Historic Preservation Grants to Houses of Worship: A Case Study in the Survival of Separationism

Abstract

The movement in the law of the Religion Clauses from Separationism, which requires distinctive treatment of religious institutions, to Neutralism, which prohibits such distinctive treatment, has been proceeding for the past twenty years. In some legal contexts, however, this movement has occurred erratically or incompletely, and normative questions remain about whether this paradigm change should proceed with respect to all relevant issues. In this paper, we test the positive and normative implications of the shift by exploring in detail a particular, heretofore unexamined legal context - government grants to active houses of worship for historic preservation. Many states have schemes of historic preservation, which include coercive regulation designed to preserve the historic character of landmarked properties. These regulatory regimes have been challenged as applied to properties owned by religious entities, and courts have reached disparate results on the merits of these challenges. Historic preservation schemes also include the possibility of government grants for the support of preservation efforts, and no court has yet been asked to rule on the permissibility of such grants. In the paper, we begin by analyzing the existing Supreme Court precedent on state financial support for the construction or preservation of places devoted to worship or religious teaching. After briefly reviewing the movement from Separationism to Neutralism, we collect and appraise materials on historic preservation. These include the leading court decisions on landmark regulation of houses of worship; conflicting opinion letters on the permissibility of preservation grants for such structures from Joseph Lieberman (then-Attorney General of Connecticut), and Walter Dellinger (then-Assistant Attorney General, Office of Legal Counsel, DOJ); and information from federal agencies and state historic preservation commissions concerning their current policies with respect to such grants. This review of policy reveals a remarkable degree of disparity, as various levels of government struggle to come to grips with changes in the relevant law. We conclude the paper by invoking a principle of Religion Clause symmetry - what the government may regulate it may also subsidize - and by suggesting that the religion-specific line between permissible and impermissible subsidy (and regulation) should be drawn between the exterior and interior of houses of worship.