Mission impossible: U.S. Constitution does not allow government to give 'faith-based' funding to catholic churches in California, says Americans United lawsuit.

On Feb. 28, 1811, President James Madison vetoed a bill granting a parcel of land in the Mississippi territory to a Baptist church.

In a message to the House of Representatives, Madison, considered the Father of the Constitution, said the bill "comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment.'"

On Nov. 30, 2004, President George W. Bush took a different course. Bush signed into law H.R. 1446, which over a five-year stretch will pump $10 million into restoring and repairing Roman Catholic missions in California. Bush's action represents a significant advance of his much-touted "faith-based" initiative.

That action also prompted Americans United for Separation of Church and State to file a lawsuit in federal court that will test the boundaries of Bush's faith-based agenda.

"Houses of worship must be maintained by their congregations, not the federal government," Lynn said in a press statement about the Doe v. Norton lawsuit. "All but two of these missions house active congregations and hold regular worship services. They are not museums.

"If this type of assistance is upheld, every house of worship in America that is deemed 'historic' could demand upkeep and repair courtesy of the taxpayer," Lynn added.

The California Missions Preservation Act would also, as Bush's press secretary noted in a statement about the bill, help "preserve mission artwork and artifacts."

Americans United had urged both chambers of Congress to defeat the bill, resisting that it violates the Constitution and would represent a major advancement for the administration's faith-based initiative.

Spain, England and other European countries with a tradition of government support for religion have for many years used public funds to repair and tidy up houses of worship and aging religious symbols. But in America, the First Amendment traditionally has barred public financing of religion. Religious groups have been capable and responsible for the upkeep, repair and expansion of their worship sites. In Los Angeles, Cardinal Roger Mahoney raised more than $189 million to build a new Catholic cathedral that opened in 2002.

In numerous letters to lawmakers, Americans United touted the long-standing principle of church-state separation and how that tradition would be harmed by the passage of the missions act. For starters, Americans United argued, passage of the measure would likely prompt more audacious actions by the White House to expand the faith-based initiative.

Lynn testified against the bill before a Senate committee in March.

"Preservation of historic buildings is important," Lynn told the Senate Subcommittee on National Parks, "but preservation of the constitutional right to religious liberty is vital. These missions are houses of worship; they are not simply museums. I believe that the people of California and tourists from around the nation can preserve these mission buildings without passing the collection plate to Uncle Sam."

The bill's supporters, however, dismissed the concerns of Americans United and other public interest groups, claiming the law included safeguards against constitutional violations. The federal government's only intent, they said, was to save historic buildings, not support religion.

Advocates also argued that the measure simply allowed for the federal grants to be issued to the California Missions Foundation, a private non-profit entity created in 1998 to raise money for repairing and restoring the state's missions. The bill states that the Foundation is responsible for applying for the grants from the Secretary of the Interior, which would entail listing the structures and artifacts and other sundries that would need repairing or restoration.

According to the Foundation's website, several of the missions need their Bibles, books and altars restored. The Foundation also issued a press release bemoaning AU's lawsuit, suggesting the group "does not fully appreciate the historic significance of the California Missions to California, the American Southwest, and the Nation as a whole."

Lawmakers ignored the fact that many of the California missions, which stretch along a trail from San Diego to Sonoma, still function as active places of worship. Nineteen of the 21 missions are still owned by the Catholic Church.

"The missions are an important part of the State's cultural fabric and must be preserved as priceless historic monuments," said the bill's chief proponent in the House, Rep. Sam Farr (D-Calif.), during floor debate.

The measure requires the missions to be listed on the National Register of Historic Places to be eligible for the federal grants. Currently seven of the missions already meet that requirement. All of the missions are considered under California law to be historical landmarks. Of course, many other states officially recognize houses of worship as being historic landmarks.

Americans United's lawsuit on behalf of four California residents was filed on Dec. 2; it noted that the churches are still used by congregations for a variety of worship activities. Indeed, the state's oldest mission, founded in 1769, the Mission Basilica San Diego de Alcala, has a parish of more than 2,000 and offers mass numerous times throughout the week and five times on Sunday. (See "Mission Unconstitutional," March 2004 Church & State.)

The lawsuit also states that mass is held regularly in the missions San Antonio de Padua, San Gabriel Arcangel, San Francisco de Asis, San Juan Capistrano, San Buenaventura, San Fernando Rey de Espana, San Jose, and San Luis Rey de Francia.

Even before signing H.R. 1446 into law, President Bush and his administration had taken steps to alter longstanding federal policy against using public funds to repair or restore structures used for religious services. In 2003, the administration granted more than $300,000 each to both the Old North Church in Boston and the Touro Synagogue in Newport, R.I. As The Washington Post noted in a Dec. 3 article, the Department of Housing and Urban Development at the behest of Bush re-wrote its policies to allow for grants to repair active houses of worship where social services are being delivered.

Federal grants for Boston's Old North Church, famous for its role in the American revolution, and Touro Synagogue, the country's oldest Jewish house of worship, would not have happened before the onset of the administration's faith-based initiative.

From 1981 until 2002, through both Republican and Democratic administrations, it was the policy of the federal government to forbid federal grants for the construction, repair, or upkeep of any facility used for religious services. A 1995 legal memorandum by the Justice Department's Office of Legal Counsel noted that because of legal precedent it was likely that courts would "hold that making historic preservation grants to churches and other pervasively sectarian properties is inconsistent with the Establishment Clause."

As the battle over the missions' subsidy dragged on in Congress, Americans United sent one last appeal to House members on Nov. 17. The watchdog group noted that time and again the U.S. Supreme Court has ruled that the First Amendment does not permit federal financing for the improvement or building of houses of worship.

AU's letter, which was cited by Rep. Bobby Scott (D-Va.,) on the House floor and placed in the Congressional Record, listed three high court decisions--one in 1971, two in 1973--concluding "that it is unconstitutional to allow federal grants for capital improvements of structures devoted to worship or religious instruction, and all three of these decisions remain binding law on all government entities."

The high court's 1973 ruling in Committee for Public Education v. Nyquist opined that, "If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they tall into disrepair."

From the House floor, Scott maintained that, "Nineteen of the 21 missions that comprise California's historic mission trail are currently owned by the Roman Catholic Church; they operate as active parishes and hold regularly scheduled religious services. There is a clear line of Supreme Court cases that address government funding of improvement of real property for the direct benefit of buildings be used for religious purposes including worship, sectarian service, or instruction."

AU's Lynn told the Post that the administration's faith-based initiative, which has promoted providing tax dollars to religious groups based on purported secular reasons threatens basic constitutional principles and has to be stopped.

"This is an important step in derailing the whole idea that you can fund religious buildings or programs if there is an additional secular purpose that may be served," he said.

A spokesman for the Department of the Interior stuck to the administration's script of claiming tax dollars were being granted for secular reasons, not to advance religion.

"Protecting historic sites across America is really at the very heart of the mission of the Department of the Interior and its National Park Service," Dan DuBray, a department spokesman, told the Associated Press. "A number of the key sites of our nation's historic heritage also richly reflect our nation's spiritual heritage."

The administration's allies in Congress often repeated similar lines, arguing that government had a duty to ensure historic structures regardless of their religious nature. But California lawmakers, the primary promoters of the Missions Act, pointed toward the unique role the missions play in the state. The missions help tourism and public schools use them to teach state history, the lawmakers said.

Before approving the measure on Nov. 17, Farr declared the missions "help drive tourism" and that they represent the state's "third largest industry." He also described the mission's role in public school education.

"They have become synonymous with the State's fourth-grade curriculum," Farr maintained. "Students build mission models and write research reports of California's history lessons. This serves as an important education function in teaching young students about the role of the missions in the history of our State and our Nation."

Some observers, however, worry that this stream of visitors and the fourth-graders are unlikely to get the entire picture regarding the creation of California's missions, which one of the bill's supporters actually pointed out.

U.S. Rep. Jim Gibbons (R-Nev.) twice during floor debate noted his support of the bill, but he also said the Congressional Record should note "we are preserving buildings and structures that bring up uneasy memories for many who live today in California."

Gibbons was referring to the fact the missions were built by Native Americans under a Spanish effort to colonize "Alta California" and convert as many Indians as possible to Christianity, often by coercion. Led by Junipero Serra of the Franciscan order, Spanish soldiers forced the Indians to build the Catholic missions and then enslaved them there, at least according to a recent account from a column published by a prominent California newspaper. Gibbons had placed in the Congressional Record the Nov. 30 column from the San Francisco Chronicle, which described the often-horrid treatment Indians suffered at the hands of some Franciscan friars and Spanish soldiers.

"I believe it is important that when the missions are refurbished that it is not just the bricks and mortar which are restored, but also the truth," Gibbons declared, after asking his colleagues to recognize the Chronicle essay.

Elias Castillo's column, "The dark, terrible secret of California's missions," charged that the missions were "little more than concentration camps where California's Indians were beaten, whipped, maimed, burned, tortured and virtually exterminated by the friars.

"It is estimated that California's Indian population was about 310,000 at the beginning of Spanish rule," Castillo wrote. "At the close of the 19th century, they had been reduced to approximately 100,000."

Gibbons added that the reduction of the Indian population was "largely due to the inhumane conditions under which the Indians were forced to live while serving as slaves."

Despite his thoughtful comments, Gibbons still voted for the bill and the majority of California's lawmakers, some of whom have been staunch supporters of church-state separation, were the bill's chief advocates. It could be argued that their support of the bill was yet another unfortunate example of pork-barrel politicking.

Sen. Barbara Boxer (D-Calif.) was the bill's sponsor in the Senate. She did not appreciate AU's legal challenge, telling the Associated Press she thought it "a shame that this suit has been filed."

Lynn, however, said the lawsuit represents a major challenge to the Bush administration's faith-based initiative, which is largely built on the argument that government can fund religion it' it has secular reasons for doing so.

"The administration has sought to expand its 'faith-based' initiative to all areas of public funding," Lynn said. "Now it is arguing that it is proper and constitutionally sound for the government to repair churches deemed historic. That's a broad standard and one that could apply to lots of houses of worship in this country. If this funding is allowed to happen, there will be plenty of other religious groups clamoring for public dollars to preserve and repair their places of worship."