MA Supreme Judicial Court Issues Decision in Acton Lawsuit
Nov. 5, 2018: The Supreme Judicial Court has issued its ruling regarding the ongoing ten-taxpayer lawsuit against the Town of Acton. However, the results of this ruling are quite complicated, and there are still several questions remaining as to how this will affect CPA funding for historic religious institutions going forward. For an excellent, plain language legal overview of the Acton decision, we recommend reading the following summaries:
- Hemenway & Barnes Attorney Patrick Moore's bullet point summary
- Attorney Jonathan Bockian’s summary on his blog, Preservation Law Digest
Does the anti-aid amendment prohibit all grants to historic religious buildings?
The plaintiffs had argued that the anti-aid amendment requires an "unequivocal and unqualified" ban on the grant of public funds to churches. The SJC disagreed, allowing that they could see situations where grants could be made to religious organizations. "We can imagine various circumstances where such grants would survive careful scrutiny, including, for instance, 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.” The second example is a reference to Acton case, where some of the funds were to be spent on two historic houses that the church owns. The houses are residences and not used for religious purposes.
So the court left open the possibility of some grants to religious organizations. But it’s conceivable that the SJC set the bar so high for these grants that it might be difficult for towns to preserve religious historic resources in the future. Acton’s attorney, Nina Pickering-Cook, was quoted in the Boston Globe, saying the ruling could have a “chilling effect” on such grants.
How should decisions be made on these type of grants?
The court said that communities must analyze potential grants under a three-factor test outlined in a 1981 SJC decision, Commonwealth v. School Committee of Springfield. According to the SJC, the decision should be based 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 the end the SJC decided that Acton’s grant to restore stained glass windows with religious imagery failed the test and ordered the lower court to issue a preliminary injunction barring the grants. The SJC said they did not have enough information on the second Acton grant – a master plan of the Church’s historic buildings – so it sent the case back to the lower court for more discovery. However, in November of 2018, the church withdrew their request for CPA funding, and the case in the lower court was dismissed.
In the absence of a definitive conclusion to the case, it’s hard to imagine CPA communities stepping through the three-part test for CPA applications from religious institutions without a full review by legal counsel. After all, it took the SJC six months and 77 pages to complete their analysis of the Acton CPA grants! Should your Community Preservation Committee receive CPA applications from a religious institution, the Coalition recommends forwarding them to your municipal counsel for review and eligibility determination.
One more question to ponder in the SJC decision - an interesting take on Preservation Restrictions
Until now, many communities felt that they were protecting the public’s interest in these grants by requiring that a preservation restriction covering the church building be given to the town. That was a condition of Acton’s grant award. The state also requires that it hold such restrictions on all the grants made by the Massachusetts Historic Commission for religious buildings. But the SJC had an interesting interpretation of a public entity holding a restriction on a religious building. It said that:
"...these grants also present a risk of government entanglement with religion. To ensure that the grants are used for historic preservation, the town has imposed on the church the condition that it execute a historic preservation restriction, which – if the restrictions accompanying the town's prior grants under the act are any indication – would significantly limit the church's ability to make future alterations to its buildings, including its worship space and its stained glass windows, without the town's approval. We have held in other contexts that where the State exercises control over the design features of a church, it infringes on the free exercise of religion guaranteed under the Massachusetts Constitution."