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SJC-12274

             GEORGE CAPLAN & others1   vs.   TOWN OF ACTON.



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

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


Constitutional Law, "Anti-aid" amendment. Massachusetts
     Community Preservation Act. Historic Preservation.
     Church.



     Civil action commenced in the Superior Court Department on
July 7, 2016.

     A motion for a preliminary injunction was heard by Leila R.
Kern, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Douglas B. Mishkin, of the District of Columbia (Joshua
Counts Cumby & Alex Luchenitser, of the District of Columbia, &
Russell S. Chernin also present) for the plaintiffs.
     Nina L. Pickering-Cook (Arthur P. Kreiger also present) for
the defendant.

    1  Jim Conboy, G. Stodel Friedman, Daniel Gilfix, Maria
Greene, Jesse Levine, Dave Lunger, Allen Nitschelm, Scott
Smyers, William Alstrom, Jennifer Brown, William Brown, and
David Caplan.
                                                                   2


     The following submitted briefs for amici curiae:
     Daniel Mach, of the District of Columbia, Anthony M.
Doniger, Kate R. Cook, & Sarah R. Wunsch for American Civil
Liberties Union & another.
     Maura Healey, Attorney General, David C. Kravitz, Assistant
State Solicitor, & Matthew P. Landry, Assistant Attorney
General, for the Attorney General.
     Eric C. Rassbach, of the District of Columbia, Joseph C.
Davis, of Louisiana, Daniel D. Benson, of Utah, & Mark L. Rienzi
for Becket Fund for Religious Liberty.
     Thomas A. Mullen for Massachusetts Municipal Law
Association & another.
     Thaddeus A. Heuer & Andrew London for National Trust for
Historic Preservation.
     Ryan P. McManus & M. Patrick Moore for Boston Preservation
Alliance & others.


    GANTS, C.J.   Article 18 of the Amendments to the

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

the Amendments, known as the "anti-aid amendment," prohibits in

§ 2, cl. 2, the "grant, appropriation or use of public money . .

. for the purpose of founding, maintaining or aiding any church,

religious denomination or society."   This case presents the

question whether two grants of public funds to renovate an

active church that has been identified as a "historic resource"

under the Community Preservation Act (act), G. L. c. 44B, are

categorically barred by the anti-aid amendment, or whether the

constitutionality of such grants must be evaluated under the

three-factor test we have applied under Commonwealth v. School

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

to payments made to other private institutions.   Also presented
                                                                      3


is the follow-up question:   if the three-factor test applies, do

the grants satisfy its requirements?

     We conclude that the constitutionality of such grants must

be evaluated under our three-factor test:    a judge must consider

whether a motivating purpose of each grant is to aid the church,

whether the grant will have the effect of substantially aiding

the church, and whether the grant avoids the risks of the

political and economic abuses that prompted the passage of the

anti-aid amendment.   We also conclude that, in light of the

history of the anti-aid amendment, a grant of public funds to an

active church warrants careful scrutiny.     Because the judge

applied this three-factor test incorrectly in denying the

plaintiffs' motion for a preliminary injunction to prohibit

disbursement of these grants, we vacate the order denying the

motion.   As to the grant to preserve the stained glass windows

in the main church building, we remand the case to the Superior

Court for entry of an order allowing the plaintiffs' motion for

a preliminary injunction barring disbursement of the grant.      As

to the grant to fund a "Master Plan" to preserve all three of

the buildings belonging to the church, we remand for further

proceedings consistent with this opinion.2


     2 We acknowledge the amicus brief filed in support of the
plaintiffs by the American Civil Liberties Union and ACLU of
Massachusetts. We acknowledge the amicus briefs filed in
                                                                    4


     Background.   The Acton Congregational Church (church), an

affiliate of the United Church of Christ, is an active church

with a congregation of over 800 members.   It describes its

mission thusly:

     "The mission of Acton Congregational Church . . . is to
     preach and teach the good news of the salvation that was
     secured for us at great cost through the life, death, and
     resurrection of Jesus. The church encourages each
     individual to accept the gift of Christ and to respond to
     God's love by taking part in worship, ministry to one
     another, and the Christian nurture of people of all ages.
     With the guidance of the Holy Spirit, we are called as
     servants of Christ to live our faith in our daily lives and
     to reach out to people of this community and the world with
     love, care, and concern for both their physical and
     spiritual needs."

     The church stands in the Acton Centre Historic District

(historic district), an area that has served as a center of town

life since the establishment of the town of Acton (town) in

1735.   The church owns and maintains three adjacent buildings in

the historic district:   the main church building, the John

Fletcher House, and the Abner Hosmer House.   The main church

building was built in 1846.   Today, it is used for worship

services and religious educational programs; it also houses a

local day care center, meeting spaces for various community


support of the town of Acton (town) by the Attorney General; the
Becket Fund for Religious Liberty; the Massachusetts Municipal
Law Association and Community Preservation Coalition; the
National Trust for Historic Preservation; and the Boston
Preservation Alliance, Historic Boston Incorporated, Historic
New England, North Bennet Street School, and Preservation
Massachusetts.
                                                                     5


groups, and a thrift shop.   The two houses, also built in the

mid-Nineteenth Century, originally were private residences but

were later acquired by the church and are now rented to local

families.

     The town is one of 172 municipalities in Massachusetts that

have adopted the act, which establishes a mechanism for funding

projects relating to open space, historic resources, and

community housing.3   G. L. c. 44B.   In 2015, the church submitted

two grant applications to the town's Community Preservation

Committee (committee), which makes recommendations in accordance

with the act to the town meeting regarding "the acquisition,

preservation, rehabilitation and restoration of historic

resources."4   G. L. c. 44B, § 5 (b) (2).   See G. L. c. 44B, § 7.

     The church's first application was for a $49,500 grant to

fund a "Master Plan for Historic Preservation" for all three of

     3 Municipalities that adopt the Community Preservation Act
(act), G. L. c. 44B, must establish a local preservation fund,
which is funded through a surcharge on local property taxes, id.
at § 4, and through disbursements from a State-administered
trust fund that is funded through a Statewide surcharge on all
real estate transactions at the State's Registries of Deeds, id.
at § 8. See Community Preservation Coalition, CPA Trust Fund,
http://www.communitypreservation.org/content/trustfund
[https://perma.cc/Y7XF-VQRZ].

     4 The act defines "historic resources" as "a building,
structure, vessel, real property, document or artifact that is
listed on the [S]tate register of historic places or has been
determined by the local historic preservation commission to be
significant in the history, archeology, architecture or culture
of a city or town." G. L. c. 44B, § 2.
                                                                   6


its buildings (the Master Plan grant).   The church proposed to

hire an architectural consultant to develop a plan for their

renovation and preservation; the proposed work would include "a

thorough assessment of the [c]hurch building envelope, including

windows, doors, siding, roof, chimney, bell tower, skylights,

and fire escapes."   The church noted "[s]pecific areas of

concern" for the building, including its bell tower and brass

chandelier.

     The church's second application was for a $51,237 grant to

fund the restoration and preservation of the main church

building's stained glass windows, which were installed in 1898

(the stained glass grant).   According to the church's

application, the "most prominent" of the windows depicts Jesus

and a kneeling woman; another window features a cross and the

hymnal phrase, "Rock of Ages Cleft for Me."   The proposed work

would include replacing parts of the glass, sealing the glass,

and installing new glazing so that the windows -- which

currently have a "cloudy" exterior and "cannot be appreciated

outside the church" -- will be given "complete transparency."

     The church explained in its applications that, due to

declining membership and contributions, it lacked the funds

necessary both to preserve its buildings and to fully serve the

needs of its congregation without financial assistance from the

town:
                                                                    7


    "As you may know, mainstream churches have not been growing
    for years, and the financial strain is significant. [The
    church] has weathered the storm better than many churches,
    but the reality is that we have had to cut programs and
    personnel. The cuts can further exacerbate the financial
    problem by not offering the congregation what draws them to
    their church. With that in mind, the long list of
    maintenance and capital improvement projects get[s] delayed
    before we cut programs, but there are many things that
    we've had to fix."

    Consistent with the requirements of the act, the committee

held a public hearing on the church's applications and voted

unanimously to recommend the two grants.   The town approved them

both at a town meeting.

    The town imposed several conditions on the grants.     First,

it required that the church convey to the town a "historic

preservation restriction" in the buildings that would be

"perpetual to the extent permitted by law."   Second, it

specified that no funds would be disbursed to the church except

as reimbursements for specific expenses incurred in connection

with the projects, and only after the town could verify, based

on submitted invoices, that those expenses were "consistent with

the project scope presented" in the church's applications.

    The plaintiffs, a group of town taxpayers, commenced this

action in the Superior Court under G. L. c. 40, § 53, which

permits taxpayers to act "as private attorneys general" to

enforce laws designed to prevent abuse of public funds by local

governments.   LeClair v. Norwell, 430 Mass. 328, 332 (1999).
                                                                         8


The plaintiffs sought a declaratory judgment that the grants to

the church violate the anti-aid amendment, and requested

injunctive relief to prevent their disbursement.5

        In denying the plaintiffs' motion for a preliminary

injunction, the judge relied on the three-factor test we first

set forth in Springfield, 382 Mass. at 675.       We applied the test

in that case to determine whether a statute that authorized the

public funding of special education placements of public school

students in private schools violated the anti-aid amendment.

Id. at 667.       The three factors are:   "(1) whether the purpose of

the challenged statute is to aid private schools; (2) whether

the statute does in fact substantially aid such schools; and (3)

whether the statute avoids the political and economic abuses

which prompted the passage of [the anti-aid amendment]."        Id. at

675.6       We cautioned that these factors "are not 'precise limits

to the necessary constitutional inquiry,' but are instead

guidelines to a proper analysis."       Id., quoting Colo v.



       In their complaint, the plaintiffs also challenged the
        5

town's proposed $15,000 grant to South Acton Congregational
Church, another active church located in Acton. South Acton
Congregational Church has since withdrawn its application for
that grant; on appeal, the plaintiffs challenge only the grants
to the Acton Congregational Church.

       The judge described these as "the three factors outlined
        6

in Helmes v. Commonwealth, 406 Mass. 873, 876 (1990)"; the court
in Helmes quoted the factors set forth in Commonwealth v. School
Comm. of Springfield, 382 Mass. 665, 675 (1981) (Springfield).
                                                                     9


Treasurer & Receiver Gen., 378 Mass. 550, 558 (1979).      We also

recognized that each factor was "interrelated," and that any

conclusion "results from a balancing" of the factors as applied

to the facts of each case.    Springfield, supra at 675.

    The judge here determined that the plaintiffs bore a heavy

burden to overcome the presumption of the act's

constitutionality because, although the plaintiffs were

challenging the constitutionality of the grants to the church,

those grants were awarded pursuant to the act.    Thus, as to the

first factor, the judge determined that she must "examine the

purpose of the [act]," and concluded that the purpose of the

grants under the act was "to preserve historic resources, and

not to aid the [c]hurch[]."   As to the third factor, the judge

found that "[t]here is no credible evidence that the grants

under the [act] are economically or politically abusive or

unfair," noting that "[t]he application and approval procedures

for grants under the [act] operate without regard to the

applicant's makeup or purpose."   The judge concluded that, even

if the plaintiffs were to satisfy the second factor, which she

was "not convinced they can," they still had "no likelihood of

success on the merits" because their failure to satisfy the

first and third factors "preclud[ed] them from overcoming the

presumption of constitutionality that favors the [act]."
                                                                    10


    The judge also granted the town's motion for a protective

order to stay discovery until thirty days after entry of a

decision on the preliminary injunction.     The plaintiffs appealed

from the denial of their motion for a preliminary injunction and

the allowance of the protective order.     We granted their

application for direct appellate review.

    Discussion.    In a taxpayer suit such as this, the taxpayers

collectively are acting as a private attorney general seeking

under G. L. c. 40, § 53, "to enforce laws relating to the

expenditure of tax money by the local government."     LeClair, 430

Mass. at 332.   In order to obtain a preliminary injunction, the

plaintiffs must show a likelihood of success on the merits and

that the requested relief would be in the public interest; they

need not demonstrate irreparable harm.     See id. at 331-332.

    The plaintiffs claim that the judge made two errors of law

in her decision denying their motion for a preliminary

injunction.   First, they argue that the judge erred by applying

the three-factor test articulated in Springfield, contending

that this test only applies where the challenged grant of public

funds is to aid a private school or institution, and not where

the challenged grant is to aid a church.     Second, they contend

that, even if the three-factor test properly applies to public

aid to churches, the judge misapplied the test.     To rule on
                                                                    11


these claims of error, we must look first to the history and

evolution of the anti-aid amendment.

     1.   The history and evolution of the anti-aid amendment.

Our original Declaration of Rights, adopted in 1780, provided in

art. 3 for the direct public support of religion, continuing the

Colonial practice of using tax revenues to support the "public

Protestant teachers of piety, religion and morality[,]" see

Colo, 378 Mass. at 556 n.10, which essentially meant support of

the Congregational Church.   See T.J. Curry, The First Freedoms,

Church and State in America to the Passage of the First

Amendment, 163-164, 174-175 (1986) (Curry); S.E. Morison, A

History of the Constitution of Massachusetts 24 & n.1 (1917)

(Morison).7

     Even before it was mandated by the Declaration of Rights in

1780, the "quasi-religious establishment" of the Congregational

Church had provoked heated conflict.   Id. at 24.   See generally

     7 Article 3 of the Massachusetts Declaration of Rights
originally provided, in relevant part, that "the [L]egislature
shall . . . authorize and require[] the several towns, parishes,
precincts, and other bodies politic . . . to make suitable
provision, at their own expense, for the institution of the
public worship of God, and for the support and maintenance of
public Protestant teachers of piety, religion and morality."
Because Congregationalists were the overwhelming majority of the
population in Massachusetts at the time, art. 3 functioned as a
de facto general assessment in favor of the Congregational
Church. See T.J. Curry, The First Freedoms, Church and State in
America to the Passage of the First Amendment, 163-164 (1986);
S.E. Morison, A History of the Constitution of Massachusetts 24
& n.1 (1917).
                                                                   12


1 W.G. McLoughlin, New England Dissent 1630-1833, The Baptists

and the Separation of Church and State, 547-568 (1971)

(McLoughlin).   During the American Revolution, Baptists

protested the religious assessments with acts of civil

disobedience; in retaliation, mobs attacked them on the pretext

that they were Tories.   See Curry, supra at 163.   When the

Constitution was submitted to the people for ratification,

forty-five towns rejected art. 3, most of them because it

provided public support to the Congregational Church.    See id.

at 167-169; McLoughlin, supra at 626-631.   After art. 3 was

enacted, the Baptists challenged the religious assessments in

court, and other denominations followed.    See McLoughlin, supra

at 636-659.

    After decades of "lawsuits, bad feeling, and petty

persecution," Morison, supra at 24, the Massachusetts

Constitution was amended in 1833 with art. 11 of the Amendments

enacted to substitute for art. 3.   Article 11 guarantees the

equal protection of "all religious sects and denominations" --

not just the Christian denominations protected under art. 3 --

and effectively ended religious assessments.   The next year, the

Legislature enacted a statute providing that "no citizen shall

be assessed or liable to pay any tax for the support of public

worship . . . to any parish or religious society whatever, other
                                                                    13


than to that of which he is a member."     St. 1834, c. 183, § 8.

See Morison, supra at 38-39.

     But the issue of public support for religious institutions

was far from resolved by art. 11.   It was raised again in the

Constitutional Convention of 1853, which adopted art. 18 of the

Amendments to prevent the appropriation of public funds to

sectarian schools.8   See 3 Debates and Proceedings in the State

Convention 1853, at 613-626 (1853) (Debates of 1853); Morison,

supra at 59.   The debates from the Convention indicate that art.

18 did not arise in response to any actual funding of sectarian

schools in Massachusetts, but from fear of the sectarian

conflict that would result if such funding were to occur.     See

Debates of 1853, supra at 615, 618-620.9


     8 Article 18 of the Amendments, as adopted by the 1853
Convention and ratified in 1855, provides:

     "All moneys raised by taxation in the towns and cities for
     the support of public schools, and all moneys which may be
     appropriated by the State for the support of common
     schools, shall be applied to, and expended in, no other
     schools than those which are conducted according to law,
     under the order and superintendence of the authorities of
     the town or city in which the money is to be expended; and
     such moneys shall never be appropriated to any religious
     sect for the maintenance exclusively of its own schools."

     9 As one opponent to art. 18 stated, "[T]here has been
nothing sectarian heretofore in the division of the public
moneys." 3 Debates and Proceedings in the State Convention
1853, at 614 (1853) (Debates of 1853). Another delegate added,
"Nobody asserts that such is the case; but somebody imagines
that such a state of things may arise in the future; that
                                                                   14


    The delegates worried that competing claims from various

denominations would quickly deplete public funds for education.

In the words of one delegate:   "[I]f we take the position that a

part of this fund may be given to one denomination, another may

come in and claim the same privilege, and another, and another,

until the fund is completely exhausted . . . ."    Id. at 620.

But the delegates were equally fearful of the political

controversies that were bound to ensue.    See id. at 619, 624.

One delegate warned that making public funds available to

religious institutions would be like throwing "a firebrand into

. . . town meetings."   Id. at 624.   The "object" of art. 18, he

explained, was "to extinguish [that] firebrand, so that it shall

not be possible to rekindle it."   Id.    Having seen until 1833

how public financial support for churches could provoke such

animosity between citizens, the delegates were eager to remove

the controversial issue of religion from politics.    See id. at

624-625.




sectarian schools are going to be established; that some new
sect may outvote the Protestants, and claim the school
fund. . . . We contend that it is all right now, but we are
afraid of something ahead." Id. at 615-616. A supporter of
art. 18 acknowledged that "no efforts have been made to
establish sectarian schools," but pointed out that "other States
have been afflicted" with such developments and that "it would
be well to consider whether, in this State, . . . it is not our
best policy to guard against it in time." Id. at 619.
                                                                    15


     In fact, religious tensions were on the rise in 1853, as

Massachusetts faced a massive influx of immigrants, most of them

driven here from Ireland by the famine caused by a potato blight

that devastated the nation's harvest.     See generally O. Handlin,

Boston's Immigrants, A Study in Acculturation, 25-53 (rev. ed.

1979).    In 1841, about 10,000 Irish immigrants arrived in

Boston; in 1846, that number had risen to more than 65,000.     Id.

at 242.   By 1850, more than one-fourth of Boston residents were

Irish.    Id. at 243.   Hostility toward Irish Catholics grew among

those who felt threatened by the combined forces of mass

immigration, urbanization, and industrialization.    See Haynes,

The Causes of Know-Nothing Success in Massachusetts, 3 Am. Hist.

Rev. 67, 70-76 (1897) (Haynes).    Rumors spread about a "papal

plot" to spread Catholic influence throughout the government and

in particular the public school system.    See Holt, The Politics

of Impatience:   The Origins of Know Nothingism, 60 J. Am. Hist.

309, 323-324 (1973).    These anti-Catholic sentiments were well

known to the framers of art. 18.    Indeed, some delegates

believed (and historians today agree) that art. 18 was itself

targeted specifically against Catholic schools.10    See Debates of


     10In the words of one delegate: "Every-body knows [art.
18] appears to be aimed at one class of our citizens, one
denomination of religion. Nobody has intimated any apprehension
that money would be used for the benefit of Protestant
sectarianism. . . . [Article 18 has been] discussed[] in
                                                                   16


1853, supra at 615-617; J.R. Mulkern, The Know-Nothing Party in

Massachusetts, The Rise and Fall of a People's Movement, 42

(1990) (Mulkern); Shapiro, The Conservative Dilemma, The

Massachusetts Constitutional Convention of 1953, 33 New Eng. Q.

207, 224 (1960).   See also Wirzburger v. Galvin, 412 F.3d 271,

281 (1st Cir. 2005), cert. denied, 546 U.S. 1150 (2006).

    It bears noting that art. 18, along with all the amendments

adopted by the 1853 Convention, failed to be ratified by the

people in 1853.    Morison, supra at 63.   However, in 1854, the

Know-Nothing Party, running on an anti-foreign and in particular

an anti-Catholic platform, won a surprising political victory in

Massachusetts that secured both the governorship and control of

the Legislature.   See Haynes, supra at 67-68.   Article 18 was

revived by the Know-Nothing government, Mulkern, supra at 94,

105-106, and ratified by special election in 1855, Morison,

supra at 64.

    However, the adoption of art. 18 did not end the

controversy over public support for religious institutions.

Public dissatisfaction with art. 18 grew when, due to its

"rather uncertain language," private religious schools and

hospitals continued to receive public funding.    Bloom v. School

Comm. of Springfield, 376 Mass. 35, 39 (1978).    See Loring, A


relation to the support of Catholic schools . . . ."    Debates of
1853, supra at 615.
                                                                     17


Short Account of the Massachusetts Constitutional Convention

1917-1919, 6 New Eng. Q. 1, 10 (1933).     In 1913, the Legislature

requested this court's opinion on whether art. 18 "adequately

prohibit[ed]" the appropriation of public funds "for maintaining

or aiding any church, religious denomination or religious

society, or any institution, school, society or undertaking

which is wholly or in part under sectarian or ecclesiastical

control."    Opinion of the Justices, 214 Mass. 599, 599-560

(1913).     The Justices were in agreement that art. 18 prohibited

appropriations to primary and secondary schools under sectarian

control, but not to schools of higher education.       Id. at 601.

The Justices were divided, however, on whether art. 18 allowed

appropriations to a church or religious denomination; four

Justices were "of opinion that such an appropriation is

prohibited by the Constitution and its Amendments," while three

Justices "incline[d] to the opposite conclusion."      Id.

    Faced with this uncertainty, delegates to the

Constitutional Convention of 1917 sought "to tighten the

prohibition of public support for religious education" and "to

protect State and municipal treasuries from the growing pressure

of interest groups in search of private appropriations."

Springfield, 382 Mass. at 673.     The result was art. 46 of the

Amendments, a substantially revised version of art. 18 that was

"sweeping in its terms."     Bloom, 376 Mass. at 39.   Article 46
                                                               18


broadened the prohibition on the use of public funds to

encompass not only private religious schools but all private

institutions, whether secular or religious, and, in the last

clause of § 2, specifically prohibited the "grant, appropriation

or use of public money . . . for the purpose of founding,

maintaining or aiding any church, religious denomination or

society."11

     By its terms, the revised anti-aid amendment applied to all

institutions not under public control.   Its proponents


     11As amended by art. 46 of the Amendments in 1917, art. 18,
§ 2, provided:

     "All moneys raised by taxation in the towns and cities for
     the support of public schools, and all moneys which may be
     appropriated by the [C]ommonwealth for the support of
     common schools shall be applied to, and expended in, no
     other schools than those which are conducted according to
     law, under the order and superintendence of the authorities
     of the town or city in which the money is expended; and no
     grant, appropriation or use of public money or property or
     loan of public credit shall be made or authorized by the
     [C]ommonwealth or any political division thereof for the
     purpose of founding, maintaining or aiding any other school
     or institution of learning, whether under public control or
     otherwise, wherein any denominational doctrine is
     inculcated, or any other school, or any college, infirmary,
     hospital, institution, or educational, charitable or
     religious undertaking which is not publicly owned and under
     the exclusive control, order and superintendence of public
     officers or public agents authorized by the [C]ommonwealth
     or federal authority or both, [with exceptions not relevant
     here]; and no such grant, appropriation or use of public
     money or property or loan of public credit shall be made or
     authorized for the purpose of founding, maintaining or
     aiding any church, religious denomination or society."
                                                                     19


recognized that, in the fight over public funds, private

institutions of all kinds -- whether religious or not -- were

equally likely to compete.     See 1 Debates in the Massachusetts

Constitutional Convention, 1917-1918, at 62-70, 163-168 (1919)

(Debates of 1917-1918).   As one of the amendment's chief

supporters explained during the debates:     "[I]f you let the bars

down everything else will come in."     Id. at 118.   The decision

to appropriate funds to one private institution would lead to "a

thousand other[s]" asking for the same.     Id.   The anti-aid

amendment was intended to keep those bars up, protecting public

funds from religious and secular institutions alike.12

     Still, the delegates to the Convention voiced many concerns

that were specific to religious institutions, as reflected in

the last clause of § 2 of the revised anti-aid amendment.        As we

have summarized in the past:

     "Proponents of [the anti-aid amendment] urged that liberty
     of conscience was infringed whenever a citizen was taxed to
     support the religious institutions of others; that the
     churches would benefit in independence and dignity by not
     relying on governmental support; and, more generally or
     colloquially, that to promote civic harmony the irritating
     question of religion should be removed from politics as far

     12Several efforts were made during the 1917 Convention to
modify the wording of art. 46, to permit funding of nonsectarian
private schools and secular institutions such as museums and
libraries. These efforts were rejected. See R.L. Bridgman, The
Massachusetts Constitutional Convention of 1917, at 26-29
(1923); Shattuck, Martin Lomasney in the Constitutional
Convention of 1917-1919, 71 Proceedings of the Mass. Hist. Soc'y
299, 303 (1959).
                                                                  20


     as possible, and with it the unseemly and potentially
     dangerous scramble of religious institutions for public
     funds in ever-increasing amounts."

Bloom, 376 Mass. at 39, citing Debates of 1917-1918, supra at

68, 74-79, 161-164.

     The anti-aid amendment that emerged from the 1917

Convention is the amendment -- with some revisions adopted in

1974, not relevant here13 -- that applies today.   It currently

provides:

     "No grant, appropriation or use of public money or property
     or loan of credit shall be made or authorized by the
     [C]ommonwealth or any political subdivision thereof for the
     purpose of founding, maintaining or aiding any infirmary,
     hospital, institution, primary or secondary school, or
     charitable or religious undertaking which is not publicly
     owned and under the exclusive control, order and
     supervision of public officers or public agents authorized
     by the [C]ommonwealth or federal authority or both, [with
     exceptions not relevant here]; and no such grant,
     appropriation or use of public money or property or loan of
     public credit shall be made or authorized for the purpose
     of founding, maintaining or aiding any church, religious
     denomination or society."14

Art. 18, § 2, as amended by arts. 46 and 103.




     13 Article 18 was further amended by art. 103 of the
Amendments in 1974 to eliminate the opening clause of the
previous version and to allow grants-in-aid to private
institutions of higher education and their students. See Bloom
v. School Comm. of Springfield, 376 Mass. 35, 40-41 & n.11
(1978).

     14Section 1 of art. 18, as amended by art. 46, also added
during the 1917 Convention, provides that "[n]o law shall be
passed prohibiting the free exercise of religion."
                                                                     21


    2.     Does the three-factor test in Springfield apply to

public aid to churches?     Section 2 of the anti-aid amendment

contains two clauses:     the first clause prohibits the grant of

public funds "for the purpose of founding, maintaining or

aiding" any institution that is not publicly owned or under

exclusive public control, including schools and hospitals; the

second clause prohibits the grant of public funds "for the

purpose of founding, maintaining or aiding any church, religious

denomination or society."     Art. 18, § 2, as amended by arts. 46

and 103.   The plaintiffs contend that the three-factor test in

Springfield applies only where the challenged grant of public

funds is to a private school or institution under the first

clause, and should not be applied where the challenged grant is

to an active house of worship under the second clause, as in

this case.    Rather, the plaintiffs argue that the second clause

requires an "unequivocal and unqualified" ban on the grant of

public funds to churches.    We disagree.

    This is the first time that we have been asked to consider

the constitutionality of a grant of public funds to a church

under the second clause of the anti-aid amendment.     All of our

prior decisions under the anti-aid amendment since its revision

in 1917 have considered the actual or contemplated grant of

public funds or assistance to private schools or institutions

under the first clause.     See Helmes v. Commonwealth, 406 Mass.
                                                                   22


873, 874 (1990) (funding for repair of memorial battleship);

Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 327

(1982) (Essex) (transportation for private school students);

Springfield, 382 Mass. at 665, 666 (funding for special

education programs in private schools); Colo, 378 Mass. at 551

(payment of legislative chaplains' salaries); Bloom, 376 Mass.

at 36 (textbooks for private school students).    See also Opinion

of the Justices, 401 Mass. 1201, 1202 (1987) (tax deduction for

expenditures on tuition, textbooks, and school transportation);

Opinion of the Justices, 357 Mass. 846, 847-848 (1970) (vouchers

for private school students); Opinion of the Justices, 357 Mass.

836, 837-838 (1970) (reimbursement of private schools for

secular educational services).

    In Springfield, 382 Mass. at 675, we declared that "there

are no simple tests or precise lines by which we can determine

the constitutionality" of grants challenged under the first

clause of the anti-aid amendment.    Instead, we devised the

three-part test as "guidelines to a proper analysis," id.,

quoting Colo, 378 Mass. at 558, focusing on the purpose of the

grant, the extent to which the grant aids the private

institution, and whether the grant "avoids the political and

economic abuses" that led to the passage of the anti-aid

amendment, all of which must be carefully balanced in

determining its constitutionality.    Springfield, supra at 675.
                                                                     23


     This rejection of "simple tests [and] precise lines" is

equally appropriate when evaluating the constitutionality of a

grant of public funds under the second clause of the anti-aid

amendment.   Id.    The operative language in each clause is

identical:   both provide that no "grant, appropriation, or use

of public money . . . shall be made or authorized" "for the

purpose of founding, maintaining or aiding" one of the

enumerated private institutions.     Art. 18, § 2, as amended by

arts. 46 and 103.     In both clauses, the specific reference to

"purpose" demands an inquiry into both the making of a grant and

its purpose.15     Where the language of the two clauses is

essentially the same, our interpretive framework is

appropriately also the same.     See, e.g., Alliance, AFSCME/SEIU,

AFL-CIO v. Secretary of Admin., 413 Mass. 377, 384 (1992)

("Words occurring in different places in the Constitution and

its amendments ordinarily should be given the same meaning

unless manifestly used in different senses" [citation omitted]);

Opinion of the Justices, 384 Mass. 820, 823 (1981) (interpreting




     15The most recent revisions to the anti-aid amendment
support this reading. In 1974, the opening clause of art. 18,
§ 2 -- which contained broad language against the expenditure of
public funds, unmodified by the phrase "for the purpose of" --
was eliminated, suggesting that under the current amendment an
investigation into purpose is required. See Springfield, 382
Mass. at 679.
                                                                   24


word "items" in §§ 3 and 5 of art. 63 of Amendments to have same

meaning).

    Moreover, even if we did not look to our interpretation of

the first clause for guidance, we could not read the second

clause as an absolute ban on grants to churches, because the

second clause by its own terms calls for a case-by-case

analysis.   The words of the second clause are not:   "No grants

shall be made to any church."   Rather, the second clause

prohibits only grants that are made "for the purpose of

founding, maintaining or aiding any church," and we cannot know

that every grant to a church will be for that purpose.      The

categorical prohibition urged by the plaintiffs therefore

invites the danger of overbreadth -- and of hubris.   We do not

presume that we have the wisdom or imagination to contemplate

every possible grant of public funds to a "church, religious

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

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

barred by the anti-aid amendment.

    A categorical prohibition also invites the risk of

infringing on the free exercise of religion, a right guaranteed

under the First Amendment to the United States Constitution

("Congress shall make no law respecting an establishment of

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

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


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

estate, for worshipping God in the manner and season most

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

religious profession or sentiments; provided he doth not disturb

the public peace, or obstruct others in their religious

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

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

free exercise of religion").

     This was the risk addressed in Trinity Lutheran Church of

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

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

to resurface its playground.   In contrast with the Massachusetts

anti-aid amendment, the Missouri Constitution imposes a

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

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

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

a grant under a general government program to purchase a new

playground surface made from recycled tires, the State's


     16 Article I, § 7, of the Missouri Constitution, provides:
"That no money shall ever be taken from the public treasury,
directly or indirectly, in aid of any church, sect or
denomination of religion, or in aid of any priest, preacher,
minister or teacher thereof, as such; and that no preference
shall be given to nor any discrimination made against any
church, sect or creed of religion, or any form of religious
faith or worship." See Trinity Lutheran Church of Columbia,
Inc. v. Comer, 137 S. Ct. 2012, 2017 (2017) (Trinity Lutheran).
                                                                    26


Department of Public Resources rejected its application, based

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

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

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

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

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

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

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

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

(1993).17

     We do not interpret the Massachusetts anti-aid amendment to

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

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

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

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

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

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


     17Chief Justice Roberts sought to limit the reach of the
Court's opinion by stating in a footnote: "This case involves
express discrimination based on religious identity with respect
to playground surfacing. We do not address religious uses of
funding or other forms of discrimination." Trinity Lutheran,
137 S. Ct. at 2024 n.3. Because two Justices joined the opinion
except as to that footnote and one Justice concurred only in the
judgment, the footnote failed to command a majority of the
Court. Id. at 2017. See id. at 2025 (Thomas, J., concurring in
part); id. at 2025-2026 (Gorsuch, J., concurring in part); id.
at 2026-2027 (Breyer, J., concurring in the judgment).
                                                                   27


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

church preschool to provide a safer surface for its playground.

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

transportation to students attending private schools did not

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

help parents get their children, regardless of their religion,

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

     Therefore, we conclude that the judge did not err in

declining to interpret the second clause of the anti-aid

amendment as a categorical prohibition on the grant of public

funds to churches.

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

contend that, even if the constitutionality of the grant should

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

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

discern two distinct errors of law.

     18Despite our refusal to interpret the anti-aid amendment
as a categorical ban on grants to churches, the dissent warns
that our decision raises potential issues under the religion
clauses of the First Amendment. See post at     . We disagree.
"'[R]igorous' scrutiny" is required under the free exercise
clause where a State policy "expressly requires [an applicant
for public funds] to renounce its religious character in order
to participate in an otherwise generally available public
benefit program" (emphasis added; citation omitted). Trinity
Lutheran, 137 S. Ct. at 2024. As we will make clear, our three-
factor analysis under the anti-aid amendment imposes no such
requirement. The fact that an applicant is an active church is
a relevant but by no means disqualifying consideration under our
anti-aid amendment.
                                                                  28


     First, in determining whether the grants at issue would

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

the constitutionality of the act itself rather than on the

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

Analysis of the act's constitutionality would have been

appropriate if the act itself authorized the appropriation of

public funds to a church or other private institution within the

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

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

authorizing expenditure of public funds for repair of World War

II battleship under control of charitable corporation);

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

test to statute authorizing school committees to contract with

private schools to provide special needs education where public

schools could not meet special needs).20


     19 The judge stated, "This court is directed to examine the
purpose of the [act], under which the challenged grants are to
be conferred upon the [c]hurch[] . . . ." She found that "the
purpose of the grants to the [c]hurch[] under the [act] is to
preserve historic resources, and not to aid the [c]hurch[]."

     20The statute at issue in Springfield was G. L. c. 71B,
which authorizes school committees to enter into contracts with
private schools, agencies, or institutions to provide special
education to children whose needs cannot be met in the public
school system. Springfield, 382 Mass. at 668. The Commonwealth
sued the Springfield school committee, seeking to compel the
school committee to enter into such contracts; in response, the
school committee contended that any such contracts would violate
art. 18, as amended by arts. 46 and 103, thus placing the
                                                                     29


     Here, however, the act simply establishes a procedure for

municipalities to make discretionary grants to projects relating

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

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

authorizes the expenditure of funds to assist churches or

religious institutions.

     For this reason, the constitutionality of the act itself

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

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

constitutionality of specific discretionary grants made pursuant

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

construction that affords a statute a presumption of

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

not apply to the constitutional analysis of these grants, and

the judge erred in applying that presumption.    The grants

themselves enjoy no such presumption of constitutionality.

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

act rather than of the grants also rendered erroneous her

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



constitutionality of the statute at issue.    Springfield, supra
at 666.

     21The judge did not make a finding regarding the second
factor of the Springfield test -- that is, whether the grants
would "substantially aid" the church. See Springfield, 382
Mass. at 675.
                                                                    30


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

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

therefore considered whether the legislative purpose of the act

was to aid churches.   The judge instead should have considered

whether the primary purpose of the committee in recommending the

grants was to aid this particular church rather than to serve

the proper purpose of historic preservation.

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

proposed grants themselves.    On this record, we conclude that

the plaintiffs are likely to succeed on the merits of their

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

discovery is needed to evaluate their claim as to the Master

Plan grant.

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

the proposed grants are "for the purpose of founding,

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

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

grant, our cases concerning aid to private schools are

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

constitutionality of a statute that funded special education

programs in private schools for children whose needs could not

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

purpose" was "to benefit public schools and individual

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


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

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

transportation to private school students held constitutional

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

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

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

requiring public school committees to lend textbooks to children

attending private schools because we could infer from this

statutory scheme no other purpose than to aid private schools

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

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

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

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

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

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

42.

      Here, historic preservation is the stated purpose of the

committee in awarding these grants to the church.   That stated

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

grants contingent on a historic preservation restriction in the

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

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

ensuring that the historic value of those buildings is not

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


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

this particular church.   Springfield, 382 Mass. at 677.22

    We conclude that the record before us is insufficient to

determine whether such a hidden purpose existed.   The plaintiffs

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

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

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

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

the communications among town officials, employees, and

committee members regarding the applications, but the judge

denied the plaintiffs this discovery for purposes of the motion


    22 We recognize that the decision to award a grant of public
funds, like other kinds of decisions, can have more than one
motivating purpose. See, e.g., Wynn & Wynn, P.C. v.
Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 666
(2000), overruled on another ground by Stonehill College v.
Massachusetts Comm'n Against Discrimination, 441 Mass. 549
(2004) (recognizing that certain employment discrimination cases
are "mixed-motive" cases where discriminatory motive is one of
several factors motivating employer's decision). Although in
Springfield, 382 Mass. at 678, we focused on "the primary
purpose" (emphasis added) of the challenged aid, we later
acknowledged, in Opinion of the Justices, 401 Mass. 1201, 1208
(1987), that public aid may have more than one motivating
purpose (aiding private schools was "one of the primary purposes
. . . if not [the] only purpose" of challenged statute). In
such cases, the inquiry becomes whether one of those motivating
purposes is impermissible under the anti-aid amendment. We
stress, however, that the purpose of a challenged grant is only
one factor to be considered in our three-factor test, and need
not be dispositive by itself. Thus, whether an impermissible
purpose is the sole motivating purpose behind the grant, or only
one purpose among many, may be considered in determining the
weight to accord that factor.
                                                                      33


for preliminary injunction when she granted the town's motion

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

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

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

the grant, a plaintiff is entitled to reasonable discovery to

ascertain whether there is a hidden purpose that motivated the

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

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

purpose of ascertaining the purpose of the grants, discovery

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

witness and writings reflecting the oral and written

communications regarding the committee's decision-making process

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

probe the private intentions of town meeting members.      We leave

it to the judge in her discretion to determine more precisely

the appropriate scope of discovery.

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

whether the effect of the grants is to substantially aid a

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

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

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

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

must provide "substantial assistance" to the church to risk

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


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

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

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

the Justices, 401 Mass. at 1208.

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

provided contains certain "limiting features" designed to

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

the funding of the special education programs with the important

limitation that there would be no reimbursement for children

whose parents had unilaterally enrolled them in private school;

public funding was strictly limited to expenses that the private

schools would not otherwise have incurred.     See Springfield, 382

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

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

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

Id. at 681.

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

note that the proposed grants are "neither minimal nor

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

1208.   The total cost of the comprehensive assessment

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

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

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

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


     More worrisome is the extent to which these grants will

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

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

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

declining membership and contributions -- it would need the

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

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

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

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

reimbursement there was for expenses that the schools would not

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

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

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

contrast, the grants would help defray planning and restoration

costs that the church would otherwise have to shoulder on its

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

religious activities.   As the church indicated in its grant

applications, budgetary constraints have led it to make

difficult choices between "capital improvement projects" on the

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

grants would allow the church to have both, in effect

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

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


    On this record, we therefore conclude that the effect of

these grants is to substantially aid the church.

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

considered is whether the grants avoid the risks that prompted

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

factor, the judge erred in focusing on whether there was

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

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

such evidence, concluding that there was "no political or

economic abuse which the anti-aid amendment was enacted to

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

grants to the church avoid the risks of the political and

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

amendment.     Springfield, 382 Mass. at 675.

    We recognize that our articulation of this third factor in

prior cases has provided less than clear guidance.      The third

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

the [grant] avoids the political and economic abuses which

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

Springfield, we did not provide the historical background that

identified these "political and economic abuses," and therefore

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

proposed in 1853 not to abolish an existing practice of funding

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


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

measure to avoid the risks associated with the public financial

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

Bloom, 376 Mass. at 39, also prompted the revision of the anti-

aid amendment in 1917, and are worth repeating here:     first, the

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

citizen was taxed to support the religious institutions of

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

improper government entanglement with religion, undermining the

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

the public support of religious institutions would threaten

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

political question.   Id.

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

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

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

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

that is abusive or unfair, economically or politically."

Because nothing in the record indicated any such abuse or

unfairness, we concluded that the appropriation was

constitutional; there was no evidence that any private person

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

noncharitable use, or that its charitable objective --

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


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

consider in Helmes whether the appropriation of funds presented

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

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

risks were not presented where the challenged funding was for

the repair of a memorial battleship.

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

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

the third factor, to focus on whether these specific grants

avoid the risks of the political and economic abuses that

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

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

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

    First, these grants risk infringing on taxpayers' liberty

of conscience -- a risk that was specifically contemplated by

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

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

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

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

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

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

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

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

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


renovate the main church building, where the church conducts its

worship services, and its stained glass windows, which feature

explicit religious imagery and language.   For town residents who

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

risk that their liberty of conscience will be infringed,

especially where their tax dollars are spent to preserve the

church's worship space and its stained glass windows.

     Second, these grants also present a risk of government

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

ensure that the grants are used for historic preservation, the

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

historic preservation restriction, which -- if the restrictions

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

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

make future alterations to its buildings, including its worship

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

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

exercises control over the design features of a church, it

infringes on the free exercise of religion guaranteed under the


     23The record in this case includes two historic
preservation restrictions executed in relation to past grants
that the town has awarded under the act. These restrictions
prohibit the owners from, inter alia, making changes to the
exterior of their properties "without the prior express written
approval of the [t]own," which can be "withheld or conditioned
in the [t]own's sole and absolute discretion."
                                                                   40


Massachusetts Constitution.     In The Society of Jesus of New

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

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

church interior as a landmark, thereby making all renovations

subject to government approval, infringed on "the right freely

to design interior spaces for religious worship," in violation

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

historic preservation restriction contemplated here presents a

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

actual worship space."    Id.

    The town contends that these grants would result in no such

intrusion, and are distinguishable from the landmark designation

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

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

[historic district] commission shall not consider interior

arrangements or architectural features not subject to public

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

did not decide whether a landmark designation of a church

exterior would also infringe on the free exercise of religion.

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

recognize the distinction between the interior and exterior of a

church and conclude that restrictions on the renovation of a

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


such restrictions would still pose a risk of government

entanglement in religious matters.

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

of the church interior is so freighted with religious meaning

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

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

have recognized that the exterior features of a religious

structure can also be expressive of religious beliefs.     In

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

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

we held that a church steeple should be exempted from local

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

"churches have long built steeples to 'express elevation toward

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

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

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

for judges to determine whether the inclusion of a particular

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

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

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

grant at issue here contemplates a comprehensive assessment of

the entire church building, which would include elements both

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

a community preservation committee to determine whether this
                                                                    42


assessment will affect elements that touch on matters of

religious doctrine.

       The stained glass window is illustrative of the fragility

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

historic preservation of the building is interwoven with

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

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

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

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

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

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

       Third, the challenged grants also risk threatening "civic

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

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

government support of churches has always and inevitably been a

politically divisive issue in Massachusetts.    Although the act

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

decision to award a grant lies with the committee and,

ultimately, with the town meeting members.     Those who first

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

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

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

could potentially have been dedicated to open space, soccer

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


projects, including projects for the renovation of houses of

worship of other religious denominations -- pose an inevitable

risk of making "the irritating question of religion" a

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

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

glass window with explicit religious imagery.   Bloom, supra at

39.

      We do not suggest that fair consideration of the risks that

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

historic preservation grant for a church building will be

unconstitutional.   We only caution that any such grant to an

active church warrants careful scrutiny under the three-factor

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

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

circumstances where such grants would survive careful scrutiny,

including, for instance, where historical events of great

significance occurred in the church, or where the grants are

limited to preserving church property with a primarily secular

purpose.   Cf. Shrine of Our Lady of La Salette Inc. v. Board of

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

property leased for battered women's shelter and used as

wildlife sanctuary not subject to religious worship exemption,

because "dominant purpose" not connected to religious worship
                                                                 44


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

efforts poses little risk of political division.24

     In this case, having weighed and balanced the three

factors, we conclude that the plaintiffs are likely to succeed

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

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


     24 The dissent takes issue with the emphasis that we place
on the third factor in cases like these, where the public grant
is to an active church. The dissent contends that our analysis
is inconsistent with this court's anti-aid amendment cases,
relying on our statement, first made in Bloom, 376 Mass. at 45,
that "[o]ur anti-aid amendment marks no difference between
'aids,' whether religious or secular" (citation omitted). See
post at     . But the dissent takes this statement out of
context. What we meant in Bloom (and in the other cases the
dissent cites) was that, unlike the establishment clause of the
First Amendment, which requires an inquiry into whether the aid
has a religious or secular purpose, see Lemon v. Kurtzman, 403
U.S. 602, 612 (1971), our anti-aid amendment does not make that
distinction. See Bloom, 376 Mass. at 45 & n.20. See also
Opinion of the Justices, 401 Mass. 1201, 1203 n.4 (1987);
Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 332 n.3
(1982); Springfield, 382 Mass. at 674 n.14. The only purpose
that is forbidden under the anti-aid amendment is "the purpose
of founding, maintaining or aiding" a private institution. Art.
18, § 2, as amended by arts. 46 and 103. Thus, in Bloom, 376
Mass. at 45, it did not matter whether the textbooks that were
lent were of a religious or secular nature; what mattered was
that the purpose of the loan was to aid private schools. See
id. at 41-42. This does not mean that we do not distinguish
between different kinds of "aids" in evaluating whether that aid
poses the risks that prompted the anti-aid amendment; after all,
aid to support a church poses risks quite different from those
arising from aid to support a World War II battleship. Cf.
Helmes, 406 Mass. at 873. We reiterate that the anti-aid
amendment is not a categorical ban on aid to churches. However,
the fact that a grant recipient is an active church is relevant
to our analysis of the potential risks under the third factor,
to which we cannot (and need not) be blind.
                                                                   45


ascertain whether there is a motivating purpose behind this

grant other than historic preservation, its effect is to

substantially aid the church in its essential function and,

given the explicit religious imagery of the stained glass, it

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

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

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

fact to preserve historic resources, and not to aid this

particular church, the other factors in our analysis --

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

- still compel the conclusion that the stained glass grant runs

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

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

preliminary injunction would "promote[] the public interest"

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

the plaintiffs are entitled to a preliminary injunction barring

the disbursement of the stained glass grant.

    With respect to the Master Plan grant, we conclude that

further discovery is needed before a determination should be

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

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

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

scope, including not only plans for the renovation of worship

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


Hosmer Houses, which are both private residences.   Accordingly,

analysis of the grant under the third factor must be more fact-

intensive; restoration of the main church building will

implicate risks different from those arising from the

restoration of the adjoining residences.   And where the analysis

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

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

whether there was a hidden purpose apart from historic

preservation becomes more important to the over-all decision.

     We therefore remand the issue to the Superior Court for a

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

should survive the careful scrutiny required under the third

factor.   Such a determination should not be made until the

plaintiffs have had reasonable discovery regarding the purpose

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

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

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

the oral and written communications regarding the committee's

decision-making process in recommending the grants and that

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


     25For example, the judge may deny the preliminary
injunction as to the part of the Master Plan grant allocated to
the renovation of the Fletcher and Hosmer Houses, and allow it
as to the part allocated to the renovation of the church's
worship space.
                                                                  47


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

its appropriate scope.

    Conclusion.   The orders denying the plaintiffs' motion for

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

protective order to stay discovery are vacated.   The case is

remanded to the Superior Court for entry of an order allowing

the plaintiffs' motion for a preliminary injunction barring

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

Plan grant, for further proceedings consistent with this

opinion.

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

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

amendment of the Massachusetts Constitution is tightly

constrained by the United States Supreme Court's interpretation

of the religion clauses of the First Amendment to the United

States Constitution.   The grants at issue here are provided

pursuant to a generally available public benefit program

designed to promote community conservation including the

protection of the Commonwealth's historic buildings.     The United

States Supreme Court has warned that only a very narrow category

of exclusions are allowed by the free exercise clause from such

generally available public benefit programs.     Because I believe

the preliminary injunction against the stained glass grant is

consistent with this very narrow permitted exclusion, and the

Master Plan grant requires further analysis to decide both the

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

of the court.

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

decision takes us into one of the most confusing and contested

areas of State and Federal constitutional law.     The United

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

between the religion clauses of the United States Constitution -

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

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


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

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

the dictates of the two religion provisions in the United States

Constitution -- allowing limited State action therein -- without

defining precisely how much play.   See Trinity Lutheran Church

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

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

been continually evolving, particularly in its definition of the

neutrality the two first amendment provisions requires in regard

to religion.1

     All of this is further complicated by State constitutional

anti-aid provisions providing greater protections against the

establishment of religion than the establishment clause of the

First Amendment.   These State constitutional anti-aid provisions


     1 The evolution was summarized by Justice Souter in Mitchell
v. Helms, 530 U.S. 793, 882-883 (2000) (Souter, J., dissenting):

     "In sum, 'neutrality' originally entered this field of
     jurisprudence as a conclusory term, a label for the
     required relationship between the government and religion
     as a state of equipoise between government as ally and
     government as adversary. Reexamining Everson [v. Board of
     Educ. of Ewing, 330 U.S. 1 (1947),]'s paradigm cases to
     derive a prescriptive guideline, we first determined that
     'neutral' aid was secular, nonideological, or unrelated to
     religious education. Our subsequent reexamination of
     [multiple Supreme Court cases] . . . recast neutrality as a
     concept of 'evenhandedness.'"

Evenhandedness in this context means an evenhanded treatment of
religious and nonreligious institutions.
                                                                     3


present additional legal constraints, and State grants are

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

clause of the First Amendment.

       There is no clear path yet through this difficult

intersection of the religion clauses of the State and Federal

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

the Supreme Court's more recent pronouncements in Trinity

Lutheran and Locke.    These two cases analyzed grants arising

from generally available public benefit programs, like the one

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

715.    Both cases involved exclusions required by anti-aid

provisions in State Constitutions.    See Trinity Lutheran, supra

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

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

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

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

from a generally available public benefit program funding rubber

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

identity violated the free exercise clause.    The Court held that

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

exclusions, giving as an example its 1947 decision upholding

against Federal establishment clause challenges a New Jersey law

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


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

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

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

anti-aid amendment exclusion of scholarships to pursue degrees

in devotional theology from an otherwise inclusive student aid

program did not violate the free exercise clause of the First

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

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

antiestablishment interests come more into play" than using

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

claimant in Locke sought funding for an 'essentially religious

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

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

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

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

resurface playgrounds."   Trinity Lutheran, supra.   In his

concurrence in Trinity Lutheran, Justice Breyer also emphasized

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

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

at 2026 (Breyer, J., concurring).

    Together, Trinity Lutheran and Locke define a very narrow

category of exclusions from generally available public benefit

programs that can be required by State anti-aid amendments

without violating the free exercise clause of the First
                                                                   5


Amendment.   To be excluded from a generally available public

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

religious endeavor" raising important state constitutional

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

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

overarching First Amendment principles in mind, I turn to the

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

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

the Amendments, the anti-aid amendment.

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

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

is one of 172 municipalities in Massachusetts that have adopted

the Community Preservation Act (act), which establishes

processes and procedures for funding projects related to open

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

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

Preservation" application initially requested $41,000 from the

town's Community Preservation Committee (committee) to repair

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

awarded for the windows.   The proposed repairs included a three-

foot, six-inch by ten-foot, six-inch "Christ window" depicting

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

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


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

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

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

in 1898.

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

structural review and prepare a master plan for historic

preservation of the church, and two neighboring buildings owned

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

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

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

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

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

to thoroughly investigate each of the [three] historic buildings

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

and preserve these historic assets for future generations."      For

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

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

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

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

     2 The windows are described as a "treasure, yet they are in
need of care. The exterior plexiglass is no longer doing its
job. Not only is it cloudy, so that the beauty of the glass
cannot be appreciated outside of the church, but it is no longer
weathertight. . . . The proposed work would remove the old
plastic covers, repair the existing wood damage, replace missing
or broken pieces . . . to stabilize and protect the eight
primary stained glass windows."
                                                                      7


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

envelope, mechanical, electrical and plumbing systems, and

safety systems.   This work will focus on building structural

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

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

    In its application for both grants, the church explained

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

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

programs and personnel.   The cuts can further exacerbate the

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

them to their church."

    Pursuant to the requirements of the act, the committee held

a public hearing and voted unanimously to recommend the grants.

The town meeting approved both grants.   The annual town meeting

warrant explained that the church and the other two buildings

were located in the Acton Centre Historic District.    The warrant

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

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

warrant also explained that the master plan would evaluate and

identify critical needs and set restoration and rehabilitation

priorities to preserve the three historic buildings.   It also

stated that the "preservation project must comply with the

Standards for Rehabilitation stated in the United States

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


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

preservation restrictions were imposed on the buildings with the

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

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

claiming they violate the anti-aid amendment.

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

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

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

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

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

being given to a church as well as a nonreligious private

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

First Amendment right to the free exercise of religion.

    In analyzing the first factor, I conclude that we must

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

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

jurisprudence and its focus on whether the grant is authorized

pursuant to a generally available public benefit program.       Here,

the purpose of the statute itself is unquestionably to provide

generally available public benefits for the purpose of

conservation, including historic preservation.    There is no

suggestion or argument that an "examination of the statutory

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

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


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

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

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

unreceptive to schemes of circumvention which resemble that

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

straightforward and serves important conservation purposes as

eloquently explained by the dissent.   See post at    .

    The court, however, draws a distinction between the

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

that we must probe further to discern the primary or motivating

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

this additional inquiry requires a remand for the Master Plan

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

preliminary injunction should issue regarding the stained glass

grant, I conclude that we have a sufficient record that

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

detect any indicia of a scheme or technique of circumvention.

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

described straightforwardly and factually.

    In my opinion, the most complicated aspect of the purpose

inquiry is not discerning the subjective intentions of the

grantors but the difficulty of separating conservation from

religious purposes when the grant is being given to preserve a

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


of the grantors is conservation, and not the promotion of

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

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

the stained glass grant where the windows convey an express

sectarian religious message.3   Ultimately, however, the purpose




     3 Unlike in the stained glass grant, there are other grants
to churches where the secular and religious purposes may be more
easily separable. The Old North Church, located in the North
End neighborhood of Boston, is a good example. Funding the
repair and restoration of glass windows are at issue for both
houses of worship, but any similarity ends there. In 2002, the
Old North Foundation applied for, and later received, a Save
America's Treasure grant to preserve, among other things, the
Old North Church's historic window.   See Authority of the
Department of the Interior to Provide Historic Preservation
Grants to Historic Religious Properties Such as the Old North
Church, 27 Opinions of the Office of Legal Counsel for 2003,
United States Department of Justice, 91, 96, 99 (2013) (Old
North Church opinion), https://www.justice.gov/olc/file/477026
/download [https://perma.cc/XUT2-L54E]. Famously, in the Old
North Church's steeple hung two lit lanterns to indicate that
the British army was leaving Boston by boat to capture the
stores of arms and ammunition located in Concord. See
http://oldnorth.com/historic-site/the-events-of-april-18-1775/
[https://perma.cc/9AGF-KL9Z]. See also H.W. Longfellow, Paul
Revere's Ride (1860) ("He said to his friend, -- 'If the British
march By land or sea from the town to-night, Hang a lantern
aloft in the belfry-arch Of the North-Church-tower, as a signal-
light, -- One if by land, and two if by sea; And I on the
opposite shore will be'").

     For the grant to the Old North Church, the historical
purpose is manifestly evident and is described by the National
Park Service as "one of America's most cherished landmarks."
Old North Church opinion at 97. The Old North Church windows
also contained no overt religious message as do the stained
glass windows in the town of Acton. Furthermore, for the Old
North Church, rigorous auditing requirements were also in place
to ensure that the grant funded only the historic aspects of the
                                                                      11


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

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

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

conclusive of the anti-aid amendment analysis and critical to

the First Amendment interpretation as well.

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

grants substantially assist religion.       The stained glass grant

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

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

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

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

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

strain and required cuts could "exacerbate the financial

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

their church."4



church and not its religious endeavors.       Old North Church
opinion at 103.

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

efforts were made to avoid religious assistance. See Old North
Foundation Awarded $317,000 Grant Under Save America's Treasure
Program, National Park Service, Press Release (May 27, 2003)
(Park Service Press Release), https://www.nps.gov/aboutus/news
/release.htm?id=395 [https://perma.cc/9MAN-6NGV]. The Old North
Foundation, a secular, nonprofit organization, was the entity
approved for the grant. See Mission Statement, Old North
Foundation of Boston, Inc., http://oldnorth.com/historic-
site/foundation/ [https://perma.cc/B45N-79Y5]; Park Service
Press Release, supra. Furthermore, as a matching-grant program,
the Old North Foundation contributed a substantial amount to the
                                                                     12


    Most important in my view is the third prong.     Awarding

public monies paid by taxes directly to a church to repair

stained glass windows with an express religious message raises

core concerns about separation of church and State that prompted

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

that those concerns include (1) infringement on liberty of

conscience caused by taxing citizens to support the religious

beliefs and institutions of others; (2) improper government

entanglement with religion, thereby diminishing the independence

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

divisiveness in the polity caused by making the funding of

religious institutions a political question.   See ante at       .

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

paying for the stained glass windows that have an express

sectarian religious message.   A historic preservation

restriction of perpetual duration is being imposed on the

windows and perhaps other parts of the church, thereby entwining

an active church building with state government.    See The

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

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



project. See National Park Service, Matching Share Requirements
at 1, https://www.nps.gov/preservation-grants/manual/Matching_
Share_Requirements.pdf [https://perma.cc/RA45-3SQF] ("The
Federal grant is meant to stimulate nonfederal donations-not to
pay for all the work by itself").
                                                                   13


infringed on "right freely to design interior spaces for

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

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

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

served by controlling the steeple height of churches");

Saperstein, Public Accountability and Faith-Based Organizations:

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

("With government money come government rules, regulations,

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

inherently threaten religious autonomy").   Town meeting members

were being asked to vote on a grant to maintain religious

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

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

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

bring about further controversy and division.   No more discovery

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

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

shows that the plaintiffs have a substantial likelihood of

success in establishing that the stained glass grant violates

the anti-aid amendment.


     5 Again, this case is unlike the Old North Church. Any
risks or tensions there are substantially assuaged by the
building's undeniable significance in the Commonwealth's and the
country's history and because of the separability of the
historic restoration work from the religious mission.
                                                                    14


    As the church and the free exercise rights of its members

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

explained above, to be excluded from a generally available

public benefit program, the funding must be sought for an

"essentially religious endeavor" raising important State

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

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

an express sectarian religious message and mission fits within

the very narrow exception allowed by Locke.

    The benefits are vastly different from the nonreligious

rubberized playground services or school transportation costs,

or the police and fire or other obviously nonreligious types of

assistance that have been found not to raise establishment

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

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

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

indisputably marked off from the religious function").     Although

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

recycled tires to resurface playgrounds," the opposite is true

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

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

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

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

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


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

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

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

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

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

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

"impermissibly religious in nature").   Additionally, as

explained above, the stained glass grant here raises core State

constitutional anti-aid concerns.   Like excluding State

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

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

more into play" than paying for stained glass windows with

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

    For the religion clauses in the State and Federal

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

precise application can readily and invariably demark the

permissible from the impermissible."    School Dist. of Abington

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

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

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

mechanical formula that can accurately draw the constitutional

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

contested area of constitutional law is difficult, I believe
                                                                    16


that the use of taxpayer dollars to pay for stained glass

windows with a religious message crosses that line.

    I therefore conclude that on this record the plaintiffs

have demonstrated the necessary likelihood of success that the

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

without running afoul of the free exercise clause.

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

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

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

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

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

be determined whether the Master Plan grant violates the anti-

aid amendment, and if so, whether exclusion of such a grant from

a generally available public benefit program would violate the

free exercise clause of the First Amendment.

    It is important to emphasize up front just how narrow the

exclusion is for generally available public benefit programs.

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

religious endeavors, such as paying for ministry training or

stained glass windows with sectarian symbols or messages.     The

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

review of three 170 year old buildings of historic importance to

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

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


structural integrity of the old buildings, not repairing or

maintaining particular parts of the church that convey an

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

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

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

important nonreligious as well as religious purposes in the town

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

Additionally it is not clear from the record what historic

preservation restriction will result from this grant.    Will the

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

of the three buildings give the town a restriction regarding

construction on all of these buildings?     Or would such a

restriction only apply if a grant is provided for subsequent

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

this point as well as others.

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

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

within the very narrow exclusion from a generally available

     6 I recognize that this distinction may be subtle and even
elusive as a house of worship contains many different religious
symbols, but as the Supreme Court has emphasized, line drawing
may be difficult but necessary in this area. See School Dist.
of Abington Twp., Pa v. Schempp, 374 U.S. 203, 305-306 (1963)
(Goldberg, J., concurring). See also Van Orden v. Perry, 545
U.S. 677, 699 (2005) (Breyer, J., concurring). See generally
Lupu & Tuttle, Historic Preservation Grants to House of Worship:
A Case Study in The Survival of Separationism, 43 B.C. L. Rev.
1139, 1174 (2002).
                                                                  18


public benefit program authorized by the Supreme Court pursuant

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

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

amendment and the free exercise clause of the First Amendment

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

Separation of church and State is a vital constitutional

requirement under the Massachusetts Declaration of Rights and

the United States Constitution and an enduring principle of the

Commonwealth.   As the court recounts, Massachusetts has an

interesting and complex history in this regard.   Nevertheless, I

would affirm the order denying the motion for an injunction to

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

preserve the historic façade of the Acton Congregational Church,

which is located in the town center.

    I agree with the majority that grants of public funds to

active religious institutions pursuant to the act are not

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

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

first articulated in Commonwealth v. School Comm. of

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

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

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

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

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

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


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

those three factors here.

     I am also concerned with the court's admonition that grants

of community preservation funds to active religious institutions

warrant particularly "careful scrutiny."   Such an analysis is

belied by the plain text of the anti-aid amendment, as well as

this court's cases interpreting the amendment, which dictate

that we do not treat religious and secular entities differently

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

status as an active house of worship also implicates the most


     1 With respect to the first factor set out in Commonwealth
v. School Comm. of Springfield, 382 Mass. 665, 675 (1981)
(Springfield), consideration of a grant's "purpose", I disagree
with the court that a court's primary focus here is on whether
"one" of a grantor's motivating purposes is impermissible. See
ante at     n.22. Our "purpose" inquiry is limited to the
intent of the grantor, without consideration of an applicant's
motives for seeking grant funds. See, e.g., Boston Edison Co.
v. Boston Redevelopment Auth., 374 Mass. 37, 62-63 (1977) (where
the legislature has provided specific standards, "the purpose of
the applicants in proposing the project is wholly irrelevant").
And as Springfield and subsequent cases make clear, that inquiry
requires that we consider what "the" purpose of the grant is,
see, e.g., Springfield, 382 Mass. at 675 -- not, as the court
states, whether "one purpose among many" might be impermissible.
In instances where there may be more than one purpose for a
grant, a court must consider and balance all such purposes in
order to determine what "the" predominant or "primary" purpose
of the grant is. Id. at 678 ("The statute's purpose is,
primarily, to help specified children with special needs obtain
the education which is theirs by right"). I am therefore not
convinced that the plaintiffs' potential discovery of some
"hidden purpose" to aid the church tips the scale in their favor
under this factor, where the clear predominant purpose of these
grants is historic preservation.
                                                                    3


recent United States Supreme Court decision in this area,

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

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

that a State cannot condition participation in a generally-

available public benefit program on an applicant's "renounc[ing]

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

the importance of preserving our State's historic buildings,

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

present a number of public benefits.    Historic churches and

meeting houses are, like secular historic buildings, an

indispensable part of our historic landscape, and warrant the

same degree of preservation.

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

purpose of the grant and found that the taxpayers did not

satisfy the first Springfield factor in their challenge.    She

stated in her decision that the taxpayers "failed to demonstrate


     2 Were I to interpret the principles of separation of church
and State without concern for our own precedent or the Supreme
Court's decisions, I may well find myself in agreement with
Justice Sotomayor's dissent in Trinity Lutheran Church of
Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2041 (2017)
(Sotomayor, J., dissenting) ("History shows that the Religion
Clauses separate the public treasury from religious coffers as
one measure to secure the kind of freedom of conscience that
benefits both religion and government. If this separation means
anything, it means that the government cannot, or at the very
least need not, tax its citizens and turn that money over to
houses of worship"). See Zelman v. Simmons-Harris, 536 U.S.
639, 686-717 (2002) (Souter, J., dissenting).
                                                                     4


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

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

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

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

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

provided specific standards, "the purpose of the applicants in

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

the request for a preliminary injunction, the parties emphasized

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

decision that under Helmes she was to consider the purpose of

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

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

concerning the grants, not the act.

     Turning to the grants themselves, it is readily apparent

that they have a public purpose of historic preservation and

require a recipient to convey a preservation restriction as an

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

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

public receives a real property interest in exchange for the

     3 The Community Preservation Act (act) sets forth neutral
criteria for the grants and a detailed procedural process under
which those grants are considered. G. L. c. 44B, §§ 3-7. Under
the act, the town's Community Preservation Committee gathers
information, consults with municipal boards, holds public
hearings, and makes recommendations for the acquisition,
preservation, rehabilitation, and restoration of historic
resources.
                                                                    5


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

the honesty and sufficiency of the motives actuating public

officers in actions ostensibly taken for the general welfare."

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

There is nothing in the record that suggests any irregularity in

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

its Community Preservation Committee (committee) complied with

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

After a public hearing, the committee voted unanimously to

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

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

preserved.   Following additional favorable recommendations by

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

residents at the town meeting voted to approve the grants for

these projects in April, 2016.    These grants received full

scrutiny and endorsement by the residents of the town at

multiple levels of town government.




     4 In its brief, the town represents that the grants under
the act "in this case are entirely consistent with previous
funding by the town, other Massachusetts municipalities and the
State itself. Over time, the town has approved fourteen other
similar [projects under the act] (i.e., windows, roofs, and
master planning) to preserve historic resources, including six
owned by the town, five owned by private nonprofits, one owned
by a church, and two owned by other private recipients."
                                                                   6


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

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

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

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

substantially aided the church and she then conducted the

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

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

rather, the judge balanced the various factors, which are

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


     5 It is worth noting that between 2003 and 2014, the
Massachusetts Historical Commission approved funding for thirty-
eight projects involving active religious institutions through
its Massachusetts Preservation Project Fund (16.5 per cent of
all approved projects), including Vilna Shul in the Beacon Hill
area of Boston, Trinity Church in Boston, and Saint George Greek
Orthodox Cathedral in Springfield. There has been no evidence
of the risks with which the court is concerned.

     6 Although there is no question that the grants must not
"substantially aid" the church, the grants do not aid the
"essential function" of the church within the meaning of the
anti-aid amendment. Springfield, 382 Mass. at 680, 681. The
grants are expressly limited to reimbursement of expenses
incurred by the church on the projects and cannot be used to
"for the purpose of founding, maintaining or aiding" the
church's mission, see art. 18 of the Amendments to the
Massachusetts Constitution, as amended by arts. 46 and 103 of
the Amendments, or any purpose other than historical
preservation. Springfield, supra (close monitoring of public
funds prevents aid from becoming aid for entity's essential
function). There appears to be no case that has held that a
grant to a private organization necessarily constitutes
"substantial aid" where the grant serves other important public
purposes. See Helmes v. Commonwealth, 406 Mass. 873, 876-877
(1990); Springfield, supra at 675; Bloom v. School Comm. of
Springfield, 376 Mass. 35, 47 (1978).
                                                                   7


reaching her conclusion that the town had not violated the anti-

aid amendment by issuing the preservation grant.7

     The anti-aid amendment itself makes no distinction between

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

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

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

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

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

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

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

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

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

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

differently from a secular private institution if we are to

respect the text of the amendment and our own precedent.

Applying that principle to this case, I conclude that the


     7 We have recognized that an incidental benefit to an entity
is inevitable. In fact, in Helmes, we observed that a
battleship would not be able to continue as a war memorial and
likely would be forfeited to the Navy. Helmes, 406 Mass. at
877. See Springfield, 382 Mass. at 679-681 (secondary and
indirect benefits to private schools do not qualify as
"substantial aid" under anti-aid amendment). See also Attorney
Gen. v. School Comm. of Essex, 387 Mass. 326, 332 (1982) ("The
fact that a state law, passed to satisfy a public need,
coincides with the personal desires of individuals most directly
affected is certainly an inadequate reason . . . to say that a
legislature has erroneously appraised the public need" [citation
omitted]).
                                                                     8


application of the three-factor Springfield test to religious

institutions should be no more rigorous than the application of

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

private or charitable organization.8

     In addition, although this case primarily concerns the

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

applicable Federal constitutional provisions, such as the

religion clauses of First Amendment to the United States

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

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

grants to religiously-affiliated applicants as a violation of

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

The policy at issue there was based on a State constitutional

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

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

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


     8 In addition to their argument concerning the risks posed
by public support of religious institutions, the taxpayers voice
other concerns that are not insubstantial. They claim that (1)
the grant to the church violates their liberty of conscience if
the grant is for a church they do not want to support; (2) the
grant threatens the independence of religious institutions,
making them "supplicants" for governmental aid that may bring
intrusive governmental inquiries; and (3) the grant may be
politically divisive and engender "religious biases" in grant
making. Of course, taxpayers could make similar objections to
grants provided to secular recipients. These are the concerns
that the three-factor test in Springfield is designed to
address.
                                                                   9


from the present case by stating that, unlike the State

constitutional provision there, Massachusetts's anti-aid

amendment is not a categorical ban on religious institutions

applying for and receiving public grants.   In my opinion,

however, Trinity Lutheran carries broader implications.

    The Supreme Court further observed that a State policy

requiring an applicant for public funds "to renounce its

religious character in order to participate in an otherwise

generally available public benefit program is," absent "a

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

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

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

with an active congregation is at a distinct disadvantage when

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

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

- compared to historic religious buildings that are no longer

active.   The historic religious building would then be

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

religious character" in order to participate in the

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

    Finally, I write to emphasize the importance of preserving

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

cultural, aesthetic, and economic benefits such preservation

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


and the Legislature have determined that historic preservation

is important so that future generations may appreciate the

history of the Commonwealth.    This determination has been

expressed through the creation of a variety of historic

districts and historical commissions, as well as State laws and

regulations governing historic preservation.9    We have likewise

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

(public money appropriated to nonprofit "to rehabilitate [a

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

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

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

substantial recognition by the courts of the public interest in

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

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

architectural significance enhance the quality of life for all,"

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

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

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

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

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

     9 For example, the Massachusetts Historical Commission was
created by the Legislature in 1963, see St. 1963, c. 697, § 1,
to identify, evaluate, and protect important historical and
archaeological assets of the Commonwealth, G. L. c. 9, §§ 26-
27D, including establishing and maintaining the State Register
of Historic Places, G. L. c. 9, § 26C.
                                                                  11


improve the aesthetics of our neighborhoods.     Indeed, the

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

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

and undergoing a magnificent renovation and restoration

completed in 2005.   Historic preservation also offers distinct

economic advantages, by increasing property values, encouraging

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

Edwards, The Guide for Future Preservation in Historic Districts

Using a Creative Approach: Charleston, South Carolina's

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

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

     Churches, an undeniable part of the Commonwealth's historic

landscape, achieve these same cultural, aesthetic, and economic

benefits,10 and likewise warrant preservation.    During

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

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

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

served as the center of gravity for both public administration

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


     10According to one study conducted in 1996, the average
historic religious place in an urban environment generates over
$1.7 million annually in economic impact. Sacred Places, The
Economic Halo Effect of Historic Sacred Places, at 4, 19
(undated), http://www.sacredplaces.org/uploads/files
/16879092466251061-economic-halo-effect-of-historic-sacred-
places.pdf [ https://perma.cc/LEH3-5G88].
                                                                  12


on a Hill:   The Early Puritan Contribution to American

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

meetinghouses and chapels were used not only to conduct

religious services, but also to host town assemblies, political

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

required homes to be constructed within one mile of the meeting

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

Governor and Company of the Massachusetts Bay in New England,

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

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

from the meeting house" without legislative permission).

Especially for buildings of such historic significance -- the

institutional center of life in colonial Massachusetts -- we

should be careful not to impose undue restrictions on their

access to needed preservation funds.
