Church’s Preservation May Turn on Trinity Lutheran‘s Scope

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By Patrick L. Gregory

The Massachusetts Supreme Judicial Court seemed divided over whether a town can finance the historic preservation of an active church under the U.S. and Massachusetts constitutions at oral argument Sept. 7 Caplan v. Town of Acton, Mass., No. SJC-12274, 9/7/17 .

Courts continue to wrestle with the issue of public aid to churches following the U.S. Supreme Court’s recent ruling in favor of a church denied public playground funds, in Trinity Lutheran Church of Columbia, Inc. v. Comer.

Texas churches hit by Hurricane Harvey sued the Federal Emergency Management Agency this week, arguing that they should have access to disaster relief funds given to non-profit organizations.

Here, Massachusetts taxpayers sued the Town of Acton, Mass., challenging its grants of more than $100,000 total for historic preservation of the Acton Congregational Church, awarded under the state’s Community Preservation Act.

Part of the argument focused on whether and how to apply Trinity.

Categorical exclusion of churches from the grant program would violate the First Amendment’s free exercise clause under Trinity, Justice Scott L. Kafker suggested.

“I’m not aware of any case which has come close to saying that the state can pay for the renovation of churches,” Chief Justice Ralph D. Gants said.

Much of the argument centered on how to distinguish whether preservation funds are primarily benefiting religious uses or the public.

Trinity Lutheran

The Anti-Aid Amendment to the Massachusetts Constitution prohibits Acton’s grants to the church, Douglas P. Mishkin of Venable LLP, Washington, arguing for the taxpayers, said.

Further, neither Massachusetts’s high court nor the U.S. Supreme Court have ever allowed public funding of an active house of worship, Mishkin said.

“And Trinity Lutheran does not say otherwise,” he said.

But Kafker was skeptical. He questioned how excluding churches from receiving historical preservation grants differed from the categorical exclusion of churches from receiving public playground grants in Trinity Lutheran.

“I’m just trying to understand where the line is,” Kafker said.

Kafker didn’t see the church’s receipt of state funding in Trinity Lutheran to be “that different from what we’re talking about here,” he said.

But Trinity Lutheran focused on the categorical exclusion of churches based on their status as such, Mishkin said.

The Anti-Aid Amendment doesn’t have a status-based distinction, and the plaintiffs here weren’t urging the court to implement one, Mishkin said.

Rather, it prohibits the use of funds for religious purposes, he said.

Here, the money would be used for a religious purpose, because it would pay for maintaining the building of an active church congregation, he said.

The Anti-Aid Amendment could permit Massachusetts churches to receive grants for non-religious purposes, like the grants in Trinity, Mishkin suggested.

What’s Religious?

Courts are ill-equipped to determine what constitutes a religious use of funds, Nina L. Pickering-Cook of Anderson Kreiger LLP, Boston, arguing for the town, said.

She acknowledged that the church’s stained-glass windows contain religious imagery.

But something can have religious significance and also have historic significance that’s worthy of preservation, she said.

One factor courts should consider is whether a building primarily serves as an active house of worship, Mishkin said.

Boston’s “ Old North Church,” which helped Paul Revere warn about the British in 1775, has an active congregation, Justice Elspeth B. Cypher said.

The Old North Church is different because it’s used predominantly as a historic site rather than a religious one, Mishkin said.

But renovating the Acton church’s exterior could benefit a greater number of people who don’t attend the church than those who do, given that the church is in a highly visible location, Cypher said.

The church pleaded for the grants as an almost existential matter, Mishkin said.

The funding would therefore have the effect of sustaining an active house of worship in its religious functions, he said.

Entanglement Concerns

State funding of a church’s preservation raises a concern that government entanglement with religion could increase division among religious groups, Gants said.

That’s the same concern that led to the Anti-Aid Amendment’s enactment, he said.

Government funding to preserve historic buildings owned by religious institutions has occurred more than 300 times under the Community Preservation Act, Pickering-Cook said.

There has been no evidence of bias or unfairness toward any group, she said.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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