May the Government provide funding for religious schools that discriminate based upon gender and other suspect classifications? The currently-pending case, American Civil Liberty Union of New Jersey; Unitarian Universalist Legislative Ministry of NJ and Gloria Shore Andersen v. Rochelle Hendricks and Andrew P. Sidomon-Eristoff, Superior Court of New Jersey, Chancery Division, General Equity Part: Mercer County is seeking to answer that question.

The suit stems from a $750 million bond issue that was approved by New Jersey taxpayers to fund higher education. $11 million dollars of that money was allocated by Governor Christie to support two New Jersey schools: Beth Medrash Govoha and Princeton Theological Seminary. The issue relates to whether these institutions should have been funded with government money, given the fact that they train clergy and discriminate (albeit, legally) on the basis of suspect classifications, such as gender and religion.

One of the interesting aspects of this case it is primarily being brought under the New Jersey Constitution. It provides protection against government intrusion into religious matters that is superior to that of the federal constitution.  Indeed, Article 1, paragraph 3 of the New Jersey Constitution prohibits taxes being used “for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry” and Article 1, paragraph 4 prohibits establishing a preference for one sect over another.

Another impediment to the funding is that the schools engage in activity that, if engaged in by a private party, would violate the New Jersey Law Against Discrimination. Religious institutions enjoy an exception to that law which allows them to discriminate on such items as gender or religion. However, the government is covered by the restrictions in the New Jersey Law Against Discrimination. Therefore, when the government funds an otherwise exempt institution, the government is violating the Law Against Discrimination.

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