shall be denied the Enjoyment of any civil Right merely on Account of his religious Principles; but that all Persons, professing a Belief in the Faith of any Protestant Sect, who shall demean themselves peaceably under the Government as hereby established, shall be capable of being elected into any Office of Profit or Trust, or being a Member of either Branch of the Legislature, & shall fully & freely enjoy every Privilege & Immunity enjoyed by others their Fellow-Subjects.

[N.J. Const. of 1776 art. XIX (second emphasis added).]

The two clauses, in combination, reveal that (1) the freedom from being compelled to fund religious institutions through taxation-including the repair of churches-was a grant of personal liberty, and (2) unlike other rights, that freedom was not limited to Protestants.

The fact that New Jersey's first Constitution included a Religious Aid Clause is highly significant. First, it underscores the fundamental nature of the religious freedom clauses in our State's history. The 1776 Constitution is a brief document that outlines the organization of government and the powers of the executive, the legislative council, and the general assembly. The document guarantees only a few distinct rights: the right to vote, id. art. IV; the right to religious freedom, id. arts. XVIII-XIX; the right of an accused to have counsel and call witnesses, id. art. XVI; and the right to trial by jury, id. art. XXII. Viewed in that context, it is telling that the founders devoted careful attention to religious liberty in the first Constitution.

Second, of the twelve states that adopted constitutions from 1776 to 1780, none included a compelled support clause as precise and clear as the Religious Aid Clause. South Carolina adopted a compelled support provision in its second constitution, which it framed exclusively in terms of worship: "No person shall, by law, be obliged to pay towards the maintenance and support of a religious worship that he does not freely join in, or has not voluntarily engaged to support." S.C. Const. of 1778 art. XXXVIII.

**557Pennsylvania and Vermont adopted compelled support clauses that are similar to each other; both are more expansive than South Carolina's but less detailed than New Jersey's. See Pa. Const. of 1776, Decl. of Rights, art. II ("[N]o man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent ...."); Vt. Const. of 1777 ch. I, ¶ 3 ("[N]o man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worship, or maintain any minister, contrary to the dictates of his conscience ....").

North Carolina's first constitution, which took effect several months after New Jersey's, contained a provision most like the Religious Aid Clause:

[N]either shall any person, on any pre[t]ence whatsoever, be compelled to attend any place of worship contrary to his own faith or judgment, nor be obliged to pay, for the purchase of any glebe, or the building of any house of worship, or for the maintenance of any minister or ministry, contrary to what he believes right, [or] has voluntarily and personally engaged to perform[.]

*1000[N.C. Const. of 1776 art. XXXIV.]

Even that relatively detailed clause, though, does not mention the "repair" of houses of worship or ban payment of "taxes." See N.J. Const. of 1776 art. XVIII. New Jersey's Religious Aid Clause thus stands out as particularly specific for its time.

It is also worth noting that among the first states to adopt a constitution, some did not prohibit compelled support. Maryland's first constitution permitted the legislature to collect tax dollars "for the support of the Christian religion." Md. Const. of 1776, Decl. of Rights, art. XXXIII. Massachusetts, the last of the earliest states to disestablish, Esbeck, 2004 BYU L. Rev. at 1458, permitted towns, "at their own expense," to support "the institution of the public worship of God" and "Protestant teachers of ... religion." Mass. Const. of 1780 art. III.

The Religious Aid Clause in New Jersey's first Constitution also stands out in the broader context of the process states followed to ban the establishment of and compelled support for religion. That **558process reflected the views of some "religious sects [that] opposed establishment on the ground that it injured religion and subjected it to the control of civil authorities. Guaranteed state support was thought to stifle religious enthusiasm and initiative." Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1438 (1990).

"Disestablishment was not an abrupt legal development brought about at the national level as a consequence of the Revolution," but rather a change that "unfolded ... gradually, state by state, and somewhat differently in each state, depending on the state's unique colonial background." Esbeck, 2004 BYU L. Rev. at 1393. The process began in the Middle Colonies such as New Jersey and Delaware, which both adopted constitutions in 1776, and continued through 1833. Id. at 1393, 1457-58. The States thus disestablished individually, in response to their own experiences, well before the religion clauses of the First Amendment were applied to the States.2

"Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry." Locke v. Davey, 540 U.S. 712, 723, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004). Most also adopted "a prophylactic rule against the use of public funds for houses of worship." Trinity Lutheran, 137 S.Ct. at 2036 (Sotomayor, J., dissenting). Such prohibitions are commonly known as "compelled support clauses" and were initially "enacted to address the colonists' concern for church and state separation." Ellen M. Halstead, Note, After Zelman v. Simmons-Harris, School Voucher Programs Can Exclude Religious Schools, 54 Syracuse L. Rev. 147, 170 (2004).

**559Today, twenty-nine constitutions, including New Jersey's, have compelled support clauses.3 Ten other constitutions simply *1001prohibit the use of public money in aid of religion.4

Thus, although the States eventually included disestablishment and compelled support provisions in their constitutions, see Trinity Lutheran, 137 S.Ct. at 2036 (Sotomayor, J., dissenting), New Jersey did so early on and in quite concrete terms. The Religious Aid Clause's precision stressed New Jersey's departure from the Concessions, see Esbeck, 2004 BYU L. Rev. at 1457, and, perhaps, from authority in other states at the time. The clause also highlighted that New Jersey was at the forefront of a historic and substantial change, and signaled its longstanding and vigorous commitment to religious liberty and freedom from compelled support.

B.

New Jersey adopted its Second Constitution in 1844. The document began with a detailed list of individual rights and, among **560other things, moved the Religious Aid Clause to a new Article I, Paragraph 3 :

No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretence whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberately and voluntarily engaged to perform.

The words "other" and "the purpose of" do not appear in the Religious Aid Clause in the second Constitution, and no record explains those edits.

A streamlined Establishment Clause, which removed all restrictions to Protestants, can be found at Paragraph 4:

There shall be no establishment of one religious sect in preference to another; no religious test shall be required as a qualification for any office or public trust; and no person shall be denied the enjoyment of any civil right merely on account of his religious principles.

[ N.J. Const. of 1844 art. I, ¶ 4.]

C.

The Religious Aid Clause and the rest of Paragraph 3 were left virtually untouched in the modern Constitution of 1947. A revised Establishment Clause, along with strong non-discrimination language inspired by a similar provision in the New York Constitution, see 3 Proceedings of the Constitutional Convention of 1947 (Proceedings) 451, appears in Paragraphs 4 and 5. The text of those provisions remains unchanged since 1947:

*10023. No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.

4. There shall be no establishment of one religious sect in preference to another; no religious or racial test shall be required as a qualification for any office or public trust.

5. No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated **561in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.

[ N.J. Const. art. I, ¶¶ 3 to 5.]

The above history makes clear that New Jersey's Religious Aid Clause can be traced to the establishment of an independent government in the State in the 1700s. The provision was not inspired by the "Blaine Amendment"; nor was it a response to anti-immigrant or anti-Catholic bias.

"[T]he Blaine Amendment is a remnant of nineteenth-century religious bigotry promulgated by nativist political leaders who were alarmed by the growth of immigrant populations and who had a particular disdain for Catholics." Joseph P. Viteritti, Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 Harv. J.L. & Pub. Pol'y 657, 659 (1998). The label stems from a failed federal constitutional amendment introduced by Maine Congressman James G. Blaine in 1875. Id. at 670. The proposed amendment nevertheless "propelled" a movement among the states; fourteen "had enacted legislation prohibiting the use of public funds for religious schools" by 1876, and twenty-nine "had incorporated such provisions into their constitutions" by 1890. Id. at 670-73.

As the United States Supreme Court has observed, Blaine Amendments have "a shameful pedigree that we do not hesitate to disavow." Mitchell v. Helms, 530 U.S. 793, 828, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality opinion). New Jersey's Religious Aid Clause long pre-dated the Blaine Amendments and reflected a concern for religious freedom, not discrimination or hostility toward a particular religion.

D.

The parties also reference two other clauses in the State Constitution which provide for funding for historic preservation. See N.J. Const. art. VIII, § 2, ¶¶ 6, 7. Paragraph 6 of Article VIII was adopted in 1996 and amended several times; Paragraph 7 was adopted in 1998. Neither offers any details about the meaning or **562scope of "historic preservation" projects, and the provisions make no mention of religious institutions.

Amicus NJHT also references two statutes meant to preserve historic resources: the New Jersey Historic Trust, N.J.S.A. 13:1B-15.111 to -15.127, and the Garden State Preservation Trust Act, N.J.S.A. 13:8C-1 to -57. Neither act, however, refers to religious institutions. Cf. 54 U.S.C. § 302905(a) (sanctioning federal grants for the preservation of religious properties listed on the National Register if the grant's purpose "does not promote religion").

*1003E.

The First Amendment to the United States Constitution, of course, also protects religious freedom. The Free Exercise Clause provides that "Congress shall make no law ... prohibiting the free exercise" of religion. U.S. Const. amend. I. The Establishment Clause states that "Congress shall make no law respecting an establishment of religion." Ibid. Both are discussed below.

Under the Supremacy Clause, the Federal Constitution is "the supreme Law of the Land." U.S. Const. art. VI, cl. 2. State "constitutional provisions that conflict with the Federal Constitution are 'without effect.' " Comm. to Recall Robert Menendez From the Office of U.S. Senator v. Wells, 204 N.J. 79, 103, 7 A.3d 720 (2010) (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981) ).

III.

Plaintiffs argue that the plain language of the Religious Aid Clause prohibits the use of tax revenues to repair churches with active congregations and that no other state constitutional provisions require a departure from that plain-language reading. According to plaintiffs, the challenged grants fall squarely within the Religious Aid Clause's prohibition and are unconstitutional.

In plaintiffs' view, the Federal Constitution does not compel a different result. Plaintiffs assert that the Religious Aid Clause **563does not violate either the Free Exercise or the Equal Protection Clauses. " Trinity Lutheran's free exercise protections do not apply to this case," plaintiffs contend, because "[b]uilding or repairing houses of worship directly advances religion, even if that is not the government's intent." Plaintiffs distinguish between church buildings that are active houses of worship and facilities that either never were or are no longer used for religious purposes.

In addition, plaintiffs contend that the County's program would be unlikely to pass muster under the federal Establishment Clause.

The ACLU agrees with plaintiffs' interpretation of the Religious Aid Clause and adds that the history of the clause does not support an exception for "historical preservation." The ACLU also submits that no other part of the State Constitution overrides the Religious Aid Clause. Like plaintiffs, the ACLU maintains that the Free Exercise Clause does not compel funding of historic-preservation grants that support religious worship. In addition, the ACLU argues that the federal Establishment Clause would not permit the grants.

The Churches dispute plaintiffs' interpretation of the Religious Aid Clause. They assert that the clause, read in context, permits religious institutions to participate in programs that advance secular government interests and are governed by neutral criteria. According to the Churches, the language of the Religious Aid Clause cannot properly be read in isolation.

The Churches also argue that plaintiffs' interpretation of the Religious Aid Clause violates the First Amendment under Trinity Lutheran. According to the Churches, the grants challenged in this case cannot be distinguished from the program at issue in Trinity Lutheran.

The Churches add that the federal Establishment Clause does not call for a different result. Finally, the Churches maintain that there are no grounds to order them to refund the grants.

**564Like the Churches, the Morris County defendants focus on Trinity Lutheran and argue that "the First Amendment jurisprudence of the United States Supreme *1004Court requires" that the grants be upheld. Morris County adds that excluding churches from the list of eligible grant applicants "would force the County to deny religious institutions equal protection under the Fourteenth Amendment to the United States Constitution." They join the Churches in asking the Court to uphold the grant program and affirm the trial court.

Becket agrees with defendants that the grant program here is governed by Trinity Lutheran because it "is a generally available public benefit whose recipients are selected through a competitive grant application process based on secular criteria and ... is open to 'all historic sites within the State' without reference to religious status." Becket stresses that to exclude religious groups from the program "because of their religious status" would "violate[ ] the Free Exercise Clause under Trinity Lutheran." According to Becket, "New Jersey's anti-establishment interest" in this matter "is nil," and any such state interest "would be insufficient because the grant program does not even come close to violating the federal Establishment Clause."

The NJHT represents that it has awarded "grant funds for historic preservation of eligible properties owned by religious institutions for decades." To exclude religious institutions from public benefits "based solely on their religious status," the NJHT asserts, would conflict with the State and Federal Constitutions and related case law. The NJHT contends that "the trial court aptly analogized Morris County's program to Detroit's revitalization program considered in" American Atheists. The NJHT also argues that because the programs have a "neutral public purpose and are administered in a way that ensures secular use of funds," the programs pass muster under the religion clauses.

IV.

The first step in our analysis is to determine whether the historic preservation