b'Authority of the Department of the Interior to Provide\nHistoric Preservation Grants to Historic Religious\nProperties Such as the Old North Church\nThe Establishment Clause does not bar the award of historic preservation grants to the Old North\nChurch or to other active houses of worship that qualify for such assistance, and the section of the\nNational Historic Preservation Act authorizing the provision of historic preservation assistance to\nreligious properties listed on the National Register of Historic Places is constitutional.\n\nApril 30, 2003\n\nMEMORANDUM OPINION FOR THE SOLICITOR\nDEPARTMENT OF THE INTERIOR\nYou have asked us whether the Establishment Clause of the First Amendment\npermits the Department of the Interior (\xe2\x80\x9cDOI\xe2\x80\x9d) to provide grants for preservation\nof historic structures that, although open to the general public, are also used for\nreligious purposes. In the National Historic Preservation Act, Congress expressly\nprovided that DOI\xe2\x80\x99s authority to award grants for the preservation of properties\nlisted in the National Register of Historic Places, see 16 U.S.C. \xc2\xa7 470a(e)(3)\n(2002), extends to grants \xe2\x80\x9cfor the preservation, stabilization, restoration, or\nrehabilitation of religious properties listed in the National Register of Historic\nPlaces, provided that the purpose of the grant is secular, does not promote religion,\nand seeks to protect those qualities that are historically significant.\xe2\x80\x9d Id.\n\xc2\xa7 470a(e)(4). Accordingly, on September 27, 2002, the National Park Service\n(\xe2\x80\x9cPark Service\xe2\x80\x9d) awarded such a grant to the Old North Church, where lanterns\nwere hung on the eve of the Revolutionary War\xe2\x80\x94\xe2\x80\x9cOne, if by land, and two, if by\nsea\xe2\x80\x9d\xe2\x80\x94signaling to Paul Revere whether the British were approaching by land or\nwater. Shortly thereafter, however, the Park Service reversed its position, relying\non a 1995 opinion of this Office advising that a reviewing court, applying thencurrent Establishment Clause precedent, would likely invalidate the provision of a\nhistoric preservation grant to an active church. See Constitutionality of Awarding\nHistoric Preservation Grants to Religious Properties, 19 Op. O.L.C. 267 (1995)\n(\xe2\x80\x9c1995 Opinion\xe2\x80\x9d). You have asked whether the 1995 Opinion reflects our\nunderstanding of the law today. For the reasons set forth below, we conclude that\nthe Establishment Clause does not bar the award of historic preservation grants to\nthe Old North Church or other active houses of worship that qualify for such\nassistance, and that the section of the National Historic Preservation Act that\nauthorizes the provision of historic preservation assistance to religious properties\nis constitutional.\n\n91\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nI.\nA.\nYour request for advice involves the Save America\xe2\x80\x99s Treasures program (\xe2\x80\x9cProgram\xe2\x80\x9d), which is administered by the Park Service working together with the\nStates. The Program, established in 1998 pursuant to the National Historic\nPreservation Act (\xe2\x80\x9cNHPA\xe2\x80\x9d), 16 U.S.C. \xc2\xa7\xc2\xa7 470\xe2\x80\x93470x-6 (2000), provides matching\ngrants for preservation of \xe2\x80\x9cthe enduring symbols of American tradition that define\nus as a nation.\xe2\x80\x9d See Letter for Jay S. Bybee, Assistant Attorney General, Office of\nLegal Counsel, from William G. Myers III, Solicitor, Department of the Interior,\nat 3 (Jan. 24, 2003) (\xe2\x80\x9cMyers Letter\xe2\x80\x9d); Department of the Interior and Related\nAgencies Appropriations Act, 2002, Pub. L. No. 107-63, 115 Stat. 414, 425\n(2001). Matching Save America\xe2\x80\x99s Treasures grants are available for work on\n\xe2\x80\x9cnationally significant intellectual and cultural artifacts and nationally significant\nhistoric structures and sites.\xe2\x80\x9d FY 2002 Federal Save America\xe2\x80\x99s Treasures\nGrants\xe2\x80\x94Guidelines and Application Instructions at 1 (\xe2\x80\x9cGuidelines\xe2\x80\x9d), available at\nhttp://www.pcah.gov/sat/SAT2002.html. In a typical year, approximately 70\npercent of the Save America\xe2\x80\x99s Treasures grants are awarded for the preservation of\nhistoric structures or sites, and 30 percent are awarded for museum and archival\ncollections. Past grantees include Frank Lloyd Wright\xe2\x80\x99s Taliesin Estate in Spring\nGreen, Wisconsin, the Star Spangled Banner at the Smithsonian Institute, Thomas\nJefferson\xe2\x80\x99s papers at the Massachusetts Historical Society, and the ancient cliff\ndwellings of Mesa Verde National Park in Colorado. Myers Letter at 2. Funding\nfor the Program is provided by the Historic Preservation Fund, which was created\nby the NHPA. See 16 U.S.C. \xc2\xa7 470h.\nFour types of entities, including both public and private institutions, are eligible\nto apply for Save America\xe2\x80\x99s Treasures grants: federal agencies that receive\nfunding under DOI appropriations legislation; units of state and local government;\nfederally recognized Indian tribes; and organizations that are tax-exempt under\nsection 501(c)(3) of the Internal Revenue Code. Guidelines at 1. Representatives\nof the Park Service review and rank applications on the basis of extensive criteria,\nprimarily related to historical significance.1 Most important, as a \xe2\x80\x9cthreshold\ncriterion,\xe2\x80\x9d the applicant must demonstrate the property\xe2\x80\x99s \xe2\x80\x9cnational significance,\xe2\x80\x9d\nas that term is defined by the Guidelines. Id. at 3.2 Reduced to its essentials, this\n\n1\nRepresentatives of the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute for Museum and Library Services review applications for funding of museum\nand archival collections under the Program.\n2\n\xe2\x80\x9cThe quality of national significance is ascribed to . . . historic properties that possess exceptional\nvalue, or quality in illustrating or interpreting the intellectual and cultural heritage and the built\nenvironment of the United States, that possess a high degree of integrity and:\n\n92\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nrequires a showing that the property possesses \xe2\x80\x9cexceptional value or quality in\nillustrating or interpreting the intellectual and cultural heritage and the built\nenvironment of the United States,\xe2\x80\x9d that it possesses \xe2\x80\x9ca high degree of integrity,\xe2\x80\x9d\nand that it is associated with events, persons, ideas, or ideals that are especially\nsignificant in American history. Id. In addition, the property must have been either\ndesignated as a National Historic Landmark or listed as a place of \xe2\x80\x9cnational\nsignificance\xe2\x80\x9d in the National Register of Historic Places (\xe2\x80\x9cNational Register\xe2\x80\x9d), or\nbe provisionally eligible for such designation or listing. Id. at 3\xe2\x80\x934.3\n\n\xe2\x80\x9cThat are associated with events that have made a significant contribution to, and are\nidentified with, or that outstandingly represent the broad patterns of United States history and culture and from which an understanding and appreciation of those patterns\nmay be gained; or,\n\xe2\x80\x9cThat are associated importantly with the lives of persons nationally significant in the\nUnited States history or culture; or,\n\xe2\x80\x9cThat represent great historic, cultural, artistic or scholarly ideas or ideals of the\nAmerican people; or,\n\xe2\x80\x9cThat embody the distinguishing characteristics of a resource type\n\xe2\x80\x9cthat is exceptionally valuable for the study of a period or theme of United States\nhistory or culture; or\n\xe2\x80\x9cthat represents a significant, distinctive and exceptional entity whose components\nmay lack individual distinction but that collectively form an entity of exceptional\nhistorical, artistic or cultural significance (e.g., an historic district with national\nsignificance), or\n\xe2\x80\x9cthat outstandingly commemorate or illustrate a way of life or culture; or,\n\xe2\x80\x9cThat have yielded or may be likely to yield information of major importance by revealing or by shedding light upon periods or themes of United States history or culture.\xe2\x80\x9d\nGuidelines at 3.\n3\nTo establish a historic structure\xe2\x80\x99s eligibility for the National Register, an applicant must first\ndemonstrate the building\xe2\x80\x99s \xe2\x80\x9csignificance in American history, architecture, archeology, engineering,\nand culture\xe2\x80\x9d in light of its \xe2\x80\x9cintegrity of location, design, setting, materials, workmanship, feeling, and\nassociation.\xe2\x80\x9d 36 C.F.R. \xc2\xa7 60.4 (2002) (\xe2\x80\x9cNational Register criteria for evaluation\xe2\x80\x9d). Eligibility for the\nNational Register also requires that a building be one that:\n(a) is \xe2\x80\x9cassociated with events that have made a significant contribution to the broad\npatterns of our history\xe2\x80\x9d;\n(b) is \xe2\x80\x9cassociated with the lives of persons significant in our past\xe2\x80\x9d;\n(c) \xe2\x80\x9cembod[ies] the distinctive characteristics of a type, period, or method of construction, or that represent[s] the work of a master, or that possess[es] high artistic values,\nor that represent[s] a significant and distinguishable entity whose components may\nlack individual distinction\xe2\x80\x9d; or\n(d) \xe2\x80\x9cha[s] yielded, or may be likely to yield, information important in prehistory or\nhistory.\xe2\x80\x9d\nId. Nominations to the National Register may be made by the State Historic Preservation Office, by\nfederal agencies, or jointly by state and federal authorities. See id. \xc2\xa7\xc2\xa7 60.6, 60.9, 60.10. A property may\nbe listed in the National Register for local, regional, or national significance, but a listing for national\nsignificance must satisfy more stringent criteria.\n\n93\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nIn addition to \xe2\x80\x9cnational significance,\xe2\x80\x9d applicants for Save America\xe2\x80\x99s Treasures\ngrants must also demonstrate that the historic property is \xe2\x80\x9cthreatened\xe2\x80\x9d or \xe2\x80\x9cendangered,\xe2\x80\x9d or that it has an \xe2\x80\x9curgent preservation and/or conservation need.\xe2\x80\x9d Guidelines at 3. Moreover, the proposed project \xe2\x80\x9cmust address the threat and must have\neducational, interpretive, or training value and a clear public benefit (for example,\nhistoric places open for visitation or collections available for public viewing or\nscholarly research).\xe2\x80\x9d Id. The project must be \xe2\x80\x9cfeasible (i.e., able to be accomplished within the proposed activities, schedule and budget described in the\napplication), and the applicant must demonstrate ability to complete the project\nand match the Federal funds.\xe2\x80\x9d Id. Once a project has met the threshold criterion of\n\xe2\x80\x9cnational significance,\xe2\x80\x9d the threat to the structure amounts to 30 percent of its total\n\nDesignation as a National Historic Landmark requires satisfying more stringent criteria than those\nthat must be satisfied for listing in the National Register. DOI regulations provide:\nThe quality of national significance is ascribed to districts, sites, buildings, structures\nand objects that possess exceptional value or quality in illustrating or interpreting the\nheritage of the United States in history, architecture, archeology, engineering and culture and that possess a high degree of integrity of location, design, setting, materials,\nworkmanship, feeling and association, and:\n(1) That are associated with events that have made a significant contribution to,\nand are identified with, or that outstandingly represent, the broad national patterns\nof United States history and from which an understanding and appreciation of\nthose patterns may be gained; or\n(2) That are associated importantly with the lives of persons nationally significant\nin the history of the United States; or\n(3) That represent some great idea or ideal of the American people; or\n(4) That embody the distinguishing characteristics of an architectural type specimen exceptionally valuable for a study of a period, style or method of construction, or that represent a significant, distinctive and exceptional entity whose components may lack individual distinction; or\n(5) That are composed of integral parts of the environment not sufficiently significant by reason of historical association or artistic merit to warrant individual\nrecognition but collectively compose an entity of exceptional historical or artistic\nsignificance, or outstandingly commemorate or illustrate a way of life or culture;\nor\n(6) That have yielded or may be likely to yield information of major scientific importance by revealing new cultures, or by shedding light upon periods of occupation over large areas of the United States. Such sites are those which have yielded,\nor which may reasonably be expected to yield, data affecting theories, concepts\nand ideas to a major degree.\n36 C.F.R. \xc2\xa7 65.4(a) (2002). These evaluations, while \xe2\x80\x9creflect[ing] both public perceptions and professional judgments,\xe2\x80\x9d are \xe2\x80\x9cundertaken by professionals, including historians, architectural historians, archeologists and anthropologists familiar with the broad range of the nation\xe2\x80\x99s resources and historical\nthemes.\xe2\x80\x9d Id. \xc2\xa7 65.4. \xe2\x80\x9cThe final decision on whether a property possesses national significance,\xe2\x80\x9d however, \xe2\x80\x9cis made by the Secretary on the basis of documentation including the comments and recommendations of the public who participate in the designation process.\xe2\x80\x9d Id. In addition, a property\xe2\x80\x99s designation as a National Historic Landmark automatically results in its being listed in the National Register.\nId. \xc2\xa7 60.1(b).\n\n94\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nevaluation score; how the project addresses the threat amounts to 30 percent of its\nscore; the educational value of the project amounts to 10 percent of its score; and\nthe applicant\xe2\x80\x99s ability to meet budget and secure the non-federal matching funds\namounts to 30 percent of its score. Id. at 4.\nAfter the Park Service completes its ranking of applicants, a Grants Selection\nPanel (\xe2\x80\x9cPanel\xe2\x80\x9d) further reviews the ranked applications and recommends grantees\nto the Secretary of the Interior. Myers Letter at 2. The Panel comprises federal\nemployees, selected by the Park Service, with professional expertise in fields such\nas history, preservation, conservation, archeology, and curatorship. Id. In order to\ninsulate the panel members from external influence, DOI does not disclose their\nidentity to the public. Id. If the Secretary agrees with the Panel\xe2\x80\x99s recommendations, the Park Service informs the applicants of the results. Id.4\nApplicants that qualify for a grant under the substantive criteria discussed\nabove must also satisfy a number of administrative requirements before commencing their projects. For example, because projects funded by the Program are\n\xe2\x80\x9cundertakings\xe2\x80\x9d within the meaning of the Historic Preservation Act, see 16 U.S.C.\n\xc2\xa7 470f, the Park Service requires that grant recipients consult with their State\nHistoric Preservation Officer prior to the receipt of funds. See 36 C.F.R. pt. 800\n(2002); Guidelines at 2. In addition, grant recipients must agree to encumber the\ntitle to their property with a 50-year covenant, enforceable by the State Historic\nPreservation Office (or another entity designated by the Park Service), that runs\nwith the land and provides that the owners \xe2\x80\x9cshall repair, maintain, and administer\nthe premises so as to preserve the historical integrity of the features, materials,\nappearance, workmanship, and setting that made the property eligible for the\nNational Register of Historic Places.\xe2\x80\x9d Guidelines at 3. Finally, because Save\nAmerica\xe2\x80\x99s Treasures grants are provided \xe2\x80\x9conly for the benefit of the public,\xe2\x80\x9d\n\xe2\x80\x9cinterior work (other than mechanical systems such as plumbing or wiring), or\nwork not visible from the public way, must be open to the public at least 12 days a\nyear during the 50-year term of the preservation easement or covenant.\xe2\x80\x9d Id.\nAs further conditions of assistance, Save America\xe2\x80\x99s Treasures grantees must\nalso keep detailed records of their expenditures and are subject to audit by the\ngovernment to ensure that the Save America\xe2\x80\x99s Treasures grants are spent only for\ndesignated purposes. 16 U.S.C. \xc2\xa7 470e. The Act expressly requires grantees to\nmaintain \xe2\x80\x9crecords which fully disclose the disposition by the beneficiary of the\nproceeds of such assistance, the total cost of the project or undertaking in connection with which such assistance is given or used, and the amount and nature of that\n4\nThe Program\xe2\x80\x99s appropriations legislation purports to require that \xe2\x80\x9call projects to be funded shall\nbe approved by the House and Senate Committees on Appropriations prior to the commitment of grant\nfunds,\xe2\x80\x9d Department of the Interior and Related Agencies Appropriations Act 2002, Pub. L. No. 107-63,\n115 Stat. 414, 425 (2001), and the Program\xe2\x80\x99s guidelines state that a list of successful applicants is\nforwarded \xe2\x80\x9cto the House and Senate Committees on Appropriations for concurrence.\xe2\x80\x9d Guidelines at 3.\nThis provision, however, is unenforceable. See INS v. Chadha, 462 U.S. 919 (1983).\n\n95\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nportion of the cost of the project or undertaking supplied by other sources, and\nsuch other records as will facilitate an effective audit.\xe2\x80\x9d Id. In fulfillment of these\nrequirements, the Secretary of the Interior requires that grant recipients sign\nagreements that obligate them to secure matching, non-federal funds; to seek\nreimbursement for incurred costs (grant funds are provided after the reimbursable\nexpenditures have been incurred); and to submit to rigorous auditing and recordkeeping requirements. Myers Letter at 3. These requirements ensure that grantees\ndo not use federal funds for unauthorized purposes.\nThe guidelines that currently govern applications for Save America\xe2\x80\x99s Treasures\ngrants expressly bar funding of \xe2\x80\x9c[h]istoric properties and collections associated with\nactive religious organizations (for example, restoration of an historic church that is\nstill actively used as a church).\xe2\x80\x9d Guidelines at 2. In contrast, the NHPA provides that\n\xe2\x80\x9c[g]rants may be made . . . for the preservation, stabilization, restoration, or rehabilitation of religious properties listed in the National Register of Historic Places,\nprovided that the purpose of the grant is secular, does not promote religion, and\nseeks to protect those qualities that are historically significant.\xe2\x80\x9d 16 U.S.C.\n\xc2\xa7 470a(e)(4). Likewise, although current DOI regulations governing inclusion in the\nNational Register provide that properties \xe2\x80\x9cowned by religious institutions or used for\nreligious purposes\xe2\x80\x9d are \xe2\x80\x9c[o]rdinarily\xe2\x80\x9d deemed ineligible for the National Register,\nthose regulations contain an exception for \xe2\x80\x9creligious property deriving primary\nsignificance from architectural or artistic distinction or historical importance.\xe2\x80\x9d 36\nC.F.R. \xc2\xa7 60.4 (\xe2\x80\x9cCriteria considerations\xe2\x80\x9d). No such exception appears in the\nProgram\xe2\x80\x99s guidelines. Thus, as the Program now stands, a religious property may be\nlisted in the National Register or designated as a National Historic Landmark\xe2\x80\x94and\nsubjected to any regulatory requirements that may attend that designation5\xe2\x80\x94but may\nnot receive federal funding for preservation.\nB.\nOn April 3, 2002, the Old North Foundation (\xe2\x80\x9cFoundation\xe2\x80\x9d) applied to the Park\nService for a Save America\xe2\x80\x99s Treasures grant to preserve the Old North Church in\nBoston, Massachusetts.6 The Old North Church is most famously associated with\n5\nAlthough listing on the National Register does not itself trigger any federal regulatory restrictions,\nnumerous states and local governments impose extensive restrictions on historic properties. See, e.g.,\nDaniel R. Mandelker, Land Use Law \xc2\xa7\xc2\xa7 11.22\xe2\x80\x9311.34 (3d ed. 1993); Christopher D. Bowers, Historic\nPreservation Law Concerning Private Property, 30 Urb. Law. 405, 409 (1998) (\xe2\x80\x9cMany historic\npreservation ordinances (or state law) require a person to obtain approval from either the local\ncommission or the governing body of the city or county to alter a historic property, or the exterior of a\nstructure on that property, or to place, construct, maintain, expand, or remove a structure on the\nproperty.\xe2\x80\x9d); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 129 (1978) (\xe2\x80\x9cthis Court\nhas recognized, in a number of settings, that States and cities may enact land-use restrictions or controls\nto enhance the quality of life by preserving the character and desirable aesthetic features of a city\xe2\x80\x9d).\n6\nThe Foundation, a nonprofit corporation under section 501(c)(3) of the Internal Revenue Code,\nwas established to develop educational programs that address \xe2\x80\x9cissues relating to freedom in the life of\n\n96\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nPaul Revere\xe2\x80\x99s ride to warn colonists of the impending arrival of British troops on\nthe eve of the Revolutionary War. Revere arranged for a signal to be sent by\nlanterns hung from the Old North Church\xe2\x80\x99s steeple\xe2\x80\x94\xe2\x80\x9cOne, if by land, and two, if\nby sea.\xe2\x80\x9d On the night of April 18, 1775, the Church\xe2\x80\x99s sexton, Robert Newman,\nclimbed the steeple and hung two lanterns, signaling to the Sons of Liberty and to\nRevere\xe2\x80\x94then crossing the Charles River toward Charleston\xe2\x80\x94that the British\nRegulars were moving up the River to Cambridge, from which they would later\nmarch on Lexington. On reaching Charleston, Revere raced by horseback across\nthe Middlesex countryside to notify the colonists that the British were coming\xe2\x80\x94\nsummoning the Nation\xe2\x80\x99s first militia. The \xe2\x80\x9cshot heard \xe2\x80\x98round the world\xe2\x80\x9d was fired\nthe following day, commencing the Revolutionary War. See generally National\nRegister of Historic Places Inventory\xe2\x80\x94Nomination Form, Part 8 (Statement of\nSignificance); Henry Wadsworth Longfellow, Paul Revere\xe2\x80\x99s Ride, in The Home\nBook of Verse 2,422 (selected & arranged by Burton E. Stevenson, 9th ed. 1950).\nRecognizing the importance of these events, the Park Service has described the\nOld North Church as \xe2\x80\x9can icon in American history,\xe2\x80\x9d see http://www.nr.nps.gov/\nwriteups/66000776.nl.pdf, and as \xe2\x80\x9cone of America\xe2\x80\x99s most cherished landmarks,\xe2\x80\x9d\nboth \xe2\x80\x9c[h]istorically and architecturally,\xe2\x80\x9d see National Register of Historic Places\nInventory\xe2\x80\x94Nomination Form, Part 8 (Statement of Significance). The Church has\nbeen listed as a \xe2\x80\x9creligious facility\xe2\x80\x9d in the National Register of Historic Places since\nthe Register\xe2\x80\x99s creation in 1966. It was designated as a National Historic Landmark\nin 1967. See http://tps.cr.nps.gov/nhl/detail.cfm?resourceId=585&resourceType=\nBuilding.\nConstruction of the Old North Church began in 1723 and was completed in 1745.\nInspired by the design of Sir Christopher Wren\xe2\x80\x99s London churches, the Church was\nbuilt in the Georgian style on a piece of pastureland near the crown of Copp\xe2\x80\x99s Hill,\nthe highest elevation in the North End of Boston. See National Register of Historic\nPlaces Inventory\xe2\x80\x94Nomination Form, Part 7 (Description); http://www.nr.nps.gov/\nwriteups/66000776.nl.pdf (describing the Old North Church as \xe2\x80\x9ca superb example of\ncolonial Georgian architecture\xe2\x80\x9d). The Old North Church was located close to the\nwharfs and warehouses of sea captains and merchants settling in the area. It contains\nthe first maiden peal of church bells heard in North America, and its first guild of\nbell-ringers was formed in 1750 by Paul Revere, then a fifteen-year-old Congregationalist and founding member of the Church. See National Register of Historic\nPlaces Inventory\xe2\x80\x94Nomination Form, Part 8 (Statement of Significance); http://\nwww.oldnorth.com/guid.htm; http://www.nps.gov/bost/Old_North_Church.htm.\n\nthe nation,\xe2\x80\x9d and in particular to \xe2\x80\x9csupport the maintenance of Old North Church and its associated\nbuildings as a symbol of freedom.\xe2\x80\x9d Myers Letter at 3. It sought a grant award under the competitive\nprogram established by DOI\xe2\x80\x99s 2002 appropriations bill, which designated $30 million for historic\npreservation grants in fiscal year 2002. 115 Stat. at 425.\n\n97\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nThe Old North Church still contains the original window through which Robert\nNewman left the Church after hanging the lanterns on April 18, 1775. Although it\nwas covered with brick in 1815, the window was rediscovered during restoration\nwork in 1989. It now houses the Church\xe2\x80\x99s \xe2\x80\x9cThird Lantern,\xe2\x80\x9d which was lit by\nPresident Ford on April 18, 1975, as a symbol of freedom and renewed resolve for\nthe next century of the nation\xe2\x80\x99s life. Among other items of historical significance,\nthe Church also houses the first bust of President George Washington; a plaque\ncommemorating the 1736 visit of Charles Wesley, a preacher, hymn-writer, and\nco-founder of the Methodist Church; an 18th-century organ and two 18th-century\nchandeliers; a plaque commemorating the heroism of British Major John Pitcairn\nat the Battle of Bunker Hill; and the Bay Pew, which is decorated in a manner\ncommon during the early days of the Republic. See National Register of Historic\nPlaces Inventory\xe2\x80\x94Nomination Form, Part 7 (Description); http://www.oldnorth.\ncom/hist.htm.\nThe Old North Church also operates a museum and gift shop and is open to the\ngeneral public for tours and other purposes from 9 a.m. to 5 p.m. daily. National\nRegister of Historic Places Inventory\xe2\x80\x94Nomination Form, Part 8 (Statement of\nSignificance). For example, the Church offers school groups a basic tour that\nprovides introductory background on the Church\xe2\x80\x99s involvement in the American\nRevolution. The Old North Church also offers a \xe2\x80\x9cBehind the Scenes\xe2\x80\x9d tour that\nprovides a more in-depth view of the Church and its history, and \xe2\x80\x9cPaul Revere\nTonight,\xe2\x80\x9d a dramatic presentation that focuses on the relationship between Revere\nand the Church. The gift shop sells hundreds of books on these and related historical\ntopics. According to the Park Service, visiting the Old North Church \xe2\x80\x9cbring[s] to life\nthe American ideals of freedom of speech, religion, government, and selfdetermination.\xe2\x80\x9d See http://www.nps.gov/bost/; see also http://www.oldnorth.com/\nsginfo.htm#tours.\nAlthough the Old North Church is open to the general public for many purposes,\nit also remains \xe2\x80\x9can active Episcopal church\xe2\x80\x9d that is \xe2\x80\x9ca mission of the Episcopal\nDiocese of Massachusetts.\xe2\x80\x9d See http://www.oldnorth.com; see also http://www.\noldnorth.com/info.htm. The Church has approximately 150 members, and its\nprograms and activities include adult education, choir, and various community\noutreaches. It holds two services on Sunday morning, worships according to the\nBook of Common Prayer, and administers Christian rites such as baptism. It has a\ndozen full- or part-time staff members. The bishop of the Diocese is the rector of the\nOld North Church, and he is represented by the vicar, who, acting for the bishop,\noversees its activities and staff. Id.; see also National Register of Historic Places\nInventory\xe2\x80\x94Nomination Form, Part 8 (Statement of Significance).\nThe Old North Church is governed by the Corporation of Christ Church in the\nCity of Boston. Its board includes nine members of the congregation, plus the\nvicar and the bishop, and meets monthly to oversee the operations of the church\nand the historic site. The Church\xe2\x80\x99s board is separate, however, from the board of\n\n98\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nthe Foundation, which comprises mostly non-church members and assists with the\nmanagement of historic site programs and building preservation. See National\nRegister of Historic Places Inventory\xe2\x80\x94Nomination Form, Part 8 (Statement of\nSignificance); http://www.oldnorth.com/info.htm.\nThe Foundation sought a grant from the Park Service to prevent deterioration of\nthe structure, to repair the Old North Church\xe2\x80\x99s windows, to preserve the Church\xe2\x80\x99s\nearly-18th- and 19th-century glass, and to restore natural ventilation to the building. The last significant maintenance of the Church\xe2\x80\x99s windows occurred in 1912,\nand the Foundation concluded that the building would lose its remaining historic\nglass and suffer water leakage absent timely restoration efforts. In addition,\nwindows that were installed in the 1970s had a deleterious effect on the original\nwindows, by trapping moisture and heat and leading to high building temperatures\nduring summer months. The Foundation estimated that the proposed project,\nwhich was to be completed in accordance with the Secretary of the Interior\xe2\x80\x99s\nStandards for the Treatment of Historic Properties, see 36 C.F.R. pt. 68 (2002),\nwould add a century or more to the expected life of the windows. Moreover, the\nventilation improvements would improve the atmosphere for the numerous tourists\nwho visit the Old North Church. Myers Letter at 3.\nThe Old North Church was one of 389 organizations that submitted applications for historic preservation grants in 2002. The Park Service reviewed its\napplication and concluded that it was an \xe2\x80\x9cideal candidate for a Save America\xe2\x80\x99s\nTreasures Grant, given its standing and importance in the history of America.\xe2\x80\x9d\nMyers Letter at 3. On September 27, 2002, the Park Service informed the Foundation that its application had been accepted and that it would receive a grant of\n$317,000. Less than one month later, however, after requesting a revised budget\nand description of the scope of work from the Foundation, the Park Service\nnotified the Foundation that it was withdrawing its award on the ground that the\nOld North Church is owned by a religious organization and used by an active\nreligious congregation. Id. The Park Service based its reversal on the 1995 Opinion of this Office, which stated that \xe2\x80\x9ca court applying current precedent is most\nlikely to conclude that the direct award of historic preservation grants to churches\nand other pervasively sectarian institutions violates the Establishment Clause.\xe2\x80\x9d 19\nOp. O.L.C. at 273.\nC.\nThe 1995 Opinion responded to an inquiry from then-Solicitor of the Department of the Interior John Leshy, who asked this Office to analyze the constitutionality of providing grants to preserve historic properties used for religious purposes.\nThe opinion acknowledged that the question was a \xe2\x80\x9cvery difficult one,\xe2\x80\x9d that the\nline between permissible and impermissible assistance was \xe2\x80\x9chard to discern,\xe2\x80\x9d and\nthat \xe2\x80\x9cthe Supreme Court\xe2\x80\x99s jurisprudence in this area is still developing.\xe2\x80\x9d 19 Op.\n\n99\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nO.L.C. at 273. It concluded, however, that a reviewing court applying then-existing precedent would likely invalidate the provision of a historic preservation grant\nto a religious property that is actively used for worship. Id. at 267, 273.\nThe 1995 Opinion reasoned that a \xe2\x80\x9ctwo-part rule . . . govern[s] direct financial\nsupport of religious institutions.\xe2\x80\x9d Id. at 268. First, it stated that direct aid may be\ngiven to \xe2\x80\x9cnon-pervasively sectarian\xe2\x80\x9d religious institutions, provided the aid is not\nused to fund \xe2\x80\x9cspecifically religious activity\xe2\x80\x9d and is \xe2\x80\x9cchanneled exclusively to\nsecular functions.\xe2\x80\x9d Id. Second, it explained that there are institutions\xe2\x80\x94\n\xe2\x80\x9cpervasively sectarian\xe2\x80\x9d institutions\xe2\x80\x94\xe2\x80\x9cin which \xe2\x80\x98religion is so pervasive that a\nsubstantial portion of [their] functions are subsumed in the religious mission.\xe2\x80\x99\xe2\x80\x9d Id.\nat 269 (quoting Hunt v. McNair, 413 U.S. 734, 743 (1973)). Because \xe2\x80\x9cmost if not\nall active houses of worship\xe2\x80\x9d would qualify as \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d institutions,\nin which the \xe2\x80\x9csecular and religious functions\xe2\x80\x9d are \xe2\x80\x9cinextricably intertwined,\xe2\x80\x9d the\ngovernment may not provide direct aid to them \xe2\x80\x9cwith or without restrictions,\xe2\x80\x9d\nbecause the aid will inevitably end up advancing religion. Id. In addition, the 1995\nOpinion reasoned, to the extent that it is possible to distinguish between the\nreligious and secular components of a church\xe2\x80\x94the difficulty of which may be\ncompounded by the relationship between architectural design and theological\ndoctrine\xe2\x80\x94any governmental effort \xe2\x80\x9cto identify those elements of a house of\nworship that do not have \xe2\x80\x98direct religious import\xe2\x80\x99 could well involve the kind of\n\xe2\x80\x98monitoring for the subtle or overt presence of religious matter\xe2\x80\x99 prohibited by the\nEstablishment Clause.\xe2\x80\x9d Id. at 270. In support of this reasoning, the 1995 Opinion\ncited Supreme Court decisions involving direct aid to religious organizations, and\nin particular Tilton v. Richardson, 403 U.S. 672 (1971), and Committee for Public\nEducation v. Nyquist, 413 U.S. 756 (1973), which imposed certain restrictions on\nthe government\xe2\x80\x99s provision of construction, maintenance, and repair aid to\nproperties used by religious educational institutions.\nThe 1995 Opinion distinguished historic preservation grants from other sorts of\nbenefits to religious institutions that have been sustained in recent decisions on the\nground that the latter were \xe2\x80\x9cgenerally available to all interested parties, on a\nreligion-neutral and near-automatic basis.\xe2\x80\x9d 19 Op. O.L.C. at 271 (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 840\xe2\x80\x9345 (1995); Capitol\nSquare Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 757\xe2\x80\x9359, 763 (1995); Westside Cmty. Bd. of Educ. v. Mergens, 496 U.S. 226, 252 (1990)). As the opinion\nstated:\nHistoric preservation grants, by contrast, do not appear to be generally available in the same sense. Properties, including religious properties, qualify for initial listing on the Historic Register only if they\nmeet subjective criteria pertaining to architectural and artistic distinction and historical importance. Once listed, properties are eligible\nto compete for grants based on additional measures of \xe2\x80\x9cproject wor-\n\n100\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nthiness\xe2\x80\x9d established by the states. Participation by pervasively sectarian institutions in this kind of competitive grant program raises\nspecial concerns, absent in cases like Rosenberger, Pinette, and\nMergens, that application of necessarily subjective criteria may require or reflect governmental judgments about the relative value of\nreligious enterprises.\nId. at 271\xe2\x80\x9372.\nSince 1995, this Office has given advice that casts doubt on the continuing\nvalidity of the 1995 Opinion. Most important, in 2002 we opined that it was\nconstitutional for the Federal Emergency Management Agency (\xe2\x80\x9cFEMA\xe2\x80\x9d) to\nprovide direct federal disaster assistance for the rebuilding of the Seattle Hebrew\nAcademy, a religious school. See Authority of FEMA to Provide Disaster Assistance to Seattle Hebrew Academy, 26 Op. O.L.C. 114 (2002) (\xe2\x80\x9c2002 Opinion\xe2\x80\x9d).\nWe explained that the aid at issue was made available on the basis of neutral\ncriteria to a broad class of beneficiaries defined without reference to religion and\nincluding not only educational institutions but a host of other public and private\ninstitutions as well. We further reasoned that the FEMA program was amenable to\nneutral application, and that the evidence demonstrated that FEMA exercised its\ndiscretion in a neutral manner. Thus, we concluded that provision of disaster\nassistance to the Academy could not be materially distinguished from aid programs that are constitutional under longstanding Supreme Court precedents\nestablishing that religious institutions are fully entitled to receive generally\navailable government benefits and services, such as fire and police protection. Id.\nat 122\xe2\x80\x93132.\nIn so ruling, we expressly noted that the 1995 Opinion \xe2\x80\x9cdid not consider\nwhether the rule of [Tilton and Nyquist] should apply where the grants at issue are\navailable to a wide array of nonprofit institutions, rather than being limited to\neducational institutions.\xe2\x80\x9d 2002 Opinion, 26 Op. O.L.C. at 127 n.13. \xe2\x80\x9c[T]o the\nextent that the [1995 Opinion] failed to consider the possibility that the rule of\nTilton and Nyquist does not apply where direct aid is more generally available than\nwas the aid in those cases,\xe2\x80\x9d we observed, \xe2\x80\x9cit does not represent our current\nthinking, which is set forth in this Memorandum.\xe2\x80\x9d Id. In addition, we explained,\n\xe2\x80\x9csignificant portions\xe2\x80\x9d of the reasoning of Tilton and Nyquist are \xe2\x80\x9csubject to serious\nquestion in light of more recent decisions.\xe2\x80\x9d Id. at 126 n.13. For example, we stated\nthat \xe2\x80\x9cthe \xe2\x80\x98pervasively sectarian\xe2\x80\x99 doctrine, which comprised the basis for many of\nthe Court\xe2\x80\x99s Establishment Clause decisions in the early 1970s (including Nyquist,\n413 U.S. at 774\xe2\x80\x9375), no longer enjoys the support of a majority of the Court,\xe2\x80\x9d\nwhich now requires proof of \xe2\x80\x9cactual diversion of public support to religious uses\xe2\x80\x9d\nand rejects \xe2\x80\x9cpresumptions of religious indoctrination.\xe2\x80\x9d Id.\n\n101\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nII.\nYou asked us to determine whether the NHPA\xe2\x80\x99s authorization of grants to\nhistorically significant religious properties is constitutional, and in particular\nwhether the Establishment Clause poses a barrier to the Park Service\xe2\x80\x99s provision\nof Save America\xe2\x80\x99s Treasures grants to religious structures such as the Old North\nChurch. There is no Supreme Court precedent that directly controls this specific\nissue. For three interrelated reasons, however, we conclude that the Establishment\nClause does not pose a barrier to the Park Service\xe2\x80\x99s provision of such aid.7\nFirst, the federal government has an obvious and powerful interest in preserving all sites of historic significance to the nation, without regard to their religious\nor secular character. The context in which this issue arises distinguishes the\nProgram from programs of aid targeted to education, which have been subjected to\nespecially rigorous scrutiny by the Supreme Court. Second, eligibility for historic\npreservation grants extends to a broad class of beneficiaries, defined without\nreference to religion and including both public and private institutions. All sorts of\nhistoric structures\xe2\x80\x94from private homes to government buildings\xe2\x80\x94are eligible for\npreservation grants. Third, although the criteria for funding require a measure of\nsubjective judgment, those criteria are amenable to neutral application, and there is\nno basis to conclude that those who administer the Program will do so in a manner\nthat favors religious institutions. Thus, we believe that the provision of historic\npreservation grants to religious structures such as the Old North Church cannot be\nmaterially distinguished from the provision of disaster assistance to religious\nschools, which we have already approved, or from other aid programs that are\nconstitutional under longstanding precedents establishing that religious institutions\nare fully entitled to receive widely available government benefits and services. For\nsimilar reasons, no reasonable observer would view the Park Service\xe2\x80\x99s provision\n7\nUnder the general framework of Lemon v. Kurtzman, 403 U.S. 602, 612\xe2\x80\x9313 (1971), a law violates\nthe Establishment Clause if it lacks a \xe2\x80\x9csecular legislative purpose,\xe2\x80\x9d has a \xe2\x80\x9cprimary effect\xe2\x80\x9d of advancing\nreligion, or results in an \xe2\x80\x9cexcessive entanglement\xe2\x80\x9d between government and religion. See also Agostini\nv. Felton, 521 U.S. 203, 232\xe2\x80\x9335 (1997) (reformulating the Lemon test by incorporating its \xe2\x80\x9centanglement\xe2\x80\x9d prong into its \xe2\x80\x9ceffects\xe2\x80\x9d prong). As in most cases involving aid to religious institutions, the\ncentral question here is whether allowing religious structures such as the Old North Church to receive\nhistoric preservation assistance would advance religion (an \xe2\x80\x9ceffects\xe2\x80\x9d inquiry), and we will focus\nprimarily on cases that bear on that question. As for Lemon\xe2\x80\x99s \xe2\x80\x9cpurpose\xe2\x80\x9d prong, it is clear that allowing\na range of historic religious and nonreligious structures to receive preservation grants serves the secular\npurpose of preserving our cultural heritage. See 16 U.S.C. \xc2\xa7 470a(e)(4) (\xe2\x80\x9c[g]rants may be made . . . for\nthe preservation, stabilization, restoration, or rehabilitation of religious properties listed in the National\nRegister of Historic Places, provided that the purpose of the grant is secular, does not promote religion,\nand seeks to protect those qualities that are historically significant\xe2\x80\x9d). As for Lemon\xe2\x80\x99s \xe2\x80\x9centanglement\xe2\x80\x9d\nprong, there is no basis to conclude that allowing active religious structures to receive aid would\n\xe2\x80\x9cexcessively entangle\xe2\x80\x9d church and state, since there is no more governmental monitoring of aid\nrecipients here than in other cases in which the Court has not questioned the provision of aid under\nLemon\xe2\x80\x99s entanglement prong. Cf., e.g., Agostini, 521 U.S. at 232\xe2\x80\x9335; Mitchell v. Helms, 530 U.S. 793\n(2000).\n\n102\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nof a Save America\xe2\x80\x99s Treasures grant to an otherwise eligible religious structure as\nan endorsement of religion.\nWe explain below why these factors are sufficient to sustain the Program. If\nthere were any remaining doubt as to its constitutionality, however, that doubt\nwould be dispelled by the Program\xe2\x80\x99s numerous statutory and regulatory safeguards\nthat ensure that federal funds are not used to advance religion. In particular, the\nProgram contains rigorous auditing requirements to ensure that grants are spent\nonly for authorized purposes related to historic preservation, not for the conduct of\nworship services. Although we do not believe that such restrictions are necessary\nin the context of a program involving aid made available to such a wide variety of\npublic and private institutions, their existence further supports our conclusion that\nthere is no constitutional infirmity here.\nA.\nAs an initial matter, we believe it is important to bear in mind the context in\nwhich this constitutional question has arisen. The Park Service has a substantial\ninterest in facilitating the preservation of all sites of historic significance to the\nnation, without regard to their religious or secular character. This interest,\nmoreover, distinguishes the grants here from programs of aid targeted to education, which the Supreme Court has subjected to far more rigorous scrutiny than aid\nto other sorts of religious institutions. E.g., Edwards v. Aguillard, 482 U.S. 578,\n585 (1987) (noting \xe2\x80\x9cparticular [establishment] concerns that arise in the context of\npublic elementary and secondary schools\xe2\x80\x9d); Mitchell v. Helms, 530 U.S. 793, 885\n(2000) (Souter, J., dissenting) (noting that \xe2\x80\x9ctwo types of aid recipients heighten\nEstablishment Clause concern: pervasively religious schools and primary and\nsecondary religious schools\xe2\x80\x9d); Nyquist, 413 U.S. at 772. As explained in greater\ndetail below, most of the Court\xe2\x80\x99s Establishment Clause decisions rendered since\nEverson v. Board of Education, 330 U.S. 1 (1947), have concerned aid provided\nsolely to educational institutions as a class (in many cases, moreover, this aid was\ndirected toward the educational process itself), and these decisions rest in part on\nthe theory that aid directed solely to schools might reasonably be perceived as\nadvancing the educational mission of those that receive it. See, e.g., Mitchell, 530\nU.S. at 843 (O\xe2\x80\x99Connor, J., concurring in judgment). Given that a large percentage\nof private schools are religious, the Court has been sensitive to the possibility that\ndirect funding solely of schools might amount to an attempt to fund religious\nindoctrination. The same cannot be said where, as here, a program is available to\nall manner of institutions. The aid at issue here is provided in return for the benefit\nof public access to a broad array of historically significant properties\xe2\x80\x94some\npublic, some private, some secular, some religious. Under the Court\xe2\x80\x99s precedents,\nsuch programs are not subjected to the special scrutiny reserved for programs of\naid targeted to schools. See Bowen v. Kendrick, 487 U.S. 589, 613\xe2\x80\x9318 (1988).\n\n103\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nB.\nWe regard it as especially significant that eligibility for historic preservation\ngrants extends to a broad class of beneficiaries, defined without reference to\nreligion and including both public and private institutions. Ever since 1947, the\nyear of its first modern Establishment Clause decision in Everson, the Supreme\nCourt has indicated that religious institutions are entitled to receive \xe2\x80\x9cgeneral\ngovernment services\xe2\x80\x9d made available on the basis of neutral criteria. 330 U.S. at\n17. Everson held that the Establishment Clause does not bar students attending\nreligious schools from receiving generally available school busing services\nprovided by the government. In reaching its decision, the Court explained that\neven if the evenhanded provision of busing services increased the likelihood that\nsome parents would send their children to religious schools, the same could be\nsaid of other \xe2\x80\x9cgeneral state law benefits\xe2\x80\x9d that were even more clearly constitutional because they were equally available to all citizens and far removed from the\nreligious function of the school. Id. at 16. As examples, the Court cited \xe2\x80\x9csuch\ngeneral government services as ordinary police and fire protection, connections for\nsewage disposal, public highways and sidewalks,\xe2\x80\x9d concluding:\ncutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far\nmore difficult for the schools to operate. But such is obviously not\nthe purpose of the First Amendment. That Amendment requires the\nstate to be a neutral in its relations with groups of religious believers\nand non-believers; it does not require the state to be their adversary.\nState power is no more to be used so as to handicap religions, than it\nis to favor them.\nId. at 17\xe2\x80\x9318. See also id. at 16 (\xe2\x80\x9c[The state] cannot exclude individual Catholics,\nLutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from\nreceiving the benefits of public welfare legislation. . . . [W]e must be careful, in\nprotecting the citizens of New Jersey against state-established churches, to be sure\nthat we do not inadvertently prohibit New Jersey from extending its general state\nlaw benefits to all its citizens without regard to their religious belief.\xe2\x80\x9d).\nWe believe that a Save America\xe2\x80\x99s Treasures grant is analogous to aid that\nqualifies as \xe2\x80\x9cgeneral government services\xe2\x80\x9d approved by the Court in Everson. To\nbe sure, such aid is not available to all citizens or buildings\xe2\x80\x94and thus is not as\nbroadly available as, say, utility services. But as we observed in the 2002 Opinion\n(26 Op. O.L.C. at 127), there is no principled reason why the constitutionality of\nan aid program should turn on whether the aid is provided to all citizens rather\nthan, say, a wide array of organizations that falls somewhat short of the entire\npopulace. There is a range of aid programs that are not as \xe2\x80\x9cgeneral\xe2\x80\x9d as aid\n\n104\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nprovided universally, but yet are not as circumscribed as aid to education,8 and\nSave America\xe2\x80\x99s Treasures grants admittedly fall within this middle ground. But\nsuch grants are not available only to educational institutions or, for that matter, to\njust a few classes of buildings. Rather, they are available to all kinds of private\nnon-profit institutions, along with federal, state, local, and tribal governmental\nentities; and they may lawfully be used to rehabilitate any structure\xe2\x80\x94be it a\nmeeting house, a concert hall, a museum, a school, a house, a barn, a barracks, a\ngovernment office building, or a church\xe2\x80\x94that satisfies the generally applicable\ncriteria for funding.9 Accordingly, we think that the \xe2\x80\x9c\xe2\x80\x98circumference\xe2\x80\x99\xe2\x80\x9d of the\nProgram can fairly be said to \xe2\x80\x9c\xe2\x80\x98encircle[] a class so broad that it can be fairly\nconcluded that religious institutions could be thought to fall within the natural\nperimeter.\xe2\x80\x99\xe2\x80\x9d Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (plurality\nopinion) (quoting Walz v. Tax Comm\xe2\x80\x99n of N.Y., 397 U.S. 664, 696 (1970) (Harlan,\nJ.)). As the Court explained in Widmar v. Vincent, 454 U.S. 263, 274 (1981),\n\xe2\x80\x9c[t]he provision of benefits to so broad a spectrum of groups is an important index\nof secular effect.\xe2\x80\x9d Accord Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8\n(1993) (\xe2\x80\x9cwe have consistently held that government programs that neutrally\nprovide benefits to a broad class of citizens defined without reference to religion\nare not readily subject to an Establishment Clause challenge\xe2\x80\x9d); Bd. of Educ. of\nKiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 704 (1994) (\xe2\x80\x9cwe have\nfrequently relied explicitly on the general availability of any benefit provided\nreligious groups or individuals in turning aside Establishment Clause challenges\xe2\x80\x9d).\nPut another way, the aid here is more closely analogous to the provision of\n\xe2\x80\x9cgeneral\xe2\x80\x9d government aid like that sanctioned by the Court in Everson (and many\ntimes since, see, e.g., Nyquist, 413 U.S. at 781\xe2\x80\x9382) than to the construction grants\nat issue in Tilton and Nyquist, which were available only to schools. See Nyquist,\n413 U.S. at 782 (distinguishing more general services from construction grants on\nthe ground that general services are \xe2\x80\x9cprovided in common to all citizens, are \xe2\x80\x98so\nseparate and so indisputably marked off from the religious function,\xe2\x80\x99 that they may\nfairly be viewed as reflections of a neutral posture toward religious institutions\xe2\x80\x9d\n(citation omitted)); cf. Church Arson Prevention Act of 1996, Pub. L. No. 104-\n\n8\nSee Mitchell, 530 U.S. at 875 (Souter, J., dissenting) (stating that \xe2\x80\x9cgovernment spending resists\neasy classification as between universal general service or subsidy of favoritism,\xe2\x80\x9d and noting that\nEverson \xe2\x80\x9cturned on the inevitable question whether reimbursing all parents for the cost of transporting\ntheir children to school was close enough to police protection to tolerate its indirect benefit in some\ndegree to religious schools\xe2\x80\x9d).\n9\nIn this respect the Program here, viewed as a whole, is even less susceptible to religious favoritism than the FEMA program we recently considered. In the FEMA statutes, Congress made a value\njudgment that certain types of institutions\xe2\x80\x94and only those institutions\xe2\x80\x94should be eligible for federally\nfunded rehabilitation assistance in the wake of a natural disaster. This judgment entailed a determination that certain institutions were especially worthy of support, and there was some risk (if remote) that\nCongress included private schools (most of which are religious) in order to channel support to religious\neducation. There is no such risk here.\n\n105\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\n155, 110 Stat. 1392 (creating a program that provides low-income reconstruction\nloans to nonprofit organizations, including churches, destroyed by arson motivated\nby racial or religious animus). As Justice Brennan expressed the point in Texas\nMonthly: \xe2\x80\x9cInsofar as [a] subsidy is conferred upon a wide array of nonsectarian\ngroups as well as religious organizations in pursuit of some legitimate secular end,\nthe fact that religious groups benefit incidentally does not deprive the subsidy of\nthe secular purpose and primary effect mandated by the Establishment Clause.\xe2\x80\x9d\n489 U.S. at 14\xe2\x80\x9315 (plurality opinion) (footnote omitted).\nWalz v. Tax Commission, 397 U.S. 664 (1970), strongly supports our conclusion. There the Court rejected an Establishment Clause challenge to a property tax\nexemption made available not only to churches, but to several other classes of\nnonprofit institutions, such as \xe2\x80\x9chospitals, libraries, playgrounds, scientific,\nprofessional, historical, and patriotic groups.\xe2\x80\x9d Id. at 673; see also id. at 667 n.1. In\nupholding the tax exemption, the Court relied in part upon its breadth: the\nexemption did \xe2\x80\x9cnot single[] out one particular church or religious group or even\nchurches as such,\xe2\x80\x9d but rather was available to \xe2\x80\x9ca broad class of property owned by\nnonprofit, quasi-public corporations.\xe2\x80\x9d Id. at 673. As the Court stated in reference\nto Everson, if \xe2\x80\x9cbuses can be provided to carry and policemen to protect church\nschool pupils, we fail to see how a broader range of police and fire protection\ngiven equally to all churches, along with nonprofit hospitals, art galleries, and\nlibraries receiving the same tax exemption, is different for purposes of the\nReligion Clauses.\xe2\x80\x9d Id. at 671. Thus, just as a broad category of beneficiary\ninstitutions was sufficient to sustain the inclusion of religious institutions in the tax\nbenefit in Walz\xe2\x80\x94which, after all, substantially benefitted churches\xe2\x80\x99 property\xe2\x80\x94we\nbelieve the breadth of eligibility for the Program here weighs heavily in favor of\nthe constitutionality of a Save America\xe2\x80\x99s Treasures grant to the Old North Church.\nThe broad class of beneficiaries that are eligible for the Program here\xe2\x80\x94\nincluding not only private non-profit groups, but state and local governmental\nunits, Indian tribes, and numerous federal agencies, each of which may seek\nfunding to preserve any and all kinds of historic structures\xe2\x80\x94confirms that the\nProgram\xe2\x80\x99s effect is not to advance religion. In contrast to the education-specific\naid at issue in many of the foregoing cases, the historic preservation assistance\nprovided by the Park Service serves goals entirely unrelated to inculcating\nreligious values\xe2\x80\x94namely, preservation of buildings that played an important role\nin our nation\xe2\x80\x99s history and that are (by virtue of their public or private nonprofit\nstatus) most in need of assistance. Cf. Mitchell, 530 U.S. at 883 (Souter, J.,\ndissenting) (\xe2\x80\x9c[D]epending on the breadth of distribution, looking to evenhandedness is a way of asking whether a benefit can reasonably be seen to aid religion in\nfact; we do not regard the postal system as aiding religion, even though parochial\nschools get mail.\xe2\x80\x9d). Indeed, although a number of churches can be expected to\nqualify for assistance under the Program, we do not expect that churches will\n\n106\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\namount to a large percentage of grantees.10 In recent years, structures preserved\nwith funding provided by the Program include Revolutionary War barracks in\nPennsylvania, a railroad complex in West Virginia, a Shaker village in New\nHampshire, a courthouse in North Carolina, a theater in Massachusetts, a farmhouse and slave quarters in Maryland, a Frank Lloyd Wright home in Illinois, an\nart museum in Texas, a state capitol building in Nebraska, a hotel in Florida, a\nschool in Utah, and a hospital in New York\xe2\x80\x94to name just a few. The variety of\nstructures that have been rehabilitated confirms the common sense notion that\nhistorical events happen in all sorts of places. There is no basis for concern that the\nProgram will become a subterfuge designed to direct public money to churches, or\nto engage in any other sort of religious favoritism.\nC.\nThis brings us to the third consideration important to the Program\xe2\x80\x99s constitutionality: the neutrality of the criteria for selecting Save America\xe2\x80\x99s Treasures\ngrantees. In the Program here, government officials must make a number of\nsubjective judgments about a structure\xe2\x80\x99s cultural importance. Initially, they must\ndetermine whether a structure is \xe2\x80\x9cnationally significant\xe2\x80\x9d\xe2\x80\x94e.g., whether it possesses \xe2\x80\x9cexceptional value or quality in illustrating or interpreting the intellectual and\ncultural heritage and the built environment of the United States,\xe2\x80\x9d and whether it is\nassociated with events, persons, ideas, or ideals that are significant in American\nhistory. Guidelines at 3. Moreover, they must conclude that the structure is\n\xe2\x80\x9cthreatened,\xe2\x80\x9d that the project has \xe2\x80\x9ceducational, interpretive, or training value,\xe2\x80\x9d and\nthat the project has \xe2\x80\x9ca clear public benefit.\xe2\x80\x9d Id. Insofar as reasonable people may\ndisagree about whether a religious structure meets these criteria, there is some\npotential for favoritism of religion in their application.\nAs noted in the 2002 Opinion (26 Op. O.L.C. at 127 n.13), we believe that the\ndegree to which officials administering public aid have discretion to favor (or\ndisfavor) religious institutions\xe2\x80\x94and, far more important, the manner in which they\nexercise that discretion\xe2\x80\x94are relevant to the aid\xe2\x80\x99s constitutionality. Ever since\nEverson, the Court has made clear that one of the core purposes of the Establishment Clause is to prevent the government from favoring religion over nonreligion, 330 U.S. at 16, and aid that is made available on the basis of discretionary\ncriteria entails a greater risk of such favoritism than, say, aid made available on a\n10\nWe are not suggesting that an aid program has the unlawful effect of advancing religion merely\nbecause a large number of its beneficiaries are religious in nature. The Supreme Court has repeatedly\nrepudiated the view that the percentage of a program\xe2\x80\x99s religious beneficiaries is relevant to its\nconstitutionality under the Establishment Clause. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639,\n658 (2002) (stating that \xe2\x80\x9c[t]he constitutionality of a neutral educational aid program simply does not\nturn on whether and why, in a particular area, at a particular time, most private schools are run by\nreligious organizations\xe2\x80\x9d); accord Agostini, 521 U.S. at 229; Mueller v. Allen, 463 U.S. 388, 391, 401\n(1983); Mitchell, 530 U.S. at 812 n.6 (plurality opinion).\n\n107\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nper capita basis. For example, a program that authorized government officials to\ndole out aid solely on the basis of their assessment of what organizations\xe2\x80\x99\nprograms would best serve \xe2\x80\x9cthe public interest\xe2\x80\x9d would entail a significant risk of\nfavoritism.\nWithout more, however, the fact that an organization\xe2\x80\x99s eligibility for aid depends in part on satisfying subjective criteria is insufficient to invalidate the aid.\nProvided the criteria are amenable to neutral application, the program at issue is\nfacially valid. See generally United States v. Salerno, 481 U.S. 739, 745 (1987) (a\nfacial challenge will be sustained only if \xe2\x80\x9cno set of circumstances exists under\nwhich the Act would be valid\xe2\x80\x9d). As Judge Posner has explained: \xe2\x80\x9c[t]o exclude [a\nreligious organization] from . . . competition [for government contracts or\nassistance] on the basis of a speculative fear that [government] officers might\nrecommend [a] program because of their own . . . faith would involve the sacrifice\nof a real good to avoid a conjectured bad. It would be perverse if the Constitution\nrequired this result.\xe2\x80\x9d Freedom From Religion Found. v. McCallum, 324 F.3d 880,\n884 (7th Cir. 2003). Thus, while the exercise of religious favoritism in applying\nthe eligibility criteria for a program would constitute an as-applied constitutional\nviolation of the program, it would not invalidate the program on its face. Id.\n(explaining that the \xe2\x80\x9cdanger\xe2\x80\x9d that determining eligibility for a program \xe2\x80\x9cwould\ninvolve discretionary judgments possibly influenced by the religious preferences\nof the agency or public employees doing the rating\xe2\x80\x9d will not invalidate a program\nunless the danger has \xe2\x80\x9cmaterialized\xe2\x80\x9d). There is no reason to presume that, based on\na neutral application of subjective criteria, religious institutions will never be\nqualified to receive aid.\nEach of the eligibility criteria here is plainly amenable to neutral application.\nFirst, the criterion of \xe2\x80\x9cnational significance\xe2\x80\x9d\xe2\x80\x94which in turn depends on such\nfactors as whether the structure has \xe2\x80\x9cexceptional value or quality in illustrating\n[the nation\xe2\x80\x99s] intellectual and cultural heritage,\xe2\x80\x9d or whether it is associated with\nevents or persons that are significant in American history\xe2\x80\x94is predominantly a\nmatter of architectural and historical significance. To be sure, there may be cases\nat the margins where the historians and other experts who assess applications for\nSave America\xe2\x80\x99s Treasures grants disagree about the importance of a building in\nour nation\xe2\x80\x99s history. But we understand that there are many more cases where\nthere is little to no difference of opinion. It is hard to imagine anyone disputing,\nfor example, that projects to preserve National Historic Landmarks such as Mount\nVernon and Monticello are worthy of federal support on account of those homes\xe2\x80\x99\nassociation with Presidents Washington and Jefferson. Similarly, there will be\ncases in which the experts will agree that a church holds a special place in our\nnation\xe2\x80\x99s history, whether because of its association with historic events (like the\ncivil rights movement) or historic figures (like Paul Revere). Frank Lloyd\nWright\xe2\x80\x99s Unity Temple in Oak Park, Illinois may have an active congregation and\nhold weekly worship services, but that does not diminish its significance as a\n\n108\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nmodel of the Prairie School of architectural design or as a contribution to 20thcentury American architecture generally. Nor do we think many would question\nthe Park Service\xe2\x80\x99s conclusion that Old North Church is an \xe2\x80\x9cideal candidate for a\nSave America\xe2\x80\x99s Treasures Grant, given its standing and importance in the history\nof America.\xe2\x80\x9d Myers Letter at 3.\nThe second criterion that must be satisfied before an applicant may receive\nassistance\xe2\x80\x94whether a structure is \xe2\x80\x9cthreatened,\xe2\x80\x9d \xe2\x80\x9cendangered,\xe2\x80\x9d or otherwise has an\n\xe2\x80\x9curgent preservation and/or conservation need\xe2\x80\x9d (Guidelines at 3)\xe2\x80\x94is quite\namenable to neutral application. Based on our review of the Guidelines and our\ndiscussions with DOI officials, we understand that Park Service officials make this\nassessment primarily on the basis of the physical condition of the structure and the\nfinancial resources available to the applicant. Such an inquiry is strictly secular\nand does not involve the government in an assessment of a structure\xe2\x80\x99s religious\nvalue. The same is true of the requirement that a project be \xe2\x80\x9cfeasible.\xe2\x80\x9d This\nrequires only that the applicant be \xe2\x80\x9cable to . . . accomplis[h] [the project] within\nthe proposed activities, schedule and budget described in the application,\xe2\x80\x9d and to\n\xe2\x80\x9cmatch the Federal funds.\xe2\x80\x9d Id.\nThe third main criterion for receiving assistance\xe2\x80\x94whether the project has\n\xe2\x80\x9ceducational, interpretive, or training value\xe2\x80\x9d\xe2\x80\x94is somewhat more subjective, but\nthe fact that a structure is used for religious purposes or closely associated with\nreligious activities does not mean that its preservation lacks educational value,\nparticularly when that value is based on its role in U.S. history. Among the\nthousands of items in its collection, the National Gallery of Art houses 581 works\ncontaining explicitly religious themes, including at least 107 works depicting the\ncrucifixion of Jesus; 32 works depicting various prophetic figures such as Elijah\nand Jeremiah; and works such as Marc Chagall\xe2\x80\x99s \xe2\x80\x9cJew with a Torah.\xe2\x80\x9d See http://\nwww.nga.gov/collection/srchsub.htm (subject search: religious); http://www.nga.\ngov/search/search.htm#artist (title search: crucifixion). Display of these works,\nmany of which were created for specific religious institutions or events, may\n\xe2\x80\x9cadvance\xe2\x80\x9d religion in the sense that exposure to any artistic work might influence\nthe viewer. But the works are chosen on the basis of their artistic merit and\nhistorical significance, and they serve to educate the public regarding a certain\ngenre of artistic expression or period in world history. Similarly, throughout our\nnation\xe2\x80\x99s history, religion and people of faith have influenced societal views on\nissues ranging from the abolition of slavery to women\xe2\x80\x99s suffrage to the justification for, and conduct of, war. The Supreme Court has long acknowledged that the\nstudy of religion, when presented neutrally as part of a secular program of public\neducation (e.g., in history or literature classes), is fully consistent with the First\nAmendment. Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 225 (1963). Public\nschool libraries are therefore free to use public money to purchase works such as\nthe Bible, the Koran, Chaim Potak\xe2\x80\x99s The Chosen, or John Milton\xe2\x80\x99s Paradise Lost\nfor their stacks. Such works have religious themes, but they are also significant as\n\n109\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nhistorical and literary works, and providing them for students to study has a\nsecular educational purpose and effect. Likewise, we see no reason why providing\nfederal funds to enable the public to visit a church where significant historical\nevents occurred necessarily has any less educational value than funding the\npreservation of other sites that are significant in our nation\xe2\x80\x99s past.\nThe final criterion for obtaining assistance\xe2\x80\x94whether funding the project would\nprovide \xe2\x80\x9ca clear public benefit\xe2\x80\x9d\xe2\x80\x94appears quite subjective at first glance. One\ncould argue that it is impermissible for government officials to determine that\nsociety will receive a \xe2\x80\x9cclear public benefit\xe2\x80\x9d from the government\xe2\x80\x99s funding of the\npreservation of a church that is actively used for religious purposes. Without\nfurther guideposts to assist them in making this judgment, public officials might\ndecide to favor particular religious structures (or religious structures in general) on\nthe ground that the activities that take place in those structures are, in their\nopinion, beneficial to society at large. And one of the core purposes of the\nReligion Clauses is to disable the government from assessing the validity of\nreligious truths or the value of religious activities. See generally Serbian Eastern\nOrthodox Diocese v. Milivojevich, 426 U.S. 696, 708\xe2\x80\x9320 (1976); Jones v. Wolf,\n443 U.S. 595, 602 (1979); Thomas v. Review Bd. of Ind. Emp\xe2\x80\x99t Sec. Div., 450 U.S.\n707, 714\xe2\x80\x9316 (1981).\nOn closer examination, however, it is clear that the officials who administer\nSave America\xe2\x80\x99s Treasures grants do not determine a project\xe2\x80\x99s \xe2\x80\x9cclear public\nbenefit\xe2\x80\x9d on the basis of subjective judgments about its religious value. Rather, a\nproject that satisfies the other criteria for receiving a Save America\xe2\x80\x99s Treasures\ngrant is deemed to provide a \xe2\x80\x9cclear public benefit\xe2\x80\x9d by virtue of being open to the\npublic\xe2\x80\x94whether \xe2\x80\x9cfor visitation,\xe2\x80\x9d \xe2\x80\x9cpublic viewing,\xe2\x80\x9d or \xe2\x80\x9cscholarly research.\xe2\x80\x9d\nGuidelines at 3. Thus, the Park Service\xe2\x80\x99s conclusion that the public will benefit\nfrom a project is not based on an assessment of the public value of the religious\nactivities or character of the church, or for that matter of any of its current\nactivities; it is based on the public value of being able to view, and learn from, the\nbuilding and its place in our nation\xe2\x80\x99s history\xe2\x80\x94on its accessibility to ordinary\nAmericans. The conclusion that viewing the structure would be beneficial to the\npublic derives from the structure\xe2\x80\x99s historical value, not its religious value. That is a\nvalid, neutral basis for funding a project.\nIn summary, although the requirements that applicants must satisfy to obtain a\nSave America\xe2\x80\x99s Treasures grant are somewhat subjective, they are quite amenable\nto neutral application. This fact, together with the diverse makeup of structures\nthat have been preserved under the Program, indicates that the Program is not\n\xe2\x80\x9cskewed towards religion.\xe2\x80\x9d Witters v. Wash. Dep\xe2\x80\x99t of Servs. for the Blind, 474\nU.S. 481, 488 (1986).\n\n110\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nD.\nFor all these reasons, we also do not believe that a reasonable observer would\nperceive an endorsement of religion in the government\xe2\x80\x99s evenhanded provision of\nhistoric preservation assistance for maintenance of a church building that holds a\nsignificant place in our nation\xe2\x80\x99s history. See Mitchell, 530 U.S. at 842\xe2\x80\x9344\n(O\xe2\x80\x99Connor, J., concurring in judgment).11 In a direct aid program limited to a\nnarrower class of recipients such as schools, one could argue that if a school \xe2\x80\x9cuses\nthe aid to inculcate religion in its students, it is reasonable to say that the government has communicated a message of endorsement.\xe2\x80\x9d Id. at 843. The notion is that,\nwhere the government provides education-specific aid, it is fair to say that the\ngovernment is providing the assistance because of the content of the funded\neducation. Such a presumption of governmental endorsement is not present,\nhowever, where the aid is provided to a wide array of public and private buildings\nbecause of historic events that once took place therein, and where the government\nis indifferent to the religious or secular orientation of the building. Moreover, we\nthink a reasonable observer\xe2\x80\x94one informed about the purpose, history, and breadth\nof the Program, see Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002)\xe2\x80\x94would\nunderstand that the federal government is not paying for religious activity; it is\npaying to preserve a structure that played a role in our development as a nation, so\nthat the public can visit it and learn about our heritage. That is not an endorsement\nof religion.\nSimilarly, our conclusion that the Park Service may provide historic preservation grants to structures such as the Old North Church is consistent with the\nunderlying purposes of the Religion Clauses. They are designed to minimize, to\nthe extent practicable, the government\xe2\x80\x99s influence over private decisions and\nmatters involving religion, and the Supreme Court has repeatedly explained that\ngovernmental assistance must not be structured in a way that creates a financial\nincentive for people to change their religious (or nonreligious) behavior. Zelman,\n536 U.S. at 653\xe2\x80\x9354; Agostini v. Felton, 521 U.S. 203, 230\xe2\x80\x9331 (1997); Witters, 474\nU.S. at 487\xe2\x80\x9388. Under the prior system, only structures used solely for nonreligious purposes were eligible for federal preservation grants. Churches with\nhistorically significant buildings had a powerful financial incentive to eliminate\ntheir religious programs and religious speech, effectively resigning themselves to\nthe role of museums: unless they did so, they were ineligible for any assistance.\nUnder the new rule, by contrast, churches have no incentive to bend their practices\nin a secular direction to receive aid.\n11\nSee generally Cnty. of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592\n(1989) (the Court has, \xe2\x80\x9c[i]n recent years, . . . paid particularly close attention to whether the challenged\ngovernmental practice either has the purpose or effect of \xe2\x80\x98endorsing\xe2\x80\x99 religion\xe2\x80\x9d); see also id. at 624\xe2\x80\x9332\n(O\xe2\x80\x99Connor, J., concurring in part and concurring in the judgment); Santa Fe Indep. Sch. Dist. v. Doe,\n530 U.S. 290, 307\xe2\x80\x9308 (2000); Agostini, 521 U.S. at 235.\n\n111\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nE.\nOur conclusion regarding the constitutionality of providing historic preservation grants to religious structures such as the Old North Church is bolstered by the\nfact that the Program at issue has a number of requirements designed to ensure that\nthe government funds only those aspects of preservation that produce a secular\nbenefit. To begin with, under the NHPA, properties that are owned by religious\ninstitutions or used for religious purposes are eligible for Save America\xe2\x80\x99s Treasures grants only if they \xe2\x80\x9cderiv[e] primary significance from architectural or artistic\ndistinction or historical importance,\xe2\x80\x9d 36 C.F.R. \xc2\xa7 60.4(a), and \xe2\x80\x9c[g]rants may be\nmade . . . for the preservation, stabilization, restoration, or rehabilitation of religious properties listed in the National Register of Historic Places, provided that the\npurpose of the grant is secular, does not promote religion, and seeks to protect\nthose qualities that are historically significant,\xe2\x80\x9d 16 U.S.C. \xc2\xa7 470a(e)(4) (emphasis\nadded). Thus, the Park Service may provide grants for the preservation of religious\nstructures only insofar as such preservation protects those structures\xe2\x80\x99 historically\nsignificant components.\nOther aspects of the Program ensure that Save America\xe2\x80\x99s Treasures grants are\nprovided \xe2\x80\x9conly for the benefit of the public,\xe2\x80\x9d Guidelines at 3, by mandating that,\nfor fifty years, grantees keep open to the public all portions of rehabilitated\nstructures that are not visible from the public way. Id. at 2 (mandating that\n\xe2\x80\x9cinterior work (other than mechanical systems such as plumbing or wiring), or\nwork not visible from the public way, must be open to the public at least 12 days a\nyear during the 50-year term of the preservation easement or covenant\xe2\x80\x9d). Furthermore, grant recipients must agree to encumber the title to their property with a 50year covenant requiring that the owners \xe2\x80\x9crepair, maintain, and administer the\npremises so as to preserve the historical integrity of the features, materials,\nappearance, workmanship, and setting that made the property eligible for the\nNational Register of Historic Places.\xe2\x80\x9d Id. To ensure compliance with these requirements, Save America\xe2\x80\x99s Treasures grantees must keep detailed records of their\nexpenditures and are subject to rigorous audit by the government to ensure that the\nSave America\xe2\x80\x99s Treasures grants are spent only for designated purposes. 16 U.S.C.\n\xc2\xa7 470e (grantees must maintain \xe2\x80\x9crecords which fully disclose the disposition by\nthe beneficiary of the proceeds of such assistance, the total cost of the project or\nundertaking in connection with which such assistance is given or used, and the\namount and nature of that portion of the cost of the project or undertaking supplied\nby other sources, and such other records as will facilitate an effective audit\xe2\x80\x9d);\nMyers Letter at 3.\nThese statutory and regulatory requirements make clear that Save America\xe2\x80\x99s\nTreasures grants may not be used to promote religion (16 U.S.C. \xc2\xa7 470a(e)(4));\nthat they may be used only to preserve the historically significant portions of\neligible properties (id.); and that rehabilitated portions of eligible structures must\n\n112\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nbe available for public viewing (Guidelines at 3). All of this is to say that the\nProgram does not permit direct funding of religious activity. To be sure, one could\nargue that where a federal grant rehabilitates a building that is not only open for\npublic tours, but also used for religious worship, the effect is ultimately to\nsubsidize worship. But such a subsidy is indirect and remote, and that is not what\nthe subsidy is for; rather, the subsidy is provided solely for the benefit to the\npublic of being able to view a structure that played an important role in the history\nof the United States.12 Accordingly, we think it is more reasonable to view the\ngrant as akin to a \xe2\x80\x9cfee-for-services\xe2\x80\x9d transaction\xe2\x80\x94in exchange for an easement that\nensures 50 years of public access to the historic structure, the federal government\npays a portion of the cost of preserving it.13\nIII.\nSome might contend that the Supreme Court\xe2\x80\x99s decisions in Tilton and Nyquist,\nwhich involved construction and maintenance aid to religious schools, should be\nread to support the conclusion that historic preservation grants to active churches\nwould violate the Establishment Clause. For the reasons set forth below, we\ndisagree.\n\n12\n\nAlthough in some contexts \xe2\x80\x9cdirect cash aid\xe2\x80\x9d might raise special concerns, see Mitchell, 530 U.S.\nat 856 (O\xe2\x80\x99Connor, J., concurring in judgment), we note that the Save America\xe2\x80\x99s Treasures grant monies\nare not distributed until particular, reimbursable expenses have already been incurred by the grantee\n(see Myers Letter at 3), and that the rigorous auditing and record-keeping requirements discussed in the\ntext ensure that the funds are used only for authorized purposes. Accordingly, there is no basis for\nconcern that the money at issue will be diverted to non-Program purposes.\n13\nThe variety of other ways in which the Park Service might constitutionally provide assistance that\nwould serve to rehabilitate a structure like the Old North Church confirms that there is no strict bar to\nthe sort of assistance at issue here. For example, suppose that the Park Service negotiated a deal\npursuant to which it paid the Church a fixed sum in exchange for an agreement to remain open to the\npublic daily and free of charge. Such a fee-for-services transaction would directly \xe2\x80\x9cbenefit\xe2\x80\x9d the Old\nNorth Church, and the Church might well exact a price from the government that would cover not only\nthe cost of allowing public tours, but of maintaining the Church for use by its parishioners. But it would\nbe clear that the Park Service was paying only for public access to a historic structure, and we do not\nthink there is any serious question that such a program would be constitutional. Indeed, such a fee-forservices transaction would not be materially different from other sorts of transactions that the\ngovernment routinely enters into with religious organizations\xe2\x80\x94e.g., land trades, see H.R. 1113, 108th\nCong. (2003) (\xe2\x80\x9cTo authorize an exchange of land at Fort Frederica National Monument, and for other\npurposes\xe2\x80\x9d)\xe2\x80\x94where the religious organization has something of value that the government wishes to\nobtain. The case of Ebenezer Baptist Church, where Dr. Martin Luther King, Jr. preached a number of\nhis most famous sermons on the subject of civil disobedience and race relations, is illustrative. We\nunderstand that the Park Service made a deal with that church whereby the church agreed to lease its\nhistoric building to the Park Service for 99 years, enabling the Park Service to conduct public tours of\nthe church. In consideration for its rights as lessee, the Park Service provided the church with an\nadjacent parcel of land where the church has built a new sanctuary. Thus, the church has directly\nbenefitted\xe2\x80\x94by obtaining title to a valuable plot of real property\xe2\x80\x94from providing public access to a\nchurch that is historically important as a window into the role of black churches in the civil rights\nmovement.\n\n113\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nIn Tilton, the Court sustained the provision of federal construction grants to\nreligious colleges insofar as the program at issue barred aid to facilities \xe2\x80\x9c\xe2\x80\x98used for\nsectarian instruction or as a place for religious worship,\xe2\x80\x99\xe2\x80\x9d but invalidated such\ngrants insofar as the program permitted funding the construction of buildings that\nmight someday be used for such activities. See 403 U.S. at 675, 683 (plurality\nopinion) (citations omitted). The Court concluded that a 20-year limitation on the\nstatutory prohibition on the use of buildings for religious activities was insufficient\nbecause \xe2\x80\x9c[i]f, at the end of 20 years, the building is, for example, converted into a\nchapel or otherwise used to promote religious interests, the original federal grant\nwill in part have the effect of advancing religion.\xe2\x80\x9d Id. The Court therefore held that\nthe religious use restriction had to run indefinitely. Id.\nSimilarly, Nyquist involved a program that provided maintenance and repair\ngrants to religious elementary and secondary schools. The grants at issue were\nlimited to 50 percent of the amount spent for comparable expenses in the public\nschools, but the Court invalidated the program. \xe2\x80\x9cNo attempt [was] made to restrict\npayments to those expenditures related to the upkeep of facilities used exclusively\nfor secular purposes,\xe2\x80\x9d the Court stated, and the 50 percent restriction would not\nnecessarily prevent rehabilitation of entire religious schools. 413 U.S. at 774. The\nCourt thus concluded that such aid would have the effect of advancing religion, in\nviolation of Lemon\xe2\x80\x99s second prong. Id.\nThese holdings, so far as they go, have not been expressly overruled, even\nwhere public aid is given to both religious and nonreligious schools on the basis of\nneutral criteria. See Mitchell, 530 U.S. at 856\xe2\x80\x9357 (O\xe2\x80\x99Connor, J., concurring in\njudgment). Thus, they might be thought to support a broader argument that\nproviding historic preservation grants to restore a church building that is actively\nused for religious purposes would violate the Establishment Clause. Under this\nargument, insofar as a grant used to rehabilitate a church\xe2\x80\x99s building would\nultimately support its use for secular and religious purposes\xe2\x80\x94i.e., for both public\ntours and religious worship\xe2\x80\x94such aid would be unlawful.\nWe are unable to adopt such a broad reading of Tilton and Nyquist for several\nreasons. First, as noted in the 2002 Opinion (26 Op. O.L.C. at 129), Tilton and\nNyquist are in considerable tension with a more recent line of cases holding that\nthe Free Speech Clause does not permit the government to deny religious groups\nequal access to the government\xe2\x80\x99s own property, even where such groups seek to\nuse the property \xe2\x80\x9c\xe2\x80\x98for purposes of religious worship or religious teaching.\xe2\x80\x99\xe2\x80\x9d\nWidmar v. Vincent, 454 U.S. 263, 265 (1981). See Lamb\xe2\x80\x99s Chapel v. Center\nMoriches Sch. Dist., 508 U.S. 384, 394 (1993); Capital Square Rev. & Advisory\nBd. v. Pinette, 515 U.S. 753 (1995); Good News Club v. Milford Central Sch., 533\nU.S. 98 (2001); see also Westside Cmty. Bd. of Educ. v. Mergens, 496 U.S. 226\n(1990). Providing religious groups with access to property is a form of direct aid,\nand allowing such groups to conduct worship services plainly \xe2\x80\x9cadvances\xe2\x80\x9d their\nreligious mission. The Court, however, has consistently refused to permit (let\n\n114\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\nalone require) state officials to deny churches equal access to public school\nproperty on the basis of these officials\xe2\x80\x99 argument \xe2\x80\x9cthat to permit its property to be\nused for religious purposes would be an establishment of religion.\xe2\x80\x9d Lamb\xe2\x80\x99s\nChapel, 508 U.S. at 394. Indeed, the Court has extended these cases to require\nequal funding of religious expression, reasoning that \xe2\x80\x9c[e]ven the provision of a\nmeeting room . . . involve[s] governmental expenditure\xe2\x80\x9d for \xe2\x80\x9cupkeep, maintenance, and repair of the facilities.\xe2\x80\x9d See Rosenberger, 515 U.S. at 842\xe2\x80\x9343; see also\nPrince ex rel. Prince v. Jacoby, 303 F.3d 1074, 1085\xe2\x80\x9386 (9th Cir. 2002) (extending the principles of Rosenberger to monetary and other benefits provided to\nstudent groups that are entitled to meet on school grounds under the Equal Access\nAct). Inasmuch as the Court has approved governmental expenditures for the\nmaintenance and upkeep of facilities used for religious expression and worship,\nwe decline to adopt a reading of Tilton and Nyquist that would create needless\ntension with later holdings. Indeed, insofar as the basis for treating a structure\nowned by a religious institution differently from a structure owned by a nonreligious institution is the religious instruction that takes place within its four walls\xe2\x80\x94\nits speech and viewpoint\xe2\x80\x94such discrimination directly implicates the Free Speech\nClause. See Rosenberger, 515 U.S. at 828\xe2\x80\x9331.\nFurthermore, Tilton and Nyquist essentially sanction discrimination between\nprivate institutions that are identically situated but for their religious status\xe2\x80\x94and\nin that respect are in tension with the Court\xe2\x80\x99s free exercise jurisprudence. The law\nin Tilton required colleges that applied for federal construction aid to provide 20\nyears of secular educational services in exchange for such assistance. Upon\ncompletion of their 20-year obligation, secular colleges that participated in the\nprogram were free to use buildings built with federal money for whatever purposes\nadvanced their mission, regardless of whether such uses provided any benefit to\nthe government. By contrast, religious colleges that earned the right to federal aid\nby providing the same 20 years of educational services\xe2\x80\x94services that, again, were\nrequired by law to be secular\xe2\x80\x94could not use a structure built with federal money\nto further their mission. In one sense, it could be argued that this was equal\ntreatment, because neither religious nor secular colleges could use federal\nassistance for religious purposes. But it is more accurate to say that it was\ndiscrimination against institutions with religious worldviews: secular institutions\nwere free to use government aid to foster their philosophical outlooks; religious\ninstitutions were not. The same can be said of the program at issue in Nyquist,\nunder which secular private schools were free to use grants \xe2\x80\x9cgiven largely without\nrestriction on usage\xe2\x80\x9d to advance their missions, but religious institutions were not.\n413 U.S. at 774. Even after Employment Division v. Smith, 494 U.S. 872 (1990),\nsuch differential treatment is in considerable tension with the Free Exercise\nClause. See id. at 877 (government may not \xe2\x80\x9cimpose special disabilities on the\nbasis of religious views or religious status\xe2\x80\x9d); Church of Lukumi Babalu Aye v. City\nof Hialeah, 508 U.S. 520, 532 (1993) (\xe2\x80\x9c[a]t a minimum, the protections of the Free\n\n115\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nExercise Clause pertain if the law at issue discriminates against some or all\nreligious beliefs\xe2\x80\x9d); Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493\nU.S. 378, 390 (1990) (to \xe2\x80\x9csingle out\xe2\x80\x9d religious activity \xe2\x80\x9cfor special and burdensome treatment\xe2\x80\x9d would violate the Free Exercise Clause).14\nFinally, the Supreme Court\xe2\x80\x99s Establishment Clause jurisprudence has greatly\nevolved since the Court\xe2\x80\x99s decisions in Tilton and Nyquist were rendered, and many\nof the legal principles that supported those decisions have been discarded. In 1985,\nfor example, the Court struck down programs under which the government\nprovided religious and other schools with teachers who offered remedial instruction to disadvantaged children. See Aguilar v. Felton, 473 U.S. 402 (1985); Sch.\nDist. of Grand Rapids v. Ball, 473 U.S. 373 (1985). The Court reasoned that teachers in the program might \xe2\x80\x9cbecome involved in intentionally or inadvertently\ninculcating particular religious tenets or beliefs.\xe2\x80\x9d Ball, 473 U.S. at 385. In\nAgostini, however, the Court overruled Aguilar and substantial portions of Ball,\nexplaining that the Court had abandoned the presumption that placing public\nemployees in religious schools \xe2\x80\x9cinevitably results in the impermissible effect of\nstate-sponsored indoctrination or constitutes a symbolic union between government and religion.\xe2\x80\x9d 521 U.S. at 223. Similarly, in the 1970s the Court held that the\nstate could not provide any \xe2\x80\x9csubstantial aid to the educational function of [religious] schools,\xe2\x80\x9d reasoning that such aid \xe2\x80\x9cnecessarily results in aid to the sectarian\nschool enterprise as a whole.\xe2\x80\x9d Meek v. Pittenger, 421 U.S. 349, 366 (1975);\naccord Wolman v. Walter, 433 U.S. 229, 250 (1977). In Agostini and Mitchell,\nhowever, the Court expressly abandoned that view, overruling Meek and Wolman.\nSee Agostini, 521 U.S. at 225; Mitchell, 530 U.S. at 808, 835\xe2\x80\x9336 (plurality\nopinion); id. at 837, 851 (O\xe2\x80\x99Connor, J., concurring in judgment). In addition, other\nportions of Nyquist have been substantially narrowed or overruled. As the Court\nstated in Zelman, \xe2\x80\x9c[t]o the extent the scope of Nyquist has remained an open\nquestion in light of these later decisions, we now hold that Nyquist does not govern\nneutral educational assistance programs that, like the program here, offer aid\n\n14\nWe are not suggesting that religion must always be treated the same as non-religion; that sort of\nformal neutrality has never commanded the support of the Supreme Court, and it would be inconsistent\nwith the established principle that the government may not advance religion in ways that it is free to\nadvance many secular ideals, see, e.g., Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 337 (1987)\n(\xe2\x80\x9cFor a law to have forbidden \xe2\x80\x98effects\xe2\x80\x99 under Lemon, it must be fair to say that the government itself\nhas advanced religion through its own activities and influence\xe2\x80\x9d); Santa Fe, 530 U.S. at 302 (\xe2\x80\x9cthere is a\ncrucial difference between government speech endorsing religion, which the Establishment Clause\nforbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses\nprotect\xe2\x80\x9d (quoting Mergens, 496 U.S. at 250 (plurality opinion))), as well as the principle that the\ngovernment must sometimes accommodate religious practices in circumstances where it would not be\nrequired to accommodate similar secular practices, see, e.g., Wisconsin v. Yoder, 406 U.S. 205, 216\xe2\x80\x9317\n(1972). But where the government treats private parties differently on the basis of their religious status\nor viewpoint, such differential treatment is subject to more rigorous scrutiny. See, e.g., Rosenberger,\n515 U.S. at 828\xe2\x80\x9337; McDaniel v. Paty, 435 U.S. 618 (1978).\n\n116\n\n\x0cHistoric Preservation Grants to Properties Such as the Old North Church\n\ndirectly to a broad class of individual recipients defined without regard to religion.\xe2\x80\x9d 536 U.S. at 662.\nPerhaps more important, recent Supreme Court decisions have brought the\ndemise of the \xe2\x80\x9cpervasively sectarian\xe2\x80\x9d doctrine that comprised the basis for\nnumerous decisions from the 1970s, such as Tilton and Nyquist, and the 1995\nOpinion of this Office. As noted above, that doctrine held that there are certain\nreligious institutions in which religion is so pervasive that no government aid may\nbe provided to them, because their performance of even \xe2\x80\x9csecular\xe2\x80\x9d tasks will be\ninfused with religious purpose. That doctrine, however, no longer enjoys the\nsupport of a majority of the Court. Four Justices expressly abandoned it in\nMitchell, see 530 U.S. at 825\xe2\x80\x9329 (plurality opinion), and Justice O\xe2\x80\x99Connor\xe2\x80\x99s\nopinion in that case set forth reasoning that is inconsistent with its underlying\npremises, see id. at 857\xe2\x80\x9358 (O\xe2\x80\x99Connor, J., concurring in judgment, joined by\nBreyer, J.) (requiring proof of actual diversion of public support to religious uses\nto invalidate direct aid to schools and explaining that \xe2\x80\x9cpresumptions of religious\nindoctrination are normally inappropriate when evaluating neutral school-aid\nprograms under the Establishment Clause\xe2\x80\x9d). See also Columbia Union Coll. v.\nOliver, 254 F.3d 496, 502\xe2\x80\x9304 (4th Cir. 2001) (explaining that the pervasively\nsectarian test is no longer valid in light of the holdings of six Justices in Mitchell).\nJustice O\xe2\x80\x99Connor has rejected the view that aid provided to religious primary and\nsecondary schools will invariably advance the schools\xe2\x80\x99 religious purposes, and that\nview is the foundation of the pervasively sectarian doctrine.\nFor all of these reasons, the reach of Tilton and Nyquist cannot be extended\nbeyond their narrow holdings. And, for the reasons set forth in Part II, those\nholdings plainly do not control the question we address.\nIV.\nFor the foregoing reasons, we conclude that the Establishment Clause does not\nprevent the Department of the Interior from providing historic preservation grants\nto the Old North Church or to other active houses of worship that satisfy the\ngenerally applicable criteria for funding under the Program.\nM. EDWARD WHELAN III\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n117\n\n\x0c'