NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           2017 VT 92

                                          No. 2016-276

Grant Taylor and Richard Scheiber                              Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court, Washington Unit,
                                                               Civil Division

Town of Cabot, The Cabot Community Association, Inc.,          March Term, 2017
and United Church of Cabot, Inc.


Timothy B. Tomasi, J.

Robert A. Gensburg and Hanne A.A. Trudeau, St. Johnsbury, for Plaintiffs-Appellees.

Daniel P. Richardson and Stephen F. Coteus of Tarrant, Gillies & Richardson, Montpelier, for
 Defendant-Appellant Town of Cabot.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   ROBINSON, J.        This case involves a challenge under the Compelled Support

Clause of the Vermont Constitution to the Town of Cabot’s grant of federally derived but

municipally managed funds for the purpose of repairs to a historic church. On interlocutory appeal,

we consider whether plaintiffs have standing to pursue their claims and whether the trial court

erred in issuing a preliminary injunction prohibiting the Town from paying the grant funds pending

further order of the court. We conclude that plaintiffs do have municipal taxpayer standing, but

vacate the trial court’s award of a preliminary injunction and remand for further proceedings to

resolve the case on the merits.
         ¶ 2.   Relying on Chapter I, Article Three of the Vermont Constitution, plaintiffs

challenged the Town of Cabot’s award of a grant to fund repairs to the United Church of Cabot,

and sought a preliminary injunction enjoining the grant. Defendants moved to dismiss the case on

the ground that plaintiffs lacked standing. At the hearing on the motion for preliminary injunction,

the parties did not present testimony, but each offered documentary exhibits and stipulated to a

number of facts. On this record, the trial court made the following findings.

         ¶ 3.   In the late 1980s, the U.S. Department of Housing and Urban Development (HUD)

issued the Town a two-million-dollar Urban Development Action Grant (UDAG) to fund a loan

to the Cabot Farmers’ Cooperative Creamery so it could construct a warehouse. By 2003, the

Cooperative had paid the loan back to the Town. Pursuant to its agreement with HUD, the Town

was allowed to keep the funds for uses consistent with the applicable HUD regulations and the

federal Housing and Community Development Act of 1974. The Town has kept the funds isolated

from other municipal funds in what it now calls the Community Investment Fund of Cabot (CIFC

fund).

         ¶ 4.   The CIFC fund gives grants and loans to local individuals or groups to promote its

goals, including to “[p]rotect and enhance the quality of life and character of the town” and to

“[i]mprove community infrastructure, facilities and services.” Groups eligible to apply for the

grants include “community groups, non-profits, civic organizations, [and] fraternal organizations”

as well as entities created by the Town, such as the Cabot Historical Society and the Cemetery

Commission. In order to get a grant from the CIFC fund, the individual or group must submit an

application to a committee appointed by the selectboard. The committee then reviews the

application and decides whether the intended use of the grant is consistent with the goals of the

CIFC fund. If an application is approved by the selectboard, it is put to a vote on Town Meeting

Day and the voters decide if the proposed project is a worthwhile use of CIFC funds.



                                                 2
       ¶ 5.    The United Church of Cabot (UCC) is a place of worship. It also makes its premises

available for many nonsectarian community events and gatherings, and is an important and historic

building in the town. In 2014, a consultant prepared a “Conditions Assessment," which revealed

that the building was in need of repair. The UCC spent significantly on those repairs, but needed

more funds and accordingly applied for a $10,000 CIFC grant. The $10,000 amounted to a small

portion of the total funds needed to repair the church. The reviewing committee approved the

request and the matter was put to a vote on Town Meeting Day in 2016. The warned question was:

“Shall the voters of the Town of Cabot approve the sum of ten thousand dollars ($10,000) from

UDAG funds in 2016 for the Cabot Community Association (CCA) for the purpose of repairing

the steeple, stairwell and other interior sections in urgent need of repair at the United Church of

Cabot.”1 The voters approved the grant.

       ¶ 6.    With respect to the Town’s motion to dismiss, the trial court concluded that

plaintiffs did have standing on two independent bases. First, the court concluded that plaintiffs

had standing as municipal taxpayers. The court rejected the argument that municipal taxpayer

standing does not apply because the funds at issue originated from federal coffers. It explained

that the funds cannot reasonably be characterized now as anything other than public, municipal

funds, and that the funds are intended to be distributed, in part, to projects that might otherwise be

funded from local tax revenues, such that there is no meaningful way to divorce the CIFC funds

from effects on municipal taxation. Alternatively, the court concluded that plaintiffs had taxpayer

standing because their claim was akin to a claim under the Establishment Clause of the First

Amendment to the United States Constitution. The court reasoned that a violation of the

Compelled Support Clause of the Vermont Constitution is analogous to an Establishment Clause



       1
          The Town stipulated at the hearing that the CCA’s only role in this funding scheme is to
receive the grant funds from the Town and deliver them to the UCC and that its function as such
has no effect on the issues in this case.
                                                3
violation. Just as federal taxpayers have standing to pursue certain Establishment Clause claims,

as recognized in Flast v. Cohen, 392 U.S. 83, 85 (1968), state taxpayers have standing to advance

Compelled Support claims under the Vermont Constitution.

          ¶ 7.   The trial court awarded the preliminary injunction sought by plaintiffs after

considering their likelihood of success, whether they would suffer irreparable injury in the absence

of a preliminary injunction, and the potential for injury to the public interest or third parties. The

court concluded that the first factor weighed in favor of an injunction primarily on account of the

breadth of the Town Meeting Day warning concerning the vote. The warning authorized a grant

“for the purpose of repairing the steeple, stairwell and other interior sections,” without any express

restrictions against using the monies to repair religious areas such as the pulpit or altar. The court

reasoned that without such restrictions, the grant was analogous to the unrestricted funding for a

religious school that this Court struck down in Chittenden Town School District v. Department of

Education, 169 Vt. 310, 738 A.2d 539 (1999). With respect to irreparable harm, the court

concluded that even if the grantee could be required to repay the grant funds to the Town if

plaintiffs prevailed in this case, plaintiffs will have suffered an irreparable affront to their values

arising from the unconstitutional use of government dollars by the UCC during pendency of the

action.     And the court concluded that injunctions protecting freedoms guaranteed by the

Declaration of Rights protect the public interest generally, in addition to plaintiffs’ own interests.

          ¶ 8.   The trial court granted interlocutory appeal of its ruling. The Town challenges both

the trial court’s analysis of standing, and its award of a preliminary injunction. In particular, the

Town argues that plaintiffs do not have municipal taxpayer standing because the funds at issue

derived from a federal grant, and have been held separate from the municipal budget and municipal

operating funds. It further argues that Flast is limited to cases in which taxpayers can show a nexus

between their status as taxpayers and the constitutional violation, which is absent here. With

respect to the preliminary injunction, the Town argues that the trial court misapprehended the

                                                  4
merits for a host of reasons, including that the court failed to adequately account for the legal

restrictions on the use of the grant funds in concluding that the grant ran afoul of the compelled

support clause. It also challenges the trial court’s conclusion that an award of the grant would

cause the plaintiffs irreparable harm, even if it is subject to repayment if plaintiffs prevail. We

consider each argument in turn.

                                             I. Standing

       ¶ 9.    We conclude that plaintiffs have standing to prosecute their claims. Municipal

taxpayer standing under our law encompasses claims that municipal assets have been improperly

wasted, and the record in this case supports the conclusion that the grant funds here are municipal

assets notwithstanding the fact that the funds originated from the U.S. Treasury.2 Whether a

plaintiff has standing is a legal question, which we review with no deference to the trial court.

Baird v. City of Burlington, 2016 VT 6, ¶ 11, 201 Vt. 112, 136 A.3d 223.

       ¶ 10.   We have held that the basis of municipal taxpayer standing “is not that any direct

loss has been caused to the plaintiff, but that municipal assets have been improperly wasted.” Cent.

Vt. Pub. Serv. Corp. v. Town of Springfield, 135 Vt. 436, 438, 379 A.2d 677, 679 (1977); see also

Baird, 2016 VT 6, ¶ 21 (“Although taxpayer suits in Vermont are generally ‘recognized as

appropriate vehicles for seeking relief from official action,’ to have standing a plaintiff must still

demonstrate that she has either sustained some ‘direct loss’ or that municipal assets have been

‘improperly wasted.’ ” (quoting Cent. Vt. Pub. Serv. Corp., 135 Vt. at 438, 379 A.2d at 679)).

       ¶ 11.   Our law in this regard is consistent with the U.S. Supreme Court’s understanding

of municipal standing. Contrasting a claim of federal taxpayer standing with its municipal analog,

the Supreme Court referenced “the rule, frequently stated by this court, that resident taxpayers may



       2
          Because we conclude that plaintiffs have standing as municipal taxpayers, we need not
consider their alternate argument that they have standing pursuant to a Vermont analog to federal
taxpayer standing in Establishment Clause cases as described in Flast.
                                                 5
sue to enjoin an illegal use of the moneys of a municipal corporation.” Massachusetts v. Mellon,

262 U.S. 447, 486 (1923). The Court further explained:

               The interest of a taxpayer of a municipality in the application of its
               moneys is direct and immediate and the remedy by injunction to
               prevent their misuse is not inappropriate. It is upheld by a large
               number of state cases and is the rule of this court. Nevertheless,
               there are decisions to the contrary. The reasons which support the
               extension of the equitable remedy to a single taxpayer in such cases
               are based upon the peculiar relation of the corporate taxpayer to the
               corporation, which is not without some resemblance to that
               subsisting between stockholder and private corporation . . . But the
               relation of . . . taxpayer[s] of the United States to the federal
               government is very different. [Their] interest in the moneys of the
               treasury—partly realized from taxation and partly from other
               sources—is shared with millions of others, is comparatively minute
               and indeterminable, and the effect upon future taxation, of any
               payment out of the funds, so remote, fluctuating and uncertain, that
               no basis is afforded for an appeal to the preventive powers of a court
               of equity.

Id. at 486-87 (citations omitted).

       ¶ 12.   Notwithstanding the federal origin of the monies at issue here, we conclude that

plaintiff can assert municipal taxpayer standing to challenge the Town’s use of the funds. We base

this conclusion on the language of the HUD authorization, the extensive control the Town has over

the funds, the absence of meaningful federal oversight of the Town’s use of the funds, and the fact

that the funds would otherwise be available for potential municipal expenditures.

       ¶ 13.   The Town’s 1992 close-out agreement with HUD in connection with the underlying

federal grant recognizes that the funds are possessed and controlled by the Town, and authorizes

the Town to use them for a broad array of purposes, with virtually no oversight. The agreement

provides that UDAG loan repayments to the Town, as well as other payments and income

associated with this grant, “shall be considered to be miscellaneous revenues” and “shall be made

available by the [Town] for eligible Title I activities pursuant to the Housing and Community and

Development Act of 1974.”



                                                 6
       ¶ 14.   The scope of permissible expenditures pursuant to Title I is quite broad,

encompassing the following:

               (1)     the elimination of slums and blight and the prevention of
               blighting influences and the deterioration of property and
               neighborhood and community facilities of importance to the
               welfare of the community, principally persons of low and moderate
               income;

               (2)     the elimination of conditions which are detrimental to
               health, safety, and public welfare, through code enforcement,
               demolition, interim rehabilitation assistance, and related activities;

               (3)     the conservation and expansion of the Nation’s housing
               stock in order to provide a decent home and a suitable living
               environment for all persons, but principally those of low and
               moderate income;

               (4)    the expansion and improvement of the quantity and quality
               of community services, principally for persons of low and
               moderate income, which are essential for sound community
               development and for the development of viable urban
               communities;

               (5)     a more rational utilization of land and other natural
               resources and the better arrangement of residential, commercial,
               industrial, recreational, and other needed activity centers;

               (6)     the reduction of the isolation of income groups within
               communities and geographical areas and the promotion of an
               increase in the diversity and vitality of neighborhoods through the
               spatial deconcentration of housing opportunities for persons of
               lower income and the revitalization of deteriorating or deteriorated
               neighborhoods;

               (7)     the restoration and preservation of properties of special
               value for historic, architectural, or esthetic reasons;

               (8)     the alleviation of physical and economic distress through
               the stimulation of private investment and community revitalization
               in areas with population outmigration or a stagnating or declining
               tax base; and

               (9)    the conservation of the Nation’s scarce energy resources,
               improvement of energy efficiency, and the provision of alternative
               and renewable energy sources of supply.



                                                 7
42 U.S.C. § 5301(c). The authorized uses of the funds that HUD authorized the Town to keep are

so expansive that most expenditures within the Town’s proper spending authority are likely

authorized. As a consequence, the federal restrictions on the Town’s use of the money do not

undermine the conclusion that the funds constitute municipal assets.

       ¶ 15.   Moreover, the Town’s reporting obligation to HUD was time-limited and expired

long ago. The Town is required to account to HUD for a period of five years after issuance of a

certificate of completion, and has no reporting requirements thereafter. In this case, the certificate

of completion is dated April 1992. This means that for nearly twenty years, the Town has held

part or all of the former federal grant funds with no requirement for accounting to HUD regarding

the Town’s use of the funds, and subject only to the limitation that the Town use the funds for

purposes falling within the broad range authorized by Title I.

       ¶ 16.   Finally, we agree with the trial court’s inference that the grant program set up by

the Town contemplates the possibility of grants for a host of purposes that may supplant municipal

general fund expenditures such that the CIFC funds cannot be meaningfully divorced from their

effects on municipal taxation. The CIFC program guidelines expressly contemplate the potential

allocation of grant funds to municipal governmental agencies for capital projects, and to

committees, agencies, organizations, or commissions created by the Town, the Village of Cabot,

or the Cabot School District, and identify the Recreation Committee, the Conservation Committee,

and the Cemetery Commission as examples of potential grantees. An award of CIFC funds to the

UCC may displace a grant to a tax-funded entity, with the potential consequence of affecting taxes.

       ¶ 17.   Under these circumstances, the fact that the funds originated from the federal

treasury does not undermine the conclusion that they are municipal assets for the purpose of

municipal taxpayer standing. See Cent. Vt. Pub. Serv. Corp., 135 Vt. at 442, 379 A.2d at 691 (“A

taxpayer’s action is an appropriate vehicle for testing the legality of municipal expenditures from

federal revenue sharing funds.”); Mathews v. Massell, 356 F. Supp. 291, 298 (N.D. Ga. 1973)

                                                  8
(holding that where federal law imposed penalty and repayment obligation for misuse of federal

revenue-sharing funds by municipality, municipal taxpayer alleged sufficient injury to assert

municipal taxpayer standing to challenge the proposed use).

                                      II. Preliminary Injunction

        ¶ 18.   We affirm the preliminary injunction standard applied by the trial court, but

conclude that the trial court erred in awarding the preliminary injunction because it overestimated

the plaintiffs’ likelihood of success on the merits, and erred in concluding that plaintiffs would

suffer irreparable injury in the absence of an injunction.

        ¶ 19.   “A preliminary injunction is an extraordinary remedy never awarded as of right.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). In each instance, we “must balance

the competing claims of injury and must consider the effect on each party of the granting or

withholding of the requested relief.” Id. The movant bears the burden of establishing that the

relevant factors call for imposition of a preliminary injunction. Id. at 20. The trial court here

rightly identified the main factors guiding its review under Vermont law: (1) the threat of

irreparable harm to the movant; (2) the potential harm to the other parties; (3) the likelihood of

success on the merits; and (4) the public interest.3 In re J.G., 160 Vt. 250, 255 n.2, 627 A.2d 362,

365 n.2 (1993).




        3
           In its entry regarding the Town’s motion for permission to take interlocutory appeal, the
trial court noted that other courts have adopted slight variations to these factors. The trial court
cited a recent federal district court decision from New York in which the court expanded the
“likelihood of success on the merits” factor to encompass “sufficiently serious questions as to the
merits plus a balance of hardships that tips decidedly in their favor.” General Mills, Inc. v.
Chobani, LLC, 158 F. Supp. 3d 106, 115 (N.D.N.Y. 2016). We conclude that our formulation is
functionally difficult to distinguish from the alternatives identified in the General Mills case.
Insofar as our test calls for a balancing of multiple factors, including the likelihood of success on
the merits, it is sufficiently flexible to allow for a preliminary injunction in cases in which the court
cannot definitively conclude that the movant is likely to prevail on the merits, but the balance of
other factors tips strongly in favor of an injunction. Accordingly, we maintain the formulation we
adopted in In re J.G., 160 Vt. at 255 n.2, 627 A.2d at 365 n.2.
                                                      9
       ¶ 20.   While this Court has not explicitly adopted any standard of review for preliminary

injunctions, federal courts review the award of injunctive relief for abuse of discretion. Ashcroft

v. Am. Civil Liberties Union, 542 U.S. 656, 664 (2004). To the extent that the trial court’s analysis

relies on factual determinations, we review those determinations deferentially. Baird, 2016 VT 6,

¶ 12. Our review of the trial court’s legal analysis is non-deferential. Id.

                                A. Likelihood of Success on the Merits

       ¶ 21.   Applying these standards, we first conclude that the trial court overstated the extent

to which plaintiffs established a likelihood of success on the merits. Our analysis is framed by the

Compelled Support Clause of Chapter I, Article Three of the Vermont Constitution and our

caselaw thereunder, limitations arising from the Free Exercise Clause of the First Amendment to

the U.S. Constitution, and the record in this case. In light of these considerations, plaintiffs’ path

to success on the merits is narrow. Plaintiffs face strong headwinds in arguing that the Compelled

Support Clause embodies a categorical prohibition against any public funding for physical repairs

to a place of worship, and plaintiffs have not yet presented sufficient evidence to demonstrate a

high likelihood of success on a narrower claim.

       ¶ 22.   The Vermont Constitution protects against compelled support for religion. In

particular, Chapter I, Article Three provides that “no person ought to, or of right can be compelled

to attend any religious worship, or erect or support any place of worship, or maintain any minister,

contrary to the dictates of conscience.” Although Article Three promotes the same general goals

as the First Amendment to the U.S. Constitution, this Court has recognized that the two provisions

are textually distinct, and may lead to divergent outcomes in some cases. Chittenden Town Sch.

Dist., 169 Vt. at 323, 738 A.2d at 549.

       ¶ 23.   The focus of the Compelled Support Clause is the support for “worship” itself. This

Court considered the Compelled Support Clause in depth in Chittenden Town School District. In

that case, we considered whether a scheme that reimbursed tuition for sectarian schools from

                                                  10
public monies ran afoul of the Compelled Support Clause. We explained that, “although the words

might appear to be broader, . . . Article 3 is not offended by mere compelled support for a place of

worship unless the compelled support is for the ‘worship’ itself.” Id. at 325, 738 A.2d at 550. The

Court concluded on the record before it that religious instruction could not be separated from

religious worship, and that the tuition payment system in question, with no restrictions on funding

religious education, accordingly violated Article Three. Id. at 342-43, 738 A.2d at 562. The Court

emphasized that the major deficiency in the tuition-payment system was the lack of restrictions

that prevented the use of public money to fund religious education, and that it was not ruling more

generally that children who attend religious schools may not receive public educational funding.

Id. at 343-44, 738 A.2d at 562-63. The Court noted that its narrow ruling avoided offense to the

Free Exercise Clause of the First Amendment to the United States Constitution. Id. at 344, 738

A.2d at 563. For the purposes of this case, the most critical lesson from Chittenden Town School

District is that the fact that the recipient of government support is a religious organization is not

itself determinative under the Compelled Support Clause; whether the funds are used to support

religious worship is the critical question. Id. at 325, 738 A.2d at 550.

       ¶ 24.   The Free Exercise Clause is a second critical touchstone impacting plaintiffs’

likelihood of success on the merits. While public support to religious organizations potentially

implicates the Compelled Support Clause of the Vermont Constitution, a refusal to afford religious

organizations access to secular benefits generally available to like institutions on account of their

religious affiliations may also trigger concerns under the Free Exercise Clause.

       ¶ 25.   The U.S. Supreme Court recently reaffirmed this very point in Trinity Lutheran

Church of Columbia, Inc. v. Comer—a case that post-dates the trial court’s decision in this case.

137 S. Ct. 2012 (2017). In that case, the Supreme Court considered a state-run program that

provides grants to qualifying nonprofit organizations to install playground surfaces made from

recycled tires. Trinity Lutheran Church sought a grant to replace a large portion of the playground

                                                 11
that served its preschool and daycare center. The program had a strict and express policy of

denying grants to any applicant owned or controlled by a church, sect or other religious entity, and

it rejected Trinity Lutheran’s grant request on that basis. The program exclusion was grounded in

a provision of the Missouri Constitution prohibiting the use of public monies, “directly or

indirectly, in aid of any church, sect or denomination of religion.” Mo. Const. art. I, § 7. The

Court concluded that the exclusion of religious organizations from the benefits program required

strict scrutiny under the Free Exercise Clause because it disqualified Trinity Lutheran from a

public benefit solely because of its religious character. Trinity Lutheran, 137 S. Ct. at 2021. The

Court explained, “[t]he express discrimination against religious exercise here is not the denial of a

grant, but rather the refusal to allow the Church—solely because it is a church—to compete with

secular organizations for a grant.” Id. at 2022. In doing so, the State essentially put Trinity

Lutheran “to a choice: [i]t may participate in an otherwise available benefit program or remain a

religious institution.” Id. at 2021-22.

       ¶ 26.   The Court in Trinity Lutheran differentiated the program for funding playground

resurfacing from scenarios in which state funds are used to fund religious activity, distinguishing

a prior decision in which the Court upheld the exclusion from a state-funded scholarship program

for post-secondary education of funding for a devotional theology degree.            Id. at 2022-25

(distinguishing Locke v. Davey, 540 U.S. 712 (2004)). In Locke, a state program provided

scholarships to high-achieving students to pursue postsecondary education. Scholarship recipients

were free to use the money at accredited religious and non-religious schools, but were not

permitted to use the funds to pursue a degree that was “devotional in nature or designed to induce

religious faith.” 540 U.S. at 716 (quotation omitted). A recipient was selected for a scholarship,

but was denied funds when he refused to certify that he would not use them toward a devotional

degree. The Supreme Court concluded that the state’s denial did not run afoul of the Free Exercise

Clause. Id. at 725. In Trinity Lutheran, the Supreme Court explained that in Locke, the State had

                                                 12
not denied the scholarship because of who the recipient was, but, rather because of what he

proposed to do—use the funds to prepare for the ministry. The scholarship program did not

“require students to choose between their religious beliefs and receiving a government benefit.”

Trinity Lutheran, 137 S. Ct. at 2023 (quotation omitted). Moreover, the Court “could ‘think of

few areas in which a State’s antiestablishment interests come more into play’ ” than with respect

to using taxpayer funds to pay for the training of clergy. Id. (quoting Locke, 540 U.S. at 722).

The Court concluded, “nothing of the sort can be said about a program to use recycled tires to

resurface playgrounds.” Id.

       ¶ 27.   Applying strict scrutiny, the Court concluded that Missouri’s interest in “skating as

far as possible from religious establishment concerns” was insufficient to support the clear

infringement on Trinity Lutheran’s free exercise rights. Id. at 2024. The Court expressly noted,

“the state interest asserted here—in achieving greater separation of church and State than is already

ensured under the Establishment Clause of the Federal Constitution—is limited by the Free

Exercise Clause.” Id.

       ¶ 28.   The third foundation for our analysis—the record in this case—is not fully

developed with respect to the anticipated and permitted use of the grant funds. The grant funds in

this case were undisputedly allocated for the purpose of maintenance and repairs to a building that

serves as a place of worship, is available for many nonsectarian community events and gatherings,

and is an important and historic building in the town. The $10,000 grant amounts to a small portion

of the total funds needed to repair the church. The warned question approved by the voters of the

Town authorizes funding “for the purpose of repairing the steeple, stairwell and other interior

sections in urgent need of repair at the United Church of Cabot.”

       ¶ 29.   Although the parties relied on this warning as descriptive of the scope of the grant

for the purpose of the preliminary injunction hearing, other uncontested documents in the record

appear to significantly limit the scope of the grant. UCC’s grant application describes a 2014

                                                 13
“Conditions Assessment” that enumerates and prioritizes the needed repairs to the UCC church

building. Noting the significant work that had been completed already, the narrative explains that

three exterior sides of the church need further painting, and that because some sill damage was

discovered in one corner of the building when rotten clapboards were being replaced, other sills

need to be assessed by removal of other sheathing material. Accordingly, the grant application

seeks funding for two particular remaining projects:

               Painting remaining block of the church: $18,000
               Sill exposure and examination: $960
               Total: $18,960

In the application, the UCC pledges to fund $8960 from its own resources, and seeks a $10,000

grant for the balance. Pursuant to the rules that apparently govern the program,4 grants may be

used only for the purposes specified in the grant proposal as submitted by the Committee to the

voters prior to the vote, and the Committee may withhold payment of granted funds if the project

deviates significantly from its application and description. These apparent limitations on the use

of the grant funds narrow the question in this case considerably: the question is not whether a grant

from the Town for the broad purpose of repairs to the structure, including “interior sections,”

offends the Compelled Support Clause; it is whether a grant for the purpose of paying a portion of

the cost for painting three exterior sides of the church building and examining window sills for

structural damage runs afoul of the Clause.5



       4
         At the hearing, the parties offered various exhibits that were admitted by agreement.
There was no additional testimony establishing the context of the various exhibits.
       5
           The Town argues on appeal that the scope of the grant is also limited by federal statutory
and regulatory restrictions governing the use of Title I funds and prohibiting their application to
improvements to “sanctuaries, chapels, and other rooms” that a congregation uses as its principal
place of worship. 24 C.F.R. § 570.200(j)(5). The applicability of these regulations to the grant at
issue is questionable given that the close-out agreement from the federal grant specifically states
that the funds are not subject to the implementing regulations in which the above provision appears.
Even if this regulation does limit the Town’s authority to distribute the funds, there is nothing in
the record reflecting that this restriction has been incorporated as a term of the grant or that this
                                                  14
       ¶ 30.     Given these considerations, plaintiffs’ path to success on the merits is narrow and

challenging. The fact that the ultimate recipient of these funds is a church does not itself establish

a violation of the Compelled Support Clause; the critical question is whether the funds will support

worship. Chittenden Town Sch. Dist., 169 Vt. at 325, 738 A.2d at 550. In fact, denying the UCC

secular benefits available to other like organizations might raise concerns under the Free Exercise

Clause of the United States Constitution.       To meet these concerns, plaintiffs will have to

demonstrate that painting the church building and assessing its sills is more like funding devotional

training for future clergy, as in Locke, than paying for a new playground surface on church

property, as in Trinity Lutheran. Specified repairs to the church building itself admittedly fall

somewhere between these two poles. In making their case, plaintiffs must persuade the court either

that the Compelled Support Clause categorically precludes the use of public funds to pay for any

repairs to a building that serves as a place of worship, without regard to the breadth and neutrality

of the program pursuant to which the funding is provided, or that the specific repairs funded under

this grant are prohibited. The first proposition is legally questionable; the second is not supported

by the record.

       ¶ 31.     Regarding the legal proposition, we are heavily influenced by the reasoning of the

United States Court of Appeals for the Sixth Circuit in the case of American Atheists, Inc. v. City

of Detroit Downtown Development Authority, 567 F.3d 278 (6th Cir. 2009). In that case, the City

of Detroit, in preparation for hosting a Super Bowl, created a program to refurbish the exteriors of

downtown buildings and parking lots in a discrete section of downtown Detroit. The program

applied to all property within the defined area, and paid up to 50% of the refurbishing costs. The

grants were directed to permanent physical improvements to building facades generally visible

from a public right of way, or certain enumerated improvements to the street-side edges of parking



grantee is otherwise on notice of this constraint. Accordingly, we do not rely on this asserted
constraint in ascertaining the uses to which the UCC may put the grant funds.
                                                 15
lots. Three churches within the designated district participated, and collectively received 6.4% of

the $11.5 million allocated for completed and authorized projects. The question before the court

was whether payments to the three churches pursuant to this program violated the Establishment

Clause of the U.S. Constitution or the counterpart provision in the Michigan Constitution. See

Mich. Const. art. I, § 4 (“No person shall be compelled . . . to contribute to the erection or support

of any place of religious worship . . . .”).

        ¶ 32.   The Sixth Circuit emphasized several factors in concluding that the challenged

grants were permissible. Detroit’s “program allocate[d] benefits in an evenhanded manner to a

broad and diverse universe of beneficiaries.” Am. Atheists, Inc., 567 F.3d at 289. The program

assessed a recipient’s eligibility for benefits “in spite of, rather than because of, its religious

character,” id. and “mak[d] grants available to a wide spectrum of religious, nonreligious and

areligious groups.” Id. at 290. Nothing in the history or implementation of the program revealed

any “overt or masked” purpose to advantage religious groups. Id. Rather, it was designed for the

religion-neutral purpose of revitalizing a section of downtown Detroit. Id. Although the funds

were used to upgrade some buildings in which religious worship took place, they were available

to religious and secular entities alike based on criteria that have nothing to do with religion. Id.

The vast majority of the upgrades at issue—renovation of exterior lights, pieces of masonry and

brickwork, outdoor planters, trim and gutters, for example, lacked “any content at all, much less a

religious content.” Id. at 292.

        ¶ 33.   The court also identified other contexts in which public support that helps religious

organizations is constitutionally permissible. It noted that a city may extend sewers and sidewalks

to churches, synagogues and mosques, may provide police and fire-protection services to them,

and may afford them property-tax exemptions available to charitable organizations. Id. at 291.

The court noted, “[i]f a city may save the exterior of a church from a fire, it is hard to understand



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why it cannot help save the same church with peeling paint or tuckpointing—at least when it

provides the same benefit to all downtown buildings on the same terms.” Id. at 292.

       ¶ 34.   Finally, the court noted that a categorical no-aid rule to religious entities would

mean that the government could not preserve the Ebenezer Baptist Church in Atlanta or the Old

North Church in Boston, “both of which benefit from direct federal aid under the ‘Save America’s

Treasures’ program.” Id. at 299. Likewise, one-time emergency assistance through FEMA and

other public agencies would be unavailable to churches devastated by natural disasters. Id.

       ¶ 35.   Although the American Atheists court analyzed the issue pursuant to the

Establishment Clause of the First Amendment, many of its insights apply with respect to the

Compelled Support Clause. Where funding is available on a neutral and non-discriminatory basis

to a broad and diverse group of potential recipients in order to promote a squarely secular goal of

the broader community, there is no indication that the funds are intended to or do advantage

religious organizations or activity, and the funds are used for structural repairs rather than, for

example, erecting religious symbols, we cannot conclude that such funds support worship within

the meaning of Article Three. To the extent that plaintiffs rely on the broad claim that spending

any public money on repairs to any part of the UCC church building violates the Compelled

Support Clause, they will face an uphill battle on the merits.

       ¶ 36.   Plaintiffs’ alternate path to success on the merits—establishing that this particular

grant violates the Compelled Support Clause—is not well supported by the record as it currently

exists. The CIFC grant funds are available to community groups, non-profits, civic organizations,

fraternal organizations, and similarly situated groups in the Town, as well as to committees or

other entities created by the Town, Village of Cabot, or the Cabot School District. By all

appearances, the grant program is available to a broad and diverse collection of potential grantees

that is defined without reference to religious affiliation. Moreover, the criteria for awarding the

grants have nothing to do with religious worship. The grants are designed to, among other things,

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enhance the quality of life and the character of the town, promote commercial development

consistent with the scale and character of the community, promote education, and improve

community infrastructure, facilities, and services. The applicable guidelines list a host of strategies

for accomplishing these general goals. Plaintiffs may be able to establish that the grant program

is not as neutral and broad-reaching as it appears, that the criteria for awarding the grants are so

broad and vague that they cannot be described as neutral in the American Atheists sense, or that

as designed or implemented it advantages the UCC as a religious organization; they have not done

so on this record.

       ¶ 37.   Likewise, plaintiffs may be able to establish that the award of the grant monies in

this case crosses a line by funding religious worship. In their brief, they suggest that the approval

by Town voters pursuant to the warned question is broad enough to allow the expenditure of public

funds “on anything at all that needs repair, including purely religious parts of the building or

religious artifacts.” However, on this record the grant is limited to two particular purposes—

painting three sides of the exterior of the church building and examining the window sills in the

church. The cost of these two projects is only a small fraction of the overall cost of the renovation

project, and the public funding will accordingly amount to only a small fraction of the overall cost

of the UCC’s broader renovation. On this record, plaintiffs have not shown that the grant funds

may be used to repair religious artifacts or other parts of the building that may more squarely run

into the limitations of Article Three. Cf. Locke, 540 U.S. at 722 (stating, with respect to public

funding for the training of church leaders, “we can think of few areas in which a State’s

antiestablishment interests come more into play”).

       ¶ 38.   For the above reasons, we conclude on the basis of the current record that the

plaintiffs’ likelihood of success on the merits weighs against the issuance of a preliminary

injunction.



                                                  18
                                     B. Irreparable Injury to Movant

        ¶ 39.    Although our analysis of the merits likely resolves the preliminary injunction

appeal, we also conclude that the plaintiffs would not suffer an irreparable injury in the absence of

a preliminary injunction. The gravamen of plaintiffs’ complaint is that municipal funds have been

misappropriated for unconstitutional purposes—an injury that could be remedied by repayment of

the funds to the Town in the event that plaintiffs prevail. The claims in this case are narrow and

distinguishable from the cases relied upon by the trial court to support its analysis of the irreparable

injury factor.

        ¶ 40.    A preliminary injunction will usually be denied “if the applicant has an adequate

alternate remedy in the form of money damages or other relief.” Wright & Miller, Federal Practice

& Procedure, § 2948.1 (3d ed. 2017). In this case, the injury at the root of plaintiffs’ claim is the

use of municipal funds to support a place of worship in violation of the dictates of their respective

consciences. If they prevail, the UCC will be ordered to repay the money, and the violation will

be remedied. There is no evidence that the UCC would be unable to repay the $10,000 grant if

plaintiffs prevail.

        ¶ 41.    We recognize that in most cases, the violation of a plaintiff’s constitutional rights

is itself a sufficient irreparable injury to support a preliminary injunction. Generally, “[w]hen an

alleged deprivation of a constitutional right is involved, such as the right to free speech or freedom

of religion, most courts hold that no further showing of irreparable injury is necessary.” Id. The

decisions relied upon by the trial court in its irreparable injury analysis affirm this principle.

However, almost all of those cases involve a deprivation of liberty or constitutional freedom that

cannot be “undone” through the payment of money. See, e.g., Elrod v. Burns, 427 U.S. 347, 373

(1976) (deprivation of First Amendment freedoms of public employees threatened with discharge

based on political affiliations amounts to irreparable injury); Jolly v. Coughlin, 76 F.3d 468, 482

(2d Cir. 1996) (cruel and unusual punishment under the Eighth Amendment and denial of the right

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to free exercise of religious beliefs are harms that cannot be adequately compensated monetarily);

Tolbert v. Koenigsmann, No. 9:13-cv-1577 (LEK/DEP), 2016 WL 3349317, *4 (N.D.N.Y. June

15, 2016) (Eighth Amendment claim sufficiently invoked the presumption of irreparable harm);

Bloom v. O’Brien, 841 F. Supp. 277, 278-79 (D. Minn. 1993) (where exercising a First

Amendment right will subject a plaintiff to criminal penalties, the threat of irreparable harm is

established). Libin v. Town of Greenwich, 625 F. Supp. 393, 400 (D. Conn. 1985) (violation of

plaintiffs’ First Amendment rights through display of cross on town property constituted an

irreparable injury).

       ¶ 42.   We conclude that this principle does not apply in this narrow class of cases in which

the plaintiffs’ injury consists of an allocation of public funds that can be repaid. The injury here

is not that plaintiffs are confronted with a fresh coat of paint on the UCC church building that

violates their conscience; it is the notion that public monies were used to pay for that paint. In

contrast to the imposition of cruel and unusual punishment, or the denial of the right of free speech,

this is an alleged constitutional violation that can be “undone” through repayment of the challenged

grant monies back to the Town. But see Annunziato v. New Haven Bd. Of Aldermen, 555 F. Supp.

427, 432 (D. Conn. 1982) (“Although the basis of plaintiffs’ standing to sue is their alleged

economic injury, monetary damages would be inadequate compensation for the additional legal

injury from the underlying violation of the Establishment Clause.”).

       ¶ 43.   For the above reasons, we affirm the trial court’s denial of the Town’s motion to

dismiss on standing grounds, and vacate the preliminary injunction in this case.

       Affirmed in part, vacated in part, and remanded for further proceedings.


                                                FOR THE COURT:



                                                Associate Justice


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