Could a state-funded historic preservation trust rent out a former church for weddings and other religious events without violating the ban on using bond money for religious purposes?

Plain-English summary

The Westminster Preservation Trust, which used a $350,000 state bond to purchase and restore Baltimore's deconsecrated Westminster Church (renamed Westminster Hall, and the burial site of Edgar Allan Poe), asked whether Section 5 of the enabling bond bill, which barred using the bond proceeds for sectarian purposes, prevented the Trust from occasionally renting the Hall for weddings, bar mitzvahs, christenings, and similar religious events. The opinion concluded it did not. Applying the Establishment Clause's three-part test, the opinion found that an open, nondiscriminatory rental policy available to religious and secular groups alike had a secular purpose, did not have advancing religion as its primary effect (only one of thirty-six scheduled events in 1984 was religious), and did not create excessive government entanglement, since the Trust was a private entity subject only to limited state oversight of its rental schedule. The opinion also concluded that Section 5's sectarian-use restriction, standard language in Maryland bond bills funding religiously affiliated institutions, was meant to track Establishment Clause requirements rather than impose stricter limits, and that reading it more broadly would itself raise serious Free Speech and Free Exercise Clause problems under the Supreme Court's reasoning in a case involving a public university's open-forum policy.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a state-funded historic preservation trust rent out a former church for weddings and other religious events without violating the ban on using bond money for religious purposes?
According to this 1984 opinion, yes. The Attorney General concluded that occasional rental of Westminster Hall for religious events, under a nondiscriminatory open-rental policy, violated neither Section 5 of the bond bill nor the Establishment Clause of the First Amendment.

Why didn't renting the hall for religious events count as advancing religion?
The opinion applied the three-part Establishment Clause test (secular purpose, no primary effect of advancing or inhibiting religion, and no excessive entanglement) and found the Trust's open-forum rental policy passed all three, noting that only one of thirty-six events scheduled in 1984 was religious, which the opinion found fell well short of religious groups dominating the forum.

Did Article 36 of the Maryland Declaration of Rights impose a stricter limit than the federal Establishment Clause?
The opinion noted that the Maryland Court of Appeals had at times applied a more permissive standard under Article 36 than under the Establishment Clause, but concluded that in any event, under the reasoning of a Supreme Court case addressing a public university's open-forum policy, Article 36 could not be read to require excluding religious groups from a facility otherwise open to the public.

Background and statutory framework

Chapter 699, Laws of Maryland 1980, created a $350,000 state debt to help the Westminster Preservation Trust purchase, preserve, and restore Westminster Hall and its grounds, subject to a Section 5 restriction, standard in bond bills aiding religiously affiliated institutions, barring use of the funds for sectarian religious instruction, worship facilities, or divinity programs. The opinion measured the Trust's rental practices against the Establishment Clause's three-part test as articulated in Widmar v. Vincent and Stone v. Graham, against Article 36 of the Maryland Declaration of Rights, and against the history of similar Maryland bond bills that had been the subject of a Maryland Court of Appeals decision, Horace Mann League, striking down unrestricted construction grants to sectarian colleges as unconstitutional, which prompted the General Assembly to add the standardized sectarian-use restriction language found in Section 5.

Citations

Statutes:

• Chapter 699, Laws of Maryland 1980 (bond bill creating state debt to assist the Westminster Preservation Trust; Section 5 sectarian-use restriction)
• First Amendment to the United States Constitution (Establishment Clause)
• Article 36 of the Maryland Declaration of Rights (state constitutional religion clause)
• Chapter 576, Laws of Maryland 1976 (Western Maryland College Loan of 1976)
• Chapter 834, Laws of Maryland 1976 (Loyola College Loan of 1976)
• Chapter 66, Laws of Maryland 1962 (College of Notre Dame Loan of 1962)
• Chapter 646, Laws of Maryland 1963 (Western Maryland College Loan of 1963)
• Chapter 545, Laws of Maryland 1963 (St. Joseph College Loan of 1963)

Cases:

• Widmar v. Vincent, 454 U.S. 263 (1981) (a public university's neutral open-forum policy does not violate the Establishment Clause and cannot exclude religious speech consistent with Free Speech and Free Exercise Clauses)
• Stone v. Graham, 449 U.S. 39, 40 (1980) (three-part Establishment Clause test: secular purpose, neutral primary effect, no excessive entanglement)
• Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (the Establishment Clause applies to the states through the Fourteenth Amendment)
• Lynch v. Donnelly, 466 U.S. 668 (1984) (suggesting other Establishment Clause tests may apply in appropriate circumstances)
• Marsh v. Chambers, 463 U.S. 783 (1983) (cited alongside Lynch v. Donnelly)
• Horace Mann League of the United States of America, Inc. v. Board of Public Works, 242 Md. 645 (1966) (unrestricted state construction grants to sectarian colleges violated the Establishment Clause)
• Supermarkets General Corporation v. State, 286 Md. 611 (1979) (Court of Appeals has not decided whether Article 36 and the Establishment Clause are in pari materia)
• Roemer v. Board of Public Works, 426 U.S. 736 (1976) (upholding annual state subsidies to colleges involved in Horace Mann under later, less strict standards)
• Roemer v. Board of Public Works, 387 F.Supp. 1281, 1285 (D. Md. 1974) (upholding grants to Western Maryland College and other schools under sectarian-use restriction)
• Davis v. State, 294 Md. 370 (1982) (statutes should be construed to avoid constitutional doubts where possible)
• Lemon v. Kurtzman, 403 U.S. 602 (1971) (Establishment Clause test prompting Maryland's 1972 sectarian-use restriction)
• Tilton v. Richardson, 403 U.S. 672 (1971) (companion case to Lemon v. Kurtzman)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law-Establishment, Free Speech, And Free Exercise Clauses-Bond Bills-Westminster Preservation Trust-Restrictions On Use Of Bond Proceeds For Sectarian Purposes Do Not Prohibit Occasional Rental Of Westminster Hall For Weddings, Bar Mitzvahs, Christenings, And Similar Events Pursuant To Nondiscriminatory, Open-Rental Policy.

May 24, 1984

Mr. Michael J. Kelly, President
Westminster Preservation Trust, Inc.

You have requested our opinion on whether Section 5 of Chapter 699, Laws of Maryland 1980, prohibits the Westminster Preservation Trust, Inc., from renting Westminster Hall for occasional religious events, such as weddings, bar mitzvahs, and christenings.

For the reasons given below, we have concluded that the occasional rental by others of Westminster Hall for such religious events does not violate Chapter 699, nor does it violate either the Establishment Clause of the First Amendment to the United States Constitution or Article 36 of the Maryland Declaration of Rights.

I
Factual Background

The Westminster Preservation Trust, Inc., was incorporated in 1978 to hold property for the use and benefit of the University of Maryland School of Law. It owns Westminster Hall and the adjacent cemetery and makes that property available to the Law School and to community and cultural groups.1 The Board of Trustees has no written policy defining who may use Westminster Hall, but it currently does rent the Hall to various groups and individuals to defray maintenance costs of the facility.2

Chapter 699, Laws of Maryland 1980, created a State debt in the amount of $350,000 to be used to assist the Trust in its "purchase, preservation, reconstruction, alteration, and equipping of the Westminster Church, Baltimore City, and its grounds, tombs, vaults, and monuments."3 Section 5 of Chapter 699 provides:

"No portion of the proceeds of the loan or any of the matching funds may be used for the furtherance of sectarian religious instruction, or in connection with the design, acquisition, or construction of any building used or to be used as a place of sectarian religious worship or used or to be used as a place for sectarian religious instruction, or in connection with any part of any program or department of divinity for any religious denomination. Upon the request of the Board of Public Works, Westminster Preservation Trust, Inc. shall submit evidence satisfactory to the Board that none of the proceeds of this loan or any of the matching funds have been or are being used for a purpose prohibited by this Act."

Substantially similar provisions appear in most, if not all, recent bond bills granting funds to religiously affiliated entities. These provisions are evidently prompted by concerns of possible violation of the Establishment Clause of the First Amendment or Article 36 of the Maryland Declaration of Rights.

II
The Establishment Clause

The Establishment Clause prohibits Congress and the states from enacting any law "respecting an establishment of religion."4 In order not to contravene the mandate of the Establishment Clause, a statute or governmental activity must satisfy three principles:

1. It must have a secular purpose;

2. It must have a principal or primary effect that neither advances nor inhibits religion; and

3. It must not foster an excessive government entanglement with religion.

Widmar v. Vincent, 454 U.S. 263, 271 (1981); Stone v. Graham, 449 U.S. 39, 40 (1980). If the statute or activity violates any one of these three principles, it will be struck down as unconstitutional. Id.5

Under Widmar v. Vincent, the occasional use of Westminster Hall for religious events, as an aspect of general public use of the Hall, complies with all three principles and does not violate the Establishment Clause. In Widmar, the Supreme Court found that the University of Missouri at Kansas City could (and, indeed, as discussed in part IV of this Opinion, must) grant a student religious group the same access to University facilities to conduct meetings and worship as the University granted to other student groups. The Court found that the University's neutral open-forum policy had a secular purpose and avoided entanglement with religion. 454 U.S. at 273. Moreover, "the [University's] forum is available to a broad class of non-religious as well as religious speakers"; consequently, the Court concluded, "[a]t least in the absence of empirical evidence that religious groups will dominate [the University's] open forum, ... the advancement of religion would not be the forum's 'primary effect'". 454 U.S. at 275.

If such use of state university facilities does not violate the Establishment Clause, then similar use of the facilities of a private corporation, whose connection with the State is but a one-time grant for purchase and preservation of the facilities, does not. Consequently, as long as the Trust follows an open-forum policy that does not discriminate against or in favor of religious activities, that policy would have a legitimate secular purpose and would avoid excessive governmental entanglement with religion.6

Furthermore, the primary effect of the Trust's open-forum policy could not be the advancement of religion where, as here, religious groups do not in any way dominate the forum: According to information provided by the Trust, a total of thirty-six events have been scheduled from April, 1984, through December, 1984. Of these, only one is a religious event, a wedding. One event out of thirty-six is somewhat less than even occasional and, in our view, is permissible.

III
Article 36 of the Declaration of Rights

Article 36 of the Maryland Declaration of Rights provides, in pertinent part:

"Nor ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry ....

Nothing shall prohibit or require the making of reference to belief in, reliance upon, or invoking the aid of God or a Supreme Being in any governmental or public document, proceeding, activity, ceremony, school, institution, or place.

Nothing in this article shall constitute an establishment of religion."

In contrast with many other provisions of the Maryland Declaration of Rights that parallel provisions in the Bill of Rights, the Court of Appeals has never interpreted Article 36 as being in pari materia with the Establishment Clause and, as such, to be elucidated by Establishment Clause cases.7 In fact, the decisions of the Court of Appeals appear to use a more permissive standard when reviewing actions under Article 36 than when reviewing actions under the Establishment Clause. For example, in Horace Mann League of the United States of America, Inc. v. Board of Public Works, 242 Md. 645 (1966), appeal dismissed, cert, denied, 385 U.S. 97 (1966), the Court held that State construction grants to three sectarian colleges violated the First Amendment, but not Article 36.8

In any event, as discussed in Part IV of this Opinion, Widmar makes it clear that Article 36 cannot constitutionally justify a State-mandated exclusion of religious groups from a forum otherwise available to the public.

IV
Section 5 of Chapter 699

Language substantially the same as that in Section 5 first appeared in two 1976 bond bills that provided grants to sectarian institutions: (i) the Western Maryland College Loan of 1976, Chapter 576, Laws of Maryland 1976; and (ii) the Loyola College Loan of 1976, Chapter 834, Laws of Maryland 1976. But for this limiting language, those two bills were precisely the type of bill found unconstitutional in Horace Mann League of the United States of America, Inc. v. Board of Public Works, 242 Md. 645 (1966), and even involve one of the same schools.9 The General Assembly was clearly aware of the constitutional problems inherent in providing aid to sectarian institutions and, by adding the limiting language, was restricting the use of that aid in an attempt to avoid those problems and comply with constitutional requirements.10 We thus believe that the limiting language, now standardized in the form found in Section 5 of Chapter 699, was intended to implement Supreme Court decisions on the Establishment Clause, but not to expand upon those decisions.

Indeed, in light of Widmar v. Vincent, 454 U.S. 263 (1981), we do not believe that Section 5 can constitutionally be interpreted in these circumstances to impose requirements stricter than those imposed by the Establishment Clause. In Widmar, the University of Missouri at Kansas City argued that the Missouri Constitution required stricter separation of church and state than does the federal Constitution. That provision of the state constitution, the University claimed, created a compelling interest sufficient to overcome any free speech rights of student religious groups; therefore, the University's regulation prohibiting use of its facilities for religious worship or teaching was constitutional, although not required by the Establishment Clause. The Court dismissed this argument and concluded:

"[T]he State interest asserted here, in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution, is limited by the Free Exercise Clause and in this case by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently compelling to justify content-based discrimination against respondents' religious speech." 454 U.S. at 276.

Thus, to interpret the language of Section 5 to go beyond the requirements of the Establishment Clause raises a substantial constitutional issue of conflict with the Free Speech and Free Exercise Clauses, i.e., whether the State may require recipients of State aid to discriminate against religious speech in a forum otherwise made generally available to the public.11 As the Court of Appeals has frequently noted, statutes should be construed whenever possible to avoid constitutional issues or doubts. Davis v. State, 294 Md. 370 (1982). And we seriously doubt the General Assembly actually intended Section 5 to impose stricter requirements on private recipients of State aid than are imposed on State agencies. Consequently, we conclude that, in this context, Section 5 should be read in pari materia with the Establishment Clause and not as extending beyond that clause.

V
Conclusion

In summary, it is our opinion that Section 5 of Chapter 699, Laws of Maryland 1980, which prohibits the use of State bond proceeds for sectarian purposes, is intended as a legislative restatement of Establishment Clause mandates, to be read in pari materia with those mandates. Neither the First Amendment to the United States Constitution nor its State counterpart, Article 36 of the Maryland Declaration of Rights, prohibits the Westminster Preservation Trust, Inc., from renting Westminster Hall to others for occasional religious events, such as weddings, bar mitzvahs, and christenings, pursuant to an open-rental policy that does not discriminate in favor of or against religious activities. Similarly, in our opinion, Section 5 of Chapter 699 does not prohibit such occasional use of the Hall.

Stephen H. Sachs, Attorney General

Mary N. Humphries
Assistant Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

1 Westminster Church was deconsecrated in 1977 and renamed Westminster Hall in 1983.

2 Conversation with Doreen Sekulow, Director of the Westminster Preservation Trust, Inc. (Feb. 28, 1984).

3 The Hall and cemetery are of historical interest to the State, in part because Edgar Allan Poe is buried in the cemetery.

4 The Establishment Clause has been made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

5 The Supreme Court's most recent opinion concerning the Establishment Clause, Lynch v. Donnelly, 466 U.S. 668 (1984), suggests that the other "tests" might be used in appropriate circumstances, and implies that such other tests may be less stringent. However, because we conclude that the occasional use of Westminster Hall for religious events does not violate the traditional three-pronged test, any discussion of any possible more lenient test is unnecessary. See also Marsh v. Chambers, 463 U.S. 783 (1983).

6 Under Section 5 of Chapter 699, the Trust must furnish the Board of Public Works, on request, "evidence satisfactory to the Board that none of the proceeds of this loan or any of the matching funds have been or are being used for a purpose prohibited by this Act". The Trust is a private entity, and the State's involvement with the Trust's activities is limited to this power to review the schedule of the Hall's use. The potential "entanglement" arising out of such oversight would be minimal, at most.

7 In Supermarkets General Corporation v. State, 286 Md. 611 (1979), the Court of Appeals noted: "[Appellant] makes no distinction in its argument between the establishment of religion clause of the First Amendment to the Constitution of the United States and the declarations of Article 36 of the Maryland Declaration of Rights. Therefore, we need not consider whether the two constitutional provisions are in pari materia. In light of [Appellant's] argument, we have assumed arguendo that the requirement of the two provisions are identical." 286 Md. at 625.

8 The standards the Court used in its Establishment Clause discussion in Horace Mann, however, appear stricter than those now applied by the Supreme Court. See, e.g., Roemer v. Board of Public Works, 426 U.S. 736 (1976), which later upheld annual State subsidies to two of the schools involved in Horace Mann. See also notes 9 and 10 below.

9 In Horace Mann, the Court of Appeals found unconstitutional, as a violation of the Establishment Clause, the following bills providing for construction grants: the College of Notre Dame Loan of 1962, Chapter 66, Laws of Maryland 1962; the Western Maryland College Loan of 1963, Chapter 646, Laws of Maryland 1963; and the St. Joseph College Loan of 1963, Chapter 545, Laws of Maryland 1963.

10 In 1972, after Lemon v. Kurtzman, 403 U.S. 602 (1971), and Tilton v. Richardson, 403 U.S. 672 (1971), the General Assembly amended its 1971 program of non-categorical grants to eligible colleges and universities to provide that "[n]one of the moneys payable under this subtitle shall be utilized by the institutions for sectarian purposes." In Roemer v. Board of Public Works, 387 F.Supp. 1281, 1285 (D. Md. 1974), aff'd, 426 U.S. 736, 740, 741 (1976), grants under this program to Western Maryland College, Mt. Saint Mary's College, the College of Notre Dame, Saint Joseph College, and Loyola College were found constitutional. The Roemer case was argued before the Supreme Court at the beginning of the 1976 Session of the General Assembly that passed the two bond bills with the new nonsectarian language.

11 You have not asked whether the Trust, of its own volition, may (as opposed to must) deny access to religious groups for religious events, and we do not here address that issue. The actions of a private organization, which has received a one-time State grant, obviously differ substantially from the actions of the State.