FOR NEARLY two centuries, the Acton Congregational Church has stood serenely in the town’s main square, its pews offering a welcoming haven for spiritual renewal and quiet reflection. Starting in 2016, however, it became the focal point for a closely-watched court battle over the separation of church and state.
On the church’s clapboard front, a pair of stained glass windows installed in 1898 depict Jesus and a kneeling woman. An attempt to restore those windows using public historic preservation funding kicked off a legal showdown that ultimately made its way to the Supreme Judicial Court.
In 2018, the SJC concluded that there is no total bar on using public dollars to preserve historic religious sites, but it said funding projects to restore explicitly religious iconography – such as the stained glass windows of the Acton church – almost certainly crosses the line and should not be permitted. But it’s unclear exactly where that line is, because the court sent a part of the case that might have more explicitly answered that question back to a lower court for further review. The two sides then agreed to drop that part of the case before a court ruling was made.
Five years later, communities are left making preservation grants on a case-by-case basis. The SJC laid out a test for them to use, but it draws a distinction between historic preservation projects eligible for public funding and overtly religious ones that are not, which, the justices acknowledged, could strike some as “subtle and even elusive.”
The result: cities and towns, preservation coalitions, and the state – along with the separation of church-and-state organization that brought the suit in the first place – don’t seem to agree on the basic rules governing what’s allowed and what isn’t when it comes to use of public funds.
“Cities and towns really wish they had some clear guidance out of this decision,” said Stuart Saginor, executive director of the Community Preservation Coalition, a statewide organization that works with state and local government on preservation efforts. “So it was disappointing that the case was never finished. And it really has raised a lot of other questions that, frankly, lawyers are really the only ones equipped to handle right now.”
BUSINESS AS USUAL
It’s hard to think about historic preservation in New England without including churches. Of the 2,000 places of worship across the Bay State’s 351 cities and towns, almost 250 of them are listed on the National and State Register of Historic Places or designated as Massachusetts historic landmarks.
“Religious institutions in New England formed the very fabric of most of our communities and even the physical appearance of a downtown community,” said Saginor. “The town green and the church is just an iconic New England institution that brings us tourism and quality of life, and it’s our history.”
The public funds allocated for the Acton church repair project were available because of a piece of legislation Saginor’s group spent years advocating for. The Community Preservation Act, which was finally passed by the Legislature and signed into law in 2000, allows local communities to seek voter approval to apply a small surcharge on property tax bills, with the proceeds earmarked for three uses: affordable housing, open space needs, and historic preservation. The program is now in place in 195 Massachusetts cities and towns.
Acton, a Middlesex County town of 24,000 residents, has approved about 200 Community Preservation Act projects since adopting the tax surcharge in 2002. Half of them were for historic preservation, a little higher than the average CPA community, and seven were for churches.
In 2015, the town received applications from the South Acton Congregational Church, seeking $15,000 for roof restoration, and the Acton Congregational Church, which asked for a $49,500 grant to fund a “Master Plan for Historic Preservation” for the main church building and two historic houses on the site, as well as $51,237 to restore and preserve the main church building’s stained glass windows.
In determining whether a proposal from a church merited funding with CPA dollars, the local review committee focused on whether it would help preserve the “historic character” of the community, said John Mangiaratti, the Acton town manager. “It had nothing to do with religion,” he said.
Twelve Acton taxpayers, organized by the Washington, DC-based Americans United for Separation of Church and State, disagreed.
They filed suit against the town, arguing that the “anti-aid amendment” to the Massachusetts Constitution bars spending public money to renovate an active church. After a winding legal road, the Supreme Judicial Court ultimately took up the question.
A MATTER OF OPINION
The anti-aid amendment, originally ratified in 1855 and amended into its modern form during the Constitutional Convention of 1917-1918, bars any “grant, appropriation or use of public money or property or loan of credit” to aid any “private charitable or religious undertaking.”
Americans United for Separation of Church and State had been receiving complaints here and there about CPA funding religious structures, said Alex Luchenitser, interim legal director and an associate vice president of the advocacy group, who was one of the attorneys on the case. After combing through project documents from CPA communities, they landed on Acton.
Before the case got to the SJC, the South Acton church withdrew its application. That left before the court the question of public funding for the Acton Congregational Church’s stained glass project and its master plan for historic preservation.
The projects were a prime test case for two reasons. First, the imagery in question, showing Jesus on the stained glass, was explicitly religious in nature. Another window featured a cross and the hymnal phrase, “Rock of Ages Cleft for Me.” What’s more, the application clearly tied the historic preservation funding to the church’s continued operation.
Chief Justice Ralph Gants, in the SJC’s lead opinion in 2018, wrote that the church “was candid in its grant applications, explaining that – faced with declining membership and contributions – it would need the town’s ‘help’ in order to preserve its buildings while also ‘offering the congregation what draws them to their church.’”
Gants’s opinion, in which he was joined by two justices, as well as a narrower concurring opinion authored by Justice Scott Kafker, and a dissent by Justice Elspeth Cypher all concluded that an absolute bar against state support for historic preservation purely because of religious affiliation would violate First Amendment protections.
They reached this conclusion partially because a new ruling from the US Supreme Court, issued while the Acton case was ongoing, weighed in on the public dollars for religious organizations question. In that case, involving a Lutheran church in Missouri, the nation’s highest court determined taxpayer-funded grants for playgrounds that are available to nonprofits under a state program must be made available for church-run schools as well.
Even in his more limited agreement with Gants and colleagues in the Acton case, Kafker warned that “only a very narrow category of exclusions are allowed” by the US Supreme Court’s recent rulings on religious freedom, limited to “essentially religious endeavors.”
An appropriate approach to the question of public funding of church projects, the SJC said in its ruling in the Acton case, would be applying a pre-existing three-factor test of the anti-aid amendment: “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 risks that prompted the passage of the anti-aid amendment in the first place.
Those original risks, according to the court, were that “liberty of conscience” could be infringed by forcing someone to financially support another religion; government could be entangled with religion, undermining the “independence and dignity” of churches; and public support of religious institutions could threaten “civic harmony.”
In their separate majority opinions, Gants and Kafker agreed that the stained glass window grant ran afoul of the three-factor test. This was a significant grant that would aid the church in its stated purpose, they concluded. And it also posed a great risk of infringing on liberty of conscience due to the imagery and entangling the state with religious purpose.
“In light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny,” Gants wrote. When the case was first heard in Superior Court, he wrote, the judge applied the three-factor test incorrectly and let the town go ahead with the grant. But the SJC only decided to block funding the stained glass window – with its clear religious imagery. It sent the question of the master planning grant back to the lower court for another look.
But it had been a long, expensive trip up to that point. Even after Acton’s town attorney, Nina Pickering-Cook, expressed confidence about prevailing before the lower court, the church, town, and Americans United agreed to have that grant request withdrawn and the case dismissed. The legal costs, Pickering-Cook would later say, “eclipsed” the roughly $100,000 of grant money at stake.
So everyone agrees the court said that preserving explicit religious imagery with state funding was generally out of bounds. But what about everything else?
It turns out leaving the door open a crack to preservation funding for religious sites was a blessing or a muddle, depending on who interprets the court.
Luchenitser, of Americans United, said the group was thrilled with the SJC’s clear ruling against using public preservation funds on “expressly religious imagery.” He said the group was also pleased with the three-factor test the court laid out, with its ban on using public funds “in a manner that could support the religious mission or religious activities of a house of worship.” Luchenitser said he interprets that to mean funds cannot be used to maintain a house of worship’s “structural integrity” – to literally support its use as an active church. In the case of grants for “cosmetic improvements,” he said, “it’s not clear whether that is prohibited or not.”
Luchenister’s view that public dollars can’t be used to support a religious building’s structural integrity, however, is at odds with the guidelines of a state historic preservation program that predates the Community Preservation Act by decades.
The CPA modeled its preservation standards on the Massachusetts Preservation Projects Fund run by the state Massachusetts Historical Commission. Its standards suggest that funding exterior maintenance of a historic religious structure is fine. Interior work, the state commission believes, would probably benefit the active congregation too directly.
From the Massachusetts Historical Commission’s perspective, the Acton lawsuit didn’t much impact its policies for historic preservation funding which generally permit “overall building preservation.”
“MPPF funds cannot be used for any work that is proposed for the interior of the church or on any religious statues or objects. MPPF funds cannot be used in any religious practice,” said Brona Simon, the state historic preservation officer and executive director of the Massachusetts Historical Commission. She said grants to historic churches have only gone for exterior work since the inception of the program.
The Historical Commission has not put out guidance for local communities or programs like the CPA to navigate the anti-aid test, before or after the 2018 ruling on Acton. Its policies simply note that in “buildings actively used for religious purposes, projects involving the interior of buildings, stained glass windows or other religious symbols are generally not considered eligible” for MPPF funding.
Another wrinkle, underlining the confusing relationship between church and state, involves one requirement of the state historical commission fund, which sets conditions on the use of its grants.
As a condition of getting funding under the state program, the property owner must agree to restrictions on the types of future alterations that can be made. For projects that involve repairing or restoring part of a structure, the state fund instructions say, the restriction will “run in perpetuity with the deed.” Many CPA communities have imposed similar restrictions as a condition of preservation funding.
Gants, in his ruling in the Acton case, suggested that could be a problem. Acton imposed a historic preservation restriction on the congregational church getting CPA funds. The restriction appeared to “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,” Gants wrote. “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.”
In other words, while the court put limits on public funding for religious sites in the Acton case, it also cautioned against attaching restrictions to those public grants to religious institutions that are deemed permissible. The messages may seem mixed, but they are, in effect, two sides of the same separation-of-church-and-state coin.
The recent state and federal decisions, coupled with the courts’ inability to ever rule on the broader use of public funds for the Acton church master plan, have left a messy tangle for local Community Preservation Act committees, which are mostly volunteer organizations.
Saginor, of the statewide CPA coalition, says the best advice the organization can give them on this topic is, first, do not reject a project out of hand because it is a church. That would put them up against the US Supreme Court standards from the church playground case. Beyond that broad admonition, Saginor said the only advice the coalition can offer is to send a proposal to the town or city legal team for a case-by-case review.
Americans United said it has considered whether the state – and its funding of church projects through Massachusetts Historical Commission – would be a good target for a lawsuit, but the group has no plans for litigation at this time.
Nevertheless, in a sign of the degree to which cities and towns feel they’re navigating murky legal waters, several communities that have adopted the Community Preservation Act surcharge declined, when contacted, to allow officials to discuss their approval process for funding projects out of fear they could say something that might trigger a new lawsuit.
Boston, the largest CPA community in the state, signs off on tens of millions of dollars for projects every year. Its latest round included about $10 million in historic preservation projects, 15 of them for religious structures of varying denominations. “The City’s Community Preservation Committee carefully reviews all applications to ensure compliance with the recent SJC ruling,” a city spokesperson said in a statement.
In written descriptions of recent church projects that received CPA funding, it’s easy to see an anxious effort to show compliance with the Acton ruling.
The Harvard Epworth Methodist Episcopal Church in Cambridge received $21,775 in CPA funding in 2019 and $50,000 in 2021. “The church undertook to repair and restore up to 18 stained glass windows (none with religious iconography),” its description on the Community Preservation Coalition data portal reads.
In 2021, Great Barrington undertook a manse restoration for the First Congregational Church that used $240,859 of CPA funds, $50,000 in state funds, and $276,141 of private money. The money, the town said directly, “does not fund the religious activities of the Church.”
No churches have sought CPA funding in Acton since the 2018 ruling.
In her dissent in the case, Justice Cypher said the court was treading dangerously close to breaking with the US Supreme Court’s ruling in the playground funding case. She echoed the language of the preservation community in making a plea for recognizing New England’s past and present religious landscape and applying a uniform standard.
“I write to underscore the importance of preserving our State’s historic buildings, which embody the Commonwealth’s rich past and offer those in the present a number of public benefits,” she said. “Historic churches and meeting houses are, like secular historic buildings, an indispensable part of our historic landscape, and warrant the same degree of preservation.”
Courts have definitively said public dollars can be used in these efforts. But only divine intervention at this point could probably make clear which projects clearly pass legal muster and which don’t.