When Ronal Madnick passes by some older churches in Massachusetts, he’s keenly aware that a violation of the state’s constitution may lurk behind the bricks and mortar.
The Massachusetts Constitution contains very strong language barring tax aid to religion. The state also has a law that allows old buildings to receive public funds for upkeep, and over the years, many houses of worship have dipped into that fund.
Increasingly, those two concepts – strict separation of church and state and taxpayer funding for historic structures that happen to be houses of worship – are proving difficult to reconcile.
“People should not be compelled to contribute to a church to which they do not belong,” Madnick, a member of American United’s Board of Trustees and head of AU’s Massachusetts Chapter, told Church & State. “If a church needs money to preserve or restore its buildings, it should raise that money from its own members. Government should not pick and choose which churches to support.”
Madnick, a Worcester resident, noted that of the 351 cities and towns in Massachusetts, 161 offer funding for structural repairs and upkeep to older buildings through a program called the Community Preservation Act (CPA).
The CPA, which was created in 2000, allows local governments to provide for “the acquisition, creation and preservation of historic resources. . .” throughout the commonwealth. But a consequence of this program is that some municipalities have offered money to churches – even those with active congregations. The problem is widespread, with churches in multiple towns receiving CPA funds over the years.
Recently, Americans United and its state activists decided it was time for this practice to end.
With the help of Americans United’s Massachusetts Chapter, which first learned of the problem and gathered information about CPA grants, Americans United in July filed suit on behalf of 13 plaintiffs against the town of Acton over the town’s intent to distribute public funds to two local churches.
Americans United contends in its Caplan v. Town of Acton filing that supporting active churches with government funds violates the “anti-aid” amendment of the Massachusetts Constitution, which does not allow direct government support of active religious organizations.
No one disputes that Acton is steeped in history. The town was first settled by Europeans in 1639, and it later played an important role during the American Revolution as a company of its local militia participated in the battles of Lexington and Concord in 1775.
During the 19th century, the community was in the thick of the Industrial Revolution, boasting a thriving mill industry and factories that produced gunpowder from 1835 until 1940. Acton today is a wealthy northern suburb of Boston with a population of about 22,000.
Given its history, Acton has several old church buildings, including those used by Acton Congregational Church (ACC), completed in 1846, and South Acton Congregational Church (SACC), completed in 1892. Both churches are active houses of worship with congregations that meet regularly.
To many people, this means that government assistance for those churches would clearly violate the Massachusetts Constitution’s “anti-aid” amendment, which states: “No grant, appropriation or use of public money…shall be made or authorized by the Commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the Commonwealth or federal authority or both and no such grant, appropriation or use of public money...shall be made or authorized for the purpose of founding, maintaining or aiding any church, religious denomination or society.”
In its lawsuit, Americans United asserts, “The Anti-Aid Amendment to the Massachusetts Constitution protects the religious liberty of all citizens of the Commonwealth by prohibiting the use of public funds to support active houses of worship. Defendant Town of Acton is threatening that religious liberty.”
And yet, Acton officials voted to award a grant to ACC that would pay for the restoration of stained-glass windows, including a large window depicting Jesus Christ. Another grant to ACC would pay for a master plan for extensive work at the same church, including evaluation of potential rehabilitation of the roof, windows, doors, chimney and bell tower. The third grant, to SACC, would pay for roof work. The three grants total $115,000.
In its request for CPA funds, ACC admitted that it wanted government funding for the building work so that it could save its own money for religious programming.
“As you may know, mainstream churches have not been growing for years, and the financial strain is significant,” ACC wrote. “ACC has weathered the storm better than many churches, but the reality is that we have had to cut programs and personnel. The cuts can further exacerbate the financial problem by not offering the congregation what draws them to their church. With that in mind, the long list of maintenance and capital improvement projects get delayed before we cut programs, but there are many things that we’ve had to fix.”
Acton officials apparently saw no problem with giving taxpayer funding to an active church that enables the house of worship to spend more on religious programming.
“In our view, the use of the building is not something we consider,’’ Peter Berry, chairman of the Acton Board of Selectmen, told the Boston Globe. “It’s for the secular purpose of historic preservation – preserving historic structures that are interwoven in the cultural fabric of the town.’’
Stuart Saginor, executive director of the Community Preservation Coalition, which assists communities with the grants, also said he saw no problem with Acton’s grants.
“It’s an interpretation of the law, that’s what it boils down to so we leave it to the lawyers,’’ Saginor told the Globe. “It has been looked at many times by communities and we haven’t heard of any problems.’’
Americans United disagrees.
“Government should not use tax funds to support churches,” said Barry W. Lynn, executive director of Americans United, in a media statement. “The fact that a house of worship is old doesn’t mean taxpayers should be forced to subsidize a religious group to which they don’t belong. If a church needs money to preserve or restore its building, it should raise that money from its own members.”
Americans United had hoped to resolve this matter without litigation, but several attempts to get Acton to pull its CPA funding of the two churches were not successful.
“Community-preservation grants have been given by towns and cities to numerous active churches over the past 15 years, and we want to bring this case in the effort to end the practice throughout the state,” Madnick said.
The 13 Acton taxpayer plaintiffs include George Caplan, Jim Conboy, Del Friedman, Daniel Gilfix, Maria Greene, Jesse Levine, Dave Lunger, Allen Nitschelm, Scott Smyers, William Alstrom and David Caplan (no relation to George Caplan).
Madnick, who is not a plaintiff, said no one should be forced to support someone else’s faith.
“People should not be compelled to contribute to a church to which they do not belong,” he said. “Every Acton taxpayer who wishes to support churches because of their historic value to the community is free to contribute. If a church needs money to preserve or restore its buildings, it should raise that money from its own members.
“Government should not pick and choose which churches to support,” Madnick continued. “Allowing these grants to proceed will only lead to more requests for funds by other houses of worship, and the town or city will be inviting accusations of religious favoritism if those requests are denied.”
But this case isn’t purely about taxpayers being forced to pay for a religious belief to which they may not adhere.
“These are active houses of worship whose mission is to serve their members,” Madnick said. “Separation of church and state also protects religious groups from governmental interference. No church should have to answer questions from the public about how it raises or spends its money. Any house of worship that accepts Community Preservation Act funds invites that scrutiny.”
Attorney Douglas B. Mishkin of the national law firm Venable LLP is providing pro bono representation on behalf of Americans United to the plaintiffs. The case is also being litigated by Americans United Legal Director Richard B. Katskee, Associate Legal Director Alex J. Luchenitser, Venable attorney Joshua C. Cumby and Massachusetts attorney Russell S. Chernin.
Luchenitser said the age of a religious building is not an excuse to violate the law.
“Historical preservation is a worthy goal, but it doesn’t justify violating the Constitution,” the AU attorney asserted in a media statement. “Public funds should support buildings that can benefit all members of a community equally, not ones that are mainly used by members of one particular faith.”