Caplan v. Town of Acton

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; 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 ยง 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 ...

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