  Constitutionality of Awarding Historic Preservation Grants to
                        Religious Properties
A court applying current precedent is most likely to conclude that the direct award o f historic preserva­
   tion grants to churches and other pervasively sectarian institutions violates the Establishment Clause
   of the Constitution.

                                                                                               October 31, 1995

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


  At your request, we have reviewed your office’s draft opinion regarding the
permissibility under the Establishment Clause of awarding government historic
preservation grants to churches and other religious properties.1 In particular, and
as we discussed earlier, we have considered whether the Supreme Court’s recent
decision in Rosenberger v. Rector & Visitors, 515 U.S. 819 (1995), directly
addresses the particular question you have raised.
  As discussed below, the Rosenberger decision, which deals with a form of
government aid to religion significantly different from that at issue here, does
not control the case you have presented. Accordingly, we have no occasion here
to fully analyze the Rosenberger decision, nor to predict how it might apply in
other contexts. Rather, our analysis is guided by Supreme Court case law devel­
oped prior to Rosenberger. We conclude that a reviewing court, applying current
precedent, likely would hold that making historic preservation grants to churches
and other pervasively sectarian properties is inconsistent with the Establishment
Clause.

                                                1. Background

   Our understanding of the program in question, based primarily on the materials
you have provided us, is as follows. Organizations are eligible for historic
preservation grants, funded by the federal government and awarded directly by
the states, if they are listed on the National Register. Listing on the National Reg­
ister, in turn, depends on satisfaction of fairly detailed criteria measuring “ signifi­
cance in American history, architecture, archeology, engineering, and culture,”
including “ integrity of location, design, setting, materials, workmanship, feeling,
and association.” See 36 C.F.R. §60.4 (1995). A religious property qualifies for
listing if it “ derivfes] primary significance from architectural or artistic distinction
or historical importance.” Id. Listing on the National Register is only a threshold
condition of grant assistance; the states apparently make their own
  1   Draft Memorandum for Roger F. Kennedy, Director, National Park Service, from John D. Leshy, Solicitor, Re:
Historic Preservation Grants for Religious Properties (“ Draft Memo” ).

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“ determination[s] of needs and project worthiness in selecting projects to be
funded from the many applications submitted.” 2
   At least since 1981, grants have not been made available to active churches
or houses of worship under the program.3 Both the Reagan and the Bush Adminis­
trations took the position that direct financial support of active churches would
be inappropriate in light of Establishment Clause concerns.4 The question you
have raised is whether that policy may be reversed. Specifically, you have asked
whether historic preservation grants may be awarded directly to religious organiza­
tions for the preservation of buildings currently used for religious purposes such
as worship and education.5 Directly at issue appear to be grants for the preserva­
tion of active churches or, perhaps, of other religious facilities that would be
considered “ pervasively sectarian” under the Supreme Court’s jurisprudence.6

                                                    2. Analysis

   As your draft opinion recognizes, a series of Supreme Court cases decided prior
to Rosenberger calls into considerable question any effort by the government to
provide monetary assistance directly to pervasively sectarian institutions.7 Because
your draft opinion itself discusses this line of authority, we limit ourselves to
a brief description of the two-part rule that has emerged to govern direct financial
support of religious institutions.
   First, though the government may include religious institutions that are not
pervasively sectarian in neutral programs providing financial assistance, it must
ensure that government grants are not used to fund “ specifically religious
activity” and are instead channeled exclusively to secular functions. As you note,
the Supreme Court has applied this principle quite stringently in a line of closely
analogous cases involving school construction and repair grants. In those cases,
the Court upheld grants to non-pervasively sectarian religious schools only when
the program in question expressly excluded from funding “ any facility used or
to be used for sectarian instruction or as a place for religious worship.” Tilton
v. Richardson, 403 U.S. 672, 675 (1971) (approving provision of federal construc­
tion grants to colleges and universities with religious affiliations).8
   2 Memorandum for Director, Heritage Conservation and Recreation Service, from Associate Solicitor, Conservation
and W ildlife, Re: Historic Preservation Grants fo r Renovation o f Church Properties at 1 (M ar. 6, 1979).
   3 Draft M emo at 1; Letter for the Honorable Ja n e s G. W att, Secretary o f the Interior, from Frederick N. Khedouri,
A ssociate Director, O ffice o f Management and Budget (Dec. 14, 1981) ( “ K hedouri Letter*’).
   4 The Reagan Administration appears to h ave rested its position on a policy decision m ade in “ the context o f
the legal issues surrounding church-state affairs.” See K hedouri Letter at 1. The Bush Administration relied more
expressly on the conclusion that direct grants to active churches would be unlawful under Supreme Court case law
construing the Establishm ent Clause. See L etter for the Honorable Peter H. Kostmayer, House o f Representatives,
from Robert E. G rady, A ssociate Director, O ffice o f Management and Budget (Mar. 28, 1991).
   5 Draft Memo at 2.
   6Id. at 6 (assum ing that most if not all potential grantees would be deemed “ pervasively sectarian’’).
   7 Id. at 5.
   0 See also Hunt v. McNair, 413 U.S. 734, 7 3 6 (1973) (upholding state-financed construction o f college and univer­
sity facilities, subject to same restriction); Roemer v. Maryland Pub. Works Bd.t 426 U.S. 736, 740-41 (1976)


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    That the Court conceives of this restriction on use of public funds as both essen­
 tial and rather sweeping is illustrated by the Tilton case, holding that the expiration
 of a restriction after twenty years violates the Establishment Clause: “ If, at the
end of 20 years, the building is, for example, converted into a chapel or otherwise
used to promote religious interests, the original federal grant will in part have
 the effect of advancing religion.” Id. at 683. The Court made the same point
 in Nyquist, invalidating maintenance and repair grants to nonpublic schools in
part because they lacked “ appropriate restrictions” : “ Nothing in the statute, for
instance, bars a qualifying school from paying out of state funds the salaries of
employees who maintain the school chapel, or the cost of renovating classrooms
in which religion is taught, or the cost of heating and lighting those same facili­
ties.” 413 U.S. at 774. Importantly, the prohibition on public funding of facilities
used for religious activity applies even where the government’s purpose in funding
those facilities is concededly secular and “ entirely appropriate for governmental
action.” Tilton, 403 U.S. at 678-79; see Nyquist, 413 U.S. at 773-74.
    The second part of the rule qualifies the first: with or without restrictions, the
government may not provide monetary aid directly to “ pervasively sectarian”
institutions, defined as institutions in which “ religion is so pervasive that a
substantial portion of [their] functions are subsumed in the religious mission.”
Hunt, 413 U.S. at 743. The outer boundaries of the “ pervasively sectarian” cat­
egory are not well-defined, see Bowen v. Kendrick, 487 U.S. 589, 631 (1988)
(Blackmun, J., dissenting), and the Supreme Court has used it most often — though
not exclusively9 — in connection with educational institutions. Nevertheless, we
have no doubt that you are correct in assuming that most if not all active houses
of worship would fall within this category.10 Indeed, the notion that religion plays
something less than a vital and pervasive role in an active church’s mission might
appear inconsistent with a proper respect for religious institutions as well as with
common sense.
    As the Court has explained, the reason for the prohibition on direct monetary
grants to pervasively sectarian institutions is the unacceptable risk that where sec­
ular and religious functions are “ inextricably intertwined,” government aid,
though designated for a secular purpose, will in fact advance the institution’s reli­
gious mission. Meek v. Pittenger, 421 U.S. 349, 365-66 (1975) (invalidating
provision to pervasively sectarian schools of instructional material “ earmarked
for secular purposes” ); Kendrick, 487 U.S. at 610. Again, it is immaterial to this
part of the Court’s analysis that provision of assistance would serve a legitimate
(upholding provision o f noncategorical state grants to private colleges and universities, where grants may not be
used for “ sectarian purposes” ); Committee fo r Pub. Educ. v. Nyquist, 413 U.S. 756, 774 (1973) (invalidating state
maintenance and repair grants for nonpublic elementary and secondary schools in part because they lack restrictions
on use for religious purposes).
   9 At issue in Bowen were a broad range o f social services organizations with religious affiliations. The Court
concluded that the Establishment Clause prohibited those organizations that were “ pervasively sectarian” from
receiving federal grants under the Adolescent Family Life Act, 42 U.S.C. §§3007-3007-10. 487 U.S. at 620-21.
   10 Draft Memo at 6.


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secular purpose, see Meek, 421 U.S. at 363; Kendrick, 487 U.S. at 602; what
is critical is that the assistance also would have the effect of advancing religion
because of the pervasively sectarian character of the recipients. Meek, 421 U.S.
at 363. And even if it were possible, as a theoretical matter, to channel government
funds exclusively to secular functions in such institutions, the degree and kind
of governmental monitoring necessary to ensure compliance with the requisite
funding restrictions would itself raise Establishment Clause problems. Kendrick,
487 U.S. at 616-17.
   We think that these concerns would be implicated squarely were the government
to provide churches and other pervasively sectarian facilities with historic
preservation grants. The draft opinion suggests that such grants might be permis­
sible if restricted to the preservation of “ secular elements” of otherwise religious
buildings — that is, if government assistance were used only for such purposes
as exterior renovation, roof repair, and replacement of structurally necessary
internal components.11 What underlies the Court’s decisions in this area, however,
is an understanding that in the context of pervasively sectarian facilities, “ secular
elements” simply cannot be identified and separated from the overall religious
mission. Indeed, renovation of active churches and other houses of worship
appears to be a case in point. Though a structural element like a roof can be
characterized as “ secular” rather than “ sectarian” in most contexts, the distinc­
tion cannot be maintained in any meaningful sense when the roof is a component
part of an active church.
   Moreover, even if such a distinction could be defended in the abstract, efforts
by the government to identify those elements of a house of worship that do not
have “ direct religious import” 12 could well involve the kind of “ monitoring for
the subtle or overt presence of religious matter” prohibited by the Establishment
Clause. See Hernandez v. Commissioner, 490 U.S. 680, 694 (1989). It is our
understanding that even the most basic structural features of a church may carry
symbolic religious import.13 Determining whether that is the case in any given
instance may require an inquiry into religious doctrine or belief that would
impermissibly entangle the government in religious affairs. See id. at 696-97
(“ [Requiring the Government to distinguish between ‘secular’ and ‘religious’
benefits or services [provided by Church of Scientology auditing sessions] may
be fraught with the sort of entanglement that the Constitution forbids.’ ” ). In short,

  "Id. at 3, 7.
  '2 / i at 3.
   13 “ Besides individual ornam ents and architectural features, the [church] structure, taken as a whole, can be a
sym bol o f the entire religion:
      ‘The visible church building was both a symbol and model for the invisible or “ spiritual” church. . . .
      The church was considered to be a tangible expression o f a host of images and ideas expressed in the
      Bible. It was the body o f Christ, a c ity o f refuge, the New Jerusalem, G od's presence among m en.’ ”
Thom as Pak, Note, Free Exercise, Free Expression, and Landmarks Preservation, 91 Colum. L. Rev. 1813, 1841
(1991) (quoting Paul Clowney, & Tessa Clow ney, Exploring Churches 65 (1982)).


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we do not think that it is feasible, in theory or practice, to differentiate between
religious and secular elements of active houses of worship.
   This is, we note, the conclusion reached in a different context by the Wash­
 ington Supreme Court in First Covenant Church v. City o f Seattle, 840 P.2d 174
 (Wash. 1992) (en banc). In holding that the Free Exercise Clause prohibited
application of a landmark ordinance to restrict a church’s ability to alter its exte­
rior, the court relied in part on the inextricable link between the church’s structure
and its religious message: the “ church building itself ‘is an expression of Christian
belief and message’ and . . . conveying religious beliefs is part of the building’s
function. . . . The relationship between theological doctrine and architectural
design is well recognized.” Id. at 182. The court went on to reject an attempted
separation of religious from secular elements, finding that the ordinance’s excep­
tion for “ alterations necessitated by changes in liturgy” was unworkably vague:
 “ Would a wider door to permit access by handicapped parishioners comprise a
liturgical change? Although . . . widening the door does not relate directly to
the rites or procedures of worship in the church, it does facilitate the ability of
disabled persons to participate in religious services and activities. "Id. at 184
(quoting prior decision in First Covenant Church v. City o f Seattle, 787 P.2d 1352,
 1360 (Wash. 1990) (en banc)). Though we take no position on the ultimate deci­
sion in First Covenant,14 we do think that the court’s reasoning on this issue
is persuasive.
   There is one additional feature of the historic preservation grant program that
bears emphasis here. In recent cases upholding the provision of certain benefits
to religious groups or for religious expression, it has been important to the Court
that the benefit in question is generally available to all interested parties, on a
religion-neutral and near-automatic basis. See Rosenberger, 515. U.S. at 840-45
(subsidization of printing costs generally available to all student publications);
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757-59, 763
(1995) (access to public square generally available for all displays); Westside
Community Bd. o f Educ. v. Mergens, 496 U.S. 226, 252 (1990) (O’Connor, J.)
(access to school facilities available to all student clubs, with students free to
organize additional clubs). Provision of benefits to religious groups or expression
in this context, the Court has reasoned, is most unlikely to reflect or convey any
endorsement of or preference for religion. Id.; see Pinette, 515 U.S. at 763-66.
Historic preservation grants, by contrast, do not appear to be generally available
in the same sense. Properties, including religious properties, qualify for initial
listing on the Historic Register only if they meet subjective criteria pertaining
to architectural and artistic distinction and historical importance. Once listed, prop­

   l4We note that at least one other court has upheld against a Free Exercise Clause challenge the application of
a landmark restriction to prevent a church from erecting a commercial office tower on its property. Si. Bartholomew's
Church v. City o f New York, 914 F.2d 348 (2d Cir. 1990), cert, denied, 499 U.S. 905 (1991). Because the church’s
claim in that case centered on lost revenue rather than on structural integrity, the court did not address the issues
analyzed in First Covenant. See First Covenant, 840 P.2d at 181 (distinguishing Si. Bartholomew’s).


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erties are eligible to compete for grants based on additional measures of “ project
worthiness” established by the states. Participation by pervasively sectarian
institutions in this kind of competitive grant program raises special concerns,
absent in cases like Rosenberger, Pinette, and Mergens, that application of nec­
essarily subjective criteria may require or reflect governmental judgments about
the relative value of religious enterprises.
   We understand that the Second Circuit’s decision in Lamont v. Woods, 948
F.2d 825 (2d Cir. 1991), suggests in dicta that the Establishment Clause prohibi­
tion on direct funding of pervasively sectarian institutions may admit of exceptions
in certain cases. We do not believe it appropriate, however, to rely on that case
here. First, as your draft opinion appears to recognize, the portion of Lamont at
issue is at best in considerable tension, and at worst inconsistent, with governing
Supreme Court precedent. Second, even if the standard advanced in Lamont could
be defended, we are not convinced that it would apply in this context.
   The Lamont court suggested that it might approve funding of a pervasively sec­
tarian institution if (i) the government had a compelling interest in providing
funds; and (ii) the court could assure itself that the grant would not in fact advance
religion. 948 F.2d at 842. At issue in Lamont was assistance to pervasively sec­
tarian schools abroad, with the stipulation that no government funds be used to
“ construct buildings or other facilities intended for worship or religious instruc­
tion.” Id. at 828. For present purposes, we will assume with the Lamont court
that a pervasively sectarian school’s religious mission might not be advanced by
funding of a separate facility, such as a gym, used only for secular purposes.
Whether or not this is so, however, it simply does not follow that the government
also may fund the preservation of facilities that are “ intended for worship or
religious instruction” without impermissibly advancing religion. Moreover, we
hesitate to assume that a court would find the government’s interest in historic
preservation sufficiently “ compelling” to trigger the Lamont analysis in the first
instance. Again, we note that the court in First Covenant rejected such a claim:
“ [T]he City’s interest in preservation of esthetic and historic structures is not
compelling and it does not justify the infringement of First Covenant’s right to
freely exercise religion. The possible loss of significant architectural elements is
a price we must accept to guarantee the paramount right of religious freedom.”
840 P.2d at 185.
   Finally, as noted above, the Court’s decision in Rosenberger does not address
the issue posed by your inquiry to us. Rosenberger does, however, acknowledge
the Establishment Clause principle against “ direct money payments to sectarian
institutions,” citing most of the same cases we discuss here. 515 U.S. at 842.
The Court goes on to approve assistance to a student religious publication on
the grounds that the principle identified is not implicated: the program in question
neither involves the payment of public funds directly to recipients nor includes
religious institutions “ in the usual sense of that term” among its beneficiaries.

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Id. at 842-44. Indeed, the Court places special emphasis on the second factor
as it applies to churches, carefully distinguishing the case before it from one
involving direct or indirect public aid to a church. Id. at 844. Rosenberger, to
be sure, emphasized the importance of neutrality in upholding governmental pro­
grams against Establishment Clause challenge, clarifying that the Establishment
Clause does not “ justiffy], much less requiref], a refusal to extend free speech
rights to religious speakers who participate in broad-reaching government pro­
grams neutral in design.” Id. at 839. Nevertheless, we do not believe that at the
present time there is authority for a departure, in the context presented here, from
the rule against providing funds directly to churches and other pervasively sec­
tarian institutions.
   As you know, the question of government aid to religious institutions is a very
difficult one. The lines separating permissible from impermissible assistance are
sometimes hard to discern, and, as Rosenberger indicates, the Supreme Court’s
jurisprudence in this area is still developing. We think, however, that a court
applying current precedent is most likely to conclude that the direct award of
historic preservation grants to churches and other pervasively sectarian institutions
violates the Establishment Clause.

                                                             WALTER DELLINGER
                                                            Assistant Attorney General
                                                             Office o f Legal Counsel




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