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Published online by Cambridge University Press: 24 April 2015
The headline in the October 1, 1994 edition of the San Francisco Examiner read “Law Saves Churches From Preservation.” It is not intuitively apparent that churches would want to utilize the law to be saved from historic preservation; in fact, it is at least equally logical to assume that preservation of historic churches would be a goal around which clergy and preservationists would rally. Secular preservationists, of course, may find in a given church superior formal aesthetic qualities or crucial social or historical significance. Religious leaders, for their part, may welcome historic preservation for theological reasons, so that the buildings will stand as “witnesses to faith”; others may see preservation “as part of a church's responsibility to the wider community.” Regardless of their motivations, though, there's significant potential for cooperation among preservationists and religious leaders. However, as landmark and historic district preservation has emerged as an important governmental planning and land use tool, cooperation has inevitably given way to conflict. Ultimately, issues of preservation yield to issues of authority and autonomy, that is, whether freedom of religion or preservation should prevail.
1. Hull, Tupper, Law Saves Churches From Preservation; Wilson Signs Bill Allowing Refusal of Protected Status, SF Examiner A14 (10 1, 1994)Google Scholar.
2. Carmella, Angela C., Houses of Worship and Religious Liberty: Constitutional Limits to Landmark Preservation and Architectural Review, 36 Vill L Rev 401, 436 (1991)Google Scholar. She notes: “It is not at all surprising that many houses of worship have been designated landmarks, both individually and as part of districts. They are often magnificent examples of architectural styles, sites of significant historic events and anchors of cultural stability within neighborhoods.” Id.
3. Carmella, Angela C., Landmark Preservation of Church Property, 34 Cath Law 41, 57 (1991)Google Scholar (noting that the loss of a church can lead to the “desacralization of the landscape”).
4. Alan C. Weinstein, The Myth of Ministry v. Mortar: A Legal and Policy Analysis of Landmark Designation of Religious Institutions, 65 Temple L Rev 91, 95 (1992).
5. See notes 41-115 and accompanying text.
6. Cal Gov Code § 25373 (West, 1994).
7. US Const, Amend I. The Supreme Court has held that the establishment clause applies to the states through the fourteenth amendment. See Everson v Board of Educ, 330 US 1, 15 (1947).
8. See notes 203-233 and accompanying text.
9. Duerksen, Christopher J., Historic Preservation Law, in Rathkopf, Arden H. and Rathkopf, Daren A., 2 Rathkopf's The Law of Zoning and Planning 15–4 (Clark Boardman Callaghan, 1992)Google Scholar. For concise histories of the development of historic preservation law, see Hagman, Donald G. and Juergensmeyer, Julian C., Urban Planning and Land Development Control Law § 14.6 at 461–63 (West, 2d ed, 1986)Google Scholar; Weinstein, , 65 Temple L Rev at 96 (cited in note 4)Google Scholar. See also notes 211-220 and accompanying text.
10. Weinstein, , 65 Temple L Rev at 98 (cited in note 4)Google Scholar.
11. Berman v Parker, 348 US 26 (1954).
12. Id at 33 (citation omitted).
13. Duerksen, , 2 Rathkopf's Law of Zoning at 15–8 (cited in note 9)Google Scholar.
14. Penn. Cent. Transp. Co. v City of New York, 438 US 104 (1978).
15. Id at 129.
16. See generally Phelan, Marilyn, A Synopsis of the Laws Protecting Our Cultural Heritage, 28 New Eng L Rev 63, 66–79 (1993)Google Scholar; Hagman, and Juergensmeyer, , Urban Planning, § 14.7 at 463–65 (cited in note 9)Google Scholar. Among the more significant pieces of federal legislation is the National Historic Preservation Act (codified at 16 USCA § 470 et seq). The NHPA established the National Register of Historic Places and the Advisory Council on Historic Preservation (an independent federal agency advising the President and Congress on preservation matters). Most importantly, Section 106 of the NHPA provides a regulatory mechanism under which federal agencies must consider the impact their actions have on National Register or Register-eligible properties. For a detailed examination of the NHPA and particularly section 106, see Duerksen, , 2 Rathkopfs Law of Zoning at 15–49 to 15–59 (cited in note 9)Google Scholar.
17. Weinstein, , 65 Temple L Rev at 99 (cited in note 4)Google Scholar.
18. Duerksen notes that “a substantial majority of states specifically grant local governments authority to protect historic districts or sites by creating preservation commissions with broad regulatory authority.” Duerksen, , 2 Rathkopf's Law of Zoning at 15–10 (cited in note 9)Google Scholar. “Almost all provide for the creation of a local body that has power to designate districts and landmarks as well as to review any proposed changes to a designated structure or plans for new construction in a historic area.” Id at 15-13.
19. The following summary of the mechanics of landmark preservation is taken from Weinstein, , 65 Temple L Rev at 100–04 (cited in note 4)Google Scholar. See also Carmella, , 36 Vill L Rev at 427–36Google Scholar (cited in note 2); Carmella, , 34 Cath Law at 42–47Google Scholar (cited in note 3); Duerksen, , 2 Rathkopf's Law of Zoning at 15–13 to 15–18Google Scholar (cited in note 9).
20. See, for example, Atlanta, GA, City Code ch 20, § 16-20.004 (1989) (listing eleven criteria under the heading “Architectural Significance,” for which a landmark must meet at least five. Examples include, “A building or site that clearly dominates or is strongly identified with a street scene or the urban landscape.” “A building or site which is an exceptionally fine example of a style or period of construction that is typical of the City of Atlanta.”).
21. Weinstein, , 65 Temple L Rev at 102–103 (cited in note 4)Google Scholar.
22. See, for example, Atlanta, GA, City Code ch 20, § 16-20.008 (1989) (standard of review of an application for “Major Alteration”).
23. Carmella, , 34 Cath Law at 46 (cited in note 3)Google Scholar.
24. See, for example, Atlanta, GA, City Code ch 20, § 16-20.008 (1989) (phrasing the hardship standard as “incapable of earning a reasonable economic return”).
25. US Const, Amend V (” … nor shall private property be taken for public use, without just compensation.”).
26. US Const, Amend I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”).
27. See notes 116-122 and accompanying text.
28. See generally Weinstein, , 65 Temple L Rev at 93–94, 110 (cited in note 4)Google Scholar; Carmella, , 36 Vili L Rev at 402–07Google Scholar (cited in note 2); Carmella, , 34 Cath Law at 47–48 (cited in note 3)Google Scholar.
29. Carmella, , 36 Vill L Rev at 401 (cited in note 2)Google Scholar. Professor Carmella's article is a thoroughly-documented and well-argued affirmative response to this question, resulting in her conclusion that houses of worship are constitutionally exempt from preservation ordinances.
30. The following is drawn from Gunnison, Robert B., Church Preservation Rejected by Senate, SF Chron A20 (06 30, 1994)Google Scholar.
31. Cal Gov Code § 25373 (West, 1994). The statute reads, in pertinent part:
(d) Subdivision (b) [granting county boards of supervisors authority to promulgate historic preservation ordinances] shall not apply to noncommercial property owned by any association or corporation that is religiously affiliated and not organized for private profit, whether the corporation is organized as a religious corporation, or as a public benefit corporation, provided that both of the following occur:
(1) The association or corporation objects to the application of the subdivision to its property.
(2) The association or corporation determines in a public forum that it will suffer substantial hardship, which is likely to deprive the association or corporation of economic return on its property, the reasonable use of its property, or the appropriate use of its property in the furtherance of its religious mission, if the application is approved.
(e) Nothing in this subdivision shall be construed to infringe on the authority of any legislative body to enforce special conditions and regulations on any property designated prior to January 1, 1994, or to authorize any legislative body to override the determination made pursuant to paragraph (2) of subdivision (d).
32. Id.
33. Id.
34. Id.
35. Note, California Exempts Religious Property Owners from Local Preservation Laws, 13 Preservation L Rptr 1176 (1994)Google Scholar (noting that “any non-commercial property owned by a religious organization would be exempt from local historic preservation regulation if the organization objects to the application of the regulations and makes a unilateral determination in a public forum that it will suffer substantial hardship if the regulations are applied.”).
36. Cal Gov Code § 25373, Historical and Statutory Notes (West, 1994).
37. Id.
38. See notes 116-22 and accompanying text.
39. See notes 132-204 and accompanying text.
40. Though the statute is intended to secure religious freedom under the state constitution as well, we will only analyze the federal constitutional implications. It should be noted that state constitutional law can lead to different outcomes. See, for example, First Covenant Church of Seattle v City of Seattle, 840 P2d 174 (1992) (finding historic preservation law to be an unconstitutional burden on free exercise on separate state grounds).
41. Sherbert v Verner, 374 US 398 (1963).
42. Id at 407. Nine years later the Supreme Court reaffirmed its Sherbert holding in Wisconsin v Yoder, 406 US 205 (1972). The respondent, a member of the Old Order Amish, refused to send his children to high school for religious reasons. Wisconsin fined him $5 for violating a law that required all children to attend school until the age of six teen. Despite the government's interest in the education of all its young citizens, the Court found that respondent's action was “one of deep religious conviction, shared by an organized group and intimately related to daily living.” Id at 216. Consequently, the government's interest in educating its youngsters was found not to have outweighed Yoder's claim. Interestingly, though the Court applied Sherbert's compelling interest test until 1990, when it handed down Smith, it upheld every general governmental regulation challenged on free exercise grounds aside from Yoder and those cases directly governed by Sherbert. Rotunda, Ronald D. and Nowak, John E., 4 Treatise on Constitutional Law: Substance and Procedure § 21.8 (West, 2nd ed, 1992)Google Scholar.
43. Employment Div., Dept. of Human Resources of Oregon v Smith, 494 US 872 (1990).
44. Justice Scalia held that a valid, neutral and generally applicable law would be found unconstitutional in any of three cases: (1) where the government regulates religious beliefs (as opposed to religious practices); (2) where a law is passed with the sole purpose of prohibiting or regulating a practice because of its religious character; or (3) where both the free exercise clause and another constitutional protection are implicated. Scalia refers to this as a “hybrid situation.” Smith, 494 US at 877–78, 881.
45. Some commentators reviled the Smith opinion, believing it left the free exercise clause “without any independent force.” Carmella, , 36 Vill L Rev at 424Google Scholar (cited in note 2); see also McConnell, Michael, Religious Freedom at a Crossroads, 59 U Chi L Rev 115, 138 (1992)CrossRefGoogle Scholar. Justice Scalia's decision analyzed all of the major free exercise clause precedent and found that the Smith standard was consistent with the prior cases: “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” 494 US at 878. Rotunda writes that Smith is “reminiscent of the Court's decision in Braunfeld v Brown,” 366 US 599 (1961), in which the Supreme Court upheld the application of Sunday closing laws to businesses whose owners observed a day other than Sunday as the Sabbath. Rotunda, and Nowak, , Constitutional Law at 540 (cited in note 42)Google Scholar.
46. 42 USC § 2000bb (West, 1994). This quick and contrary legislative reaction to Smith was the result of an “intense and highly negative” response to the Supreme Court's decision in the religious and civil libertarian communities. Allen Ides, The Text of the Free Exercise Clause as a Measure of Employment Division v. Smith and the Religious Freedom Restoration Act, 51 Wash & Lee L Rev 135,136 (1994). For a more detailed discussion of the response to Smith, see Berg, Thomas, What Hath Congress Wrought? An Interpretive Guide to the Religious Freedom Restoration Act, 39 Vill L Rev 1, 12–17 (1994)Google Scholar. The RFRA gives plaintiffs a statutory cause of action, ensuring that most future free exercise challenges will be plead under the RFRA instead of common law.
RFRA § 2000bb(a)(4) states “The Congress finds that — in Employment Division v. Smith, the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” RFRA § 2000bb(b)(1) further states that the purpose of the statute is “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion in substantially burdened.” [citations omitted].
47. See First Covenant, notes 75-87 and accompanying text, and Society of Jesus, notes 106-15 and accompanying text.
48. Society for Ethical Culture v Span, 415 NE2d 922 (CANY 1980).
49. Id at 924.
50. Id.
51. The New York Administrative Code defined a landmark as “[a]ny improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation.” Id.
52. The charitable purpose test is analogous to the Penn Central “reasonable return” inquiry and is applied to non-profit organizations that by definition are not concerned with earning a reasonable return. The charitable purpose test is framed thusly: Landmark designation is permitted “only so long as it does not physically or financially prevent, or seriously interfere with the carrying out of the [organization's] charitable purpose.” Id at 925. An analogue of this test in the first amendment context is discussed in notes 242-53 and accompanying text.
53. Id at 926.
54. Id.
55. Church of St. Paul and St. Andrew v Barwick, 496 NE2d 183 (NY 1986).
56. Id at 195 (Meyer dissenting).
57. Id at 191.
58. Id at 191-92.
59. Id at 192.
60. Id at 200. Judge Meyer concluded that the church's first amendment claim, and the “public benefit and welfare which is itself an attribute of religious worship in a community,” outweighed the “aesthetic and community values in landmark preservation….” Id.
61. St. Bartholomew's Church v City of New York, 914 F2d 348 (2nd Cir 1990).
62. St. Bartholomew's Church is a Protestant Episcopal Church founded in 1835. Its construction began in 1917 after the architect Bertram Goodhue drew the plans. The Church building “is a notable example of a Venetian adaptation of the Byzantine style, built on a Latin cross plan. Significant features include its polychromatic stone exterior, soaring octagonal dome, and large rose window. Perhaps most significantly, Goodhue incorporated into his building the Romanesque porch of [the church's] former Church building …. Designed by … McKim, Mead & White, the porch is composed of a high arched central portal flanked by two lower arched doorways, all supported by slender columns. The doors themselves are richly decorated bronze, depicting Biblical themes.” Id at 351. The Community House, adjacent to the church building, is the building that was scheduled to be demolished. It is a terraced, seven-story building that “complements the Church building in scale, materials and decoration.” Id. Many activities, such as theater, athletics, fellowship and counseling programs, a homeless shelter and soup kitchen were carried out in the Community House. Id.
63. Id at 352.
64. St. Bart's complaint also contained an equal protection claim and allegations of several procedural due process violations. Id.
65. Id at 351. Note that this is the charitable purpose test. The district court felt that St. Bart's failed the test because: (1) it had not demonstrated that the House could not accommodate the activities which were presently being carried out, (2) it had exaggerated the expense of repairs to the Church building and the House and (3) it had failed to show that it could afford to make the repairs. Id at 352-53. The court of appeals affirmed all three of these findings. Id at 358-60.
66. Id at 355-56.
67. Id at 354.
68. Id at 353.
69. Id at 354. It is interesting to note that the court assumes that church architecture and decisions to alter it are more bound up in practice than belief. On this subject, see Carmella, , 36 Vill L Rev at 449 (cited in note 2)Google Scholar.
70. Id (quoting NYC Admin Code § 25-302(n) (1986)).
71. Id at 355. Therefore, even under the pre-Smith doctrine, a drastic reduction in income caused by a historic preservation statute is not a substantial burden on the religious organization's free exercise rights. “[W]e understand Supreme Court decisions to indicate that neutral regulations that diminish the income of a religious organization do not implicate the free exercise clause.” [citing pre-Smith cases] Id.
72. Id.
73. Interestingly, the court starts the opinion by stating that the charitable purpose test was properly applied by the district court to decide the case. Nevertheless, it later employs Smith's neutral and generally applicable law test. It seems, then, that in the second circuit a neutral, generally applicable law will be applied even if it indirectly burdens free exercise, unless the Church proves that the neutral law's burden makes the church unable to carry out its religious mission.
74. Committee to Oppose Sale of St. Bartholomew's v St. Bartholomew's, 111 S Ct 1103 (1991) (cert denied).
75. First Covenant Church v Seattle (First Covenant I), 114 Wash 2d 392, 787 P2d 1352 (1990), cert granted, judgment vacated and remanded, 111 S Ct 1097 (1991).
76. The Church filed for a declaratory judgment, seeking to invalidate the ordinance and thereby void the designation of the church made under the ordinance. Unlike St. Bart's, First Covenant had no specific plans to remodel or demolish its buildings. The trial court ruled for the city, deeming the ordinance sufficiently broad to apply to churches and ruled that the free exercise challenge would not be ripe until the Church's rights were directly impinged (for example, until the Church had particular plans to alter its buildings). Id at 1354. The appeal was routed straight to the Supreme Court of Washington.
77. Id at 1360 (quoting Seattle City Ordinance 112425 (1985)).
78. Id at 1356.
79. Id at 1357 (quoting School Dist. of Abington Township v Schempp, 374 US 203, 223 (1963)).
80. Id at 1359.
81. Id at 1360.
82. Id at 1361. Costonis has argued that community stability produced by the preservation of historic buildings could amount to a compelling interest in the first amendment free expression context. Costonis, John J., Law and Aesthetics: A Critique and a Reformulation of the Dilemmas, 80 Mich L Rev 355 (1982)CrossRefGoogle Scholar. By analogy, it is arguable that the community stability generated by historic preservation could be a compelling interest in the free exercise analysis. For a discussion of the public purpose behind preservation and how it may constitute a compelling interest, see notes 210-233.
83. First Covenant I, 787 P2d at 1363. Compare St. Bart's, note 61 and accompanying text.
84. The concurrence cited Jimmy Swaggart Ministries v Board of Equalization, 493 US 378 (1990)(holding that a generally applicable sales and use tax did not significantly burden a church's religious practices or beliefs) for this proposition. First Covenant I, 787 P2d at 1364.
85. Id at 1364. “We should adopt the New York test as the means of evaluating free exercise claims in land use.” Id at 1365. See note 44 regarding the test.
86. Id at 1366.
87. Id.
88. First Covenant Church v Seattle (First Covenant II), 840 P2d 174 (Wash 1992).
89. Id at 180-81. This “reasoning” leads to the queer result that a law which does not try to accommodate religion is deemed neutral, while a law that tries to accommodate religion (as the Seattle law does) is not neutral. Note, Washington Supreme Court Rules that Seattle's Landmarks Ordinance Violates Church's Free Exercise Rights, 11 Preservation L Rptr 1176, 1181 (1992)Google Scholar.
90. First Covenant II, 840 P2d at 181. It seems that the court confuses the term “generally applicable.” In the Smith sense, “generally applicable” means that all similarly situated players are equally subject to the provision's sanctions, as is the case here.
91. Among other things, the court cited the following “distinguishing” facts: St. Bart's accepted designation while First Covenant did not; First Covenant's church building was threatened while only the Community House was at risk in St. Bart's; St. Bart's sought an exception for commercial purposes, First Covenant sought an exception exclusively for liturgical reasons; and St. Bart's only complained of losing the ability to generate revenue that would help expand its activities; First Covenant, on the other hand was losing half of the value of its principal asset. Id. For free exercise purposes, these factors do not distinguish St. Bart's persuasively.
92. See note 44.
93. First Covenant II, 840 P2d at 182.
94. Id.
95. Id.
96. Id at 183. The court cites Swaggart (see note 84) to support its claim that “a financial burden on religious activity, if too gross, may unconstitutionally infringe on free exercise.” Id. Compare St. Bart's at note 74.
97. Id.
98. Id.
99. Id at 185.
100. St. Bart's, 914 F2d at 355.
101. See note 82.
102. Id. First Covenant II, 840 P2d at 185. The court did not explain how Smith generated uncertainty. The court's own application of Smith appears straightforward.
103. The Washington Constitution states that: “Absolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.” Wash Const, Art I, § 11.
104. First Covenant II, 840 P2d at 187.
105. Id at 188. In a very recent Washington Court of Appeals decision the facts fell “somewhere between First Covenant and St. Bartholomew's.” First United Methodist v Seattle Landmarks Preservation Bd, 76 Wash App 572, 887 P2d 473, 475 (1995). The court there ruled that a church may be designated, but “the landmarks board cannot restrict modification of the structure in any way unless and until the structure ceases to be used primarily for religious purposes.” Id at 476. Thus, as long as the building is used for religious purposes, neither the interior nor the exterior may be controlled by the landmarks board. Interestingly, the court held that a hardship inquiry would not be an unacceptable government intrusion into church affairs. This seems to be contrary to what the Washington Supreme Court held in First Covenant II concerning the concept of administrative and financial burden. Id at 475 n 5. See First Covenant II, 840 P2d 174, 183.
106. Society of Jesus v Boston Landmarks, 564 NE2d 571 (Mass 1990).
107. Id at 572. The Church is an excellent example of “mid-Nineteenth Century church design.”
108. The Church was feeling the blow of falling attendance and the high costs of maintaining the “aging, oversized building.” Id. Consequently, it planned to turn “the main church into office, counseling and residential space.” Id.
109. Id. The commission's act restricted “permanent alteration of the ‘nave, chancel, vestibule and organ loft on the main floor— the volume, window glazing, architectural detail, finishes, painting, the organ, and the organ case.’” Id.
110. Id.
111. Article 2 of the Massachusetts constitution provides: “[N]o subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.” Mass Const, Pt I, Art 2.
112. Society of Jesus, 564 NE2d at 573.
113. Id.
114. Id.
115. Id at 574.
116. Recall that under the Sherbert line of cases, the burden on free exercise must be substantial before the compelling interest test is applied. Hernandez v Internal Revenue, 490 US 680, 699 (1989).
117. Both Ethical Culture and Barwick were cases decided under the compelling interest analysis; as such, the holdings would be good under RFRA, which seeks to resurrect Sherbert.
118. See note 48 and accompanying text.
119. Tony and Susan Alamo Foundation v Sec. of Labor, 471 US 290 (1989)(holding that recordkeeping and paperwork provisions of the Fair Labor Standards Act did not violate plaintiff's free exercise rights).
120. Swaggart, 493 US at 394–95Google Scholar; Hernandez, 490 US at 699Google Scholar; Alamo Foundation 471 US at 305–06Google Scholar. See Note, Maryland Attorney General Advises Religious Property Not Exempt from Historic Preservation Regulations, 13 Preservation L Rptr 1146, 1149 (1994)Google Scholar.
121. See Note, 13 Preservation L Rptr at 1149 (cited in note 120). The Attorney General cites several cases that have upheld the constitutionality of similar administrative requirements.
122. “Suppose, for example, that a church purchases a structure in a historic district formerly used as a synagogue and wants to replace a Star of David on the facade with a cross. This design change obviously would be grounded in religious belief. A decision by a historic zoning commission to disapprove the application would substantially burden the church's free exercise of religion.” Id at 1150.
123. Lupu, Ira C., Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U Pa L Rev 555, 556 (1991)CrossRefGoogle Scholar.
124. See notes 46-52 and accompanying text.
125. Kurland, Philip B., Of Church and State and the Supreme Court, 29 U Chi L Rev 1, 5 (1961)CrossRefGoogle Scholar.
126. McConnell, Michael W., Accommodation of Religion: An Update and a Response to the Critics, 60 Geo Wash L Rev 685, 692–93 (1992)Google Scholar.
127. Lupu, Ira C., The Trouble With Accommodation, 60 Geo Wash L Rev 743, 772 (1992)Google Scholar.
128. See also Nuechterlein, Jonathan E., The Free Exercise Boundaries of Permissible Accommodation under the Establishment Clause, 99 Yale L J 1127 (1990)CrossRefGoogle Scholar. Nuechterlein notes that “[t]he free exercise principle defines the limits of permissible accommodation under the establishment clause.” Id at 1143.
129. McConnell argues that “accommodations are sometimes required and, within rigorous limitations … are always permitted.” McConnell, , 60 Geo Wash L Rev at 687–688 (cited in note 126)Google Scholar.
130. See notes 116-22 and accompanying text.
131. Walz v Tax Commission, 397 US 664 (1970); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v Amos, 483 US 327 (1987); Texas Monthly, Inc. v Bullock, 489 US 1 (1989).
132. Walz, 397 US at 664.
133. NY Const, Art XVI, § 1 states in pertinent part:
Exemptions from taxation may be granted only by general laws. Exemptions may be altered or repealed except those exempting real or personal property used exclusively for religious, educational or charitable purposes as denned by law and owned by any corporation or association organized or conducted exclusively for one or more such purposes and not operating for profit.
134. Walz, 397 US at 669.
135. Id at 673.
136. Id.
137. Id at 674.
138. In concurrence, Justice Brennan seemed to place more emphasis on the broad scope of the exemption, though he too did not indicate that it was a necessary constitutional condition. He noted that the state could have two secular purposes for granting an exemption to a religious organization:
First, these organizations are exempted because they, among a range of other private, non-profit organizations contribute to the well-being of the community in a variety of nonreligious ways, and thereby bear burdens that would otherwise either have to be met by general taxation, or be left undone, to the detriment of the community…. Second, government grants exemptions to religious organizations because they uniquely contribute to the pluralism of American society by their religious activities. Government may properly include religious institutions among the variety of private, nonprofit groups that receive tax exemptions, for each group contributes to the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society. Id at 687, 689.
139. Id at 676.
140. Id at 678. In dissent, Justice Douglas, citing James Madison, advocated a strict governmental neutrality between religion and non-religion. Douglas found the distinction made by the majority between an unconstitutional subsidy and a constitutional exemption unsatisfying. Noted Douglas:
If believers are entitled to public financial support, so are nonbelievers. A believer and nonbeliever under the present law are treated differently because of the articles of their faith. Believers are doubtless comforted that the cause of religion is being fostered by this legislation. Yet one of the mandates of the First Amendment is to promote a viable, pluralistic society and to keep government neutral, not only between sects, but also between believers and nonbelievers. The present involvement of government in religion may seem de minimis. But it is, I fear, a long step down the Establishment path. Perhaps I have been misinformed. But as I have read the Constitution and its philosophy, I gathered that independence was the price of liberty. Id at 716.
141. Lemon v Kurtzman, 403 US 602 (1971).
142. Lemon involved a state salary supplement to private school teachers, including parochial school teachers. Id at 606-07. Chief Justice Burger, writing for the Court, adopted a three-part test, under which a statute would be found to pass establishment clause muster only if it (1) has a secular legislative purpose, (2) has a principal or primary effect that neither advances nor inhibits religion, and (3) does not lead to excessive entanglement of government and religion. Id at 612-13. This test has been viewed as a refinement of the language employed in Burger's earlier Walz opinion. See Rotunda, and Nowak, , 4 Constitutional Law at § 21.3Google Scholar (cited in note 42); Note, The Parsonage Exclusion Under the Endorsement Test: Last Gasp or Second Wind?, 13 Va Tax Rev 397, 405 (1993)Google Scholar; Note, The Parsonage Allowance Exclusion: Past, Present, and Future, 44 Vand L Rev 149, 166 (1991)Google Scholar.
143. Professor Steven Gey notes that “[a]n honest application of the Lemon test would require a far more rigorous separation of church and state than a majority of the current Supreme Court is willing to enforce.” Gey, Steven G., Religious Coercion and the Establishment Clause, 1994 U Ill L Rev 463, 470 (1994)Google Scholar.
144. Rotunda and Nowak note that “there appears to be an increasing division between the Justices regarding the appropriate standard to be used when determining whether a governmental act violates the establishment clause.” Rotunda, and Nowak, , 4 Constitutional Law at § 21.3Google Scholar (cited in note 42). Justice O'Connor, for example, introduced the “endorsement” approach, under which the Court looks to see if the primary effect of the governmental action is to endorse religion. See, for example, Lynch v Donnelly, 465 US 668, 690 (1984) (O'Connor concurring). Justice Kennedy has advocated a “coercion” test, where an establishment clause violation is found if the governmental action essentially coerces an individual to engage in the religious practice. See, for example, Allegheny County v American Civil Liberties Union, 492 US 573, 659-60 (1989) (Kennedy concurring in part and dissenting in part).
145. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v Amos, 483 US 327 (1987). The appellee was fired from his job at a public, nonprofit gymnasium run by the Mormon Church because he was not eligible for membership in the Church. He sued under Title VII of the Civil Rights Act of 1964, alleging employment discrimination on the basis of religion. The Church defended its actions on the basis of § 702 of the Act, contending that religious organizations were statutorily exempt from its prohibition. The appellee argued that if § 702 were so construed, it was a violation of the Establishment Clause. Id at 329-30.
146. Id at 335.
147. Id. The 1972 amendment to § 702 exempted religious institutions from the statutory ban on religious discrimination with regards to all employment; previously, the exemption had extended only to employment in “religious activities.” Id.
148. Id at 336.
149. Id (citation omitted).
150. Id at 337.
151. Id.
152. Id at 338.
153. Id at 339.
154. Id at 342.
155. Id at 344-45.
156. Id at 349.
157. See notes 16-24 and accompanying text.
158. See note 148 and accompanying text.
159. Carmella, , 34 Cath Law at 52 (cited in note 3)Google Scholar.
160. See notes 154-56 and accompanying text.
161. See note 31.
162. See note 151 and accompanying text.
163. Marshall, William P. and Blomgren, Douglas C., Regulating Religious Organizations Under the Establishment Clause, 47 Ohio St L J 293, 329 (1986)Google Scholar.
164. Weinstein, , 65 Temple L Rev at 157 n 405 (cited in note 4)Google Scholar.
165. Weinstein argues that a blanket exemption for religious institutions from historic preservation ordinances is an establishment clause violation. Id at 157. Amazingly, however, his constitutional analysis ignores Justice White's application of the Lemon test in Amos.
166. See note 150 and accompanying text.
167. See note 164 and accompanying text.
168. See notes 155-56 and accompanying text.
169. This appears to be what Professor Weinstein is driving at when he conclusively notes that, by exempting religious institutions from landmark preservation ordinances, government has “given” religion a “significant advantage.” But the problem is that government has not actually given religion anything. See notes 164-65 and accompanying text.
170. Texas Monthly, 489 US 1 (1989)Google Scholar.
171. Id at 5-6 (citing Tex Tax Code Ann § 151.312 (1982)).
172. Id at 9.
173. Id at 11.
174. See notes 138-40 and accompanying text.
175. Texas Monthly, 489 US at 12. Brennan went to great lengths to make this point in the accompanying footnote, noting that the Court “in no way intimated that the exemption [in Walz] would have been valid had it applied only to the property of religious groups ….” Id n 2 (emphasis in original).
176. Id at 14 (citation omitted).
177. Id at 19 n 8.
178. Id at 15.
179. Professor Mark Tushnet similarly makes the point that the governmental deterrent Brennan speaks of “cannot be so great as to constitute a violation of the free exercise clause, for that would make permissible accommodations available only when they were mandatory, and would thereby eliminate any doctrine of merely permissible accommodations.” Tushnet, Mark, “Of Church and State and the Supreme Court”: Kurland Revisited, 1989 S Ct 373, 389 n 52 (1989)Google Scholar.
180. Texas Monthly, 489 US at 18-19 n 8.
181. Interestingly, it is an anti-accommodationist, Professor Tushnet, that makes a similar point, noting that Brennan intends “an accommodation of religion [to be] permissible in two situations: where the accommodation does not impose substantial burdens on those not exempted, and— apparently independent of the ‘no substantial burden on nonbeneficiaries’ test—where the government's regulation itself makes religious exercise more costly.” Tushnet, 1989 S Ct at 389 (cited in note 179).
182. The examples of permissible religious exemptions provided by Brennan make it clear that constitutionality depends on satisfying either the “no substantial burdens on nonbeneficiaries” prong or the “removal of a burden on religious exercise” prong. Citing Zorach v Clauson, 343 US 306 (1952), Brennan noted that the policy of releasing students early from public school for religious instruction did not impose substantial costs on the nonbeneficiaries, that is, the students who opted not to leave early for religious instruction. He did not address whether the policy also relieved a substantial burden on religious exercise. And in Brennan's only attempt to distinguish Amos, decided just two terms earlier, he argued that while the exemption “did have some adverse effect on those holding or seeking employment with those [religious] organizations …, [the exemption] prevented potentially serious encroachments on protected religious freedoms.” What made the exemption at issue in Amos constitutional, then, was its removal of a burden on religious exercise; the burden imposed on the nonbeneficiaries was not at issue. Texas Monthly, 489 US at 18-19 n 8.
183. Id at 19 n 8.
184. Professor Lupu charitably notes that the two cases reveal “substantial uncertainty” regarding the Court's views on the scope of legislative exemptions for religion. Lupu, 140 U Pa L Rev at 564 (cited in note 123). Justice Scalia, in his Texas Monthly dissent, is somewhat less charitable, noting that he
has no idea how to reconcile [Texas Monthly]… with [Amor] (on which the ink is hardly dry). It is not right — it is not constitutionally healthy — that this Court should feel authorized to refashion anew our civil society's relationship with religion, adopting a theory of church and state that is contradicted by current practice, tradition, and even our own case law. Texas Monthly, 489 US at 45.
185. Id at 14.
186. Id at 16.
187. Id at 27-28.
188. Id at 18-19 n 8. See notes 180-82 and accompanying text.
189. Id at 28. It is particularly odd that Justice O'Connor offered no attempt to distinguish why the tax exemption in Texas Monthly could be seen as an impermissible government “endorsement” of religion, but the exemption from compliance with the anti-employment discrimination statute in Amos was not. See note 156 and accompanying text.
190. See notes 180-82 and accompanying text.
191. See note 180.
192. Carmella, , 34 Cath Law at 48 (cited in note 3)Google Scholar.
193. See notes 155-56 and accompanying text.
194. See notes 176-77 and accompanying text.
195. See, for example, note 164 and accompanying text.
196. The more typical problem confronted by houses of worship in the zoning context is their exclusion from residential districts, or a denial of expansion if they are already there as a valid nonconforming use. The majority rule is that such an exclusion is not a proper exercise of governmental police power; houses of worship are “clearly in furtherance of the public morals and general welfare.” Diocese of Rochester v Planning Board, 136 NE2d 827,836-37 (NY 1956). Other jurisdictions find the zoning ordinance invalid on freedom of religion grounds. “The exclusion of a Church from a residential area by a zoning ordinance is a violation of the fundamental right of freedom of worship protected by the first and fourteenth amendments to the U.S. Constitution ….” Church of Christ v Metropolitan Board of Zoning Appeals, 371 NE2d 1331, 1333-34 (Ind 1978). A minority of jurisdictions hold that houses of worship are subject to the applicable zoning ordinance, in accordance with the comprehensive city plan, like any other structure. For example, the 6th Circuit held in Congregation of Jehovah's Witnesses v City of Lakewood, 699 F2d 303 (6th Cir 1983), that the Congregation's free exercise rights were not abridged by the application of a zoning ordinance that effectively allowed the construction of churches in only 10% of the city, and despite the fact that those sections contained more expensive real estate. See generally, Dennison, Mark S., Zoning of Religious and Educational Uses, in 2 Rathkopf's Law of Zoning at 20–21 to 20–27Google Scholar (cited in note 9) for an excellent summation of the law and a compendium of cases involving religious institutions and zoning issues.
197. Cohen v City of Des Plaines, 8 F3d 484 (7th Cir 1993), cert denied 114 S Ct 2741 (1994).
198. Id at 488 (quoting 742 F Supp 458, 470-71 (1990)).
199. Id at 489. See note 143.
200. The Seventh Circuit first examined the city's purpose behind the exemption, finding that it had “the secular purpose of minimizing governmental meddling in religious affairs notwithstanding that the ordinance does not explicitly state that nursery schools (or day care centers) operated in churches in residential areas must give care or instruction defined as ‘religious.’” 8 F3d at 491. The legislature (or city council) was not required to specify an exemption for “religious” day care only, because religious organizations were not obligated (and courts did not want) to determine what constituted “religious” in the context of activities pursued by religious organizations. The analysis under the “primary effects” prong of Lemon noted that the government was merely removing a burden from religion, not affirmatively advancing religion. Finally, the exemption reduced church-state entanglement. Id at 489-494.
201. See notes 180-182 and accompanying text.
202. Though not asserting that the constitution mandated such an exemption, the court noted the similarity between child-care and educational services, the latter being a constitutionally recognized right in the context of the free exercise clause (citing Wisconsin v Yoder). Cohen, 8 F3d at 492.
203. Id.
204. See notes 155-56 and accompanying text.
205. Recall Brennan's interpretation of Walz in Texas Monthly, where he noted that the breadth of the property tax exemption was what made it constitutionally acceptable. See note 175 and accompanying text.
206. See notes 36-37.
207. Rose, Carol M., Preservation and Community: New Directions in the Law of Historic Preservation, 33 Stan L Rev 473, 483 (1981)CrossRefGoogle Scholar.
208. United States v Gettysburg Electric Railway Co., 160 US 668 (1896).
209. Id at 682 (quoted in Rose, 33 Stan L Rev at 483 (cited in note 207)).
210. Rose, , 33 Stan L Rev at 483 (cited in note 207)Google Scholar.
211. Id at 484. See generally id at 484-488. Charleston, New Orleans, and San Antonio all enacted historic district preservation laws in the 1930's. Id at 505.
212. See, for example, Village of Euclid v Ambler Realty Co., 272 US 365 (1926). The Supreme Court upheld the validity of a zoning ordinance prohibiting industrial establishments from four of the municipality's six “use districts”; such segregation of uses “will increase the safety and security of home life, [and] greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections ….” Id at 394.
213. Professor Costonis argues that courts have understandable difficulty with a legal aesthetics regime based on the notion of “beauty.” Similar difficulty could be imagined with a historic preservation regime based solely on historic or architectural “significance.” Rather, Costonis argues that a more sound basis for legal aesthetics controls rests on notions of individual identity and communal stability. See Costonis, John, Icons and Aliens (U of Illinois Press, 1989)Google Scholar; Costonis, , 80 Mich L Rev at 355 (cited in note 82)CrossRefGoogle Scholar.
214. Rose, , 33 Stan L Rev at 484 (cited in note 207)Google Scholar.
215. See notes 11-12.
216. Professor Rose notes the irony inherent in Berman; the case involved the “condemnation of a structurally sound building inconveniently located in an urban renewal area,” an action the Supreme Court upheld. Rose, , 33 Stan L Rev at 486–487 (cited in note 207)Google Scholar.
217. Id at 488. See also Duerksen, , 2 Rathkopf's Law of ZoningGoogle Scholar (cited in note 9) and accompanying text.
218. Rose cites Jane Jacobs and Kevin Lynch as theorists who focused on “the contribution of the physical environment to the maintenance of community ….” Id at 488-89.
219. Penn Central, 438 US at 104.
220. Id at 129.
221. Stipe, Robert E., Why Preserve?, 11 NC Cent L J 211 (1980)Google Scholar.
222. Id at 213.
223. Lynch, Kevin, The Image of the City 2 (MIT Press, 1960)Google Scholar. Lynch valued highly “the ease with which [a city's] parts can be organized into a coherent pattern,” a notion he termed “legibility.” Id at 2-3.
224. Golding, M. P. and Golding, N. H., Why Preserve Landmarks? A Preliminary Inquiry, in Goodpaster, K. E. and Sayre, K. M., Ethics and Problems of the Twenty-First Century 175 (U Notre Dame Press, 1979)Google Scholar.
225. See generally Costonis, , 80 Mich L Rev 355 (cited in note 82)CrossRefGoogle Scholar.
226. Costonis, , Icons and Aliens at 1Google Scholar (cited in note 213). Lynch terms this concept “imageability.” By this he means “that quality in a physical object which gives it a high probability of evoking a strong image in any given observer,” and which ultimately “gives its possessor an important sense of emotional security.” Lynch, , The Image of the City at 4, 9 (cited in note 223)Google Scholar.
227. Costonis defines an icon as an entity “invested with values that confirm our sense of order and identity.” Costonis, , Icons and Aliens at xvGoogle Scholar (cited in note 213).
228. Golding, and Golding, , Why Preserve Landmarks? at 178Google Scholar (cited in note 224). (“[A] landmark … enables one to achieve an orientation to one's historical or cultural environment.”). See also Gutman, Elizabeth C., Landmarks as Cultural Property: An Appreciation of New York City, 44 Rutgers L Rev 427 (1992)Google Scholar (arguing that the importance of cultural heritage should also be a justification for preservation).
229. Golding, and Golding, , Why Preserve Landmarks? at 187–88Google Scholar (cited in note 224). Landmarks, according to Golding, convey ideals and values in addition to facts. We have an obligation to educate our descendants by preserving buildings, just as we would preserve the natural environment.
230. Rose, , 33 Stan L Rev at 492Google Scholar (cited in note 207). Rose invokes Lynch's idea of “legibility” in explaining that “the new thinking on the substantive aspects of historic preservation suggests that procedures are required by which local residents can be asked about the physical elements that make a community ‘legible.’” Id.
231. Elliott, Jack D., Drinking from the Well of the Past, Historic Pres Forum 26, 24 (05/June, 1994)Google Scholar.
232. Marty, Martin E., The Case for the Preservation and Restoration of Religious Buildings, Historic Pres Forum 12, 19 (05/June, 1992)Google Scholar.
233. Carmella, , 34 Cath Law at 44 (cited in note 3)Google Scholar.
234. For example, Weinstein argues that “Claims that exterior designation [by a landmark ordinance] has intruded upon architectural decisions that implicate theology … may be analyzed by examining the religious substance and motivation involved in each instance.” Weinstein, , 65 Temple L Rev at 158 (cited in note 4)Google Scholar.
235. Id. Weinstein draws on several other commentators who also attempt to separate the religious wheat from the secular chaff. Id at 140-47.
236. This is the point made by Brennan in his Amos concurrence, where he concluded that non-profit status was a suitable proxy for “religious activity.” See note 155 and accompanying text.
237. Society of Jesus, 564 NE2d, 571, 573 (Mass 1990)Google Scholar.
238. Id.
239. Id.
240. Carmella, , 36 Vill L Rev at 449Google Scholar (cited in note 2). Prof. Carmella provides a thorough analysis of the historical ties between architecture and theological development, using many historical references. Some interior alterations require exterior modifications. For example, after the Second Vatican Council, Catholic Church architecture changed to reflect the new emphasis on parishioner involvement in worship.
241. See notes 41-115 and accompanying text.
242. See notes 116-22 and accompanying text.
243. Marty, Historic Press Forum at 17 (cited in note 232).
244. Trustees of Sailors' Snug Harbor v Platt, 29 AD2d 376 (NY App Div 1968).
245. Id at 378. The court then enunciated the elements to be examined in the application of the test. “In this instance the answer would depend on the proper resolution of subsidiary questions, namely, whether the preservation of these buildings would seriously interfere with the use of the property, whether the buildings are capable of conversion to a useful purpose without excessive cost, or whether the cost of maintaining them without use would entail serious expenditure—all in the light of the purposes and resources of the petitioner.” Id.
246. Lutheran Church in America v City of New York, 316 NE2d 305, 311 (NY 1974).
247. Id at 312.
248. Ethical Culture, 415 NE2d 922. See note 48 and accompanying text.
249. Id at 925.
250. The confusion and arbitrariness that results from such inquiries can easily be discerned from the holdings in the free exercise cases discussed above in notes 48-115 and accompanying text.
251. The court simply stated that “[a]lthough the Society is concededly entitled to First Amendment protection as a religious organization, this does not entitle it to immunity from reasonable government regulation when it acts in purely secular matters.” Ethical Culture, 415 NE2d at 926 (cited in note 48).
252. First Covenant I, 787 P2d at 1365.
253. St. Bartholomew's Church v City of New York, 728 F Supp 958, 966-67 (SDNY 1989).
254. As Richard Roddewig explains:
The TDR concept is simple: any untapped development potential on a landmark site is allowed to be transferred to another parcel of land. For example, if a designated landmark is only four stories tall and contains 40,000 square feet but is in a zoning classification that would allow a 40-story building containing 100,000 square feet to be built, the owners of the landmark under a transfer of development rights ordinance would be allowed to transfer or sell the unused development potential to the developer of another site.
Roddewig, Richard J., Preparing a Historic Preservation Ordinance 27 (American Planning Assoc, 1983)Google Scholar.
255. Haar, , et al, Transfer of Development Rights: A Primer, in Haar, Charles M. and Wolf, Michael A., Land Use Planning 273, 275 (Little Brown, 4th ed, 1989)Google Scholar.
256. Id.
257. Kass, Stephen L., et al, Rehabilitating Older and Historic Buildings: Law Taxation Strategies § 5.3 (John Wiley and Sons, 1985)Google Scholar.
258. Examples include groups such as Partners for Sacred Places, a Philadelphia-based group, whose mission is to create coalitions of local religious leaders and community leaders for the purpose of rehabilitating aging religious properties. Partners has published a book titled The Complete Guide to Capital Campaigns for Historic Churches and Synagogues. Another such group is Inspired Partnerships, headquartered in Chicago, which along with Partners has sponsored national conferences devoted to issues of landmarking religious property. Levinson, Nancy, Getting Out in the Field and Spreading the Word, Historic Preservation News 10 (06, 1991)Google Scholar.
Private foundations, like the Lilly Endowment, may also donate to preservation efforts. Aprile, Dianne, Honoring the Collective Soul, Historic Preservation News 8, 9 (02/March, 1995)Google Scholar. In addition, the New York Landmarks Conservancy publishes “Common Bond,” a newsletter devoted to the landmarking of religious property.
259. This language is taken from the New York City Landmark Preservation Law, § 205-1.0b, cited in Anderson, Robert M., 5 American Law of Zoning § 32.89 at 202 (Lawyer's Co-operative, 3d ed, 1986)Google Scholar.
260. Aprile, Historic Preservation News at 10 (cited in note 258).