by Kate R. Cook
The recent Supreme Judicial Court (SJC) decision Caplan v. Acton, 479 Mass. 69 (2018), addresses whether taxpayer dollars can be used to fund an active church. It’s an important question, and one that attracts strong opinions, especially in a case like Caplan, where the facts center on a popular state grant program that provides funding for historic preservation—something Massachusetts needs a lot of. And for those of us that agree with James Madison, that even three pence in aid is too much when it comes to taxpayer dollars funding religious institutions, anything short of an outright prohibition is cause for concern. So it is easy to see why some might be disappointed that the SJC’s answer is: Maybe. But the Court’s decision is not surprising. Grounded in a textual analysis of the Massachusetts anti-aid amendment and SJC precedent, the decision appropriately leans into the principles animating the amendment, holding public aid to an active church “warrants careful scrutiny.” Id. at 71. Though not unexpected, the decision is significant for two reasons. First, the decision confirms the force of the Massachusetts anti-aid amendment in the wake of the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), which held that a church could not be excluded from a government public grant program “solely because it is a church” as that would penalize the free exercise of religion. Second, as already mentioned, the decision reinforces why church-state separation is important to our democracy, delving deep into three major concerns that led to passage of the anti-aid amendment: infringement on taxpayers’ liberty of conscience; government entanglement with religion; and civic disharmony.
In Caplan, taxpayers in the town of Acton challenged the town’s decision to provide two Community Preservation Act grants to an active church under the anti-aid amendment. One grant was intended to fund the restoration of stained glass windows in the main church, including a window depicting Jesus and a kneeling woman and a window featuring a cross and the hymnal phrase, “Rock of Ages Cleft for Me.” The other grant was intended to fund a master plan for historic preservation for three different buildings on the church grounds.
The plaintiff taxpayers argued that the Massachusetts constitution requires a categorical ban on providing any public funds to active churches. The town, on the other hand, argued that the purpose of the Community Preservation Act is constitutional and that, after the Supreme Court decision in Trinity Lutheran, denial of the grant to the church would violate the free exercise of religion under the First Amendment to the United States Constitution.
The SJC declined to adopt wholly either party’s argument, but instead reached a pragmatic conclusion rooted in the constitution’s text and prior court decisions interpreting the anti-aid amendment. The SJC held that whether a grant of public funds to active churches is permissible must be considered under the three-factor test first set forth in Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 675 (1981), which considered whether public funding of special education placements of public school students in private schools was permissible. That test is: “whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment.” Caplan, 479 Mass. at 71.
Applying this test, the Caplan majority found that the stained glass windows grant was most certainly unconstitutional, and remanded for further discovery the question of whether the “purpose” of the master plan grant was to aid the church in violation of the anti-aid amendment.
To be sure, the SJC’s evidentiary focus on the purpose of a Community Preservation Act grant to an active church will be more difficult for municipalities to implement than either a categorical ban on aid or an approach that ignores the anti-aid amendment altogether. But Caplan is neither impossible for towns to implement nor a death knell for historic preservation. First, churches still may apply for Community Preservation Act grants, and towns cannot deny their application “solely because [the applicant] is a church.” Quite the contrary, “[t]he fact that an applicant is an active church is a relevant but by no means disqualifying consideration.” Id. at 85 n.18. The Court offered examples of permissible grants: grants to a church where historical events of great significance occurred in the church (id. at 94, 101 n.3 (describing the Old North Church)); grants to preserve church property with a primarily secular purpose (id. at 94); and of course, grants to a church preschool to provide a safer surface for its playground (id. at 85). Second, for historic churches seeking to make repairs that fail to meet the three part test, there are other constitutional ways to obtain funding. For instance, the National Fund for Sacred Places is a grantmaking nonprofit providing congregations with resources to support restoration of their historic facilities. Finally, the SJC’s suggestion that the town be subject to limited discovery regarding the purpose of the master plan grant—something the plaintiffs had requested and been denied in the lower court—is not overly cumbersome. Municipalities routinely respond to discovery requests, including Rule 30(b)(6) depositions, in a variety of matters, and they are more than capable of doing so in this context as well.
Moreover, expediency is not a reason to abandon the sound reasons the framers sought to prohibit the expenditure of taxpayer dollars for the “purpose of founding, maintaining or aiding [a] church.” Art. 18, § 2. The Caplan decision wisely places front and center three concerns that led to the anti-aid amendment, which are as real today as they were a century ago when the current Massachusetts anti-aid amendment was adopted and bear repeating. First, the grant of public funds to religious institutions risks infringing on taxpayers’ liberty of conscience. Indeed, compelling individuals to financially support religion directly harms the fundamental right of freedom of conscience. Whether to follow a particular faith, or none at all, is a choice that every individual has the right to make, free of coercion.
Second, providing public funds directly to an active house of worship runs the risk of government becoming enmeshed with religion. This entanglement creates incentives that may not align with religious beliefs and may encourage religious institutions to curry favor with the government in hopes of receiving government grants. See David Saperstein, Public Accountability and Faith-Based Organizations: A Problem Best Avoided, 116 HARVARD LAW REV. 1367-68 (2003). “With government money come government rules, regulations, audits, monitoring, interference, and control—all of which inherently threaten religious autonomy.” Id., at 1365.
Third, providing taxpayer dollars to religious institutions risks damaging civic harmony. “Town meeting members were being asked to vote on a grant to maintain religious aspects of the church of their neighbors and now they are suing each other.” Caplan. at 103 (Kafker, J. concurring). For the State to subsidize religious institutions risks pitting faith against faith by creating competition for funds and conflict among religions as they vie for an ever-larger share of public funds. See Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 53-54 (1947) (Rutledge, J., dissenting).
In conclusion, Caplan’s amplification of the concerns that led to the anti-aid amendment will strengthen both the church and the State. Liberty of conscience, avoiding church state entanglement, and nurturing civic harmony—these concerns remain ever present today. To paraphrase former President Obama, here in Massachusetts, “[o]ur brand of democracy is hard.” Our freedoms, including freedom of conscience and religious freedom, are well worth the effort.
Kate R. Cook is a partner at Sugarman Rogers and a co-chair of the BBA’s Civil Rights and Civil Liberties Section. She filed an amicus brief on behalf of the American Civil Liberties Union in support of the plaintiffs in Caplan v. Acton.
Caplan v. Town of Acton: The Supreme Judicial Court’s Decision on Public Funding for Historic Preservation of Churches Deepens the Enigma of the Enigma of the Anti-Aid Amendment to the Massachusetts ConstitutionPosted: August 16, 2018
by M. Patrick Moore
At the heart of Caplan v. Town of Acton is the fascinating question of whether a municipality may use public funds for preservation of historic religious structures that are still in active use. See 479 Mass. 69 (2018). The guidance provided by a splintered SJC—a resounding “maybe”—raised more concerns than it addressed in three hot-button areas. First, though the Court traced the ugly history of the Anti-Aid Amendment to the state constitution, it chose to emphasize the intent of its drafters over its plain text. Second, the Court may have placed its Anti-Aid Amendment cases on a collision course with recent Supreme Court jurisprudence, most prominently the 2017 headline-grabbing decision of Trinity Lutheran v. Comer, 582 U.S. —, 137 S. Ct. 2012 (2017). Third, in an aside that may prove to be Caplan’s most lasting mark, the Court opened the door to deposing a municipal government in search of the purportedly hidden motives of its policy-makers.
At issue in the case was whether two grants made by the Town of Acton to its Congregational Church under the Community Preservation Act were permitted under the Anti-Aid Amendment to the state constitution, where the Town asserted that the grants served the recognized public purpose of historical preservation. There was no dispute that the church was a central part of the Acton Centre Historic District, which is recognized as a historic place by agencies of the federal, state, and local governments. One grant would have supported the restoration of the stained glass windows of the Congregational Church; the other would have supported an architectural assessment of the structure of the church and two nearby buildings owned by it. Though the grants may have implicated the Establishment Clause of the United States Constitution, the taxpayers who challenged them relied exclusively on the Anti-Aid Amendment of the state constitution.
Over the past century, the Commonwealth’s Anti-Aid Amendment has been notable both for its broad textual scope and the narrow construction given to the text by the courts. Unlike similar amendments passed in dozens of states that focus exclusively on religious organizations, our Anti-Aid Amendment prohibits the grant of public money “for the purpose of founding, maintaining or aiding any . . . charitable or religious undertaking.” Mass. Const. Amend. art. 46, § 2, as amended by art. 103 (emphasis added). The plain text of the amendment indicates that an active charitable organization should face the same hurdles (if any) as an active church seeking public funds for the restoration of a historic building.
Alas, that is not how the amendment has been construed. In Bloom v. School Committee of Springfield, the SJC announced a three-factor test by which it would evaluate grants to charitable and religious organizations: (i) whether the grant serves a public purpose; (ii) whether the grant does, in fact, aid the organization; and (iii) “whether the [grant] avoids the political and economic [concerns] which prompted the passage” of the amendment. 382 Mass. 665, 675 (1981). Accord Helmes v. Commonwealth, 406 Mass. 873 (1990). As that test has been applied, though, the third factor consistently has proven dispositive. Almost without exception, the purpose of the spending is to accomplish some public purpose. Likewise, almost without exception, a grant of public funds to a charitable or religious organization does, in fact, benefit that organization. So the only question that truly matters is whether the grant implicates the “political and economic [concerns] which prompted” the Anti-Aid Amendment. The Caplan Court expounded on the drafters’ concerns, identifying them as the “the risks associated with the public financial support of religious institutions,” specifically the risks that “liberty of conscience would be infringed” by public support of religious organizations, that government and religion would be improperly intertwined if such spending were allowed, and that civic harmony would be “threaten[ed]” by such spending. 479 Mass. at 90.
Because of the importance of the third Springfield factor and its focus on religious institutions, the Anti-Aid Amendment as interpreted in Caplan—and Springfield and Helmes before it—is stringent when applied to religious organizations and functionally nonexistent when applied to secular charitable organizations. Take the historic preservation funding at issue in Caplan. Were it granted to a secular nonprofit, the third Springfield factor would not have been implicated at all; but, because the funding was granted to a church, that factor was the foundation of the Court’s conclusion that it was barred. This disparity is rooted in case law, which emphasizes the intent of the Amendment over its actual text.
The emphasis on intent over constitutional text is remarkable in any context, but all the more so in Caplan for two reasons. First, the decision reviews the history of the Anti-Aid Amendment at length, including its anti-Catholic, anti-immigrant, and Know Nothing Party roots. In light of that discriminatory history, it is troubling that the “concerns” of its framers are given any weight at all, let alone controlling weight. Second, in 2017, the Supreme Court of the United States held that a religious organization must not be disqualified from a public grant program, for which it otherwise would have been eligible, solely because it is a religious organization; such an exclusion is violative of the Free Exercise Clause of the First Amendment. See Trinity Lutheran Church of Columbia, Inc. v. Comer, — U.S. –, 137 S. Ct. 2012, 2023 (2017). In that case, the grant at issue was for playground resurfacing; the Supreme Court concluded that a church preschool could not be disqualified from a grant that it would have been awarded were it secular. Caplan, however, seems to have allowed just such a disqualification. Were a secular nonprofit rather than a church to have been the applicant in Caplan, it is difficult to imagine the grant failing the SJC’s three-factor Springfield test.
The SJC did, however, acknowledge the clear holding of Trinity Lutheran that the Anti-Aid Amendment cannot be interpreted to “impose a categorical ban on the grant of public funds to a church ‘solely because it is a church.’” Caplan, 479 Mass. at 85. So, no municipality that makes grants for historic preservation can deny a religious organization simply because it is a religious organization; the Free Exercise Clause dictates that such grants must be available to religious organizations under certain circumstances. The question is when. And that is a question that the 173 municipalities in the Commonwealth that make historic preservation grants are asking in the wake of Caplan, with conflicting guidance from the Court.
Chief Justice Gants’s plurality opinion, joined by Justices Budd and Lenk, states that grants to religious organizations will trigger “careful scrutiny” and suggests that they will be allowed only in narrow circumstances, such as “where historical events of great significance occurred in the church, or where the grants are limited to preserving church property with a primarily secular purpose.” 479 Mass. at 94. Justice Kafker’s concurrence contemplates a broader range of allowable grants, perhaps all that do not “repair or maintain particular parts of the church that convey and express religious message.” Id. at 105. There are three votes for that position, too, because the concurrence was joined by Justice Gaziano and Justice Cypher’s dissent rejected the concept of “careful scrutiny” altogether. So, what is a town to do with the next grant application by a religious organization? No matter its decision, litigation risks abound. A church could challenge a denial under Trinity Lutheran, and concerned taxpayers may challenge a grant under Caplan.
Perhaps the most lasting element of the Caplan decision—in this and other contexts—will be a quandary for municipalities defending against such litigation. A clear majority of the Court held that the plaintiffs should have been entitled to a Mass. R. Civ. P. 30(b)(6) deposition to determine whether the Town had a “hidden purpose” when it awarded the grants. The plaintiffs were not required to come forward with any evidence of malfeasance to support such discovery; the Court recognized a general “entitle[ment] to pursue discovery to ascertain whether there is a hidden purpose that motivated the issuance of the grant.” Caplan, 479 Mass. at 88. Such a blanket right to conduct depositions in search of a “hidden” governmental purpose is novel and could have significant effects for state and local policymakers if it is applied in other contexts. And, in practice, a Rule 30(b)(6) deposition begs the existential question of who speaks for the Town on political questions? Here, Acton’s Community Preservation Commission recommended the grants to its Town Meeting, which approved them. Who can speak to the motives of those multimember bodies? Town Counsel and Assistant Attorneys General face an unenviable task in sorting out the answer.
The Caplan Court may have arrived at the correct destination: The only grant spending it expressly barred was the use of public funds to pay for a church’s stained glass windows (which included an image of Jesus), about which there may be Establishment Clause concerns. But the path taken by the case, through the Anti-Aid Amendment and narrowly around Trinity Lutheran, is likely to yield more litigation and, perhaps, the attention of the Supreme Court of the United States.
M. Patrick Moore Jr. is co-chair of the Boston Bar Association’s Government Lawyers Forum and Counsel at Hemenway and Barnes LLP. He previously served as Associated Counsel and Advisor for Presidential Personnel in the White House of President Barack Obama, and as Deputy Legal Counsel to Governors Deval Patrick and Charlie Baker.