Patrick Moore authors “Caplan v. Town of Acton: The Supreme Judicial Court’s Decision on Public Funding for Historic Preservation of Churches Deepens the Enigma of the Anti-Aid Amendment to the Massachusetts Constitution”

August 16, 2018

Boston Bar Journal

At the heart of Caplan v. Town of Acton is the fascinating question of whether a municipality may use public funds for preservation of historic religious structures that are still in active use. See 479 Mass. 69 (2018). The guidance provided by a splintered SJC—a resounding “maybe”—raised more concerns than it addressed in three hot-button areas. First, though the Court traced the ugly history of the Anti-Aid Amendment to the state constitution, it chose to emphasize the intent of its drafters over its plain text. Second, the Court may have placed its Anti-Aid Amendment cases on a collision course with recent Supreme Court jurisprudence, most prominently the 2017 headline-grabbing decision of Trinity Lutheran v. Comer, 582 U.S. —, 137 S. Ct. 2012 (2017). Third, in an aside that may prove to be Caplan’s most lasting mark, the Court opened the door to deposing a municipal government in search of the purportedly hidden motives of its policy-makers.

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