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Caplan v. Town of Acton

Supreme Judicial Court of Massachusetts, Middlesex

March 9, 2018

GEORGE CAPLAN & others [1]

          Heard: September 7, 2017.

         Civil action commenced in the Superior Court Department on July 7, 2016. A motion for a preliminary injunction was heard by Leila R. Kern, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Douglas B. Mishkin, of the District of Columbia (Joshua Counts Cumby & Alex Luchenitser, of the District of Columbia, _& Russell S. Chernin also present) for the plaintiffs.

          Nina L. Pickering-Cook (Arthur P. Kreiger also present) for the defendant.

         The following submitted briefs for amici curiae:

          Daniel Mach, of the District of Columbia, Anthony M. Doniger, Kate R. Cook, & Sarah R. Wunsch for American Civil Liberties Union & another.

          Maura Healey, Attorney General, David C. Kravitz, Assistant State Solicitor, & Matthew P. Landry, Assistant Attorney General, for the Attorney General.

          Eric C. Rassbach, of the District of Columbia, Joseph C. Davis, of Louisiana, Daniel D. Benson, of Utah, & Mark L. Rienzi for Becket Fund for Religious Liberty.

          Thomas A. Mullen for Massachusetts Municipal Law Association & another. Thaddeus A. Heuer & Andrew London for National Trust for Historic Preservation.

          Ryan P. McManus & M. Patrick Moore for Boston Preservation Alliance & others.

          Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

          GANTS, C.J.

         Article 18 of the Amendments to the Massachusetts Constitution, as amended by arts. 46 and 103 of the Amendments, known as the "anti-aid amendment, " prohibits in § 2, cl. 2, the "grant, appropriation or use of public money . . . for the purpose of founding, maintaining or aiding any church, religious denomination or society." This case presents the question whether two grants of public funds to renovate an active church that has been identified as a "historic resource" under the Community Preservation Act (act), G. L. c. 44B, are categorically barred by the anti-aid amendment, or whether the constitutionality of such grants must be evaluated under the three-factor test we have applied under Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 675 (1981) (Springfield), to payments made to other private institutions. Also presented is the follow-up question: if the three-factor test applies, do the grants satisfy its requirements?

         We conclude that the constitutionality of such grants must be evaluated under our three-factor test: a judge must consider 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 the risks of the political and economic abuses that prompted the passage of the anti-aid amendment. We also conclude that, in light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny. Because the judge applied this three-factor test incorrectly in denying the plaintiffs' motion for a preliminary injunction to prohibit disbursement of these grants, we vacate the order denying the motion. As to the grant to preserve the stained glass windows in the main church building, we remand the case to the Superior Court for entry of an order allowing the plaintiffs' motion for a preliminary injunction barring disbursement of the grant. As to the grant to fund a "Master Plan" to preserve all three of the buildings belonging to the church, we remand for further proceedings consistent with this opinion.[2]


         The Acton Congregational Church (church), an affiliate of the United Church of Christ, is an active church with a congregation of over 800 members. It describes its mission thusly:

"The mission of Acton Congregational Church . . . is to preach and teach the good news of the salvation that was secured for us at great cost through the life, death, and resurrection of Jesus. The church encourages each individual to accept the gift of Christ and to respond to God's love by taking part in worship, ministry to one another, and the Christian nurture of people of all ages. With the guidance of the Holy Spirit, we are called as servants of Christ to live our faith in our daily lives and to reach out to people of this community and the world with love, care, and concern for both their physical and spiritual needs."

         The church stands in the Acton Centre Historic District (historic district), an area that has served as a center of town life since the establishment of the town of Acton (town) in 1735. The church owns and maintains three adjacent buildings in the historic district: the main church building, the John Fletcher House, and the Abner Hosmer House. The main church building was built in 1846. Today, it is used for worship services and religious educational programs; it also houses a local day care center, meeting spaces for various community groups, and a thrift shop. The two houses, also built in the mid-Nineteenth Century, originally were private residences but were later acquired by the church and are now rented to local families.

         The town is one of 172 municipalities in Massachusetts that have adopted the act, which establishes a mechanism for funding projects relating to open space, historic resources, and community housing.[3] G. L. c. 44B. In 2015, the church submitted two grant applications to the town's Community Preservation Committee (committee), which makes recommendations in accordance with the act to the town meeting regarding "the acquisition, preservation, rehabilitation and restoration of historic resources."[4] G. L. c. 44B, § 5 (b) (2). See G. L. c. 44B, § 7.

         The church's first application was for a $49, 500 grant to fund a "Master Plan for Historic Preservation" for all three of its buildings (the Master Plan grant). The church proposed to hire an architectural consultant to develop a plan for their renovation and preservation; the proposed work would include "a thorough assessment of the [c]hurch building envelope, including windows, doors, siding, roof, chimney, bell tower, skylights, and fire escapes." The church noted "[s]pecific areas of concern" for the building, including its bell tower and brass chandelier.

         The church's second application was for a $51, 237 grant to fund the restoration and preservation of the main church building's stained glass windows, which were installed in 1898 (the stained glass grant). According to the church's application, the "most prominent" of the windows depicts Jesus and a kneeling woman; another window features a cross and the hymnal phrase, "Rock of Ages Cleft for Me." The proposed work would include replacing parts of the glass, sealing the glass, and installing new glazing so that the windows -- which currently have a "cloudy" exterior and "cannot be appreciated outside the church" -- will be given "complete transparency."

         The church explained in its applications that, due to declining membership and contributions, it lacked the funds necessary both to preserve its buildings and to fully serve the needs of its congregation without financial assistance from the town:

"As you may know, mainstream churches have not been growing for years, and the financial strain is significant. [The church] 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[s] delayed before we cut programs, but there are many things that we've had to fix."

         Consistent with the requirements of the act, the committee held a public hearing on the church's applications and voted unanimously to recommend the two grants. The town approved them both at a town meeting.

         The town imposed several conditions on the grants. First, it required that the church convey to the town a "historic preservation restriction" in the buildings that would be "perpetual to the extent permitted by law." Second, it specified that no funds would be disbursed to the church except as reimbursements for specific expenses incurred in connection with the projects, and only after the town could verify, based on submitted invoices, that those expenses were "consistent with the project scope presented" in the church's applications.

         The plaintiffs, a group of town taxpayers, commenced this action in the Superior Court under G. L. c. 40, § 53, which permits taxpayers to act "as private attorneys general" to enforce laws designed to prevent abuse of public funds by local governments. LeClair v. Norwell, 430 Mass. 328, 332 (1999).

         The plaintiffs sought a declaratory judgment that the grants to the church violate the anti-aid amendment, and requested injunctive relief to prevent their disbursement.[5]

         In denying the plaintiffs' motion for a preliminary injunction, the judge relied on the three-factor test we first set forth in Springfield, 382 Mass. at 675. We applied the test in that case to determine whether a statute that authorized the public funding of special education placements of public school students in private schools violated the anti-aid amendment. Id. at 667. The three factors are: "(1) whether the purpose of the challenged statute is to aid private schools; (2) whether the statute does in fact substantially aid such schools; and (3) whether the statute avoids the political and economic abuses which prompted the passage of [the anti-aid amendment] ." Id. at 675.[6] We cautioned that these factors "are not 'precise limits to the necessary constitutional inquiry, ' but are instead guidelines to a proper analysis." Id., quoting Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 558 (1979). We also recognized that each factor was "interrelated, " and that any conclusion "results from a balancing" of the factors as applied to the facts of each case. Springfield, supra at 675.

         The judge here determined that the plaintiffs bore a heavy burden to overcome the presumption of the act's constitutionality because, although the plaintiffs were challenging the constitutionality of the grants to the church, those grants were awarded pursuant to the act. Thus, as to the first factor, the judge determined that she must "examine the purpose of the [act], " and concluded that the purpose of the grants under the act was "to preserve historic resources, and not to aid the [c]hurch[]." As to the third factor, the judge found that "[t]here is no credible evidence that the grants under the [act] are economically or politically abusive or unfair, " noting that "[t]he application and approval procedures for grants under the [act] operate without regard to the applicant's makeup or purpose." The judge concluded that, even if the plaintiffs were to satisfy the second factor, which she was "not convinced they can, " they still had "no likelihood of success on the merits" because their failure to satisfy the first and third factors "preclud[ed] them from overcoming the presumption of constitutionality that favors the [act]."

         The judge also granted the town's motion for a protective order to stay discovery until thirty days after entry of a decision on the preliminary injunction. The plaintiffs appealed from the denial of their motion for a preliminary injunction and the allowance of the protective order. We granted their application for direct appellate review.


         In a taxpayer suit such as this, the taxpayers collectively are acting as a private attorney general seeking under G. L. c. 40, § 53, "to enforce laws relating to the expenditure of tax money by the local government." LeClair, 430 Mass. at 332. In order to obtain a preliminary injunction, the plaintiffs must show a likelihood of success on the merits and that the requested relief would be in the public interest; they need not demonstrate irreparable harm. See Id. at 331-332.

         The plaintiffs claim that the judge made two errors of law in her decision denying their motion for a preliminary injunction. First, they argue that the judge erred by applying the three-factor test articulated in Springfield, contending that this test only applies where the challenged grant of public funds is to aid a private school or institution, and not where the challenged grant is to aid a church. Second, they contend that, even if the three-factor test properly applies to public aid to churches, the judge misapplied the test. To rule on these claims of error, we must look first to the history and evolution of the anti-aid amendment.

         1. The history and evolution of the anti-aid amendment.

         Our original Declaration of Rights, adopted in 1780, provided in art. 3 for the direct public support of religion, continuing the Colonial practice of using tax revenues to support the "public Protestant teachers of piety, religion and morality[, ]" see Colo, 378 Mass. at 556 n.10, which essentially meant support of the Congregational Church. See T.J. Curry, The First Freedoms, Church and State in America to the Passage of the First Amendment, 163-164, 174-175 (1986) (Curry); S.E. Morison, A History of the Constitution of Massachusetts 24 & n.1 (1917) (Morison).[7]

         Even before it was mandated by the Declaration of Rights in 1780, the "quasi-religious establishment" of the Congregational Church had provoked heated conflict. Id. at 24. See generally 1 W.G. McLoughlin, New England Dissent 1630-1833, The Baptists and the Separation of Church and State, 547-568 (1971) (McLoughlin). During the American Revolution, Baptists protested the religious assessments with acts of civil disobedience; in retaliation, mobs attacked them on the pretext that they were Tories. See Curry, supra at 163. When the Constitution was submitted to the people for ratification, forty-five towns rejected art. 3, most of them because it provided public support to the Congregational Church. See id. at 167-169; McLoughlin, supra at 626-631. After art. 3 was enacted, the Baptists challenged the religious assessments in court, and other denominations followed. See McLoughlin, supra at 636-659.

         After decades of "lawsuits, bad feeling, and petty persecution, " Morison, supra at 24, the Massachusetts Constitution was amended in 1833 with art. 11 of the Amendments enacted to substitute for art. 3. Article 11 guarantees the equal protection of "all religious sects and denominations" --not just the Christian denominations protected under art. 3 --and effectively ended religious assessments. The next year, the Legislature enacted a statute providing that "no citizen shall be assessed or liable to pay any tax for the support of public worship ... to any parish or religious society whatever, other than to that of which he is a member." St. 1834, c. 183, § 8. See Morison, supra at 38-39.

         But the issue of public support for religious institutions was far from resolved by art. 11. It was raised again in the Constitutional Convention of 1853, which adopted art. 18 of the Amendments to prevent the appropriation of public funds to sectarian schools.[8] See 3 Debates and Proceedings in the State Convention 1853, at 613-626 (1853) (Debates of 1853); Morison, supra at 59. The debates from the Convention indicate that art. 18 did not arise in response to any actual funding of sectarian schools in Massachusetts, but from fear of the sectarian conflict that would result if such funding were to occur. See Debates of 1853, supra at 615, 618-620.[9]

         The delegates worried that competing claims from various denominations would quickly deplete public funds for education. In the words of one delegate: "[I]f we take the position that a part of this fund may be given to one denomination, another may come in and claim the same privilege, and another, and another, until the fund is completely exhausted . . . ." Id. at 620. But the delegates were equally fearful of the political controversies that were bound to ensue. See Id. at 619, 624. One delegate warned that making public funds available to religious institutions would be like throwing "a firebrand into . . . town meetings." Id. at 624. The "object" of art. 18, he explained, was "to extinguish [that] firebrand, so that it shall not be possible to rekindle it." Id. Having seen until 1833 how public financial support for churches could provoke such animosity between citizens, the delegates were eager to remove the controversial issue of religion from politics. See Id. at 624-625.

         In fact, religious tensions were on the rise in 1853, as Massachusetts faced a massive influx of immigrants, most of them driven here from Ireland by the famine caused by a potato blight that devastated the nation's harvest. See generally 0. Handlin, Boston's Immigrants, A Study in Acculturation, 25-53 (rev. ed. 1979). In 1841, about 10, 000 Irish immigrants arrived in Boston; in 1846, that number had risen to more than 65, 000. Id. at 242. By 1850, more than one-fourth of Boston residents were Irish. Id. at 243. Hostility toward Irish Catholics grew among those who felt threatened by the combined forces of mass immigration, urbanization, and industrialization. See Haynes, The Causes of Know-Nothing Success in Massachusetts, 3 Am. Hist. Rev. 67, 70-76 (1897) (Haynes). Rumors spread about a "papal plot" to spread Catholic influence throughout the government and in particular the public school system. See Holt, The Politics of Impatience: The Origins of Know Nothingism, 60 J. Am. Hist. 309, 323-324 (1973). These anti-Catholic sentiments were well known to the framers of art. 18. Indeed, some delegates believed (and historians today agree) that art. 18 was itself targeted specifically against Catholic schools.[10] See Debates of 1853, supra at 615-617; J.R. Mulkern, The Know-Nothing Party in Massachusetts, The Rise and Fall of a People's Movement, 42 (1990) (Mulkern); Shapiro, The Conservative Dilemma, The Massachusetts Constitutional Convention of 1953, 33 New Eng. Q. 207, 224 (1960). See also Wirzburger v. Galvin, 412 F.3d 271, 281 (1st Cir. 2005), cert, denied, 546 U.S. 1150 (2006).

         It bears noting that art. 18, along with all the amendments adopted by the 1853 Convention, failed to be ratified by the people in 1853. Morison, supra at 63. However, in 1854, the Know-Nothing Party, running on an anti-foreign and in particular an anti-Catholic platform, won a surprising political victory in Massachusetts that secured both the governorship and control of the Legislature. See Haynes, supra at 67-68. Article 18 was revived by the Know-Nothing government, Mulkern, supra at 94, 105-106, and ratified by special election in 1855, Morison, supra at 64.

         However, the adoption of art. 18 did not end the controversy over public support for religious institutions. Public dissatisfaction with art. 18 grew when, due to its "rather uncertain language, " private religious schools and hospitals continued to receive public funding. Bloom v. School Comm. of Springfield, 376 Mass. 35, 39 (1978). See Loring, A Short Account of the Massachusetts Constitutional Convention 1917-1919, 6 New Eng. Q. 1, 10 (1933). In 1913, the Legislature requested this court's opinion on whether art. 18 "adequately prohibit[ed]" the appropriation of public funds "for maintaining or aiding any church, religious denomination or religious society, or any institution, school, society or undertaking which is wholly or in part under sectarian or ecclesiastical control." Opinion of the Justices, 214 Mass. 599, 599-560 (1913). The Justices were in agreement that art. 18 prohibited appropriations to primary and secondary schools under sectarian control, but not to schools of higher education. Id. at 601. The Justices were divided, however, on whether art. 18 allowed appropriations to a church or religious denomination; four Justices were "of opinion that such an appropriation is prohibited by the Constitution and its Amendments, " while three Justices "incline[d] to the opposite conclusion." Id.

         Faced with this uncertainty, delegates to the Constitutional Convention of 1917 sought "to tighten the prohibition of public support for religious education" and "to protect State and municipal treasuries from the growing pressure of interest groups in search of private appropriations." Springfield, 382 Mass. at 673. The result was art. 46 of the Amendments, a substantially revised version of art. 18 that was "sweeping in its terms." Bloom, 376 Mass. at 39. Article 46 broadened the prohibition on the use of public funds to encompass not only private religious schools but all private institutions, whether secular or religious, and, in the last clause of § 2, specifically prohibited the "grant, appropriation or use of public money . . . for the purpose of founding, maintaining or aiding any church, religious denomination or society.” [11]

         By its terms, the revised anti-aid amendment applied to all institutions not under public control. Its proponents recognized that, in the fight over public funds, private institutions of all kinds -- whether religious or not -- were equally likely to compete. See 1 Debates in the Massachusetts Constitutional Convention, 1917-1918, at 62-70, 163-168 (1919) (Debates of 1917-1918). As one of the amendment's chief supporters explained during the debates: "[I]f you let the bars down everything else will come in." Id. at 118. The decision to appropriate funds to one private institution would lead to "a thousand other[s]" asking for the same. Id. The anti-aid amendment was intended to keep those bars up, protecting public funds from religious and secular institutions alike.[12]

         Still, the delegates to the Convention voiced many concerns that were specific to religious institutions, as reflected in the last clause of § 2 of the revised anti-aid amendment. As we have summarized in the past:

"Proponents of [the anti-aid amendment] urged that liberty of conscience was infringed whenever a citizen was taxed to support the religious institutions of others; that the churches would benefit in independence and dignity by not relying on governmental support; and, more generally or colloquially, that to promote civic harmony the irritating question of religion should be removed from politics as far as possible, and with it the unseemly and potentially dangerous scramble of religious institutions for public funds in ever-increasing amounts."

Bloom, 376 Mass. at 39, citing Debates of 1917-1918, supra at 68, 74-79, 161-164.

         The anti-aid amendment that emerged from the 1917 Convention is the amendment -- with some revisions adopted in 1974, not relevant here[13] -- that applies today. It currently provides:

"No grant, appropriation or use of public money or property or loan of credit shall be made or authorized by the [C]ommonwealth 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 [C]ommonwealth or federal authority or both, [with exceptions not relevant here]; and no such grant, appropriation or use of public money or property or loan of public credit shall be made or authorized for the purpose of founding, maintaining or aiding any church, religious denomination or society."[14]

Art. 18, § 2, as amended by arts. 46 and 103.

         2. Does the three-factor test in Springfield apply to public aid to churches? Section 2 of the anti-aid amendment contains two clauses: the first clause prohibits the grant of public funds "for the purpose of founding, maintaining or aiding" any institution that is not publicly owned or under exclusive public control, including schools and hospitals; the second clause prohibits the grant of public funds "for the purpose of founding, maintaining or aiding any church, religious denomination or society." Art. 18, § 2, as amended by arts. 46 and 103. The plaintiffs contend that the three-factor test in Springfield applies only where the challenged grant of public funds is to a private school or institution under the first clause, and should not be applied where the challenged grant is to an active house of worship under the second clause, as in this case. Rather, the plaintiffs argue that the second clause requires an "unequivocal and unqualified" ban on the grant of public funds to churches. We disagree.

         This is the first time that we have been asked to consider the constitutionality of a grant of public funds to a church under the second clause of the anti-aid amendment. All of our prior decisions under the anti-aid amendment since its revision in 1917 have considered the actual or contemplated grant of public funds or assistance to private schools or institutions under the first clause. See Helmes v. Commonwealth, 406 Mass. 873, 874 (1990) (funding for repair of memorial battleship); Attorney Gen, v. School Comm. of Essex, 387 Mass. 326, 327 (1982) (Essex) (transportation for private school students); Springfield, 382 Mass. at 665, 666 (funding for special education programs in private schools); Colo, 378 Mass. at 551 (payment of legislative chaplains' salaries); Bloom, 376 Mass. at 36 (textbooks for private school students). See also Opinion of the Justices, 401 Mass. 1201, 1202 (1987) (tax deduction for expenditures on tuition, textbooks, and school transportation); Opinion of the Justices, 357 Mass. 846, 847-848 (1970) (vouchers for private school students); Opinion of the Justices, 357 Mass. 836, 837-838 (1970) (reimbursement of private schools for secular educational services) .

         In Springfield, 382 Mass. at 675, we declared that "there are no simple tests or precise lines by which we can determine the constitutionality" of grants challenged under the first clause of the anti-aid amendment. Instead, we devised the three-part test as "guidelines to a proper analysis, " id., quoting Colo, 378 Mass. at 558, focusing 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. Springfield, supra at 675.

         This rejection of "simple tests [and] precise lines" is equally appropriate when evaluating the constitutionality of a grant of public funds under the second clause of the anti-aid amendment. Id. The operative language in each clause is identical: both provide that no "grant, appropriation, or use of public money . . . shall be made or authorized" "for the purpose of founding, maintaining or aiding" one of the enumerated private institutions. Art. 18, § 2, as amended by arts. 46 and 103. In both clauses, the specific reference to "purpose" demands an inquiry into both the making of a grant and its purpose.[15] Where the language of the two clauses is essentially the same, our interpretive framework is appropriately also the same. See, e.g., Alliance, AFSCME/SEIU, AFL-CIO v. Secretary of Admin., 413 Mass. 377, 384 (1992) ("Words occurring in different places in the Constitution and its amendments ordinarily should be given the same meaning unless manifestly used in different senses" [citation omitted]); Opinion of the Justices, 384 Mass. 820, 823 (1981) (interpreting word "items" in §§ 3 and 5 of art. 63 of Amendments to have same meaning).

         Moreover, even if we did not look to our interpretation of the first clause for guidance, we could not read the second clause as an absolute ban on grants to churches, because the second clause by its own terms calls for a case-by-case analysis. The words of the second clause are not: "No grants shall be made to any church." Rather, the second clause prohibits only grants that are made "for the purpose of founding, maintaining or aiding any church, " and we cannot know that every grant to a church will be for that purpose. The categorical prohibition urged by the plaintiffs therefore invites the danger of overbreadth -- and of hubris. We do not presume that we have the wisdom or imagination to contemplate every possible grant of public funds to a ...

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