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SJC-12274

GEORGE CAPLAN & others1 vs. TOWN OF ACTON.

Middlesex. September 7, 2017. - March 9, 2018.

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

JJ.

Constitutional Law, "Anti-aid" amendment. Massachusetts 

Community Preservation Act. Historic Preservation.

Church.

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.

 

1 Jim Conboy, G. Stodel Friedman, Daniel Gilfix, Maria 

Greene, Jesse Levine, Dave Lunger, Allen Nitschelm, Scott 

Smyers, William Alstrom, Jennifer Brown, William Brown, and 

David Caplan.
2

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.

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 
3

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

 

2 We acknowledge the amicus brief filed in support of the 

plaintiffs by the American Civil Liberties Union and ACLU of 

Massachusetts. We acknowledge the amicus briefs filed in 
4

Background. 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 

 

support of the town of Acton (town) by the Attorney General; the 

Becket Fund for Religious Liberty; the Massachusetts Municipal 

Law Association and Community Preservation Coalition; the 

National Trust for Historic Preservation; and the Boston 

Preservation Alliance, Historic Boston Incorporated, Historic 

New England, North Bennet Street School, and Preservation 

Massachusetts.
5

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 

 

3 Municipalities that adopt the Community Preservation Act 

(act), G. L. c. 44B, must establish a local preservation fund, 

which is funded through a surcharge on local property taxes, id. 

at § 4, and through disbursements from a State-administered 

trust fund that is funded through a Statewide surcharge on all 

real estate transactions at the State's Registries of Deeds, id. 

at § 8. See Community Preservation Coalition, CPA Trust Fund, 

http://www.communitypreservation.org/content/trustfund

[https://perma.cc/Y7XF-VQRZ].

4 The act defines "historic resources" as "a building, 

structure, vessel, real property, document or artifact that is 

listed on the [S]tate register of historic places or has been 

determined by the local historic preservation commission to be 

significant in the history, archeology, architecture or culture 

of a city or town." G. L. c. 44B, § 2.
6

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:
7

"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). 
8

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. 

 

5 In their complaint, the plaintiffs also challenged the 

town's proposed $15,000 grant to South Acton Congregational 

Church, another active church located in Acton. South Acton 

Congregational Church has since withdrawn its application for 

that grant; on appeal, the plaintiffs challenge only the grants 

to the Acton Congregational Church.

6 The judge described these as "the three factors outlined 

in Helmes v. Commonwealth, 406 Mass. 873, 876 (1990)"; the court 

in Helmes quoted the factors set forth in Commonwealth v. School 

Comm. of Springfield, 382 Mass. 665, 675 (1981) (Springfield).
9

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]."
10

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.

Discussion. 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 
11

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 

 

7 Article 3 of the Massachusetts Declaration of Rights 

originally provided, in relevant part, that "the [L]egislature 

shall . . . authorize and require[] the several towns, parishes, 

precincts, and other bodies politic . . . to make suitable 

provision, at their own expense, for the institution of the 

public worship of God, and for the support and maintenance of 

public Protestant teachers of piety, religion and morality." 

Because Congregationalists were the overwhelming majority of the 

population in Massachusetts at the time, art. 3 functioned as a 

de facto general assessment in favor 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 (1986); 

S.E. Morison, A History of the Constitution of Massachusetts 24 

& n.1 (1917).
12

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 
13

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

 

8 Article 18 of the Amendments, as adopted by the 1853 

Convention and ratified in 1855, provides:

"All moneys raised by taxation in the towns and cities for 

the support of public schools, and all moneys which may be 

appropriated by the State for the support of common

schools, shall be applied to, and expended in, no other 

schools than those which are conducted according to law, 

under the order and superintendence of the authorities of 

the town or city in which the money is to be expended; and 

such moneys shall never be appropriated to any religious 

sect for the maintenance exclusively of its own schools."

9 As one opponent to art. 18 stated, "[T]here has been 

nothing sectarian heretofore in the division of the public 

moneys." 3 Debates and Proceedings in the State Convention 

1853, at 614 (1853) (Debates of 1853). Another delegate added, 

"Nobody asserts that such is the case; but somebody imagines 

that such a state of things may arise in the future; that 
14

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.

 

sectarian schools are going to be established; that some new 

sect may outvote the Protestants, and claim the school 

fund. . . . We contend that it is all right now, but we are 

afraid of something ahead." Id. at 615-616. A supporter of 

art. 18 acknowledged that "no efforts have been made to 

establish sectarian schools," but pointed out that "other States 

have been afflicted" with such developments and that "it would 

be well to consider whether, in this State, . . . it is not our 

best policy to guard against it in time." Id. at 619.
15

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 O. 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 

 

10 In the words of one delegate: "Every-body knows [art. 

18] appears to be aimed at one class of our citizens, one 

denomination of religion. Nobody has intimated any apprehension 

that money would be used for the benefit of Protestant 

sectarianism. . . . [Article 18 has been] discussed[] in 
16

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 

 

relation to the support of Catholic schools . . . ." Debates of 

1853, supra at 615.
17

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 
18

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 

 

11 As amended by art. 46 of the Amendments in 1917, art. 18, 

§ 2, provided:

"All moneys raised by taxation in the towns and cities for 

the support of public schools, and all moneys which may be 

appropriated by the [C]ommonwealth for the support of 

common schools shall be applied to, and expended in, no 

other schools than those which are conducted according to 

law, under the order and superintendence of the authorities 

of the town or city in which the money is expended; and no 

grant, appropriation or use of public money or property or 

loan of public credit shall be made or authorized by the 

[C]ommonwealth or any political division thereof for the 

purpose of founding, maintaining or aiding any other school 

or institution of learning, whether under public control or 

otherwise, wherein any denominational doctrine is 

inculcated, or any other school, or any college, infirmary, 

hospital, institution, or educational, charitable or

religious undertaking which is not publicly owned and under 

the exclusive control, order and superintendence 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."
19

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 

 

12 Several efforts were made during the 1917 Convention to 

modify the wording of art. 46, to permit funding of nonsectarian 

private schools and secular institutions such as museums and 

libraries. These efforts were rejected. See R.L. Bridgman, The 

Massachusetts Constitutional Convention of 1917, at 26-29 

(1923); Shattuck, Martin Lomasney in the Constitutional 

Convention of 1917-1919, 71 Proceedings of the Mass. Hist. Soc'y 

299, 303 (1959).
20

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 here13 -- 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.

 

13 Article 18 was further amended by art. 103 of the 

Amendments in 1974 to eliminate the opening clause of the 

previous version and to allow grants-in-aid to private 

institutions of higher education and their students. See Bloom

v. School Comm. of Springfield, 376 Mass. 35, 40-41 & n.11

(1978).

14 Section 1 of art. 18, as amended by art. 46, also added 

during the 1917 Convention, provides that "[n]o law shall be 

passed prohibiting the free exercise of religion."
21

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. 
22

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.
23

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 

 

15 The most recent revisions to the anti-aid amendment 

support this reading. In 1974, the opening clause of art. 18, 

§ 2 -- which contained broad language against the expenditure of 

public funds, unmodified by the phrase "for the purpose of" --

was eliminated, suggesting that under the current amendment an 

investigation into purpose is required. See Springfield, 382 

Mass. at 679.
24

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 "church, religious 

denomination or society" and be certain that all of them, 

regardless of purpose, effect, or historical context, would be 

barred by the anti-aid amendment.

A categorical prohibition also invites the risk of 

infringing on the free exercise of religion, a right guaranteed 

under the First Amendment to the United States Constitution 

("Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof"); art. 2 of 

the Massachusetts Declaration of Rights ("no subject shall be 
25

hurt, molested, or restrained, in his person, liberty, or 

estate, for worshipping God in the manner and season most 

agreeable to the dictates of his own conscience; or for his 

religious profession or sentiments; provided he doth not disturb 

the public peace, or obstruct others in their religious 

worship"); and the anti-aid amendment itself. See art. 18, § 1, 

as amended by art. 46 ("No law shall be passed prohibiting the 

free exercise of religion").

This was the risk addressed in Trinity Lutheran Church of 

Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2017 (2017) (Trinity 

Lutheran), where a church in Missouri was denied a public grant 

to resurface its playground. In contrast with the Massachusetts 

anti-aid amendment, the Missouri Constitution imposes a 

categorical prohibition on any grant of public funds "in aid of 

any church, sect[,] or denomination of religion."16 Id. As a 

result, when a church preschool and day care center applied for 

a grant under a general government program to purchase a new 

playground surface made from recycled tires, the State's 

 

16 Article I, § 7, of the Missouri Constitution, provides: 

"That no money shall ever be taken from the public treasury, 

directly or indirectly, in aid of any church, sect or 

denomination of religion, or in aid of any priest, preacher, 

minister or teacher thereof, as such; and that no preference 

shall be given to nor any discrimination made against any 

church, sect or creed of religion, or any form of religious 

faith or worship." See Trinity Lutheran Church of Columbia, 

Inc. v. Comer, 137 S. Ct. 2012, 2017 (2017) (Trinity Lutheran).
26

Department of Public Resources rejected its application, based 

on "a strict and express policy of denying grants to any 

applicant owned or controlled by a church, sect, or other 

religious entity." Id. The Supreme Court of the United States 

held that the department's policy of excluding a church from a 

government program "solely because it is a church," id. at 2025,

"imposes a penalty on the free exercise of religion that must be 

subjected to the 'most rigorous' scrutiny," id. at 2024, quoting 

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 

(1993).17

We do not interpret the Massachusetts anti-aid amendment to 

impose a categorical ban on the grant of public funds to a 

church "solely because it is a church." Trinity Lutheran, 137 

S. Ct. at 2025. Rather, under our three-factor test, whether a 

church can receive such a grant depends on the grant's purpose, 

effect, and the risk that its award might trigger the risks that 

prompted the passage of the anti-aid amendment. Such an 

 

17 Chief Justice Roberts sought to limit the reach of the 

Court's opinion by stating in a footnote: "This case involves 

express discrimination based on religious identity with respect 

to playground surfacing. We do not address religious uses of 

funding or other forms of discrimination." Trinity Lutheran, 

137 S. Ct. at 2024 n.3. Because two Justices joined the opinion 

except as to that footnote and one Justice concurred only in the 

judgment, the footnote failed to command a majority of the 

Court. Id. at 2017. See id. at 2025 (Thomas, J., concurring in 

part); id. at 2025-2026 (Gorsuch, J., concurring in part); id. 

at 2026-2027 (Breyer, J., concurring in the judgment).
27

analysis would surely not bar the grant of public funds to a 

church preschool to provide a safer surface for its playground.

Cf. Essex, 387 Mass. at 333-334 (State funding to provide 

transportation to students attending private schools did not 

violate anti-aid amendment because it was "a general program to 

help parents get their children, regardless of their religion, 

safely . . . to and from . . . schools" [citation omitted]).18

Therefore, we conclude that the judge did not err in 

declining to interpret the second clause of the anti-aid 

amendment as a categorical prohibition on the grant of public 

funds to churches.

3. Application of the three-factor test. The plaintiffs 

contend that, even if the constitutionality of the grant should 

be determined under the three-factor test, the judge erred as a 

matter of law in her application of that test. We agree, and 

discern two distinct errors of law.

 

18 Despite our refusal to interpret the anti-aid amendment 

as a categorical ban on grants to churches, the dissent warns 

that our decision raises potential issues under the religion 

clauses of the First Amendment. See post at . We disagree. 

"'[R]igorous' scrutiny" is required under the free exercise 

clause where a State policy "expressly requires [an applicant 

for public funds] to renounce its religious character in order 

to participate in an otherwise generally available public 

benefit program" (emphasis added; citation omitted). Trinity 

Lutheran, 137 S. Ct. at 2024. As we will make clear, our threefactor analysis under the anti-aid amendment imposes no such 

requirement. The fact that an applicant is an active church is 

a relevant but by no means disqualifying consideration under our 

anti-aid amendment.
28

First, in determining whether the grants at issue would 

violate the anti-aid amendment, the judge focused primarily on 

the constitutionality of the act itself rather than on the 

constitutionality of the award of the two grants at issue.19 

Analysis of the act's constitutionality would have been 

appropriate if the act itself authorized the appropriation of 

public funds to a church or other private institution within the 

scope of the anti-aid amendment. See, e.g., Helmes, 406 Mass. 

at 875, 877-878 (applying three-factor test to statute 

authorizing expenditure of public funds for repair of World War 

II battleship under control of charitable corporation); 

Springfield, 382 Mass. at 668, 675-683 (applying three-factor 

test to statute authorizing school committees to contract with 

private schools to provide special needs education where public 

schools could not meet special needs).20

 

19 The judge stated, "This court is directed to examine the 

purpose of the [act], under which the challenged grants are to 

be conferred upon the [c]hurch[] . . . ." She found that "the 

purpose of the grants to the [c]hurch[] under the [act] is to 

preserve historic resources, and not to aid the [c]hurch[]."

20 The statute at issue in Springfield was G. L. c. 71B, 

which authorizes school committees to enter into contracts with 

private schools, agencies, or institutions to provide special 

education to children whose needs cannot be met in the public 

school system. Springfield, 382 Mass. at 668. The Commonwealth 

sued the Springfield school committee, seeking to compel the 

school committee to enter into such contracts; in response, the 

school committee contended that any such contracts would violate 

art. 18, as amended by arts. 46 and 103, thus placing the 
29

Here, however, the act simply establishes a procedure for 

municipalities to make discretionary grants to projects relating 

to open space, historic resources, and community housing. See 

G. L. c. 44B, §§ 5, 7. Nothing in the act itself specifically 

authorizes the expenditure of funds to assist churches or 

religious institutions.

For this reason, the constitutionality of the act itself 

was not challenged by the plaintiffs, and is not at issue in 

this case. What was challenged, and is at issue, is the 

constitutionality of specific discretionary grants made pursuant 

to the act. Therefore, "the familiar principle of statutory 

construction that affords a statute a presumption of 

constitutionality validity," Springfield, 382 Mass. at 674, does 

not apply to the constitutional analysis of these grants, and 

the judge erred in applying that presumption. The grants 

themselves enjoy no such presumption of constitutionality.

Second, the judge's focus on the constitutionality of the 

act rather than of the grants also rendered erroneous her 

analysis of the first and third factors.21 As to the first 

 

constitutionality of the statute at issue. Springfield, supra

at 666.

21 The judge did not make a finding regarding the second 

factor of the Springfield test -- that is, whether the grants 

would "substantially aid" the church. See Springfield, 382 

Mass. at 675.
30

factor, the judge relied on the language of the test as it was 

applied to the statutes at issue in Springfield and Helmes, and 

therefore considered whether the legislative purpose of the act 

was to aid churches. The judge instead should have considered 

whether the primary purpose of the committee in recommending the 

grants was to aid this particular church rather than to serve 

the proper purpose of historic preservation.

Accordingly, we now apply the three-factor test to the 

proposed grants themselves. On this record, we conclude that 

the plaintiffs are likely to succeed on the merits of their 

claim with respect to the stained glass grant, but that further 

discovery is needed to evaluate their claim as to the Master 

Plan grant.

a. Purpose. The first factor to be considered is whether 

the proposed grants are "for the purpose of founding, 

maintaining or aiding [a] church." Art. 18, § 2, as amended by 

arts. 46 and 103. In ascertaining the purpose of a challenged 

grant, our cases concerning aid to private schools are 

instructive. In Springfield, 382 Mass. at 678, we upheld the 

constitutionality of a statute that funded special education 

programs in private schools for children whose needs could not 

adequately be met in public schools, finding that its "primary 

purpose" was "to benefit public schools and individual 

children." We saw no evidence of any "hidden legislative 
31

purpose" to aid the private schools themselves. Id. at 677. 

See Essex, 387 Mass. at 331 (statute authorizing provision of 

transportation to private school students held constitutional 

based on "avowed purpose" to benefit children and lack of any 

"hidden purpose to maintain private schools"). In contrast, in 

Bloom, 376 Mass. at 42, we declared unconstitutional a statute 

requiring public school committees to lend textbooks to children 

attending private schools because we could infer from this 

statutory scheme no other purpose than to aid private schools 

"in carrying out their essential function." We determined that 

it made no difference under the anti-aid amendment that the 

textbooks were to be lent to the students rather than to the 

private schools they attended. Id. at 47. What mattered was 

that the statute made use of public money or property for the 

purpose of "maintaining or aiding" the private schools. Id. at 

42.

Here, historic preservation is the stated purpose of the 

committee in awarding these grants to the church. That stated 

purpose is consistent with the town's decision to make the 

grants contingent on a historic preservation restriction in the 

three buildings. Such a restriction would limit the church's 

ability to make changes to the buildings in the future, thereby 

ensuring that the historic value of those buildings is not 

diminished over time. Thus, the plaintiffs' burden under the
32

first factor is to demonstrate a "hidden . . . purpose" to aid 

this particular church. Springfield, 382 Mass. at 677.22

We conclude that the record before us is insufficient to 

determine whether such a hidden purpose existed. The plaintiffs 

here sought to depose a person, to be designated by the town 

under Mass. R. Civ. P. 30 (b) (6), as appearing in 435 Mass. 

1501 (2001), to testify regarding the town's "[c]onsideration 

and approval of the applications for the [c]hurch [g]rants," and 

the communications among town officials, employees, and 

committee members regarding the applications, but the judge 

denied the plaintiffs this discovery for purposes of the motion 

 

22 We recognize that the decision to award a grant of public 

funds, like other kinds of decisions, can have more than one 

motivating purpose. See, e.g., Wynn & Wynn, P.C. v. 

Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 666 

(2000), overruled on another ground by Stonehill College v. 

Massachusetts Comm'n Against Discrimination, 441 Mass. 549 

(2004) (recognizing that certain employment discrimination cases 

are "mixed-motive" cases where discriminatory motive is one of

several factors motivating employer's decision). Although in 

Springfield, 382 Mass. at 678, we focused on "the primary 

purpose" (emphasis added) of the challenged aid, we later 

acknowledged, in Opinion of the Justices, 401 Mass. 1201, 1208 

(1987), that public aid may have more than one motivating 

purpose (aiding private schools was "one of the primary purposes 

. . . if not [the] only purpose" of challenged statute). In 

such cases, the inquiry becomes whether one of those motivating 

purposes is impermissible under the anti-aid amendment. We 

stress, however, that the purpose of a challenged grant is only 

one factor to be considered in our three-factor test, and need 

not be dispositive by itself. Thus, whether an impermissible 

purpose is the sole motivating purpose behind the grant, or only 

one purpose among many, may be considered in determining the 

weight to accord that factor.
33

for preliminary injunction when she granted the town's motion 

for a protective order. Where the anti-aid amendment itself 

focuses on the "purpose" of a grant to a church, and where the 

first factor to be considered under our test is the purpose of 

the grant, a plaintiff is entitled to reasonable discovery to 

ascertain whether there is a hidden purpose that motivated the 

issuance of the grant. Discovery, however, should not be any 

broader or any more intrusive than it needs to be. For the 

purpose of ascertaining the purpose of the grants, discovery 

should be limited to the testimony of the rule 30 (b) (6) 

witness and writings reflecting the oral and written 

communications regarding the committee's decision-making process 

in recommending the grants; there is no need in this case to 

probe the private intentions of town meeting members. We leave 

it to the judge in her discretion to determine more precisely 

the appropriate scope of discovery.

b. Substantial aid. The second factor to be considered is 

whether the effect of the grants is to substantially aid a 

church. Our precedents make clear that a grant of public funds 

does not violate the anti-aid amendment if the assistance it 

provides to a private institution is merely "minimal," Essex, 

387 Mass. at 332, or "remote," Bloom, 376 Mass. at 47. The aid 

must provide "substantial assistance" to the church to risk 

violation of the anti-aid amendment. Springfield, 382 Mass. at 
34

680. In evaluating this factor, we look to both the amount of 

aid provided and "the degree to which the aid assists [the 

church] in carrying out [its] essential function." Opinion of 

the Justices, 401 Mass. at 1208.

In particular, we have focused on whether the aid that is 

provided contains certain "limiting features" designed to 

restrict its effect. Id. at 1207. In Springfield, we approved 

the funding of the special education programs with the important 

limitation that there would be no reimbursement for children 

whose parents had unilaterally enrolled them in private school; 

public funding was strictly limited to expenses that the private 

schools would not otherwise have incurred. See Springfield, 382 

Mass. at 677. This limiting feature worked to cabin the effect 

of the public funding, guaranteeing that it would not "aid the 

private school[s] in carrying out [their] essential function." 

Id. at 681.

We see no such guarantee here. As an initial matter, we 

note that the proposed grants are "neither minimal nor 

insignificant" in amount. Opinion of the Justices, 401 Mass. at 

1208. The total cost of the comprehensive assessment 

contemplated under the Master Plan will be $55,000, to which the 

Master Plan grant will contribute $49,500, while the total cost 

of restoring the stained glass windows will be $56,930, to which 

the stained glass grant will contribute $51,237.
35

More worrisome is the extent to which these grants will 

assist the church in its "essential enterprise" as an active 

house of worship. Bloom, 376 Mass. at 47. The church was 

candid in its grant applications, explaining that -- faced with 

declining membership and contributions -- it would need the 

town's "help" in order to preserve its buildings while also 

"offering the congregation what draws them to their church." 

This is not a case like in Springfield, where it was possible to 

limit the public funding to a narrow, specific purpose. The 

reimbursement there was for expenses that the schools would not 

otherwise have incurred; it did nothing to "lessen[] the 

financial burden" of the schools or those who chose to attend 

those schools. Springfield, 382 Mass. at 683. Here, in 

contrast, the grants would help defray planning and restoration 

costs that the church would otherwise have to shoulder on its 

own, allowing the money saved to be used to support its core 

religious activities. As the church indicated in its grant 

applications, budgetary constraints have led it to make 

difficult choices between "capital improvement projects" on the 

one hand and "programs and personnel" on the other. These 

grants would allow the church to have both, in effect 

"underwrit[ing]" its essential function as an active house of 

worship. Opinion of the Justices, 401 Mass. at 1209.
36

On this record, we therefore conclude that the effect of 

these grants is to substantially aid the church.

c. Risks. The third and last factor that must be 

considered is whether the grants avoid the risks that prompted 

the passage of the anti-aid amendment. In evaluating the third 

factor, the judge erred in focusing on whether there was 

"credible evidence that the grants under the [act] are 

economically or politically abusive or unfair," and, finding no 

such evidence, concluding that there was "no political or 

economic abuse which the anti-aid amendment was enacted to 

prevent." Instead, the judge should have focused on whether the 

grants to the church avoid the risks of the political and 

economic abuses that "prompted the passage" of the anti-aid 

amendment. Springfield, 382 Mass. at 675.

We recognize that our articulation of this third factor in 

prior cases has provided less than clear guidance. The third 

factor, as first set forth in Springfield, focused on "whether 

the [grant] avoids the political and economic abuses which 

prompted the passage of [the anti-aid amendment]." Id. But in 

Springfield, we did not provide the historical background that 

identified these "political and economic abuses," and therefore 

failed to recognize, as we do here, that the amendment was 

proposed in 1853 not to abolish an existing practice of funding 

religious institutions -- no one at the Convention alleged the 
37

existence of such a practice -- but instead as a preemptive 

measure to avoid the risks associated with the public financial 

support of religious institutions. These risks, as we noted in 

Bloom, 376 Mass. at 39, also prompted the revision of the antiaid amendment in 1917, and are worth repeating here: first, the 

risk that "liberty of conscience" would be infringed "whenever a 

citizen was taxed to support the religious institutions of 

others"; second, the risk that public funding would result in 

improper government entanglement with religion, undermining the 

"independence and dignity" of churches; and third, the risk that 

the public support of religious institutions would threaten 

"civic harmony," making the divisive "question of religion" a 

political question. Id.

In Helmes, 406 Mass. at 878, our most recent case applying 

the three-factor test, we redefined the third factor in light of 

the circumstances of that case to consider "whether there is any 

use of public money that aids a charitable undertaking in a way 

that is abusive or unfair, economically or politically." 

Because nothing in the record indicated any such abuse or 

unfairness, we concluded that the appropriation was 

constitutional; there was no evidence that any private person 

would benefit from it, that the funds would be distributed to a 

noncharitable use, or that its charitable objective --

preserving a World War II battleship and educating the public --
38

was not generally accepted. Id. at 877-878. We did not 

consider in Helmes whether the appropriation of funds presented 

any of the risks that the framers of the anti-aid amendment 

sought to avoid, perhaps because it was so clear that these 

risks were not presented where the challenged funding was for 

the repair of a memorial battleship.

Here, where the grant of public funds is for the renovation 

of an active house of worship, it is imperative, in considering 

the third factor, to focus on whether these specific grants 

avoid the risks of the political and economic abuses that 

"prompted the passage" of the anti-aid amendment, which we 

identified in Bloom and have described in this opinion. On the 

record before us, we conclude that these risks are significant.

First, these grants risk infringing on taxpayers' liberty 

of conscience -- a risk that was specifically contemplated by 

the framers of the anti-aid amendment. As one delegate to the 

Convention of 1917 stated, "Religious liberty [requires] that 

. . . the State cannot compel a man to pay his good money in 

taxation for the support of a religion, or of the schools and 

institutions of a religion, in which he does not believe." 

Debates of 1917-1918, supra at 77. The self-described mission 

of the church here is "to preach and teach the good news of the 

salvation that was secured . . . through the life, death, and 

resurrection of Jesus." The proposed grants would be used to 
39

renovate the main church building, where the church conducts its 

worship services, and its stained glass windows, which feature 

explicit religious imagery and language. For town residents who 

do not subscribe to the church's beliefs, the grants present a

risk that their liberty of conscience will be infringed, 

especially where their tax dollars are spent to preserve the 

church's worship space and its stained glass windows.

Second, these grants also present a risk of government 

entanglement with religion. See Bloom, 376 Mass. at 39, 47. To 

ensure that the grants are used for historic preservation, the 

town has imposed on the church the condition that it execute a 

historic preservation restriction, which -- if the restrictions 

accompanying the town's prior grants under the act are any 

indication -- would significantly limit the church's ability to 

make future alterations to its buildings, including its worship

space and its stained glass windows, without the town's 

approval.23 We have held in other contexts that where the State 

exercises control over the design features of a church, it 

infringes on the free exercise of religion guaranteed under the 

 

23 The record in this case includes two historic 

preservation restrictions executed in relation to past grants 

that the town has awarded under the act. These restrictions 

prohibit the owners from, inter alia, making changes to the 

exterior of their properties "without the prior express written 

approval of the [t]own," which can be "withheld or conditioned 

in the [t]own's sole and absolute discretion."
40

Massachusetts Constitution. In The Society of Jesus of New 

England v. Boston Landmarks Comm'n, 409 Mass. 38, 42 (1990)

(Society of Jesus), we concluded that the designation of a 

church interior as a landmark, thereby making all renovations 

subject to government approval, infringed on "the right freely 

to design interior spaces for religious worship," in violation 

of art. 2 of the Massachusetts Declaration of Rights. The 

historic preservation restriction contemplated here presents a 

comparable risk of "intrusion . . . , reaching into the church's 

actual worship space." Id.

The town contends that these grants would result in no such 

intrusion, and are distinguishable from the landmark designation 

in Society of Jesus, because they relate only to the exterior of 

the church's buildings. See, e.g., G. L. c. 40C, § 7 ("The 

[historic district] commission shall not consider interior 

arrangements or architectural features not subject to public 

view"). In Society of Jesus, 409 Mass. at 39 n.2, we expressly 

did not decide whether a landmark designation of a church 

exterior would also infringe on the free exercise of religion. 

We need not decide that issue here because, even if we were to 

recognize the distinction between the interior and exterior of a 

church and conclude that restrictions on the renovation of a 

church exterior would not burden the free exercise of religion, 
41

such restrictions would still pose a risk of government 

entanglement in religious matters.

In Society of Jesus, we reasoned that "[t]he configuration 

of the church interior is so freighted with religious meaning 

that it must be considered part and parcel of . . . religious 

worship." Society of Jesus, 409 Mass. at 42. Since then we 

have recognized that the exterior features of a religious 

structure can also be expressive of religious beliefs. In 

Martin v. The Corporation of the Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 142 (2001), 

we held that a church steeple should be exempted from local 

height restrictions as a "religious" use of land, noting that 

"churches have long built steeples to 'express elevation toward 

the infinite'" (citation omitted). Id. at 152. See P. Tillich, 

On Art and Architecture 212 (1989) ("the one great symbol of the 

church building is the building itself"). We warned, "It is not 

for judges to determine whether the inclusion of a particular 

architectural feature is 'necessary' for a particular religion,"

Martin, supra at 150, or "to determine what is or is not a 

matter of religious doctrine." Id. at 152. The Master Plan 

grant at issue here contemplates a comprehensive assessment of 

the entire church building, which would include elements both 

exterior and interior; it is not for judges or, for that matter, 

a community preservation committee to determine whether this 
42

assessment will affect elements that touch on matters of 

religious doctrine.

The stained glass window is illustrative of the fragility 

of the interior-exterior distinction, and of the extent to which 

historic preservation of the building is interwoven with 

religious doctrine. Although it is an "exterior" feature, in 

that it is open to public view, see G. L. c. 40C, § 5, its 

inclusion in a church building is as much a religious choice as 

an aesthetic one -- especially where, as here, the windows have 

an expressly religious message. See V.C. Raguin, Stained Glass, 

From its Origins to the Present, 10-13 (2003).

Third, the challenged grants also risk threatening "civic 

harmony," by making the "question of religion" a political one. 

Bloom, 376 Mass. at 39. As centuries of experience have shown, 

government support of churches has always and inevitably been a 

politically divisive issue in Massachusetts. Although the act 

provides for a rigorous process for the allocation of funds, the 

decision to award a grant lies with the committee and, 

ultimately, with the town meeting members. Those who first 

proposed the anti-aid amendment in 1853 were wary of throwing "a 

firebrand into . . . town meetings." Debates of 1853, supra at 

624. Grants for the renovation of churches -- using funds that 

could potentially have been dedicated to open space, soccer 

fields, low-income housing, or other historic preservation 
43

projects, including projects for the renovation of houses of 

worship of other religious denominations -- pose an inevitable 

risk of making "the irritating question of religion" a 

politically divisive one in a community, the more so where those 

grants are for the renovation of a worship space or of a stained 

glass window with explicit religious imagery. Bloom, supra at 

39.

We do not suggest that fair consideration of the risks that 

prompted the passage of the anti-aid amendment means that every 

historic preservation grant for a church building will be 

unconstitutional. We only caution that any such grant to an 

active church warrants careful scrutiny under the three-factor 

Springfield test. The third factor is by no means a dispositive 

factor, only an important one. Indeed, we can imagine various 

circumstances where such grants would survive careful scrutiny, 

including, for instance, 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. Cf. Shrine of Our Lady of La Salette Inc. v. Board of 

Assessors of Attleboro, 476 Mass. 690, 700-702 (2017) (shrine 

property leased for battered women's shelter and used as 

wildlife sanctuary not subject to religious worship exemption, 

because "dominant purpose" not connected to religious worship 
44

and instruction). The use of public funds for such preservation 

efforts poses little risk of political division.24

In this case, having weighed and balanced the three 

factors, we conclude that the plaintiffs are likely to succeed 

on the merits of their claim with respect to the stained glass 

grant. Although the record before us does not allow us to 

 

24 The dissent takes issue with the emphasis that we place 

on the third factor in cases like these, where the public grant 

is to an active church. The dissent contends that our analysis 

is inconsistent with this court's anti-aid amendment cases, 

relying on our statement, first made in Bloom, 376 Mass. at 45, 

that "[o]ur anti-aid amendment marks no difference between 

'aids,' whether religious or secular" (citation omitted). See 

post at . But the dissent takes this statement out of 

context. What we meant in Bloom (and in the other cases the 

dissent cites) was that, unlike the establishment clause of the 

First Amendment, which requires an inquiry into whether the aid 

has a religious or secular purpose, see Lemon v. Kurtzman, 403 

U.S. 602, 612 (1971), our anti-aid amendment does not make that 

distinction. See Bloom, 376 Mass. at 45 & n.20. See also 

Opinion of the Justices, 401 Mass. 1201, 1203 n.4 (1987); 

Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 332 n.3 

(1982); Springfield, 382 Mass. at 674 n.14. The only purpose 

that is forbidden under the anti-aid amendment is "the purpose 

of founding, maintaining or aiding" a private institution. Art. 

18, § 2, as amended by arts. 46 and 103. Thus, in Bloom, 376 

Mass. at 45, it did not matter whether the textbooks that were 

lent were of a religious or secular nature; what mattered was 

that the purpose of the loan was to aid private schools. See 

id. at 41-42. This does not mean that we do not distinguish 

between different kinds of "aids" in evaluating whether that aid 

poses the risks that prompted the anti-aid amendment; after all, 

aid to support a church poses risks quite different from those 

arising from aid to support a World War II battleship. Cf. 

Helmes, 406 Mass. at 873. We reiterate that the anti-aid 

amendment is not a categorical ban on aid to churches. However, 

the fact that a grant recipient is an active church is relevant 

to our analysis of the potential risks under the third factor, 

to which we cannot (and need not) be blind.
45

ascertain whether there is a motivating purpose behind this 

grant other than historic preservation, its effect is to 

substantially aid the church in its essential function and, 

given the explicit religious imagery of the stained glass, it 

fails to avoid the very risks that the framers of the anti-aid 

amendment hoped to avoid. Thus, even if further discovery were 

to reveal that the sole motivating purpose of this grant was in 

fact to preserve historic resources, and not to aid this 

particular church, the other factors in our analysis --

especially the third factor, to which we accord special weight -

- still compel the conclusion that the stained glass grant runs 

afoul of the anti-aid amendment. Because the plaintiffs are 

likely to succeed on the merits of their claim, and a 

preliminary injunction would "promote[] the public interest"

reflected in the anti-aid amendment, LeClair, 430 Mass. at 332, 

the plaintiffs are entitled to a preliminary injunction barring

the disbursement of the stained glass grant.

With respect to the Master Plan grant, we conclude that 

further discovery is needed before a determination should be 

made as to whether the plaintiffs are likely to succeed on the 

merits of their claim. This is in part because, unlike the 

stained glass grant, the Master Plan grant is far broader in its 

scope, including not only plans for the renovation of worship 

space but also plans for the renovation of the Fletcher and 
46

Hosmer Houses, which are both private residences. Accordingly, 

analysis of the grant under the third factor must be more factintensive; restoration of the main church building will 

implicate risks different from those arising from the 

restoration of the adjoining residences. And where the analysis 

of the third factor is more complex, and the potential judicial 

options more diverse,25 the discovery that might shed light on 

whether there was a hidden purpose apart from historic 

preservation becomes more important to the over-all decision.

We therefore remand the issue to the Superior Court for a 

determination whether the Master Plan grant, in full or in part,

should survive the careful scrutiny required under the third 

factor. Such a determination should not be made until the 

plaintiffs have had reasonable discovery regarding the purpose 

of the committee in awarding this grant. We reiterate that the 

scope of such discovery should be limited at this time to the 

testimony of the rule 30 (b) (6) witness and writings reflecting 

the oral and written communications regarding the committee's 

decision-making process in recommending the grants and that 

there is no need to probe the private intentions of town meeting 

 

25 For example, the judge may deny the preliminary 

injunction as to the part of the Master Plan grant allocated to 

the renovation of the Fletcher and Hosmer Houses, and allow it 

as to the part allocated to the renovation of the church's 

worship space.
47

members. We leave it to the judge to determine more precisely 

its appropriate scope.

Conclusion. The orders denying the plaintiffs' motion for 

a preliminary injunction and granting the town's motion for a 

protective order to stay discovery are vacated. The case is 

remanded to the Superior Court for entry of an order allowing 

the plaintiffs' motion for a preliminary injunction barring

disbursement of the stained glass grant and, as to the Master 

Plan grant, for further proceedings consistent with this 

opinion.

So ordered.
KAFKER, J. (concurring, with whom Gaziano, J., joins). I 

write separately to emphasize that our analysis of the anti-aid 

amendment of the Massachusetts Constitution is tightly 

constrained by the United States Supreme Court's interpretation 

of the religion clauses of the First Amendment to the United 

States Constitution. The grants at issue here are provided 

pursuant to a generally available public benefit program 

designed to promote community conservation including the 

protection of the Commonwealth's historic buildings. The United 

States Supreme Court has warned that only a very narrow category 

of exclusions are allowed by the free exercise clause from such 

generally available public benefit programs. Because I believe 

the preliminary injunction against the stained glass grant is 

consistent with this very narrow permitted exclusion, and the 

Master Plan grant requires further analysis to decide both the 

anti-aid and First Amendment questions, I concur in the judgment 

of the court.

1. The First Amendment background to this case. Today's 

decision takes us into one of the most confusing and contested 

areas of State and Federal constitutional law. The United 

States Supreme Court has emphasized that there is a "tension" 

between the religion clauses of the United States Constitution -

- that is, what is prohibited by the establishment clause and 

what is required by the free exercise clause of the First 
2

Amendment. See Locke v. Davey, 540 U.S. 712, 718 (2004). The 

Court has also stated that there is "play in the joints" between 

the dictates of the two religion provisions in the United States 

Constitution -- allowing limited State action therein -- without 

defining precisely how much play. See Trinity Lutheran Church 

of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017)

(Trinity Lutheran). The Supreme Court's jurisprudence also has 

been continually evolving, particularly in its definition of the 

neutrality the two first amendment provisions requires in regard 

to religion.1

All of this is further complicated by State constitutional 

anti-aid provisions providing greater protections against the 

establishment of religion than the establishment clause of the 

First Amendment. These State constitutional anti-aid provisions 

 

1 The evolution was summarized by Justice Souter in Mitchell

v. Helms, 530 U.S. 793, 882-883 (2000) (Souter, J., dissenting):

"In sum, 'neutrality' originally entered this field of 

jurisprudence as a conclusory term, a label for the 

required relationship between the government and religion 

as a state of equipoise between government as ally and 

government as adversary. Reexamining Everson [v. Board of 

Educ. of Ewing, 330 U.S. 1 (1947),]'s paradigm cases to 

derive a prescriptive guideline, we first determined that 

'neutral' aid was secular, nonideological, or unrelated to 

religious education. Our subsequent reexamination of 

[multiple Supreme Court cases] . . . recast neutrality as a 

concept of 'evenhandedness.'"

Evenhandedness in this context means an evenhanded treatment of 

religious and nonreligious institutions.
3

present additional legal constraints, and State grants are 

permissible only if they do not run afoul of the free exercise 

clause of the First Amendment.

There is no clear path yet through this difficult 

intersection of the religion clauses of the State and Federal 

Constitutions. Most instructive, for our purposes, however, are

the Supreme Court's more recent pronouncements in Trinity 

Lutheran and Locke. These two cases analyzed grants arising 

from generally available public benefit programs, like the one 

before us. See Trinity Lutheran, supra at 2017; Locke, supra at 

715. Both cases involved exclusions required by anti-aid 

provisions in State Constitutions. See Trinity Lutheran, supra

at 2017 (Missouri Constitution, art. 1, § 7); Locke, supra at 

722 (Washington Constitution, art. 1, § 11).

In Trinity Lutheran, 137 S. Ct. at 2025, the Supreme Court 

held that the exclusion of a church school and day care facility 

from a generally available public benefit program funding rubber 

playground surfaces "solely" on account of a church's religious 

identity violated the free exercise clause. The Court held that 

it had "repeatedly confirmed" that it will not approve such 

exclusions, giving as an example its 1947 decision upholding 

against Federal establishment clause challenges a New Jersey law 

allowing a local school district to pay for public, private, and 
4

parochial school transportation costs. Id. at 2019-2020, citing 

Everson v. Board of Educ. of Ewing, 330 U.S. 1 (1947).

In Locke, however, the Supreme Court held that a State 

anti-aid amendment exclusion of scholarships to pursue degrees 

in devotional theology from an otherwise inclusive student aid 

program did not violate the free exercise clause of the First 

Amendment. Locke, 540 U.S. at 725. In so holding, the Court 

stressed that it could "think of few areas in which a State's 

antiestablishment interests come more into play" than using 

"taxpayer funds to support church leaders." Id. at 722. "The 

claimant in Locke sought funding for an 'essentially religious 

endeavor . . . akin to a religious calling.'" Trinity Lutheran, 

137 S. Ct. at 2023, quoting Locke, supra at 721-722. To 

contrast, the Court in Trinity Lutheran stated, "nothing of the 

sort can be said about a program to use recycled tires to 

resurface playgrounds." Trinity Lutheran, supra. In his 

concurrence in Trinity Lutheran, Justice Breyer also emphasized 

that he would "find relevant, and would emphasize, the 

particular nature of the 'public benefit' . . . at issue." Id. 

at 2026 (Breyer, J., concurring).

Together, Trinity Lutheran and Locke define a very narrow 

category of exclusions from generally available public benefit 

programs that can be required by State anti-aid amendments 

without violating the free exercise clause of the First 
5

Amendment. To be excluded from a generally available public 

benefit program, the funding must be sought for an "essentially 

religious endeavor" raising important state constitutional 

antiestablishment concerns. Trinity Lutheran, 137 S. Ct. at 

2023, quoting Locke, 540 U.S. at 721-722. With these 

overarching First Amendment principles in mind, I turn to the 

grants at issue, and art. 18 of the Amendments to the 

Massachusetts Constitution, as amended by arts. 46 and 103 of 

the Amendments, the anti-aid amendment.

2. The Community Preservation Act grant and the anti-aid 

amendment. As explained by the court, the town of Acton (town) 

is one of 172 municipalities in Massachusetts that have adopted 

the Community Preservation Act (act), which establishes 

processes and procedures for funding projects related to open 

space, historic resources, and community housing. See ante at 

. Here, the church's "Evangelical Church Stained Glass Window 

Preservation" application initially requested $41,000 from the 

town's Community Preservation Committee (committee) to repair 

the church's stained glass windows. Eventually $51,237 was 

awarded for the windows. The proposed repairs included a threefoot, six-inch by ten-foot, six-inch "Christ window" depicting 

Jesus with a woman kneeling and praying, altar windows, and a 

window containing a cross and the hymnal phrase "Rock of Ages
6

Cleft for Me."2 The church was requesting that the town pay for 

ninety per cent of the costs. The stained glass windows were 

"installed in memorial to honor prominent members of the church" 

in 1898.

The church also sought $49,500 to hire an architect to do a 

structural review and prepare a master plan for historic 

preservation of the church, and two neighboring buildings owned 

by the church, the John Fletcher House and the Abner Hosmer 

House. The church was again requesting that the town pay ninety 

per cent of the costs. The main church dates back to 1846 with 

a renovation in 1898. The houses were built circa 1855 and

1846. The grant was sought to "hire an architectural consultant 

to thoroughly investigate each of the [three] historic buildings 

to identify all the needs of each building in order to protect 

and preserve these historic assets for future generations." For 

the church itself, this would include "a thorough assessment of 

the [c]hurch building envelope, including windows, doors, 

siding, roof, chimney, bell tower, skylights, and fire escapes, 

with a focus on protecting the building from the elements." 

 

2 The windows are described as a "treasure, yet they are in 

need of care. The exterior plexiglass is no longer doing its 

job. Not only is it cloudy, so that the beauty of the glass 

cannot be appreciated outside of the church, but it is no longer 

weathertight. . . . The proposed work would remove the old 

plastic covers, repair the existing wood damage, replace missing 

or broken pieces . . . to stabilize and protect the eight 

primary stained glass windows."
7

Similarly, "the rental houses will be evaluated for the building 

envelope, mechanical, electrical and plumbing systems, and 

safety systems. This work will focus on building structural 

integrity." The grant was requested because "each [of the 

buildings] shows the signs of 170+ years of wear."

In its application for both grants, the church explained 

that "mainstream churches have not been growing for years, and 

the financial strain is significant . . . we have had to cut 

programs and personnel. The cuts can further exacerbate the 

financial problem[s] by not offering the congregation what draws 

them to their church."

Pursuant to the requirements of the act, the committee held 

a public hearing and voted unanimously to recommend the grants. 

The town meeting approved both grants. The annual town meeting 

warrant explained that the church and the other two buildings 

were located in the Acton Centre Historic District. The warrant 

explained that the "work will protect the stained glass windows, 

an integral part of the church's historical significance." The 

warrant also explained that the master plan would evaluate and 

identify critical needs and set restoration and rehabilitation 

priorities to preserve the three historic buildings. It also 

stated that the "preservation project must comply with the 

Standards for Rehabilitation stated in the United States 

Secretary of the Interior's Standards for the Treatment of 
8

Historic Properties codified in 36 C.F.R. Part 68." Historic 

preservation restrictions were imposed on the buildings with the 

restriction being "perpetual to the extent permitted by law." 

The plaintiffs, who are town taxpayers, challenged the grants, 

claiming they violate the anti-aid amendment.

3. Application of the anti-aid amendment and the First 

Amendment to the stained glass grant. I agree with the court 

that the three factor anti-aid amendment analysis set forth in 

Commonwealth v. School Comm. of Springfield, 382 Mass. 665, 675 

(1981) (Springfield), applies, including where the grant is 

being given to a church as well as a nonreligious private 

charity. I also agree that a categorical ban would violate the 

First Amendment right to the free exercise of religion.

In analyzing the first factor, I conclude that we must 

consider the purpose of both the statute and the grant. This is 

necessitated, in part, by the Supreme Court's First Amendment 

jurisprudence and its focus on whether the grant is authorized 

pursuant to a generally available public benefit program. Here, 

the purpose of the statute itself is unquestionably to provide 

generally available public benefits for the purpose of 

conservation, including historic preservation. There is no 

suggestion or argument that an "examination of the statutory 

scheme . . . [will reveal] any 'technique of circumvention'" 

designed to avoid the requirements of the anti-aid amendment. 
9

Springfield, 382 Mass. at 677, quoting Bloom v. School Comm. of 

Springfield, 376 Mass 35, 47 (1978). See Bloom, supra at 44

("[W]e note, first, that the Supreme Court has been regularly 

unreceptive to schemes of circumvention which resemble that 

attempted by the present legislation"). Indeed the statute is 

straightforward and serves important conservation purposes as 

eloquently explained by the dissent. See post at .

The court, however, draws a distinction between the 

purposes of the statute and those of the grants, and emphasizes 

that we must probe further to discern the primary or motivating 

purposes of the grantors as well as any hidden purposes, and 

this additional inquiry requires a remand for the Master Plan 

grant. See ante at . At least for a determination whether a 

preliminary injunction should issue regarding the stained glass 

grant, I conclude that we have a sufficient record that 

conservation is the primary purpose of the grants. I do not 

detect any indicia of a scheme or technique of circumvention. 

The purpose, as reflected in the town warrant, appear to be 

described straightforwardly and factually.

In my opinion, the most complicated aspect of the purpose 

inquiry is not discerning the subjective intentions of the 

grantors but the difficulty of separating conservation from 

religious purposes when the grant is being given to preserve a 

religious component of a church building. Even if the purpose 
10

of the grantors is conservation, and not the promotion of 

religion, it is obvious to anyone voting on the grants that both 

purposes would be served. I think that is particularly true for 

the stained glass grant where the windows convey an express

sectarian religious message.3 Ultimately, however, the purpose 

 

3 Unlike in the stained glass grant, there are other grants 

to churches where the secular and religious purposes may be more 

easily separable. The Old North Church, located in the North 

End neighborhood of Boston, is a good example. Funding the 

repair and restoration of glass windows are at issue for both 

houses of worship, but any similarity ends there. In 2002, the

Old North Foundation applied for, and later received, a Save 

America's Treasure grant to preserve, among other things, the 

Old North Church's historic window. See Authority of the 

Department of the Interior to Provide Historic Preservation 

Grants to Historic Religious Properties Such as the Old North 

Church, 27 Opinions of the Office of Legal Counsel for 2003, 

United States Department of Justice, 91, 96, 99 (2013) (Old 

North Church opinion), https://www.justice.gov/olc/file/477026

/download [https://perma.cc/XUT2-L54E]. Famously, in the Old 

North Church's steeple hung two lit lanterns to indicate that 

the British army was leaving Boston by boat to capture the 

stores of arms and ammunition located in Concord. See

http://oldnorth.com/historic-site/the-events-of-april-18-1775/

[https://perma.cc/9AGF-KL9Z]. See also H.W. Longfellow, Paul 

Revere's Ride (1860) ("He said to his friend, -- 'If the British 

march By land or sea from the town to-night, Hang a lantern 

aloft in the belfry-arch Of the North-Church-tower, as a signallight, -- One if by land, and two if by sea; And I on the 

opposite shore will be'").

For the grant to the Old North Church, the historical 

purpose is manifestly evident and is described by the National 

Park Service as "one of America's most cherished landmarks." 

Old North Church opinion at 97. The Old North Church windows 

also contained no overt religious message as do the stained 

glass windows in the town of Acton. Furthermore, for the Old 

North Church, rigorous auditing requirements were also in place 

to ensure that the grant funded only the historic aspects of the 
11

inquiry is just one factor in a multifactor test and it is meant 

to be instructive, not dispositive. Springfield, 382 Mass. at 

675. I find the other two factors, particularly the third, 

conclusive of the anti-aid amendment analysis and critical to 

the First Amendment interpretation as well.

The second prong of the anti-aid test analyzes whether the 

grants substantially assist religion. The stained glass grant 

is "neither minimal nor insignificant" to the church. See 

Opinion of the Justices, 401 Mass. 1201, 1208 (1987). 

Approximately $50,000 is being provided and the town is funding

ninety per cent of the total cost. Without the assistance of 

the committee's grants, the church indicated that the financial 

strain and required cuts could "exacerbate the financial 

problem[s] by not offering the congregation what draws them to 

their church."4

 

church and not its religious endeavors. Old North Church 

opinion at 103.

4 The Old North Church is again a good comparison. Great 

efforts were made to avoid religious assistance. See Old North 

Foundation Awarded $317,000 Grant Under Save America's Treasure 

Program, National Park Service, Press Release (May 27, 2003)

(Park Service Press Release), https://www.nps.gov/aboutus/news

/release.htm?id=395 [https://perma.cc/9MAN-6NGV]. The Old North 

Foundation, a secular, nonprofit organization, was the entity 

approved for the grant. See Mission Statement, Old North 

Foundation of Boston, Inc., http://oldnorth.com/historicsite/foundation/ [https://perma.cc/B45N-79Y5]; Park Service 

Press Release, supra. Furthermore, as a matching-grant program, 

the Old North Foundation contributed a substantial amount to the 
12

Most important in my view is the third prong. Awarding 

public monies paid by taxes directly to a church to repair 

stained glass windows with an express religious message raises 

core concerns about separation of church and State that prompted 

the passage of the anti-aid amendment. I agree with the court 

that those concerns include (1) infringement on liberty of 

conscience caused by taxing citizens to support the religious 

beliefs and institutions of others; (2) improper government 

entanglement with religion, thereby diminishing the independence 

and integrity of both church and State; and (3) unnecessary 

divisiveness in the polity caused by making the funding of 

religious institutions a political question. See ante at .

All three of these risks are present here. Tax dollars are 

paying for the stained glass windows that have an express 

sectarian religious message. A historic preservation 

restriction of perpetual duration is being imposed on the 

windows and perhaps other parts of the church, thereby entwining 

an active church building with state government. See The 

Society of Jesus of New England v. Boston Landmarks Comm'n, 409 

Mass. 38, 42 (1990) (designation of church interior as landmark 

 

project. See National Park Service, Matching Share Requirements 

at 1, https://www.nps.gov/preservation-grants/manual/Matching_

Share_Requirements.pdf [https://perma.cc/RA45-3SQF] ("The 

Federal grant is meant to stimulate nonfederal donations-not to 

pay for all the work by itself").
13

infringed on "right freely to design interior spaces for 

religious worship"). See also Martin v. The Corporation of the 

Presiding Bishop of the Church of Jesus Christ of Latter-Day 

Saints, 434 Mass. 141, 153 (2001) ("no municipal concern was 

served by controlling the steeple height of churches"); 

Saperstein, Public Accountability and Faith-Based Organizations:

A Problem Best Avoided, 116 Harv. L. Rev. 1353, 1365 (2003) 

("With government money come government rules, regulations, 

audits, monitoring, interference, and control -- all of which 

inherently threaten religious autonomy"). Town meeting members 

were being asked to vote on a grant to maintain religious 

aspects of the church of their neighbors and now they are suing 

each other. Should another house of worship in the town be 

denied a grant after this one has been awarded, it will likely 

bring about further controversy and division. No more discovery 

is required to know that this grant goes to core concerns of the 

anti-aid amendment.5 In sum, the balancing of the three factors 

shows that the plaintiffs have a substantial likelihood of 

success in establishing that the stained glass grant violates

the anti-aid amendment.

 

5 Again, this case is unlike the Old North Church. Any 

risks or tensions there are substantially assuaged by the 

building's undeniable significance in the Commonwealth's and the 

country's history and because of the separability of the 

historic restoration work from the religious mission.
14

As the church and the free exercise rights of its members 

are also implicated, they must be considered as well. As 

explained above, to be excluded from a generally available 

public benefit program, the funding must be sought for an 

"essentially religious endeavor" raising important State 

constitutional antiestablishment concerns. See Locke, 540 U.S. 

at 721. I conclude that paying for stained glass windows with 

an express sectarian religious message and mission fits within 

the very narrow exception allowed by Locke.

The benefits are vastly different from the nonreligious 

rubberized playground services or school transportation costs, 

or the police and fire or other obviously nonreligious types of 

assistance that have been found not to raise establishment 

clause or anti-aid concerns. See Trinity Lutheran, 137 S. Ct. 

at 2026-2027 (Breyer, J., concurring). See also Everson, 330 

U.S. at 17-18 (describing services "so separate and so 

indisputably marked off from the religious function"). Although

"nothing [religious] . . . can be said about a program to use 

recycled tires to resurface playgrounds," the opposite is true 

for stained glass windows. See Trinity Lutheran, supra at 2023. 

They are an important part of the church's religious message and 

mission. V.C. Raguin, Stained Glass, From its Origins to the 

Present, 13 (2003) ("stained glass became . . . an intimation of 

God's very nature, and important as a contemplative aid"); Lupu 
15

& Tuttle, Historic Preservation Grants to House of Worship: A 

Case Study in The Survival of Separationism, 43 B.C. L. Rev. 

1139, 1175 (2002) ("[Stained glass] windows often present 

religious themes . . . and help to shape the worship experience 

through the play of light and imagery"). See Mitchell v. Helms, 

530 U.S. 793, 820 (2000) (opinion of Thomas, J.) (aid cannot be 

"impermissibly religious in nature"). Additionally, as 

explained above, the stained glass grant here raises core State 

constitutional anti-aid concerns. Like excluding State 

scholarships to pay for a divinity degree in Locke, there are 

"few areas in which a State's antiestablishment interests come 

more into play" than paying for stained glass windows with 

sectarian religious symbolism. Locke, 540 U.S. at 722.

For the religion clauses in the State and Federal 

Constitutions, there is "no simple and clear measure which by 

precise application can readily and invariably demark the 

permissible from the impermissible." School Dist. of Abington 

Township, Pa. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, 

J., concurring). See Van Orden v. Perry, 545 U.S. 677, 699 

(2005) (Breyer, J., concurring) ("the Court has found no single 

mechanical formula that can accurately draw the constitutional 

line in every case"). Although line drawing in this intensely 

contested area of constitutional law is difficult, I believe 
16

that the use of taxpayer dollars to pay for stained glass 

windows with a religious message crosses that line.

I therefore conclude that on this record the plaintiffs 

have demonstrated the necessary likelihood of success that the 

stained glass grant violates the State's anti-aid amendment 

without running afoul of the free exercise clause.

4. Remand on the Master Plan grant. I also agree with the 

court that a remand is required on the Master Plan grant, 

although I place less emphasis than the court on a search for 

"hidden" purposes. I conclude that a fuller factual record is 

required on the inner workings of the grant itself before it can 

be determined whether the Master Plan grant violates the antiaid amendment, and if so, whether exclusion of such a grant from 

a generally available public benefit program would violate the 

free exercise clause of the First Amendment.

It is important to emphasize up front just how narrow the 

exclusion is for generally available public benefit programs. 

See Locke, 540 U.S. at 725. The exclusion involves essentially 

religious endeavors, such as paying for ministry training or 

stained glass windows with sectarian symbols or messages. The

Master Plan grant is to pay an architect to perform a structural 

review of three 170 year old buildings of historic importance to 

the town. Only one of those buildings is a church. The focus 

of the architect's work appears to be on preserving the 
17

structural integrity of the old buildings, not repairing or 

maintaining particular parts of the church that convey an 

express religious message.6 It is unclear to me how much of this 

work goes beyond the "building envelope." These buildings are 

also a part of the historic district of the town and serve 

important nonreligious as well as religious purposes in the town 

and the Commonwealth, as the dissent explains. See post at . 

Additionally it is not clear from the record what historic 

preservation restriction will result from this grant. Will the 

grant to pay for an architect to provide for a structural review 

of the three buildings give the town a restriction regarding 

construction on all of these buildings? Or would such a 

restriction only apply if a grant is provided for subsequent 

work on the buildings? A fuller factual record is necessary on 

this point as well as others.

5. Conclusion. In sum, I conclude that the stained glass 

grant not only violates the anti-aid amendment but also fits 

within the very narrow exclusion from a generally available 

 

6 I recognize that this distinction may be subtle and even 

elusive as a house of worship contains many different religious 

symbols, but as the Supreme Court has emphasized, line drawing 

may be difficult but necessary in this area. See School Dist. 

of Abington Twp., Pa v. Schempp, 374 U.S. 203, 305-306 (1963) 

(Goldberg, J., concurring). See also Van Orden v. Perry, 545 

U.S. 677, 699 (2005) (Breyer, J., concurring). See generally 

Lupu & Tuttle, Historic Preservation Grants to House of Worship: 

A Case Study in The Survival of Separationism, 43 B.C. L. Rev. 

1139, 1174 (2002).
18

public benefit program authorized by the Supreme Court pursuant 

to the First Amendment. I further conclude that on remand the 

legal status of the Master Plan grant under both the anti-aid 

amendment and the free exercise clause of the First Amendment 

must be determined.
CYPHER, J. (dissenting). I respectfully dissent. 

Separation of church and State is a vital constitutional 

requirement under the Massachusetts Declaration of Rights and 

the United States Constitution and an enduring principle of the 

Commonwealth. As the court recounts, Massachusetts has an 

interesting and complex history in this regard. Nevertheless, I 

would affirm the order denying the motion for an injunction to 

block the town's use of the Community Preservation Act (act) to 

preserve the historic façade of the Acton Congregational Church, 

which is located in the town center.

I agree with the majority that grants of public funds to 

active religious institutions pursuant to the act are not 

categorically barred by the anti-aid amendment, and that such 

grants are instead subject to the three-factor test this court 

first articulated in Commonwealth v. School Comm. of 

Springfield, 382 Mass. 665, 675 (1981) (Springfield). As the 

court points out, this test requires that we consider (1) 

whether the purpose of the challenged grant is to aid a private 

charity; (2) whether the grant does in fact substantially aid a 

private charity; and (3) whether the grant avoids the political 

and economic abuses that prompted the passage of the anti-aid 
2

amendment.1 I do not think that the motion judge misapplied 

those three factors here.

I am also 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 cases interpreting the amendment, which dictate 

that we do not treat religious and secular entities differently 

under the amendment. The court's focus on a grant applicant's 

status as an active house of worship also implicates the most 

 

1 With respect to the first factor set out in Commonwealth

v. School Comm. of Springfield, 382 Mass. 665, 675 (1981) 

(Springfield), consideration of a grant's "purpose", I disagree 

with the court that a court's primary focus here is on whether 

"one" of a grantor's motivating purposes is impermissible. See 

ante at n.22. Our "purpose" inquiry is limited to the 

intent of the grantor, without consideration of an applicant's 

motives for seeking grant funds. See, e.g., Boston Edison Co.

v. Boston Redevelopment Auth., 374 Mass. 37, 62-63 (1977) (where 

the legislature has provided specific standards, "the purpose of 

the applicants in proposing the project is wholly irrelevant"). 

And as Springfield and subsequent cases make clear, that inquiry 

requires that we consider what "the" purpose of the grant is, 

see, e.g., Springfield, 382 Mass. at 675 -- not, as the court 

states, whether "one purpose among many" might be impermissible. 

In instances where there may be more than one purpose for a 

grant, a court must consider and balance all such purposes in 

order to determine what "the" predominant or "primary" purpose 

of the grant is. Id. at 678 ("The statute's purpose is, 

primarily, to help specified children with special needs obtain 

the education which is theirs by right"). I am therefore not 

convinced that the plaintiffs' potential discovery of some 

"hidden purpose" to aid the church tips the scale in their favor 

under this factor, where the clear predominant purpose of these 

grants is historic preservation.
3

recent United States Supreme Court decision in this area, 

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 

2012, 2024 (2017) (Trinity Lutheran). Trinity Lutheran holds 

that a State cannot condition participation in a generallyavailable public benefit program on an applicant's "renounc[ing] 

its religious character."2 Id. Finally, I write to underscore 

the importance of preserving our State's historic buildings, 

which embody the Commonwealth's rich past and offer those in the 

present a number of public benefits. Historic churches and 

meeting houses are, like secular historic buildings, an 

indispensable part of our historic landscape, and warrant the 

same degree of preservation.

As I understand the judge's decision, she examined the 

purpose of the grant and found that the taxpayers did not 

satisfy the first Springfield factor in their challenge. She 

stated in her decision that the taxpayers "failed to demonstrate 

 

2 Were I to interpret the principles of separation of church 

and State without concern for our own precedent or the Supreme 

Court's decisions, I may well find myself in agreement with 

Justice Sotomayor's dissent in Trinity Lutheran Church of 

Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2041 (2017)

(Sotomayor, J., dissenting) ("History shows that the Religion 

Clauses separate the public treasury from religious coffers as 

one measure to secure the kind of freedom of conscience that 

benefits both religion and government. If this separation means 

anything, it means that the government cannot, or at the very 

least need not, tax its citizens and turn that money over to 

houses of worship"). See Zelman v. Simmons-Harris, 536 U.S. 

639, 686-717 (2002) (Souter, J., dissenting).
4

that the purpose of the grants is to aid the [c]hurch[]." And 

in the judge's discussion of this factor, she correctly stated 

that a court's inquiry does not depend on "the stated purpose of 

the recipients." Boston Edison Co. v. Boston Redevelopment 

Auth., 374 Mass. 37, 62-63 (1977) (where Legislature has 

provided specific standards, "the purpose of the applicants in 

proposing the project is wholly irrelevant").3 At the hearing on 

the request for a preliminary injunction, the parties emphasized 

the grant, not the act itself, and the judge noted in her 

decision that under Helmes she was to consider the purpose of 

the grants. Helmes v. Commonwealth, 406 Mass. 873, 877 (1990). 

When the judge set out the factors, she identified each one as 

concerning the grants, not the act.

Turning to the grants themselves, it is readily apparent 

that they have a public purpose of historic preservation and 

require a recipient to convey a preservation restriction as an 

express condition of the grant. G. L. c. 44B, § 12 (a). See 

G. L. c. 184, § 31 (defining preservation restriction). The 

public receives a real property interest in exchange for the 

 

3 The Community Preservation Act (act) sets forth neutral 

criteria for the grants and a detailed procedural process under 

which those grants are considered. G. L. c. 44B, §§ 3-7. Under 

the act, the town's Community Preservation Committee gathers 

information, consults with municipal boards, holds public 

hearings, and makes recommendations for the acquisition, 

preservation, rehabilitation, and restoration of historic 

resources.
5

grant. Moreover, the town enjoys "every presumption in favor of 

the honesty and sufficiency of the motives actuating public 

officers in actions ostensibly taken for the general welfare." 

LaPointe v. License Bd. of Worcester, 389 Mass. 454, 459 (1983).4 

There is nothing in the record that suggests any irregularity in 

the grant process in this case. To the contrary, the town and 

its Community Preservation Committee (committee) complied with 

all of the rigorous requirements of the act for these grants.

After a public hearing, the committee voted unanimously to 

recommend the projects to the town meeting, based in part on 

"the significance of the historical resource[s]" that were to be 

preserved. Following additional favorable recommendations by 

the town's board of selectmen and its finance committee, 

residents at the town meeting voted to approve the grants for 

these projects in April, 2016. These grants received full 

scrutiny and endorsement by the residents of the town at 

multiple levels of town government.

 

4 In its brief, the town represents that the grants under 

the act "in this case are entirely consistent with previous 

funding by the town, other Massachusetts municipalities and the 

State itself. Over time, the town has approved fourteen other 

similar [projects under the act] (i.e., windows, roofs, and 

master planning) to preserve historic resources, including six 

owned by the town, five owned by private nonprofits, one owned 

by a church, and two owned by other private recipients."
6

The judge found that the first and third prongs of the test 

had been satisfied by the town.5 With regard to the second 

factor, the judge assumed for the purposes of the analysis that 

the taxpayers would be able to show that the grants in fact 

substantially aided the church and she then conducted the 

balancing test, concluding that the grants did not run afoul of 

the anti-aid amendment.6 She did not ignore the second factor; 

rather, the judge balanced the various factors, which are 

"cumulative and interrelated," Springfield, 382 Mass. at 675, in 

 

5 It is worth noting that between 2003 and 2014, the 

Massachusetts Historical Commission approved funding for thirtyeight projects involving active religious institutions through 

its Massachusetts Preservation Project Fund (16.5 per cent of 

all approved projects), including Vilna Shul in the Beacon Hill

area of Boston, Trinity Church in Boston, and Saint George Greek 

Orthodox Cathedral in Springfield. There has been no evidence 

of the risks with which the court is concerned.

6 Although there is no question that the grants must not 

"substantially aid" the church, the grants do not aid the 

"essential function" of the church within the meaning of the 

anti-aid amendment. Springfield, 382 Mass. at 680, 681. The 

grants are expressly limited to reimbursement of expenses 

incurred by the church on the projects and cannot be used to 

"for the purpose of founding, maintaining or aiding" the 

church's mission, see art. 18 of the Amendments to the 

Massachusetts Constitution, as amended by arts. 46 and 103 of 

the Amendments, or any purpose other than historical 

preservation. Springfield, supra (close monitoring of public 

funds prevents aid from becoming aid for entity's essential 

function). There appears to be no case that has held that a 

grant to a private organization necessarily constitutes 

"substantial aid" where the grant serves other important public 

purposes. See Helmes v. Commonwealth, 406 Mass. 873, 876-877

(1990); Springfield, supra at 675; Bloom v. School Comm. of 

Springfield, 376 Mass. 35, 47 (1978).
7

reaching her conclusion that the town had not violated the antiaid amendment by issuing the preservation grant.7

The anti-aid amendment itself makes no distinction between 

secular and religious recipients of public funds; rather, as the 

court acknowledges, "the operative language in the amendment's 

two clauses is identical." Ante at . Indeed, as this 

court's anti-aid amendment cases repeatedly state, the amendment 

"marks no difference between 'aids,' whether religious or 

secular." Springfield, 382 Mass. at 674, n.14, quoting Bloom v. 

School Comm. of Springfield, 376 Mass. 35, 45 (1978). See 

Opinion of the Justices, 401 Mass. 1201, 1203 n.4 (1987); 

Attorney Gen. v. School Comm. of Essex, 387 Mass 326, 332 n.3 

(1982). In my view, we cannot treat a religious institution 

differently from a secular private institution if we are to 

respect the text of the amendment and our own precedent. 

Applying that principle to this case, I conclude that the 

 

7 We have recognized that an incidental benefit to an entity 

is inevitable. In fact, in Helmes, we observed that a

battleship would not be able to continue as a war memorial and 

likely would be forfeited to the Navy. Helmes, 406 Mass. at 

877. See Springfield, 382 Mass. at 679-681 (secondary and 

indirect benefits to private schools do not qualify as 

"substantial aid" under anti-aid amendment). See also Attorney 

Gen. v. School Comm. of Essex, 387 Mass. 326, 332 (1982) ("The 

fact that a state law, passed to satisfy a public need, 

coincides with the personal desires of individuals most directly 

affected is certainly an inadequate reason . . . to say that a 

legislature has erroneously appraised the public need" [citation 

omitted]).
8

application of the three-factor Springfield test to religious 

institutions should be no more rigorous than the application of 

the test to any other grant under the act to any other secular 

private or charitable organization.8

In addition, although this case primarily concerns the 

State anti-aid amendment, our decision must also be mindful of 

applicable Federal constitutional provisions, such as the 

religion clauses of First Amendment to the United States 

Constitution. In Trinity Lutheran, decided this past June, the 

Supreme Court struck down a State's policy of denying public 

grants to religiously-affiliated applicants as a violation of 

the free exercise clause. Trinity Lutheran, 137 S. Ct. at 2024. 

The policy at issue there was based on a State constitutional 

provision requiring "[t]hat no money shall ever be taken from 

the public treasury, directly, or indirectly, in aid of any 

church." Id. at 2017. The court distinguishes Trinity Lutheran

 

8 In addition to their argument concerning the risks posed 

by public support of religious institutions, the taxpayers voice 

other concerns that are not insubstantial. They claim that (1) 

the grant to the church violates their liberty of conscience if 

the grant is for a church they do not want to support; (2) the 

grant threatens the independence of religious institutions,

making them "supplicants" for governmental aid that may bring 

intrusive governmental inquiries; and (3) the grant may be 

politically divisive and engender "religious biases" in grant 

making. Of course, taxpayers could make similar objections to 

grants provided to secular recipients. These are the concerns 

that the three-factor test in Springfield is designed to 

address.
9

from the present case by stating that, unlike the State 

constitutional provision there, Massachusetts's anti-aid 

amendment is not a categorical ban on religious institutions 

applying for and receiving public grants. In my opinion, 

however, Trinity Lutheran carries broader implications.

The Supreme Court further observed that a State policy 

requiring an applicant for public funds "to renounce its 

religious character in order to participate in an otherwise 

generally available public benefit program is," absent "a 

[S]tate interest 'of the highest order,'" "odious to our 

Constitution" (citation omitted). Id. at 2024-2025. As I read 

the court's analysis in this case, a historic religious building 

with an active congregation is at a distinct disadvantage when 

seeking funds under the act -- at least for purposes of a 

court's anti-aid scrutiny of that building's grant application -

- compared to historic religious buildings that are no longer 

active. The historic religious building would then be 

confronted with the "odious" choice of "having to disavow its 

religious character" in order to participate in the 

Commonwealth's community preservation program. Id. at 2022.

Finally, I write to emphasize the importance of preserving 

our State's historic structures, in light of the significant 

cultural, aesthetic, and economic benefits such preservation 

bestows on the Commonwealth's cities and towns. The citizens 
10

and the Legislature have determined that historic preservation 

is important so that future generations may appreciate the 

history of the Commonwealth. This determination has been 

expressed through the creation of a variety of historic 

districts and historical commissions, as well as State laws and 

regulations governing historic preservation.9 We have likewise 

recognized this interest. See, e.g., Helmes, 406 Mass. at 877 

(public money appropriated to nonprofit "to rehabilitate [a 

World War II] battleship, to preserve it as a memorial to 

citizens of the Commonwealth" served public purpose); Opinion of 

the Justices, 333 Mass. 773, 780 (1955) ("There has been 

substantial recognition by the courts of the public interest in 

the preservation of historic buildings, places, and districts").

"[S]tructures with special historic, cultural, or 

architectural significance enhance the quality of life for all," 

as they "represent the lessons of the past and embody precious 

features of our heritage." Penn Cent. Transp. Co. v. New York 

City, 438 U.S. 104, 108 (1978). Likewise, the careful 

craftsmanship of these buildings -- too often a feature of the 

past -- "serve as examples of quality for today," id., and 

 

9 For example, the Massachusetts Historical Commission was 

created by the Legislature in 1963, see St. 1963, c. 697, § 1,

to identify, evaluate, and protect important historical and 

archaeological assets of the Commonwealth, G. L. c. 9, §§ 26-

27D, including establishing and maintaining the State Register 

of Historic Places, G. L. c. 9, § 26C.
11

improve the aesthetics of our neighborhoods. Indeed, the 

building that this court occupies is a testament to that, having 

been placed on the National Register of Historic Places in 1974, 

and undergoing a magnificent renovation and restoration 

completed in 2005. Historic preservation also offers distinct 

economic advantages, by increasing property values, encouraging 

tourism, and generating local business. See, e.g., H.S. 

Edwards, The Guide for Future Preservation in Historic Districts 

Using a Creative Approach: Charleston, South Carolina's 

Contextual Approach to Historic Preservation, 20 U. Fla. J.L. & 

Pub. Pol'y 221, 223-225 (2009).

Churches, an undeniable part of the Commonwealth's historic 

landscape, achieve these same cultural, aesthetic, and economic 

benefits,10 and likewise warrant preservation. During 

Massachusetts's early history, civic and religious life were in 

many ways one in the same. The meeting house -- perhaps the 

most iconic feature of a "quintessential New England town" --

served as the center of gravity for both public administration 

and religious worship. See, e.g., Witte, How to Govern a City 

 

10 According to one study conducted in 1996, the average 

historic religious place in an urban environment generates over 

$1.7 million annually in economic impact. Sacred Places, The 

Economic Halo Effect of Historic Sacred Places, at 4, 19 

(undated), http://www.sacredplaces.org/uploads/files

/16879092466251061-economic-halo-effect-of-historic-sacredplaces.pdf [ https://perma.cc/LEH3-5G88].
12

on a Hill: The Early Puritan Contribution to American 

Constitutionalism, 39 Emory Law J. 41, 57 (1990) ("Church 

meetinghouses and chapels were used not only to conduct 

religious services, but also to host town assemblies, political 

rallies, and public auctions . . ."). Colonial laws often 

required homes to be constructed within one mile of the meeting 

house. See, e.g., N.B. Shurtleff, ed., 1 Records of the 

Governor and Company of the Massachusetts Bay in New England, 

157 (1853) (reflecting 1635 order of General Court that, in 

certain towns, no "dwelling howse" was to be "above halfe a myle 

from the meeting house" without legislative permission). 

Especially for buildings of such historic significance -- the 

institutional center of life in colonial Massachusetts -- we 

should be careful not to impose undue restrictions on their 

access to needed preservation funds.