Pastor, Church & Law


§ 7.10

Key point 7-10. Several cities have enacted ordinances permitting certain buildings to be designated as “landmarks” because of their historical or cultural significance. Buildings designated as landmarks generally may not be demolished or renovated without government approval. The Supreme Court has ruled that such laws do not violate a church’s First Amendment right to the free exercise of religion.

A number of municipalities have enacted ordinances designed to protect and preserve buildings having historic or cultural significance. Such ordinances often are referred to as “landmark” laws. Occasionally, municipalities attempt to block the sale or demolition of church property on the basis of landmark ordinances. Of course, churches respond by claiming that use of a landmark law in such a context violates the First Amendment’s guaranty of religious freedom. To illustrate, a federal appeals court ruled that a New York City “landmark” law that prevented a church from developing its property did not violate any of the church’s constitutional rights.193 Rector, Wardens, and Members of the Vestry of St. Bartholomew’s Church v. City of New York, 914 F.2d 348 (2nd Cir. 1990).St. Bartholomew’s Church is a Protestant Episcopal Church located in New York City. The church sanctuary was constructed in 1919. Next to the sanctuary is a 7-story community house built by the church in 1928. The community house provides a variety of services, including athletic facilities, a theater, a preschool, meeting rooms, office space, and sleeping quarters for the homeless. In 1967, the church and community house were designated as “landmarks” by the city, meaning that they could not be demolished without city approval. The city may grant approval if it finds that a failure to do so would “seriously interfere” with a charity’s ability to carry out its purposes.

In 1983, the church sought permission to tear down the community house and erect in its place a 59-story office tower. This application was denied by the city as inappropriate. In 1984, the church sought permission to tear down the community center and build a 47-story office tower. This application was also denied. The church claimed that the denial of its request to demolish its community center and construct an office building violated its constitutional rights. In particular, it claimed that as a result of the city’s actions it could no longer carry out its religious mission and charitable purpose because the existing facility was no longer adequate and the church could not afford the sums necessary to remodel the present building to make it adequate. The court rejected the church’s claim that the city’s actions violated the First Amendment’s guaranty of religious freedom, or the Fifth Amendment prohibition of a “taking” of the church’s property without “just compensation.” The court acknowledged that applying the landmarks law to the church “has drastically restricted the church’s abilities to raise revenues to carry out its various charitable and ministerial programs.” However, this burden did not constitute a violation of the First Amendment’s guaranty of religious freedom. The court emphasized that decisions of the United States Supreme Court have clarified that “neutral regulations that diminish the income of a religious organization do not implicate the free exercise clause.” The First Amendment is violated only if “the claimant has been denied the ability to practice his religion or coerced in the nature of those practices.”

The court also rejected the church’s claim that the landmark law so severely restricted its ability to use its property that it constituted a confiscation of property without just compensation in violation of the Fifth Amendment to the United States Constitution. The Fifth Amendment specifies “nor shall private property be taken for public use without just compensation.” The court observed:

[T]he constitutional question is whether the land-use regulation impairs the continued operation of the property in its originally expected use. We conclude that the landmarks law does not effect an unconstitutional taking because the church can continue its existing charitable and religious activities in its current facilities. Although the regulation may freeze the church’s property in its existing use and prevent the church from expanding or altering its activities, [Supreme Court rulings] explicitly permit this. … [T]he deprivation of commercial value is palpable, but … it does not constitute a taking so long as continued use for present activities is viable.194 Id. at 356-357.

A number of other courts have addressed the application of landmarking laws to religious congregations. Selected cases are illustrated by the following examples.

Case studies

  • 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. The court concluded 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.” But the court concluded that the landmarks law was not such a law. It emphasized the fact that the landmarks ordinance “had a series of 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 referred to the Supreme Court’s conclusion in the Smith case 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.” The court concluded that the city failed to demonstrate such an interest, and therefore its refusal to permit the church to demolish its chapel amounted to a violation of the First Amendment.195 Keeler v. Mayor and City Council, 940 F. Supp. 879 (D. Md. 1996).
  • The Massachusetts Supreme Judicial Court ruled that the City of Boston could not declare a church’s interior as a “landmark.” Faced with an aging, oversized building, the leaders of a Catholic church adopted a plan to renovate the facility into office, counseling, and residential space. When work began, ten citizens asked the city to designate the interior of the church as a landmark. The city approved the citizens’ request, and prohibited 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 organ case.” Church leaders filed a lawsuit, claiming that their constitutional right to freely exercise their religion was violated by the city’ action. The court agreed, citing the state constitution’s guaranty of religious freedom. In rejecting the city’s claim that it was merely addressing a “secular question of interior design,” the court observed that “the configuration of the church interior is so freighted with religious meaning that it must be considered part and parcel of [Catholic] religious worship.” The court concluded that the state constitution “protects the right freely to design interior space for religious worship, thus barring the government from regulating changes in such places, provided that no public safety question is presented.”196 Society of Jesus v. Boston Landmarks Commission, 564 N.E.2d 571 (Mass. 1991).
  • The Washington Supreme Court ruled that a municipal landmarking law violated a church’s constitutional right to religious freedom. The city of Seattle adopted an ordinance giving the city authority to declare any building to be a landmark. The ordinance was designed to preserve and protect those sites reflecting significant elements of the city’s cultural or historic heritage. Buildings designated as a landmark by the city could not be structurally altered without city approval. The city designated a church to be a landmark, and the church sued the city arguing that the landmarks ordinance violated the church’s constitutional right to freely exercise its religion. Specifically, the church claimed that its designation as a landmark impaired its religious freedom in the following ways: (1) city approval and bureaucratic “red tape” would be required prior to making any structural alterations in the sanctuary; (2) a secular government had the authority to grant or deny a church’s request to develop its worship facility; (3) the value of the church property was decreased significantly by the landmark designation; and (4) the ability of the church to sell its property was diminished. The court agreed with the church’s position. It concluded that the city’s landmark law placed a substantial burden on the church’s religious practices, and that no compelling governmental interest justified the burden: “The practical effect of the [ordinance] is to require a religious organization to seek secular approval of matters potentially affecting the church’s practice of its religion.” This “creates unjustified governmental interference in religious matters of the church and thereby creates an infringement on the church’s constitutional right of free exercise.” The court concluded: “We hold that the preservation of historical landmarks is not a compelling state interest. Balancing the right of free exercise [of religion] with the aesthetic and community values associated with landmark preservation, we find that the latter is clearly outweighed by the constitutional protection of free exercise of religion and the public benefits associated with the practice of religious worship within the community.”197 First Covenant Church v. City of Seattle, 787 P.2d 1352 (Wash. 1990). This ruling was “vacated” by the United States Supreme Court as a result of its ruling in Employment Division v. Smith, 110 S. Ct. 1595 (1990). But the Washington state supreme court, upon reconsideration, again concluded that the city’s landmarking law violated the church’s constitutional right to religious freedom. 840 P.2d 174 (Wash. 1992). See also First United Methodist Church v. Hearing Examiner, 916 P.2d 374 (Wash. 1996), in which the Washington state supreme court concluded that the mere designation of a church as an historic landmark violated the constitutional rights of churches that were opposed to such a designation.
  • The City of Boerne Case

    In 1997 the United States Supreme Court upheld the validity of the landmark law of Boerne, Texas, though the law prohibited an historic church from expanding to accommodate its growing membership. The church claimed that the law violated its rights under the Religious Freedom Restoration Act. The Court concluded that this Act was an unconstitutional attempt by Congress to amend the Constitution by changing the meaning of the guaranty of religious freedom.198 City of Boerne v. Flores, 117 S. Ct. 2157 (1997). See also section 7-06.4 for a full analysis of this ruling.

    The Supreme Court ruled in 1990 that “neutral laws of general applicability” are presumably valid even though they burden the free exercise of religion.199 Employment Division v. Smith, 110 S. Ct. 1595 (1990).The government need not demonstrate that such laws further a “compelling interest.” In most cases, a landmarking law will be a neutral law of general applicability, and as a result is presumably valid without the need to prove a compelling government interest. This makes such laws very difficult to challenge.
    However, the Supreme Court observed in its 1990 ruling that the compelling government interest test is triggered if a neutral and generally applicable law burdens not only the exercise of religion, but also some other First Amendment right (such as speech, press, or assembly). The compelling government interest requirement makes it much more difficult for a city to defend a landmarking law that infringes upon the exercise of religion. The Court observed: “The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the free exercise clause alone, but the free exercise clause in conjunction with other constitutional protections, such as freedom of speech and of the press. …”

    In other words, if a neutral and generally applicable law burdens the exercise of religion, then the compelling governmental interest standard can be triggered if the religious institution can point to some other First Amendment interest that is being violated. In many cases, this will not be hard to do. For example, the First Amendment guaranties of “assembly” and free speech often will be burdened by the designation of a church as a landmark. The Washington state supreme court reached this conclusion, finding that the application of a landmark law to a church (against its will) violated the church’s constitutional rights of speech and religion and therefore could be sustained only if it furthered a compelling governmental interest. No such interest existed, the court concluded.200 First United Methodist Church v. Hearing Examiner, 916 P.2d 374 (Wash. 1996).

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