Using CPA For Historic Preservation of Churches and other Religious Institutions

December 20, 2012: One of the more frequent questions we receive on the Coalition technical assistance line is the eligibility of religious institutions to use CPA funding for historic preservation projects. As we detailed in an issue of the CPA Update, these type of projects are very popular in CPA communities across the state.

We asked Attorney Todd Helwig, a member of the Coalition Steering Committee, to research the issues surrounding CPA-funded projects on churches and other religious structures.

Do Community Preservation Act grants for the historic preservation of churches and other religious structures violate the Establishment Clause of the First Amendment of the U.S. Constitution and/or the Anti-Aid Amendment of the Massachusetts Constitution?

Establishment Clause:
There are no Supreme Court decisions directly addressing this question. Two Supreme Court decisions from the early 1970s concerning religious schools suggest that providing government funding for the historic preservation of religious structures is prohibited under the Establishment Clause; however some recent Establishment Clause decisions suggest that these two cases may no longer be good law or controlling on this question. On the basis of these recent decisions, a 2003 memorandum from the Justice Department opined that a federal grant for the historic preservation of a church was not prohibited by the Establishment Clause.

Anti-Aid Amendment:
Provided that Community Preservation Act grants for religious structures have a public purpose (i.e.: historic preservation), rather than seeking to advance the private purposes of the religious organization, such grants do not violate the Anti-Aid Amendment of the Massachusetts Constitution.

Establishment Clause:
The two Supreme Court cases most factually analogous to this question involve government funding for religious schools. In Tilton v. Richardson, 403 U.S. 672 (1971), the Supreme Court held that federal funds may not be used to construct buildings at a religious college if those buildings could ever be used for religious instruction or worship. In Committee for Public Education v. Nyquist, 413 U.S. 756, 774 (1973), the Supreme Court invalidated a state program providing maintenance and repair grants for religious elementary and secondary schools because the grants were not limited to facilities used only for secular purposes. Neither of these decisions has been overruled, and there have been no subsequent decisions regarding funding for religious structures under the Establishment Clause.

More recent Supreme Court decisions, however, have held that providing government funding for religious organizations may be permissible under the Establishment Clause, provided that the funding has a secular purpose and does not have the effect of advancing or inhibiting religion. See Agostini v. Felton, 521 U.S. 203 (1997). Among these recent cases:

• Agostini, upholding a state program where public employees provided on-site remedial education to students attending private schools in poor areas, many of which were religious schools;

• Mitchell v. Helms, 530 U.S. 793 (2000), upholding a federal program providing materials and equipment to public and private schools, where all such materials were secular in nature and could not be used for religious purposes; and

• Zelman v. Simmons-Harris, 536 U.S. 639 (2002), upholding a state school voucher program, providing funding to parents to send their children to public or private schools, often religious schools.

Given the holdings in these cases, it is possible that the Supreme Court would uphold a program providing government funding for the historic preservation of churches and other religious buildings, if those funds were distributed for a secular purpose and did not have the effect of advancing or inhibiting religion.

This is the conclusion set forth in a 2003 memo written by M. Edward Whelan III of the Justice Department’s Office of Legal Counsel, which opined that a federal grant to Boston’s Old North Church did not violate the Establishment Clause. The Whelan memo reasoned that the federal Save America’s Treasures program could provide funding to preserve the church because 1) the government had a secular purpose (historic preservation), 2) the grants program was available to a broad class of potential recipients (religious and secular), and 3) there was no basis to conclude that the grant program was not administered in a neutral manner, with no preference for or bias against religious organizations. The Whelan memo based its analysis on the holdings in the three recent cases cited above, and reasoned that the Tilton and Nyquist decisions were not controlling on the question of whether government funds could be used for the historic preservation of religious structures.

The Save America’s Treasures program has continued to provide funding for religious structures, in addition to secular buildings. The Whelan memo has also been relied upon by other federal agencies under the Obama administration.

Anti-Aid Amendment:
The Anti-Aid Amendment of the Massachusetts Constitution (Mass. Const. Amend. Article 46, Section 2, as amended by Article 103) prohibits the use of public funds for the purpose of aiding a private entity. Private entities may, however, receive public funds if those funds are provided to advance a public purpose. Therefore, provided that Community Preservation grants for the historic preservation of privately-owned buildings, including religious structures, have a public purpose (historic preservation), such grants would not violate the Anti-Aid Amendment of the Massachusetts Constitution.

The Massachusetts Department of Revenue (DOR) endorsed this position in an Opinion Letter to the Town of Norfolk dated February 9, 2007 (only the relevant portions of the letter are shown). DOR suggested, however, that grants to private organizations for historic preservation require an historic preservation restriction be conveyed to secure the public’s benefit from the grant.