Mission unconstitutional: Congress considers $10-million grant for California mission churches.

Mission Basilica San Diego de Alcala is California's oldest Roman Catholic church, and as Easter approaches, it is a very busy place.

The mission, founded in 1769, sits alongside U.S. Highway 101, and although it is more than 200 years old, it still bustles with religious life. A parish of 2,500 members, the mission celebrates mass twice a day Monday thru Saturday and five times on Sunday. And during Easter, the parish will provide concerts, readings and make available nine priests for Lenten Reconciliation services.

Burgeoning Holy Week attendance should mean a full collection plate at the church. And if members of Congress have their way, the San Diego mission and 18 others like it may be in line for millions of dollars from the federal government as well.

A bill wending its way through Congress would pour $10 million into a California project intended to refurbish the state's string of religious missions. California lawmakers argue that the Catholic missions are historical structures in need of tax dollars to help fix and preserve them after centuries of wear and tear.

Last fall, the U.S. House of Representatives by voice vote passed the California Missions Preservation Act (H.R. 1446), which would provide federal matching funds to a California nonprofit charged with raising money to repair the state's missions, 19 of which are still owned by the Catholic Church.

The bill is now before the Senate Subcommittee on National Parks, Recreation and Public Lands. The measure is being trumpeted by California's congressional delegation. In the House, 48 of California's 53 representatives supported the act, and now Senators Barbara Boxer (D) and Dianne Feinstein (D) are calling for quick approval.

Americans United for Separation of Church and State, which has thousands of members and five chapters in the Golden State, says the preservation act triggers serious constitutional pitfalls.

"Preservation of historic buildings is important, but preservation of our constitutional rights is vital," said Barry W. Lynn, executive director of Americans United. "It violates the First Amendment to force taxpayers to pay for church repairs. I believe the people of California would voluntarily donate enough money to preserve these mission buildings without passing the collection plate to Uncle Sam."

The congressional bill requires the U.S. Secretary of Interior to issue the federal subsidy to the California Missions Foundation "to restore and repair the California missions and to preserve the artworks and artifacts associated with the California missions."

That means tax dollars would be used not only to maintain church buildings, but also to refurbish crucifixes, altars, icons and other religious displays. According to the California group, $5.8 million is needed to restore and preserve the missions' religious artifacts, scriptures, sculptures and furniture.

Sen. Craig Thomas (R-Wyo.), chairman of the Senate subcommittee, has expressed concerns about the measure and scheduled a heating for some time in March. AU's Lynn has been invited to testify about concerns that the missions subsidy would run roughshod over the First Amendment principle of church-state separation.

"We will strongly encourage the committee to respect the Constitution and refuse to authorize public funding for churches," Lynn said. "Landmark preservation is important, but we must ensure that our Constitution is not scrapped in the process. Simply put, this bill would violate the First Amendment by forcing taxpayers nationwide to pay for church repairs."

Lynn added that the Senate panel should recognize that Americans are extraordinarily generous when it comes to donating money to religious causes. Cardinal Roger Mahoney of Los Angeles raised more than $189 million to construct a new cathedral that opened in 2002. At the building's dedication, Mahoney announced that the church was fully paid for through private donations.

The state's 21 missions--two of which are no longer owned by the Catholic Church--were founded as part of Spain's efforts to Christianize Native Americans and colonize what is now California. Launched by Junipero Serra of the Franciscan order, the project often met with resistance. In 1775, San Diego mission was burned to the ground by American Indians, but Serra returned and rebuilt the church in 1780 in the form of a more defensible army fort.

Today the missions are located along a 600-mile stretch of highway from San Diego north to Sonoma.

The president of the California Missions Foundation, which was created by the state in 1998 to raise funds for the project, told The Herald, a Monterey daily, that the Diocese of Monterey, which owns a third of the missions, cannot raise enough funds to repair its missions and therefore is looking to taxpayers for help.

Last year, the Foundation launched a campaign to raise $50 million. In December, the Contra Costa Times reported that $3 million had been secured from private sources, and $10 million was being sought from a state fund for historic preservation. Because California is facing a deficit ranging from $10 to $15 billion, however, the foundation is focusing its hopes on Congress.

The Constitution's church-state separation provision creates a significant obstacle. Judicial decisions have found unconstitutional previous government efforts to repair and preserve structures used for religious worship or instruction.

Three Supreme Court decisions issued in the early 1970s forbid government to finance places used for religious worship.

In 1971, the high court ruled in Tilton v. Richardson, that the government could not award grants to church-related colleges to create or repair structures without pledges that those structures would never be used for religious purposes. The principle in Tilton was followed in two subsequent cases. The court ruled in Hunt v. McNair that a state aid program for educational facilities could cover religious schools, but only as long as those schools barred religions exercises in those facilities and allowed inspections to ensure compliance. Also in 1973, the high court ruled in Committee for Public Education v. Nyquist that a New York state program providing grants to parochial schools for repair of facilities was unconstitutional.

Erwin Chemerinsky, a constitutional scholar and professor at the University of Southern California, expressed doubt about the constitutionality of the California Missions Preservation Act, noting that the bill is not a general historic preservations measure, but one solely aimed at aiding houses of worship.

"There is no doubt that the missions play an important role in the history of California," Chemerinsky said. "But those missions were religious and are still functioning as churches. Can this bill be seen as anything other than government aid to religion? Say California wanted to provide money to build Catholic churches. That, of course, would be unconstitutional. I think that is what we are looking at here."

For many years, AU's Lynn said that the federal government adhered to the federal court precedent articulated in the decisions from the '70s. In fact, a 1995 Justice Department memorandum regarding the National Historic Preservation Act found that federal courts would "likely hold that making historic preservation grants to churches and other pervasively sectarian properties is inconsistent with" the First Amendment.

Today's Justice Department, led by Attorney General John Ashcroft, however, has reversed course, saying that churches may obtain preservation grants without harm to the First Amendment.

Last year, Secretary of Interior Gale Norton issued the first federal preservation grants to active houses of worship. Old North Church in Boston and the Touro Synagogue in Newport, R.I., were the beneficiaries. Both have storied histories. Old North Church is the site of the lanterns hung for Paul Revere, and the Touro Synagogue celebrates annually a letter it received in 1790 from George Washington declaring America a place of religious liberty. Both of those houses of worship sponsor regular worship services and are homes to active congregations.

Norton visited Old North Church in May to announce that grant. She was joined by Jim Towey, the Bush administration's director of the Office for Faith-Based and Community Services, who told reporters that the funds for Old North and Touro were only the beginning. Towey rattled off the names of several other houses of worship that could he recipients of federal aid.

Ironically, officials of the Bush administration can't seem to agree on whether direct federal funding of church buildings is permissible.

The Justice Department's opinion on the National Historic Preservation Act contradicts the legal conclusion embodied in a recent regulation issued by the Department of Housing Urban Development (HUD). As purl the administration's "faith-based" initiative, HUD undertook a review of its regulations governing use of federal housing money to help repair social service centers where worship takes place.

The new HUD rule, issued September would allow houses of worship access to federal grants to acquire repair or build centers to provide array of HUD services, such as emergency shelters and housing. The HUD regulation, however, noted that the grant money "may not be used for acquisition construction, or rehabilitation of sanctuaries, chapels, or any other rooms that a religious congregation that is recipient or subrecipient of HUD assistance uses as its principal place of worship."

Americans United opposes the Bush administration's "faith-based" agenda, and AU lawyers urged HUD to follow federal court precedent barring government grants to religious groups. While HUD did not comply with all of AU's advice, the new agency regulations, at least on their face, ensure that public dollars won't be funding repair and upkeep of churches.

The California Missions Preservation Act does not contain a prohibition such as the one found in the new HUD regulation. The California bill states only that the Secretary of Interior "shall ensure that the purpose of a grant under this section is secular, does not promote religion, and seeks to protect those qualities that are historically significant."

The lawmakers pushing the missions bailout are apparently eager to overlook the bill's potential constitutional ramifications. A spokesman for Sen. Boxer told the Ventura County Star that neither his office nor Sen. Feinstein's office see any church-state problems with providing federal aid to the state's missions. The spokesman told the paper that funding the religious missions is a "worthwhile project to pursue, because the missions is an important part of California's history."

Lynn said he hopes the Senate panel will stand by important constitutional principles and defeat the California missions bill.

"The missions' repairs and upkeep must be the responsibilities of private donors, not the federal government," Lynn said.