Constitutionality of Awarding Historic Preservation Grants to

Religious Properties

A court applying current precedent is most likely to conclude that the direct award of historic preservation grants to churches and other pervasively sectarian institutions violates the Establishment Clause 

of the Constitution.

October 31, 1995

M e m o r a n d u m O p in io n f o r t h e S o l ic it o r

D e p a r t m e n t o f t h e In t e r io r

At your request, we have reviewed your office’s draft opinion regarding the 

permissibility under the Establishment Clause of awarding government historic 

preservation grants to churches and other religious properties.1 In particular, and 

as we discussed earlier, we have considered whether the Supreme Court’s recent 

decision in Rosenberger v. Rector & Visitors, 515 U.S. 819 (1995), directly 

addresses the particular question you have raised.

As discussed below, the Rosenberger decision, which deals with a form of 

government aid to religion significantly different from that at issue here, does 

not control the case you have presented. Accordingly, we have no occasion here 

to fully analyze the Rosenberger decision, nor to predict how it might apply in 

other contexts. Rather, our analysis is guided by Supreme Court case law developed prior to Rosenberger. We conclude that a reviewing court, applying current 

precedent, likely would hold that making historic preservation grants to churches 

and other pervasively sectarian properties is inconsistent with the Establishment 

Clause.

1. Background

Our understanding of the program in question, based primarily on the materials 

you have provided us, is as follows. Organizations are eligible for historic 

preservation grants, funded by the federal government and awarded directly by 

the states, if they are listed on the National Register. Listing on the National Register, in turn, depends on satisfaction of fairly detailed criteria measuring “ significance in American history, architecture, archeology, engineering, and culture,” 

including “ integrity of location, design, setting, materials, workmanship, feeling, 

and association.” See 36 C.F.R. §60.4 (1995). A religious property qualifies for 

listing if it “ derivfes] primary significance from architectural or artistic distinction 

or historical importance.” Id. Listing on the National Register is only a threshold 

condition of grant assistance; the states apparently make their own

1 Draft Memorandum for Roger F. Kennedy, Director, National Park Service, from John D. Leshy, Solicitor, Re:

Historic Preservation Grants for Religious Properties (“ Draft Memo” ).

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“ determination[s] of needs and project worthiness in selecting projects to be 

funded from the many applications submitted.” 2

At least since 1981, grants have not been made available to active churches 

or houses of worship under the program.3 Both the Reagan and the Bush Administrations took the position that direct financial support of active churches would 

be inappropriate in light of Establishment Clause concerns.4 The question you 

have raised is whether that policy may be reversed. Specifically, you have asked 

whether historic preservation grants may be awarded directly to religious organizations for the preservation of buildings currently used for religious purposes such 

as worship and education.5 Directly at issue appear to be grants for the preservation of active churches or, perhaps, of other religious facilities that would be 

considered “ pervasively sectarian” under the Supreme Court’s jurisprudence.6

2. Analysis

As your draft opinion recognizes, a series of Supreme Court cases decided prior 

to Rosenberger calls into considerable question any effort by the government to 

provide monetary assistance directly to pervasively sectarian institutions.7 Because 

your draft opinion itself discusses this line of authority, we limit ourselves to 

a brief description of the two-part rule that has emerged to govern direct financial 

support of religious institutions.

First, though the government may include religious institutions that are not 

pervasively sectarian in neutral programs providing financial assistance, it must 

ensure that government grants are not used to fund “ specifically religious 

activity” and are instead channeled exclusively to secular functions. As you note, 

the Supreme Court has applied this principle quite stringently in a line of closely 

analogous cases involving school construction and repair grants. In those cases, 

the Court upheld grants to non-pervasively sectarian religious schools only when 

the program in question expressly excluded from funding “ any facility used or 

to be used for sectarian instruction or as a place for religious worship.” Tilton

v. Richardson, 403 U.S. 672, 675 (1971) (approving provision of federal construction grants to colleges and universities with religious affiliations).8

2 Memorandum for Director, Heritage Conservation and Recreation Service, from Associate Solicitor, Conservation 

and W ildlife, Re: Historic Preservation Grants for Renovation o f Church Properties at 1 (Mar. 6, 1979).

3 Draft Memo at 1; Letter for the Honorable Janes G. Watt, Secretary o f the Interior, from Frederick N. Khedouri, 

Associate Director, Office of Management and Budget (Dec. 14, 1981) ( “ Khedouri Letter*’).

4 The Reagan Administration appears to have rested its position on a policy decision made in “ the context of 

the legal issues surrounding church-state affairs.” See Khedouri Letter at 1. The Bush Administration relied more 

expressly on the conclusion that direct grants to active churches would be unlawful under Supreme Court case law 

construing the Establishment Clause. See Letter for the Honorable Peter H. Kostmayer, House of Representatives, 

from Robert E. Grady, Associate Director, O ffice of Management and Budget (Mar. 28, 1991).

5 Draft Memo at 2.

6Id. at 6 (assuming that most if not all potential grantees would be deemed “ pervasively sectarian’’).

7 Id. at 5.

0 See also Hunt v. McNair, 413 U.S. 734, 73 6 (1973) (upholding state-financed construction of college and university facilities, subject to same restriction); Roemer v. Maryland Pub. Works Bd.t 426 U.S. 736, 740-41 (1976)

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That the Court conceives of this restriction on use of public funds as both essential and rather sweeping is illustrated by the Tilton case, holding that the expiration 

of a restriction after twenty years violates the Establishment Clause: “ If, at the 

end of 20 years, the building is, for example, converted into a chapel or otherwise 

used to promote religious interests, the original federal grant will in part have 

the effect of advancing religion.” Id. at 683. The Court made the same point 

in Nyquist, invalidating maintenance and repair grants to nonpublic schools in 

part because they lacked “ appropriate restrictions” : “ Nothing in the statute, for 

instance, bars a qualifying school from paying out of state funds the salaries of 

employees who maintain the school chapel, or the cost of renovating classrooms 

in which religion is taught, or the cost of heating and lighting those same facilities.” 413 U.S. at 774. Importantly, the prohibition on public funding of facilities 

used for religious activity applies even where the government’s purpose in funding 

those facilities is concededly secular and “ entirely appropriate for governmental 

action.” Tilton, 403 U.S. at 678-79; see Nyquist, 413 U.S. at 773-74.

The second part of the rule qualifies the first: with or without restrictions, the 

government may not provide monetary aid directly to “ pervasively sectarian” 

institutions, defined as institutions in which “ religion is so pervasive that a 

substantial portion of [their] functions are subsumed in the religious mission.” 

Hunt, 413 U.S. at 743. The outer boundaries of the “ pervasively sectarian” category are not well-defined, see Bowen v. Kendrick, 487 U.S. 589, 631 (1988) 

(Blackmun, J., dissenting), and the Supreme Court has used it most often — though 

not exclusively9 — in connection with educational institutions. Nevertheless, we 

have no doubt that you are correct in assuming that most if not all active houses 

of worship would fall within this category.10 Indeed, the notion that religion plays 

something less than a vital and pervasive role in an active church’s mission might 

appear inconsistent with a proper respect for religious institutions as well as with 

common sense.

As the Court has explained, the reason for the prohibition on direct monetary 

grants to pervasively sectarian institutions is the unacceptable risk that where secular and religious functions are “ inextricably intertwined,” government aid, 

though designated for a secular purpose, will in fact advance the institution’s religious mission. Meek v. Pittenger, 421 U.S. 349, 365-66 (1975) (invalidating 

provision to pervasively sectarian schools of instructional material “ earmarked 

for secular purposes” ); Kendrick, 487 U.S. at 610. Again, it is immaterial to this 

part of the Court’s analysis that provision of assistance would serve a legitimate

(upholding provision of noncategorical state grants to private colleges and universities, where grants may not be 

used for “ sectarian purposes” ); Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 774 (1973) (invalidating state 

maintenance and repair grants for nonpublic elementary and secondary schools in part because they lack restrictions 

on use for religious purposes).

9 At issue in Bowen were a broad range of social services organizations with religious affiliations. The Court 

concluded that the Establishment Clause prohibited those organizations that were “ pervasively sectarian” from 

receiving federal grants under the Adolescent Family Life Act, 42 U.S.C. §§3007-3007-10. 487 U.S. at 620-21.

10 Draft Memo at 6.

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secular purpose, see Meek, 421 U.S. at 363; Kendrick, 487 U.S. at 602; what 

is critical is that the assistance also would have the effect of advancing religion 

because of the pervasively sectarian character of the recipients. Meek, 421 U.S. 

at 363. And even if it were possible, as a theoretical matter, to channel government 

funds exclusively to secular functions in such institutions, the degree and kind 

of governmental monitoring necessary to ensure compliance with the requisite 

funding restrictions would itself raise Establishment Clause problems. Kendrick,

487 U.S. at 616-17.

We think that these concerns would be implicated squarely were the government 

to provide churches and other pervasively sectarian facilities with historic 

preservation grants. The draft opinion suggests that such grants might be permissible if restricted to the preservation of “ secular elements” of otherwise religious 

buildings — that is, if government assistance were used only for such purposes 

as exterior renovation, roof repair, and replacement of structurally necessary 

internal components.11 What underlies the Court’s decisions in this area, however, 

is an understanding that in the context of pervasively sectarian facilities, “ secular 

elements” simply cannot be identified and separated from the overall religious 

mission. Indeed, renovation of active churches and other houses of worship 

appears to be a case in point. Though a structural element like a roof can be 

characterized as “ secular” rather than “ sectarian” in most contexts, the distinction cannot be maintained in any meaningful sense when the roof is a component 

part of an active church.

Moreover, even if such a distinction could be defended in the abstract, efforts 

by the government to identify those elements of a house of worship that do not 

have “ direct religious import” 12 could well involve the kind of “ monitoring for 

the subtle or overt presence of religious matter” prohibited by the Establishment 

Clause. See Hernandez v. Commissioner, 490 U.S. 680, 694 (1989). It is our 

understanding that even the most basic structural features of a church may carry 

symbolic religious import.13 Determining whether that is the case in any given 

instance may require an inquiry into religious doctrine or belief that would 

impermissibly entangle the government in religious affairs. See id. at 696-97 

(“ [Requiring the Government to distinguish between ‘secular’ and ‘religious’ 

benefits or services [provided by Church of Scientology auditing sessions] may 

be fraught with the sort of entanglement that the Constitution forbids.’ ” ). In short,

"Id. at 3, 7.

'2 / i at 3.

13 “ Besides individual ornaments and architectural features, the [church] structure, taken as a whole, can be a 

symbol o f the entire religion:

‘The visible church building was both a symbol and model for the invisible or “ spiritual” church. . . .

The church was considered to be a tangible expression o f a host of images and ideas expressed in the 

Bible. It was the body of Christ, a city of refuge, the New Jerusalem, God's presence among m en.’ ” 

Thom as Pak, Note, Free Exercise, Free Expression, and Landmarks Preservation, 91 Colum. L. Rev. 1813, 1841 

(1991) (quoting Paul Clowney, & Tessa Clowney, Exploring Churches 65 (1982)).

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we do not think that it is feasible, in theory or practice, to differentiate between 

religious and secular elements of active houses of worship.

This is, we note, the conclusion reached in a different context by the Washington Supreme Court in First Covenant Church v. City of Seattle, 840 P.2d 174 

(Wash. 1992) (en banc). In holding that the Free Exercise Clause prohibited 

application of a landmark ordinance to restrict a church’s ability to alter its exterior, the court relied in part on the inextricable link between the church’s structure 

and its religious message: the “ church building itself ‘is an expression of Christian 

belief and message’ and . . . conveying religious beliefs is part of the building’s 

function. . . . The relationship between theological doctrine and architectural 

design is well recognized.” Id. at 182. The court went on to reject an attempted 

separation of religious from secular elements, finding that the ordinance’s exception for “ alterations necessitated by changes in liturgy” was unworkably vague: 

“ Would a wider door to permit access by handicapped parishioners comprise a 

liturgical change? Although . . . widening the door does not relate directly to 

the rites or procedures of worship in the church, it does facilitate the ability of 

disabled persons to participate in religious services and activities. "Id. at 184 

(quoting prior decision in First Covenant Church v. City of Seattle, 787 P.2d 1352, 

1360 (Wash. 1990) (en banc)). Though we take no position on the ultimate decision in First Covenant,14 we do think that the court’s reasoning on this issue 

is persuasive.

There is one additional feature of the historic preservation grant program that 

bears emphasis here. In recent cases upholding the provision of certain benefits 

to religious groups or for religious expression, it has been important to the Court 

that the benefit in question is generally available to all interested parties, on a 

religion-neutral and near-automatic basis. See Rosenberger, 515. U.S. at 840-45 

(subsidization of printing costs generally available to all student publications); 

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757-59, 763 

(1995) (access to public square generally available for all displays); Westside

Community Bd. of Educ. v. Mergens, 496 U.S. 226, 252 (1990) (O’Connor, J.) 

(access to school facilities available to all student clubs, with students free to 

organize additional clubs). Provision of benefits to religious groups or expression 

in this context, the Court has reasoned, is most unlikely to reflect or convey any 

endorsement of or preference for religion. Id.; see Pinette, 515 U.S. at 763-66. 

Historic preservation grants, by contrast, do not appear to be generally available 

in the same sense. Properties, including religious properties, qualify for initial 

listing on the Historic Register only if they meet subjective criteria pertaining 

to architectural and artistic distinction and historical importance. Once listed, propl4We note that at least one other court has upheld against a Free Exercise Clause challenge the application of 

a landmark restriction to prevent a church from erecting a commercial office tower on its property. Si. Bartholomew's

Church v. City o f New York, 914 F.2d 348 (2d Cir. 1990), cert, denied, 499 U.S. 905 (1991). Because the church’s 

claim in that case centered on lost revenue rather than on structural integrity, the court did not address the issues 

analyzed in First Covenant. See First Covenant, 840 P.2d at 181 (distinguishing Si. Bartholomew’s).

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erties are eligible to compete for grants based on additional measures of “ project 

worthiness” established by the states. Participation by pervasively sectarian 

institutions in this kind of competitive grant program raises special concerns, 

absent in cases like Rosenberger, Pinette, and Mergens, that application of necessarily subjective criteria may require or reflect governmental judgments about 

the relative value of religious enterprises.

We understand that the Second Circuit’s decision in Lamont v. Woods, 948 

F.2d 825 (2d Cir. 1991), suggests in dicta that the Establishment Clause prohibition on direct funding of pervasively sectarian institutions may admit of exceptions 

in certain cases. We do not believe it appropriate, however, to rely on that case 

here. First, as your draft opinion appears to recognize, the portion of Lamont at 

issue is at best in considerable tension, and at worst inconsistent, with governing 

Supreme Court precedent. Second, even if the standard advanced in Lamont could 

be defended, we are not convinced that it would apply in this context.

The Lamont court suggested that it might approve funding of a pervasively sectarian institution if (i) the government had a compelling interest in providing 

funds; and (ii) the court could assure itself that the grant would not in fact advance 

religion. 948 F.2d at 842. At issue in Lamont was assistance to pervasively sectarian schools abroad, with the stipulation that no government funds be used to 

“ construct buildings or other facilities intended for worship or religious instruction.” Id. at 828. For present purposes, we will assume with the Lamont court 

that a pervasively sectarian school’s religious mission might not be advanced by 

funding of a separate facility, such as a gym, used only for secular purposes. 

Whether or not this is so, however, it simply does not follow that the government 

also may fund the preservation of facilities that are “ intended for worship or 

religious instruction” without impermissibly advancing religion. Moreover, we 

hesitate to assume that a court would find the government’s interest in historic 

preservation sufficiently “ compelling” to trigger the Lamont analysis in the first 

instance. Again, we note that the court in First Covenant rejected such a claim: 

“ [T]he City’s interest in preservation of esthetic and historic structures is not 

compelling and it does not justify the infringement of First Covenant’s right to 

freely exercise religion. The possible loss of significant architectural elements is 

a price we must accept to guarantee the paramount right of religious freedom.” 

840 P.2d at 185.

Finally, as noted above, the Court’s decision in Rosenberger does not address 

the issue posed by your inquiry to us. Rosenberger does, however, acknowledge 

the Establishment Clause principle against “ direct money payments to sectarian 

institutions,” citing most of the same cases we discuss here. 515 U.S. at 842. 

The Court goes on to approve assistance to a student religious publication on 

the grounds that the principle identified is not implicated: the program in question 

neither involves the payment of public funds directly to recipients nor includes 

religious institutions “ in the usual sense of that term” among its beneficiaries.

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Id. at 842-44. Indeed, the Court places special emphasis on the second factor 

as it applies to churches, carefully distinguishing the case before it from one 

involving direct or indirect public aid to a church. Id. at 844. Rosenberger, to 

be sure, emphasized the importance of neutrality in upholding governmental programs against Establishment Clause challenge, clarifying that the Establishment 

Clause does not “ justiffy], much less requiref], a refusal to extend free speech 

rights to religious speakers who participate in broad-reaching government programs neutral in design.” Id. at 839. Nevertheless, we do not believe that at the 

present time there is authority for a departure, in the context presented here, from 

the rule against providing funds directly to churches and other pervasively sectarian institutions.

As you know, the question of government aid to religious institutions is a very 

difficult one. The lines separating permissible from impermissible assistance are 

sometimes hard to discern, and, as Rosenberger indicates, the Supreme Court’s 

jurisprudence in this area is still developing. We think, however, that a court 

applying current precedent is most likely to conclude that the direct award of 

historic preservation grants to churches and other pervasively sectarian institutions 

violates the Establishment Clause.

WALTER DELLINGER 

Assistant Attorney General

Office of Legal Counsel

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