Public Law

Updates on Public Law in Massachusetts from Anderson & Kreiger LLP


SJC Agrees That Anti-Aid Amendment Does Not Ban Public Funds to Churches for Historic Preservation, But Sets a New Rigorous Test

Today, the SJC applied for the first time its Anti-Aid Amendment jurisprudence to public funding to an active church.  In a 5-1 decision in Caplan v. Town of Acton, SJC-12274, the SJC found that the Anti-Aid Amendment does not bar the granting of Community Preservation Act (CPA) funds to private and religious institutions to preserve two historic resources, although courts will now apply “careful scrutiny” if those recipients are active religious institutions and the historic resources are churches or other religious symbols.

In this case, the Town of Acton approved three CPA grants totaling approximately $115,000 to two historic churches located in historic districts in Town. In return, the Town would acquire historic preservation restrictions on the buildings.  After the Community Preservation Committee and Town Meeting voted to approve the grants, Americans United for Separation of Church and State, representing a group of local taxpayers, sued to stop the grants. The taxpayers claimed that the CPA funding of active churches violates the Anti-Aid Amendment to the Massachusetts constitution that restricts certain public funding to aid a church or religious institution.

The SJC adopted Acton’s overarching position in this case that the Anti-Aid Amendment does not ban outright public funds to active churches for historic preservation (or other public purposes).  That aspect of the decision is vital for continued public funding of historic preservation throughout the Commonwealth.

The SJC went on to clarify how courts should apply the 3-factor Helmes/Springfield factors to determine whether public funding to religious institutions in particular is permissible in any given case.  In Acton’s case, the Court ruled that the taxpayer plaintiffs had a likelihood of success on their claims concerning the grant for restoration of the stained glass windows, overruling the lower court and putting in place a preliminary injunction of such funds during the pendency of the case.  But it also ruled that the lower court should allow limited discovery and make further findings before ruling on the plaintiffs’ preliminary injunction of the grant for funding of a Master Plan of the larger church property, including non-religious buildings.  Thus, the case (for both the stained glass and the Master plan grants) is now back in the hands of the Superior Court.

The length of the decision and number of opinions indicates the difficulty of this case.  Justice Kafker wrote a concurring decision in which Justice Gaziano joined.  Justice Cypher wrote a dissent.  In it she disagreed with the findings of the majority and  stated she was “concerned with the court’s admonition that grants of community preservation funds to active religious institutions warrant particularly ‘careful scrutiny.’  Such an analysis is belied by the plain text of the anti-aid amendment, as well as this court’s case interpreting the amendment, which dictate that we do not treat religious and secular entities differently under the amendment.”

The Town has not yet made any decision about how it will proceed in light of this ruling.

About the Author

Nina L. Pickering-Cook – Partner

Nina helps public and private sector clients navigate issues relating to real estate, construction, land use and public law, including litigation where necessary.

Posted In: Uncategorized

Find an Attorney