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April 27, 2018

New Jersey Supreme Court Rules in High-Profile Historic Preservation Grants Case

In a case that continues to attract national attention, the Supreme Court of New Jersey ruled on April 18 that the state’s Constitution should have barred $4.6 million in historic preservation grants awarded over a four-year period to a dozen Morris County churches represented by Florham Park partner Kenneth Wilbur and of counsel Walt Fleischer as part of Drinker Biddle’s Public Interest pro bono initiative. Ken Wilbur argued the case before the New Jersey Supreme Court in October 2017.

The court ruled that language included in the state’s original 1776 Constitution barring the use of public funds to repair any church had to be read literally, without regard to the secular public interest served by historic preservation. As the issue was a matter of first impression and the grants had been received and spent in good faith, the court did not require repayment of the grants and made its ruling prospective only.

The churches are considering possible next steps, as the court’s interpretation of the state Constitution creates a conflict with the federal Constitution as interpreted by the United States Supreme Court’s recent decision in Trinity Lutheran v. Comer, which holds that categorical exclusion of religious entities from neutral public welfare programs violates the Free Exercise Clause of the First Amendment.

Florham Park associate Justin Ginter assisted in the briefing, and Philadelphia partners Alfy Putnam and Alicia Hickok assisted in the preparations for oral argument before the Supreme Court of New Jersey.

Below are links to various media outlets that have reported on the case.

Results may vary depending on your particular facts and legal circumstances.

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