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.