Court: Town can't use tax money to help a historic church repair its stained-glass windows

The Supreme Judicial Court ruled today that the town of Acton can't give a church in its historic town center a grant to repair its stained-glass windows, at least for the time being, not because of the First Amendment, but because of a section of the Massachusetts constitution related to grants to private institutions.

But in a ruling that reaches back to the earliest days of the state and our Know Nothing past, the state's highest court ruled this doesn't mean funds from a property-tax surcharge aimed at historic preservation can never be used for religious buildings - in fact, the justices ordered the Superior Court judge in the case to gather more information from the town and opponents about why the Acton Congregational Church shouldn't get another grant, approved by Town Meeting, to do planning for how to preserve the three buildings it owns in the town center.

At issue are two grants Action Town Meeting approved using funds from its Community Preservation Act surcharge on local property taxes - $51,237 to repair the church's stained-glass windows, one of which "depicts Jesus and a kneeling woman," another of which "features a cross and the hymnal phrase, 'Rock of Ages Cleft for Me,' " and $49,500 to develop a master plan for the church building and two other buildings the church owns.

The church had sought the funds under the "historic preservation" component of the act, saying that its membership had long been in decline and it did not have the funds itself to maintain key parts of the town center, which features several colonial buildings clustered around a monument to the Minutemen who marched to the Battle of Concord.

After the Town Meeting vote, several residents then sued the town, saying the state constitution bars the use of public money to support religious organizations.

The SJC basically said today: Mostly, but not entirely.

The current "anti-aid" provision of the state constitution - first enacted in 1855, when the state was dominated by Catholic-hating Know Nothings, and then amended in 1917 - has two sections, one of which bars the use of public money for "founding, maintaining or aiding" private institutions in general, the other of which applies the same standard specifically to religious institutions. Although the 1855 amendment was spurred in part by anti-Catholic bias, other backers also brought up the reason the state repealed its original, Revolutionary-era constitutional clause requiring taxpayer funding of Congregational churches: If you give money to one church, you have to give money to all of them and the state couldn't afford that.

In an earlier case involving a Springfield private school, the court held cities and towns in fact could aid private institutions, providing their grants passed a three-step test:

[F]ocusing on the purpose of the grant, the extent to which the grant aids the private institution, and whether the grant "avoids the political and economic abuses" that led to the passage of the anti-aid amendment, all of which must be carefully balanced in determining its constitutionality.

In its ruling today, the court said the same standard applies to religious organizations. While on their face, most public grants to religious organizations would be unconstitutional,

The words of the second clause are not: "No grants shall be made to any church." Rather, the second clause prohibits only grants that are made "for the purpose of founding, maintaining or aiding any church," and we cannot know that every grant to a church will be for that purpose. The categorical prohibition urged by the plaintiffs therefore invites the danger of overbreadth - and of hubris. We do not presume that we have the wisdom or imagination to contemplate every possible grant of public funds to a "church, religious denomination or society" and be certain that all of them, regardless of purpose, effect, or historical context, would be barred by the anti-aid amendment.

As an example, the court cited a case in Missouri - where the state constitution specifically denies all grants to religious organizations - in which a religious school was denied a state grant to make a preschool playground safer by replacing its hard surface with one made of recycled tires:

[U]nder our three-factor test, whether a church can receive such a grant depends on the grant's purpose, effect, and the risk that its award might trigger the risks that prompted the passage of the anti-aid amendment. Such an analysis would surely not bar the grant of public funds to a church preschool to provide a safer surface for its playground [in Massachusetts].

Turning back to the Acton Congregational Church, the court concluded that the grant for the stained-glass windows went too far - because it would aid the church in its core function of religion, given the role stained-glass windows serve in churches and even because it would entangle government and religion, because of a requirement that the stained-glass windows be maintained in perpetuity. What, the court asked, if the church's core religious beliefs changed?

Although the record before us does not allow us to ascertain whether there is a motivating purpose behind this grant other than historic preservation, its effect is to substantially aid the church in its essential function and, given the explicit religious imagery of the stained glass, it fails to avoid the very risks that the framers of the anti-aid amendment hoped to avoid. Thus, even if further discovery were to reveal that the sole motivating purpose of this grant was in fact to preserve historic resources, and not to aid this particular church, the other factors in our analysis -- especially the third factor, to which we accord special weight - - still compel the conclusion that the stained glass grant runs afoul of the anti-aid amendment. Because the plaintiffs are likely to succeed on the merits of their claim, and a preliminary injunction would "promote[] the public interest" reflected in the anti-aid amendment, LeClair, 430 Mass. at 332, the plaintiffs are entitled to a preliminary injunction barring the disbursement of the stained glass grant.

However, the court stopped short of ruling against the grant for a three-building master plan, because it would involve broader issues - the other two buildings are used as private residences - and ordering the Superior Court judge to allow both sides more time to conduct discovery and make arguments on their cases.