The edifice happens to be Boston's Old North Church, where Paul Revere got the signal that the British were advancing. And the Old North Church still is--as a horrified Barry Lynn, the executive director of Americans United, told reporters--"an active church." Were it inactive, were it one of the dead cathedrals of Europe--if its 150 members had dispersed to other churches--why, in Mr. Lynn's reckoning, the grant would be fine.
Lynn says Americans United might sue the Interior Department. It would lose. The department's policy happens to be right. And it is one that the Old North Church, though this hardly was its intent, helped bring about. Twice now, you could say, it has proved nationally important.
Fourteen months ago, the Old North Foundation applied to the Park Service for a historic preservation grant. The nonprofit was established to "support the maintenance of Old North Church [now 280 years young] and its associated buildings as a symbol of freedom." And the grant it sought reflected its mission. Among other things, the church's original windows needed repair.
The Park Service awarded the grant, noting the church's "standing and importance in the history of America." But a month later, the Park Service reversed course and withdrew the award on the grounds that Episcopalians own the Old North Church and actually worship there.
Apparently, the Park Service had processed the application as though it involved a nonreligious entity. You can see how that might have happened, since the Old North Church operates a museum and gift shop and is open daily to the public for tours. Indeed, on its Web site, the Park Service says visiting the Old North Church brings to life such "American ideals" as freedom of speech and self-determination. Once someone realized the Old North Church is more than just a historic site, the Park Service applied what had been policy since the late 1970s.
That policy wasn't committed to writing until 1995, when the Interior Department asked the Justice Department to advise on how a court might regard the direct award of a historic preservation grant to a church. Acknowledging that the question was a "very difficult one" and that "the Supreme Court's jurisprudence in this area is still developing," the Justice Department concluded that a court would say an award to "an active church" violates the First Amendment.
The Park Service later did what responsible government agencies do: It asked the Justice Department whether its 1995 opinion reflects its view of the law today. And the department said it didn't. The overriding opinion takes into account more recent Supreme Court decisions in concluding that the First Amendment doesn't bar historic preservation grants to the Old North Church or other active houses of worship that qualify for such assistance. The opinion observes that many regulations ensure that grants made to religious entities won't be used to advance religion--that they will be spent only for authorized purposes relating to historic preservation, not on religious services.
The Park Service's new policy embraces the worthy principle that where government assistance is being provided to a broad class of beneficiaries, defined without reference to religion and including both public and private institutions, entities that are religious shouldn't be denied such assistance if they otherwise are eligible for it. That is, religious entities should be treated equally.
The new policy makes sense, especially when you consider that the federal government has an obvious interest in preserving all historic sites, without regard to their religious or secular character. Now, it will be better able to carry out that interest, since a large amount of American history has involved religion. The Park Service won't have to turn down, say, an application from a foundation for Touro Synagogue in Rhode Island, the nation's oldest synagogue, just because it still is in active use.
Not that there is a huge amount of grant money for historic preservation--the total is about $30 million. What the new policy means is that there will be more entities competing for it. The result won't be an America full of unconstitutional establishments of religion but an America with a broader range of historic sites undergoing needed maintenance and repair.
Terry Eastland is publisher of The Weekly Standard.