"At some point, this Court will need to decide whether governments that distribute historic preservation funds may deny funds to religious organizations simply because the organizations are religious," Kavanaugh wrote.
Kavanaugh, who voted to deny the cases on technical grounds, wrote that preventing preservation funds from going to religious organizations "simply because the organizations are religious" raised "serious questions."
"Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion," he wrote.
The nation's top court last addressed the matter in 2017, when it found that it was discriminatory for states to block taxpayer funds to religious schools, but limited their opinion in a footnote to the very specific case of playground resurfacing. Justices Clarence Thomas and Gorsuch at the time took issue with that limitation.
In its ruling, New Jersey's top court declined to extend the Supreme Court's reasoning to historic preservation grants, saying the cases are distinct because playground resurfacing is not a religious use, but church repairs are.
"The Churches are not being denied grant funds because they are religious institutions; they are being denied public funds because of what they plan to do — and in many cases have done: use public funds to repair church buildings so that religious worship services can be held there," wrote Stuart Rabner, the top judge on the New Jersey court.
Kavanaugh seemed to take issue with that interpretation, decrying what he called the "No religious organizations need apply" rule that he said "appears similar" to the playground case.