Flap Over Proposed Preservation Grant for Old Massachusetts Church May Go to Supreme Court

Supreme Court Justices Neil Gorsuch and Brett Kavanaugh attend the State of the Union address in the chamber of the U.S. House of Representatives at the U.S. Capitol Building on February 5, 2019 in Washington, DC. (Doug Mills-Pool/Getty Images)

Bourne is a quiet little town on the banks of the Cape Cod Canal whose 20,000 or so residents occupy Massachusetts soil that was first settled by the Pilgrims in 1627.

Cataumet United Methodist Church isn’t quite that old, but its lofty steeple has been a familiar landmark in Bourne for more than a century. The structure hosts Methodist services on Sundays and numerous other religious and secular community meetings during the week.

The old gathering place now needs a new cedar shingle roof, which could be funded by a proposed $10,000 grant under the Bourne Community Preservation Act (CPA) program.

But opposition to the grant is simmering within the CPA review committee, while officials await a requested expedited advisory opinion from Robert Troy, Bourne’s town counsel, on whether the grant would be unconstitutional and a violation of the doctrine of separation of church and state.

Either way the grant proposal is ultimately decided, odds are good there will be litigation that could well put Bourne and its historic old church at the center of a potential landmark constitutional legal battle.

Debate Anticipated

“If a historic preservation committee would refuse to fund cedar shingles for a church building that has existed before our republic on the basis that it is a religious entity making the request, then that kind of hostility toward religion will have to be challenged in court,” Jeremy Dys told The Epoch Times on Sept. 16.

“Thankfully, the Supreme Court of the United States has already indicated a willingness to consider that very case,” Dys said.

Dys is deputy general counsel of the First Liberty Institute, a Plano, Texas-based legal foundation that specializes in religious freedom litigation across the nation.

The town counsel advisory opinion reportedly was sought by CPA Chairman Barry Johnson, who doubles as Bourne’s town clerk. Johnson cited a similar grant proposal for another church in Bourne that was approved but that sparked intense community debate in the process in 2009.

“CPA Chairman Barry Johnson said that since then, there have been two court cases involving CPA requests for church projects. He said the rulings may negatively impact the Cataumet request,” Wicked Local, a digital Massachusetts community news site, reported Sept. 9.

“Johnson on September 3 sought a motion to ask Troy for an expedited opinion on the request. ‘Then we would be able to decide if we want to take further action on this,’ Johnson said,” according to Wicked Local.

Neither Johnson nor Troy responded to email and telephone requests for comment from The Epoch Times.

Constitutional Issues

The likely constitutional issues were laid out by Dys in a Sept. 11 letter to Johnson, Troy, and other members of the committee. Dys made the letter available to The Epoch Times.

Dys pointed out in his letter that Cataumet was “launched as an Indian Meeting House prior to the founding of America, in 1765. Over the following centuries, congregants dismantled the colonial-style building and moved its location at least twice.”

“It has stood on its present land since 1893. Clearly, the church building is a staple feature of the Bourne landscape. And, given the community has dismantled and rebuilt the building on a new location twice, town residents must care a great deal for the historic building,” the letter states.

“It is understandable, therefore, why the Cataumet UMC trustees would seek assistance under the CPA for minor repairs to preserve the much-beloved, historic building.

“Municipal funding of cedar shingles for a building that has stood in the same place in town for at least 126 years should pose little concern to the Constitution of the United States.”

Dys also cited eight Supreme Court decisions between 1978 and 2001, in which the justices held that “government may not discriminate against its citizens on the basis of religion and must treat religious individuals and organizations on equal footing with their secular neighbors.”

He pointed to a 2016 case in which the high court was asked to determine if a state can require religious organizations to renounce their “religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified.”

In that decision, Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017), Dys told the Bourne officials, “the court made clear that such requirements subject the state’s action to the court’s most exacting level of scrutiny.”

“The justices concluded that disqualifying a religious organization ‘from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.’”

Neutrality

Dys also pointed to appeals in two similar cases that the high court rejected, Morris County Board of Chosen Freeholders, et al. v. Freedom From Religion Foundation, et al. and The Presbyterian Church in Morristown, et al. v. Freedom from Religion Foundation, et al., 586 U. S. (2019).

“Justice Kavanaugh, writing for Justices Alito and Gorsuch, issued a statement highlighting the importance of religious neutrality in such programs,” Dys wrote.

“Justice Kavanaugh concluded that ‘barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.’

“At a very minimum, Justice Kavanaugh, and two of his colleagues, appears unconvinced that religious organizations—like Cataumet UMC—may be excluded from participating in preservation grants like the one in question simply because they are religious organizations.

“Such offends notions of fairness as much as the principles of equality the Religion Clauses of the First Amendment to the U.S. Constitution are designed to protect.

“At least for Justice Kavanaugh, ‘prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.”

The First Liberty attorney concluded his letter with a warning to Johnson, Troy, and the other CPA members that “should the Town of Bourne undertake to deny the proposed grant on that basis, it would likely be engaged in religious discrimination in violation of the Constitution.”

Contact Mark Tapscott at [email protected]