Volunteers at Eastport United Methodist Church stock up their food pantry before distributing food to the community in January 2021. The church is protesting an Annapolis City Office of Law decision to rescind promised grant funding to the church. (Paul W. Gillespie/Capital Gazette)

Annapolis City Council members plan to vote Friday on whether to restore a $5,000 community grant for Eastport United Methodist Church.

While the money may be only a drop in the bucket in the city’s nearly $175 million budget, which is scheduled for adoption Friday, the grant has been cause for considerable debate. Both the church and some council members have pushed back against City Attorney Mike Lyles, who has advised against giving the Methodists money to help fund a “community coordinator” position at the church.

In a statement issued Thursday, Lyles said he continues to oppose giving money to the church for the community coordinator position.

“It remains the legal opinion of the Office of Law that this purpose, paying the direct salary of a church employee, neither meets a constitutional test nor comports with Annapolis City Code,” Lyles said.

In an op-ed printed in the Capital Gazette Wednesday, Susan Schneider, the church resource manager, argued that the position should qualify for funding because the current community coordinator “is not engaged in any religious activity” and “is not a member of Eastport UMC.” Schneider also pointed out that the church is a registered 501(c)3 nonprofit organization, meaning it is exempt from paying federal income tax.

But constitutional law experts across the liberal and conservative spectrum agree that regardless of how the matter shakes out, all parties involved appear to be misinterpreting what matters most when it comes to the separation of church and state.

“Would it surprise you to learn they are both wrong?” said Ian Smith, a staff attorney at Americans United for the Separation of Church and State, who watched a lively debate between Lyles and Alderwoman Sheila Finlayson, a Ward 4 Democrat who argued that council should give money to churches, “when they support us and when they support the community.”

The exchange from council’s May 26 work session is available on YouTube.

Smith said Lyles deserves credit for flagging the Eastport Methodist grant as potentially unconstitutional. However, he also read Schneider’s op-ed, and he believes the city’s top attorney erred by framing his initial argument around whether or not the church has 501(c)3 status, either for itself or for an affiliated nonprofit.

“The grant recipient’s identity or tax status doesn’t matter, what they use the money for does,” Smith said.

Bradley P. Jacob, a constitutional law professor at the Regent University, a leading evangelical university, agreed that how the money will be used is the crucial question, as is whether nonreligious groups were given comparable opportunities. “The devil is in the details,” Jacob said.

As a lawyer, Jacob has worked on a contract basis for Anne Arundel County and other municipalities. He cited the 2017 U.S. Supreme Court case Trinity Lutheran v. Comer as a good example of when a government entity overstepped by refusing to support a church.

In a 7-2 decision, the court found that the Missouri Department of Natural Resources erred by denying Trinity Lutheran Church recycled tire mulch for its learning center playground. Comparable nonreligious preschools received rubber mulch through the program. While it was true that Trinity Lutheran included religious instruction in its curriculum, that did not mean the state would be endorsing Lutheranism by supplying the church with playground mulch, the majority of justices decided.

“You don’t want to deny them a benefit they would otherwise receive just because they are a church,” Jacob said.

Both lawyers agree that government funding for a program affiliated with a religious organization is more likely to be constitutional than government funding for a person, and that may be the problem with Eastport United Methodist.

A church can say the employee does not engage in religious activities, as Eastport United Methodist maintains, but Smith said that stipulation is nearly impossible to enforce. “Say the employee is out working for the church and is asked to pray with someone? Then what happens?” the lawyer postulated. “We don’t feel like there are adequate safeguards.”

If the city is giving other organizations grants to fund staff salaries, then it might be OK to give the money to Eastport Methodist, Jacob said, but even then, the church should be prepared to give a thorough accounting.

“The city could certainly ask for documentation and say, ‘We want to know what this person spends their time on,’” Jacob said. “You know, are they standing on a street corner handing out religious tracts and trying to convert people to the Gospel? As a Christian, I might like that, but that’s not what government money should be used for.”

In addition to arguing that its community coordinator does not engage in religious activities, Eastport Methodist contends that it should be able to receive a grant because Heritage Baptist Church is also slated to receive a share of the $342,000 in community grant funding. But city Finance Director Jodee Dickinson pointed out that the Baptists’ grant is to support Backpack Buddies, a nationwide program that pairs churches and community groups with students who receive free lunches to make sure those children also have nutritious meals at home.

All Annapolis community grant recipients are required to submit follow-up reports detailing how the money was spent. Although the grant application is available online, the city declined to share the follow-up paperwork Thursday.

In addition to requiring follow-up reports, Smith said government entities can include language forbidding religious activity in the contracts that organizations sign, and they should consider visiting the grantees. “They have the right to come in and do inspections,” Smith said.

At a 12-hour marathon budget meeting Monday, council once again spent more than 30 minutes debating the Eastport Methodist situation. They voted to reallocate the Methodists’ money to a nonprofit called Superior Futures and made other adjustments to the community grants as recommended by the Finance Committee. But they also agreed to have city staff review the Eastport Methodist application again, and plan to take another vote on restoring money to the church Friday.

Council members appear divided on the issue. Ward 7 Alderman Rob Savidge agreed with the city attorney’s advice. “As an atheist, I have concern with giving any kind of money directly to a church,” the Democrat said.

But his Ward 8 counterpart, Democrat Ross Arnett, disagreed.

“This is a community that is very active in working with needy people,” Arnett said.