Reported in a prior posting on this website was the United States Supreme Court opinion in Trinity Lutheran Church of Columbia, Inc. v Comer, 137 S. Ct. 2012 (2017). In Comer, Missouri disallowed payment of a grant to a church to install a rubber surface on its otherwise concrete playground. The Supreme Court held that the neutral purpose, safeguarding playing children, was not a violation of the Establishment Clause. Indeed, the Supreme Court went on to point out that excluding an applicant just because the applicant was a religious organization was discriminatory. That decision was relied upon in Taylor v Town of Cabot, 2017 VT 92.
In Taylor, the Supreme Court of Vermont tentatively upheld a municipal vote that approved an award of $10,000 of building repair and restoration funds for repair of an “historic church” building against the Vermont equivalent of an Establishment Clause challenge. The decision was a reversal of a preliminary injunction issued by the trial court before Comer was issued. Thus, the case was returned to the trial court for further proceedings which still could eventually result in a decision against the church and in favor of the tax protestors.
While the decision might seem to be favorable to the church, and the Town of Cabot may have been defending the case, at some point someone may decide this much litigation over $10,000 is simply too much and the church might return the money. Indeed, the Vermont Supreme Court held that if the trial court on remand again decided the award violated the Vermont constitution the money might have to be repatriated by the church. Churches that take governmental money of any kind run such a risk. Historically important church buildings might not be economic to preserve. Nevertheless, just because an applicant for governmental funds is a church by itself should not result in denial as long as the funds have a secular purpose not reasonably related to establishment of worship.