Churches as Historic Landmarks

Key point. Restriction of a church's ability to demolish or renovate its sanctuary as a result of a local "landmarks" law may violate the church's first amendment right to freely exercise its religion.

A federal court in Maryland ruled that a church's first amendment right to the free exercise of religion was violated by a city "landmarks" ordinance that barred the church from demolishing an old chapel to construct a new facility. A Catholic church sought to replace its old chapel, which was in disrepair, with smaller, modern facilities, and to add gardens and a parking lot. Because the chapel was part of the city's historic district, the church could not demolish the chapel without first securing permission from a city "historic preservation commission." The church's application for permission was denied by the commission, and the church sued the city arguing that the commission's actions violated its constitutional right to the free exercise of religion. In particular, the church argued:

The Archdiocese of Baltimore and the [parish] have a religious obligation to place the spiritual needs of the faithful entrusted to their care above concern for the preservation of a dilapidated building …. Based on their religious beliefs regarding worship, ministry, education, association, and expression, [the parish] wishes to demolish [the chapel] …. Demolition … is the cornerstone of the parish's plans to improve worship … to increase accessibility to worship and other religious services for the handicapped, elderly and other parishioners, and to use its property as an expression of religious belief.

Church officials submitted affidavits asserting that (1) the chapel is "ecclesiastical property that must be administered in pursuit of the proper ends of the church"; (2) under church law "property may not be amassed for its own sake or to serve purely secular goals, but must be used to serve in meeting the spiritual needs of the people"; and (3) "the construction and renovation plans [of the parish] are motivated by our sincerely—held Catholic beliefs regarding worship, ministry, association, education, expression and church administration." Numerous parishioners also submitted affidavits explaining that the existing building failed to satisfy the needs of the congregation, and that the new construction was crucial to the spiritual growth of the parish.

The court concluded that this evidence demonstrated conclusively that the church's decision to demolish the chapel "involves the exercise of the Roman Catholic faith and implicates first amendment free exercise principles." The court conceded, however, that according to the Supreme Court's 1990 decision in the Smith case the church's first amendment rights would not be violated by a "neutral law of general applicability." It referred to a 1993 Supreme Court decision in which the Court observed:

a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the first amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

The city insisted that the landmarks ordinance was a neutral law of general applicability, and therefore was valid without the need for demonstrating a compelling government interest. The court disagreed. It emphasized the fact that the landmarks ordinance had a series of exemptions, making it "significantly different" from the "across—the—board" neutral law of general applicability addressed in the Smith case. Unlike the law in Smith , the landmarks ordinance "has in place a system of individual exemptions" demonstrating a "legislative judgment that the city's interest in historic preservation should, under certain circumstances, give way to other interests." The court then stressed that the Supreme Court in Smith

recognized that where the government enacts a system of exemptions, and thereby acknowledges that its interest in enforcement is not paramount, then the government "may not refuse to extend that system [of exemptions] to cases of religious hardship without compelling reason." Accordingly, the city's zoning regulation is not entitled to enforcement under the principles set forth in Smith. As a "law restrictive of religious practice," the [landmarks ordinance] must instead "advance interests of the highest order and be narrowly tailored in pursuit of those interests."

The court concluded that the city failed to demonstrate such a compelling government interest, and therefore its refusal to permit the church to demolish its chapel amounted to a violation of the first amendment.

What this means for churches

This case is important. As the Supreme Court observed in the Smith case, the constitutionality of a law that burdens religious practice depends to a large extent on the "neutrality" of the law with respect to religion. As a result, as the Supreme Court noted in Smith , "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has an incidental effect of burdening a religious practice."

However, a law that burdens religious practice must be supported by a compelling government interest if it: (1) is not neutral toward religion; (2) is not of general applicability; or (3) contains exemptions that do not apply to religious practice. The city landmarks ordinance, by containing exemptions that did not cover religious institutions, could not adversely impact religious practice without a compelling government interest. This is an argument that apparently was not made in the Supreme Court's recent decision striking down the Religious Freedom Restoration Act (see the feature article in this issue). Keeler v. Mayor and City Council, 940 F. Supp. 879 (D. Md. 1996).