1 Hillary Rodham Clinton, Preserving America’s Story, in Saving America’s Treasures 7, 8 (Dwight Young ed., 2001).
2 U.S. Const. amend. I; Gregg Ivers, Redefining the First Freedom: The Supreme Court and the Consolidation of State Power 133 (1993).
3 Braunfeld v. Brown, 366 U.S. 599, 606 (1961) (articulating that there were almost 300 religious denominations in the United States in 1961); cf. Employment Div. v. Smith, 494 U.S. 872, 888 (1990) (stating that the current diversity of religious beliefs prevents the Court from granting exemptions to neutral laws that incidentally burden religion).
4 See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 207 (1972) (“[W]e granted the writ of certiorari in this case to review a decision . . . holding that respondents’ convictions of violating the State’s compulsory school attendance law were invalid under the Free Exercise Clause.”); Braunfeld, 366 U.S. at 600 (“This case concerns the constitutional validity of the application to appellants of the Pennsylvania criminal statute, enacted in 1959, which proscribes the Sunday retail sale of certain enumerated commodities.”).
5 Compare Angela C. Carmella, Houses of Worship and Religious Liberty: Constitutional Limits to Landmark Preservation and Architectural Review, 36 Vill. L. Rev. 401, 402 (1991) (arguing for the exemption of historic religious properties from preservation ordinances in all cases because the ordinances infringe upon the free exercise of religion), with Laura S. Nelson, Remove Not the Ancient Landmark: Legal Protection for Historic Religious Properties in an Age of Religious Freedom Legislation, 21 Cardozo L. Rev. 721, 730 (1999) (arguing for a denial of exemptions to preservation laws for religious property owners because of the detrimental effect it will have on communities).
6 See Alan C. Weinstein, The Myth of Ministry v. Mortar: A Legal and Policy Analysis of Landmark Designation of Religious Institutions, 65 Temp. L. Rev. 91, 93 (1992).
7 See infra notes 62–63 and accompanying text.
8 See, e.g., St. Bartholomew’s Church v. City of New York, 914 F.2d 348, 353 (2d Cir. 1990).
9 See, e.g., id.
10 See, e.g., id. at 354.
11 See infra notes 187–271 and accompanying text.
12 Compare St. Bartholomew’s, 914 F.2d at 354 (holding that the New York Landmarks Law is a neutral law of general applicability under Smith), with First Covenant Church v. City of Seattle, 840 P.2d 174, 180 (Wash. 1992) (holding that the Seattle Preservation Ordinance is neither neutral nor generally applicable under Smith).
13 See infra notes 272–294 and accompanying text.
14 See infra notes 272–294 and accompanying text.
15 See infra notes 272–294 and accompanying text.
16 See infra notes 22–67 and accompanying text.
17 See infra notes 22–67 and accompanying text.
18 See infra notes 68–160 and accompanying text.
19 See infra notes 111–160 and accompanying text.
20 See infra notes 161–271 and accompanying text.
21 See infra notes 272–355 and accompanying text.
22 Christopher J. Duerksen & David Bonderman, Preservation Law: Where It’s Been, Where It’s Going, in Handbook on Historic Preservation Law 1, 1–2 (Christopher J. Duerksen ed., 1983). Typical of these early preservation efforts was the work of Pamela Sue Cunningham, who, in 1853, chartered the Mount Vernon Ladies’ Association to acquire the deteriorating Mt. Vernon. Id. By appealing to other women with means and patriotic fervor, Cunningham raised enough money to purchase and restore George Washington’s home. See id.
23 Id. at 2. In 1816, the City of Philadelphia paid $70,000 to purchase the old state capitol known to Americans today as Independence Hall. Id. The nation at that time was much more interested in expansion and development than preservation because it was still dealing with creating a stronghold on what was a newly settled continent. See Carol M. Rose, Preservation and Community: New Directions in the Law of Historic Preservation, 33 Stan. L. Rev. 473, 474 (1981). In the nineteenth century, the federal government’s preservation efforts were focused on the natural environment and ancient Native American sites. Norman Tyler, Historic Preservation: An Introduction to Its History, Principles, and Practice 35 (2000). Congress designated Yellowstone National Park a protected area in 1872, and, in 1889, Congress designated the Casa Grande ruin in Arizona as the nation’s first National Monument. Id. In 1888, Congress established Mesa Verde National Park to preserve the area’s ancient cliff dwellings. Id.
24 Tyler, supra note 23, at 35.
25 160 U.S. 668, 683 (1896). The Court reasoned that the national character and importance of the site mandated efforts to “show a proper recognition of the great things that were done there on those momentous days.” Id. at 682. The Justices were not considering the constitutionality of historic preservation ordinances that regulate the use of the property of private citizens; rather, the Court ruled on whether preservation was a valid purpose for which Congress could exert its power of eminent domain. Id. at 680–81.
26 See Tyler, supra note 23, at 37–38. In his attempts to preserve Colonial Williamsburg, Dr. William Goodwin attracted the attention of John D. Rockefeller by stating, “Williamsburg is the one remaining colonial village any man could buy.” Id. (quoting George Humphrey Yetter, Williamsburg Before and After: The Rebirth of Virginia’s Colonial Capital 51 (1996)). Williamsburg was saved only because Rockefeller found the idea of purchasing and restoring an entire colonial village intriguing. See id. Similarly, in 1929, Henry Ford used his wealth to bring an entire community of historic structures to Dearborn, Michigan, and he rebuilt them at a site named Greenfield Village. Id.
27 272 U.S. 365, 396–97 (1926) (holding that the zoning ordinance passed by the village that prevented a realty company from using its property for commercial purposes and reduced the land value by ninety percent was a valid use of the police power); Daniel T. Cavarello, From Penn Central to United Artists’ I & II: The Rise to Immunity of Historic Preservation Designation from Successful Takings Challenges, 22 B.C. Envtl. Aff. L. Rev. 593, 599–600 (1995).
28 See Cavarello, supra note 27, at 599–600. In 1931, Charleston, South Carolina passed the first historic preservation ordinance providing for design control and architectural review in the antebellum section of the city, and other cities slowly followed suit. Duerksen & Bonderman, supra note 22, at 6.
29 348 U.S. 26, 33 (1954) (upholding as a valid exercise of the police power Congress’s exercise of eminent domain over various areas of urban blight in Washington D.C. in an attempt to redevelop the neighborhoods). Notably, Berman states:
The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. . . . If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.
Id. (citations omitted).
30 See Rose, supra note 23, at 480. The modern preservation movement stresses the “sense of place” that older structures lend to a community, giving citizens orientation and a “sense of familiarity” in their surroundings. See id.
31 See id. at 488. The shattered and abandoned inner-city neighborhoods that resulted from these projects forced the government to consider and evaluate the changing nature of America’s cities. See id. at 488–89; see also Duerksen & Bonderman, supra note 22, at 8–9.
32 See Duerksen & Bonderman, supra note 22, at 9 (“Out of the turbulence of building, tearing down and rebuilding the face of America, more and more Americans have come to realize that as the future replaces the past, it destroys much of the physical evidence of the past.” (quoting U.S. Conference of Mayors, With Heritage So Rich, 204 (1966))). McKim, Mead and White built Pennsylvania Station from 1905 to 1911 and it was the largest building since the pyramids constructed in a continuous operation. Leland M. Roth, A Concise History of American Architecture 195 (1979).
33 16 U.S.C. �� 470–470x (2000) “[T]he preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans.” Id. � 470(b)(4).
34 See infra notes 35–40 and accompanying text; see also Tyler, supra note 23, at 44–45.
35 See 16 U.S.C. �� 470–470x.
36 Id. � 470a(1)(a). Listing on the National Register enables owners of historic properties to apply for federal grants to aid in the preservation of the property, and it also notifies the federal government of what areas and structures they must treat sensitively when forging ahead with government sponsored-projects. See Tyler, supra note 23, at 47. Listing, however, does not in any way restrict the rights of private property owners in the use of their land. Id.
37 16 U.S.C �� 470i–j; see also Advisory Council on Historic Preservation, Section 106 Regulations Summary (2001), at http://www.achp.gov/106summary.html. The Advisory Council, in what is known as the Section 106 review process, reviews the impact government action will have on historic structures and provides opportunity for interested parties to comment. Id. Even if the Council finds adverse effects, it cannot mandate the project to stop; if the project goes forward, the Council works with state officials to minimize the impact on historic properties. Id. For more information on Section 106 implementing regulations and court opinions about compliance with Section 106, see Adina W. Kanefield, Advisory Council on Historic Preservation, Federal Historic Preservation Case Law, 1966–1996: Thirty Years of the National Historic Preservation Act 10–32 (1996).
38 16 U.S.C. � 470a(b)–(c). SHPOs have several roles: 1) to conduct a survey of historic properties and sites throughout the state; 2) to process nominations to the National Register; 3) to administer federal grants to individual projects within the state; and 4) to advise the regulations of local agencies. Tyler, supra note 23, at 52–53.
39 Tyler, supra note 23, at 52–54.
40 Id. at 54–55.
41 Id. at 66. Preservation commissions grant “landmark” status to individual buildings whereas “historic district” designation affects all the buildings in a prescribed area. Weinstein, supra note 6, at 99.
42 See, e.g., Chi., Ill., Mun. Code ch. 2-120 (1987), available at http://www.cityofchi-cago.org/Landmarks/pdf/Landmarks_Ordinance.pdf. The Chicago Landmarks Commission considers various criteria to determine a building’s eligibility for landmark status including if: 1) it is a critical part of Chicago’s heritage; 2) it is the site of a significant event; 3) it is associated with a significant person; 4) it is considered important architecture; 5) it was designed by an important architect; and 6) it has unique visual features. Id. at � 620.
43 See, e.g., id. at � 2-120-740 (“No permit for alteration, construction, reconstruction, erection, demolition, relocation or other work shall be issued to any applicant . . . without the written approval of the Commission . . . .”).
44 See, e.g., New York City, N.Y., Admin. Code � 25-311 (West, WESTLAW through Local Law 47 of 2002 and Chapter 698 of the Laws of New York for 2002) (stating that the owner of a landmarked building or building in a historic district must “keep in good repair (1) all of the exterior portions of such improvement and (2) all interior portions thereof, which if not so maintained, may cause or tend to cause the exterior portions . . . to deteriorate, decay or become damaged”).
45 See Weinstein, supra note 6, at 105.
46 See id.
47 See Duerksen & Bonderman, supra note 22, at 13 (“Even though more and more cities and towns were enacting local preservation ordinances, there were still gnawing doubts about whether the U.S. Supreme Court would uphold preservation restrictions.”).
48 See 438 U.S. 104, 138 (1978).
49 Id. at 122.
50 Id. at 116–17. The Commission rejected two separate proposals offered by architect Marcel Breuer for altering Grand Central Station. Id. at 116. The first consisted of a fifty-five story office tower resting on the roof of the terminal, and the second proposed a fifty-three story office tower and the destruction of various portions of the station’s facade. Id. at 117.
51 Id. at 119.
52 Id. at 124 (articulating the Court’s inability to develop a “set formula” when determining whether the adverse economic effects of government regulation require just compensation).
53 Penn Central, 438 U.S. at 138. The Court emphasized that the Landmarks Law in no way interfered with the current use of the terminal and what must have been the owner’s primary expectation of income. Id. at 136. In addition, the transferred air rights under New York City’s transferable development rights program would allow for the construction of an office tower on several adjoining properties. Id. at 137.
54 See infra notes 55–63 and accompanying text.
55 Penn Central, 438 U.S. at 129.
56 Id. at 108.
57 Id. at 132.
58 Id.
59 Id. at 133–34.
60 Penn Central, 438 U.S. at 136 (highlighting that the Landmarks Law left Penn Central with a “reasonable return on its investment”).
61 See id. at 136–38.
62 See Tyler, supra note 23, at 51 (“Preservation also became an important tool of urban revitalization during this period.”); Rose, supra note 23, at 513 (“It is only recently that historic districts have been viewed as potential contributors to urban revitalization. Whether or not these hopes are well-founded, they are a major force behind the burgeoning numbers of local districts created in the past ten years.”); Elizabeth Williamson, City of Boerne v. Flores and the Religious Freedom Restoration Act: The Delicate Balance Between Religious Freedom and Historic Preservation, 13 J. Land Use & Envtl. L. 107, 148–49 (1997). But see Rose, supra note 23, at 513 (articulating concerns that, just like earlier federally funded urban renewal projects, the impact of this “revitalization” works to displace low-income community residents).
63 See Tyler, supra note 23, at 51–52; Williamson, supra note 62, at 149–51. See generally Barbara Baer Capitman, Deco Delights: Preserving the Beauty and Joy of Miami Beach Architecture (1988). The preservation and restoration of numerous art deco hotels and buildings in the 1980s was the impetus for the economic revitalization of Miami Beach, Florida—a world-famous tourist destination. Id.
64 See Nelson, supra note 5, at 725 (stating that religious properties in particular need protection because they “serve as historic and architectural focal points in their communities”).
65 See Weinstein, supra note 6, at 93.
66 See id. at 94.
67 See infra notes 68–160 and accompanying text.
68 U.S. Const. amend. I.
69 Timothy L. Hall, Separating Church and State: Roger Williams and Religious Liberty 124 (1998) (quoting Letter from Thomas Jefferson to Messrs. Nehemiah Dodge and Others, a Committee of the Danbury Baptist Association (Jan. 1, 1802) [hereinafter Jefferson’s Letter]); Ivers, supra note 2, at 133.
70 Ivers, supra note 2, at 133.
71 See Reynolds v. United States, 98 U.S. 145, 163–64 (1878) (discussing works by Madison and Jefferson in determining the scope of the Free Exercise Clause); see also Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1449 (1990). But see Hall, supra note 69, at 117 (“This Jeffersonian dominance of First Amendment theory is historically untenable.”). Conceding that Jefferson and Madison played a role in the development of First Amendment theory, Hall argues that the contributions of Roger Williams and others voicing evangelical dissent contributed more to the First Amendment than those relying on humanistic or Enlightenment rationalism. See id.
72 See McConnell, supra note 71, at 1421, 1499.
73 Id. at 1424–25. George Calvert, a Catholic proprietor, founded Maryland as a haven for Roman Catholics; Roger Williams, a Protestant dissenter kicked out of Massachusetts, founded Rhode Island for those similarly situated; and William Penn founded Pennsylvania and Delaware as havens for Quakers. Id. All four colonies extended religious freedom to groups other than their own. Id. In contrast, Massachusetts and Virginia set up state-sponsored churches, Congregationalism and Anglicanism, respectively, and actively persecuted religious dissidents. Id. at 1423–25.
74 Hall, supra note 69, at 124–25, 135; McConnell, supra note 71, at 1430–31, 1449.
75 See Hall, supra note 69, at 118–19, 125, 133–35.
76 Id. at 125–28 (discussing Jefferson’s Virginia Bill for Establishing Religious Freedom that described religious liberty in reference to belief and opinions and not acts and conduct); McConnell, supra note 71, at 1451–52 (“Jefferson espoused a strict distinction between belief, which should be protected from governmental control, and conduct, which should not.”). Jefferson failed to consider that a legislature could regulate in a way that might harm the individual conscience probably because his own religious beliefs were grounded in the rationalist philosophies of the Enlightenment, which did not require observances or actions that government regulation would affect. See Hall, supra note 69, at 130–31.
77 In a letter to Madison, Jefferson wrote that “the declaration that religious faith shall be unpunished, does not give impunity to criminal acts dictated by religious error.” Hall, supra note 69, at 130–31 (quoting Letter from Thomas Jefferson to James Madison (July 31, 1788), in The Papers of Thomas Jefferson 442–43 (Julian P. Boyd ed., 1950)). Thus, Jefferson felt any conflict between religious conduct and government prohibitions could result only from religious error, not religious conviction. See id.
78 See McConnell, supra note 71, at 1452–53. In a letter to William Bradford, Madison expressed his frustration at the jailing of several men for publishing their religious beliefs. Id. Madison’s convictions contrasted sharply with those of Jefferson, whose writings never seemed to show compassion towards those who vigorously advocated their faith. See id.; see also Hall, supra note 69, at 133.
79 See Hall, supra note 69, at 135. Hall argues that Madison’s conception of religious liberty more closely resembled that of Roger Williams than that of Jefferson, because Madison advocated freedom “for religion,” whereas Jefferson advocated freedom “from religion.” Id. Madison, like Williams, believed that religious beliefs and actions required protection, not simply isolation, from the secular concerns of civil governments. Id. For further discussion of this ideological schism, which has continued into the present day, see generally Ira C. Lupu, The Distinctive Place of Religious Entities in Our Constitutional Order, Vill. L. Rev. 37, 51–78 (2002) (discussing the Neutralist and Separationist views of the religion clauses and how subscribers of each ideology perceive certain Free Exercise and Establishment Clause cases and issues).
80 See McConnell, supra note 71, at 1449, 1455.
81 See U.S. Const. amend. I.
82 McConnell, supra note 71, at 1455.
83 98 U.S. at 164 (quoting excerpts from Jefferson’s Letter, supra note 69, stating: “Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.”).
84 Id. at 161–62.
85 Id. at 164.
86 See id. at 166. The Court introduced a parade of horribles to support its decision, implying that if the Court could not enforce the polygamy law, it in turn would not be able to prevent human sacrifice if done with a religious motive. See id. A Mormon exemption for polygamy, concluded the Court, would elevate religious conduct to a status above the law, and “permit every citizen to become a law unto himself.” Id. at 167. For more information about the Church of Jesus Christ of Latter-day Saints, see generally Mormons and Mormonism: An Introduction to an American World Religion (Eric A. Elinson ed. 2001).
87 Reynolds, 98 U.S. at 165 (“From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity.”).
88 See id. at 166.
89 Terry Eastland, Introduction to Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State 1, 1 (Terry Eastland ed., 1993).
90 310 U.S. 296, 303, 307 (1940) (holding that the conviction of a Jehovah’s Witness under a Connecticut statute forbidding unlicensed solicitation of funds was a burden on his free exercise of religion). The Court concluded that the Fourteenth Amendment’s Due Process Clause incorporated the protections of the Free Exercise Clause and made them applicable to the states. Id. For more information about Jehovah’s Witnesses, see generally Andrew Holden, Jehovah’s Witnesses: Portrait of a Contemporary Religious Movement (2002).
91 See Eastland, supra note 89, at 1 (articulating that the limited role the federal government played in the lives of American citizens provided few opportunities for federal action to burden religious conduct).
92 See, e.g., Braunfeld v. Brown, 366 U.S. 599, 603–04 (1961) (upholding mandatory Sunday closing laws against a challenge by Orthodox Jewish shopkeepers whose Sabbath was Saturday because the closing laws served a secular government purpose). For more information about Orthodox Judaism, see generally Murray Herbert Danzger, Returning to Tradition: The Contemporary Revival of Orthodox Judaism (1989).
93 See Eastland, supra note 89, at 6 (“The rational-basis test, which in most cases government can easily satisfy, virtually closed the door to constitutionally compelled exemptions that might be carved out by federal courts—until 1963, that is, when in Sherbert v. Verner the Court changed its mind.”).
94 See id.; see also infra notes 95–110 and accompanying text.
95 374 U.S. 398, 406 (1963).
96 See id. at 403, 406.
97 See id. at 406; Eastland, supra note 89, at 6.
98 374 U.S. at 399. The prohibition against Saturday labor is a basic tenet of the Seventh-day Adventist Church. Id. at 402. For more information about the Seventh-day Adventist Church, see generally Anne Devereaux Jordan, The Seventh-Day Adventists: A History (1988).
99 Sherbert, 374 U.S. at 401. The South Carolina unemployment law provided that any claimant who failed, without good cause, to take work offered or available to him or her was not eligible for unemployment benefits. Id. at 400–01.
100 See id. at 406–07.
101 See id. at 404, 440.
102 Id. at 404, 406.
103 Id. at 408–09. The Court distinguished Braunfeld, the case in which it upheld mandatory Sunday closing laws against a challenge by Orthodox Jews, by reasoning that, in Braunfeld, the state did have a strong interest in providing a day of rest for all citizens. Id. In contrast to Sherbert, in which the Court concluded that an exemption would not alter the unemployment statutory scheme, the Court in Braunfeld felt that exemptions for Jews would disrupt the state’s objective. Id.
104 See Sherbert, 374 U.S. at 409–10.
105 406 U.S. 205, 234–35 (1972).
106 Id. at 208. The Court noted the pervasive way in which Amish religion infuses the practices of daily life. Id. at 210. For more information on the Amish faith, see generally Donald B. Kraybill, On the Back Road to Heaven: Old Order Hutterites, Mennonites, Amish, and Brethren (2001).
107 See Yoder, 406 U.S. at 214–15.
108 Id. at 211–12. The Court noted that the values taught at American high schools (“intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success and social life”) are regarded by the Amish to be worldly influences at odds with their religious beliefs. Id. The Amish faith celebrates “informal learning-through-doing; a life of ‘goodness’ rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.” Id.
109 Id. at 213, 224–25.
110 See id. at 234.
111 Carmella, supra note 5, at 420.
112 See id.
113 See supra notes 95–110 and accompanying text.
114 494 U.S. 872, 884–85 (1990).
115 Id. at 874.
116 See id. at 878. For more information on the Native American Church, see generally One Nation Under God: The Triumph of the Native American Church (Huston Smith & Ruben Snake eds., 1996) and James Sydney Slotkin, The Peyote Religion: A Study in Indian-White Relations (Octagon Books 1975) (1956).
117 Smith, 494 U.S. at 876.
118 See id. at 878–79.
119 See Eastland, supra note 89, at 6–7.
120 Smith, 494 U.S. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 (1982) (Stevens, J., concurring)).
121 See id. at 878. Justice Scalia articulated that if the legislature did not intend to burden religion—such as by passing a law prohibiting the casting of statues used for worship—but the law merely had that incidental effect, then the law did not violate the First Amendment. Id.
122 See id. at 877–78.
123 Id. at 878–80.
124 See id.
125 Smith, 494 U.S. at 885 (quoting Reynolds, 98 U.S. at 167). To Justice Scalia, the idea that citizens could pick and choose the laws they would follow based on their religious beliefs contradicted “both constitutional tradition and common sense.” Id.
126 Id. at 889. In her concurrence, Justice Sandra Day O’Connor contended that Justice Scalia’s parade of horribles was not reason enough to strike down the compelling interest test; rather, the cases he referenced showed how the Court, in many cases, had sensibly struck an appropriate balance between government interests and religious conduct with application of the compelling interest test. See id. at 902 (O’Connor, J., concurring).
127 Id. at 890.
128 Id.
129 See infra notes 130–136 and accompanying text.
130 Smith, 494 U.S. at 881–82.
131 Id. For example, in 1925, in Prince v. Society of the Sisters, the U.S. Supreme Court considered whether an Oregon law requiring all children to attend public schools was constitutional. 268 U.S. 510, 534–35 (1925). It held that the law violated the Fourteenth Amendment because it “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Id.
132 494 U.S. at 882. Hereinafter, this first exception to Smith’s holding will be called the “hybrid rights” exception.
133 Id. at 884. Hereinafter, this second exception to Smith’s holding will be called the “individualized exemption” exception.
134 Id.
135 See id.
136 Id.
137 See Hialeah, 508 U.S. 520, 531 (1993).
138 Id. at 526. The Santeria religion is a fusion of the traditional African religion of the Yoruba people with Roman Catholicism. Id. It originated in the nineteenth century when colonists brought Yoruba tribe members to Cuba as slaves. Id. at 524. The religion involves the worship and development of a personal relationship with the Orisha, a sacred spirit, through animal sacrifice. Id. at 525. Adherents of Santeria believe that for nourishment purposes the Orisha needs the chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles that Santeria followers sacrifice. Id. For more information on the Santeria faith, see generally Michael Atwood Mason, Living Santeria: Rituals and Experiences in an Afro-Cuban Religion (2002) and Marta Moreno Vega, The Altar of My Soul: The Living Traditions of Santeria (2000).
139 Hialeah, 508 U.S. at 528.
140 Id. at 529–30.
141 Id. at 533–34.
142 Id. at 535–36, 542. The ordinances proscribe Santerian animal killings because they meet the two criteria articulated for unlawful slaughter: 1) they are done within the context of a ritual or ceremony and 2) their primary objective is not food consumption. See id.
143 Id. at 538. The Court reasoned that, if sanitation was the aim of the ordinance, a constitutional regulation would provide rules for the disposal of organic garbage. Id. Moreover, if the City aimed to prevent animal cruelty with the ordinances, then it should have promulgated more specific regulations about how animals must be kept and the humane ways in which they could be slaughtered. Id. at 539. The animosity of members of the community and the city council toward the Santeria faith and its adherents bolstered the Court’s finding that the law was not substantively neutral. Id. at 540–41.
144 Hialeah, 508 U.S. at 543–44.
145 See id. at 543.
146 Id.
147 Id. at 544.
148 Id.
149 Hialeah, 508 U.S. at 546 (“A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.”).
150 See id.
151 Id. at 546–47. The Court again highlighted that only religious conduct felt the brunt of these ordinances and therefore the asserted justifications did not justify the burden on religion. Id.
152 Id.
153 See, e.g., Ira C. Lupu, Employment Division v. Smith and the Decline of Supreme Court Centrism, 1993 BYU L. Rev. 259, 260 (“Like many others I believe Employment Division v. Smith is substantively wrong and institutionally irresponsible.”); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1120 (1990) (concluding that the Court’s use of precedent is “troubling, bordering on the shocking”); see also Smith, 494 U.S. at 891 (O’Connor, J., concurring) (stating that the Smith holding “dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty”).
154 Roald Mykkeltvedt, Employment Division v. Smith: Creating Anxiety by Relieving Tension, 58 Tenn. L. Rev. 603, 608 (1991) (“As a negative consequence of that ruling . . . the Court will have exposed minority religions to a potential ‘tyranny of the majority.’”); see also Smith, 494 U.S. at 890 (“It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in . . . .”).
155 First, the Court failed to define with particularity what constituted a neutral and generally applicable law. See, e.g., Douglas Laycock, Religious Freedom and International Human Rights in the United States Today, 12 Emory Int’l L. Rev. 951, 967 (1998) (“The great ambiguity is that no one knows what is a neutral and general applicable law.”). Second, its brief consideration of the hybrid rights and individualized exemption exceptions to Smith’s general rule provided little guidance to lower courts. See infra notes 222–271 and accompanying text.
156 See 42 U.S.C. �� 2000bb-1 to -4 (2000). In its declaration of purpose, Congress expressly rejected Smith’s narrowing of free exercise protection and lent its support to the logic of both Sherbert and Yoder. Id. � 2000bb-(a)(4), (b)(1). With RFRA, Congress created a new statutory free exercise right that applied to federal and state law as well as any decision made by any agency, branch, or official of the federal or any state government. See id. � 2000bb-2.
157 521 U.S. 507, 536 (2000) (“RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control.”). In Boerne, St. Peter’s Catholic Church alleged that the City’s denial of a demolition permit for its historic church building violated RFRA. Id. at 512. Unfortunately, because the law was found to be an unconstitutional use of Congress’s powers under Section Five of the Fourteenth Amendment, none of the issues pertinent to this Note were decided by the Court. Id. at 529–33.
158 See 42 U.S.C. � 2000cc.
159 See id. The relevant language of the statute states:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling government interest.
Id.
160 See, e.g., Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574–76 (2d Cir. 2002) (upholding preliminary injunction under Free Exercise Clause analysis, allowing homeless individuals to sleep on church property). The challenges to RLUIPA are similar to those that litigants brought against RFRA: that in enacting the law, Congress exceeded its powers under Section Five of the Fourteenth Amendment. Cf. Boerne, 521 U.S. at 536. The constitutionality of RLUIPA is beyond the scope of this Note. If the U.S. Supreme Court determines that RLUIPA is constitutional, however, as the U.S. District Court for the Eastern District of Pennsylvania did in Freedom Baptist Church v. Township of Middletown, the analysis of the free exercise/historic preservation conflict under RLUIPA does not really differ from that under Smith. See 204 F. Supp. 2d 857, 874 (E.D. Pa. 2002). Because the underlying assumption of � 2000cc(a)(2)(C) is that preservation ordinances have in place a system of individualized exemptions, the analysis pertinent to this Note is still applicable. See � 2000cc(a)(2)(C). Therefore, a court considering a claim under RLUIPA would agree with a court that concluded that preservations ordinances fit under Smith’s individualized exemption exception. See Hale O Kaula Church v. Maui Planning Comm’n, 229 F. Supp. 2d 1056, 1072–74 (D. Haw. 2002) (concluding that consideration of RLUIPA’s constitutionality was moot and strict scrutiny would apply under Smith because the law had in place a system of individualized exemptions); Alan C. Weinstein, Religious Land Use and RLUIPA Update, in Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation 69 (A.L.I.-A.B.A. Course of Study, Aug. 22–24, 2002), WL SH018 ALI-ABA 69 (articulating that the application of RLUIPA would result in courts applying the compelling interest test from “Pre-Smith” cases). If a court determines that RLUIPA is unconstitutional, or the burden imposed by the preservation ordinance is not “substantial,” then it will also revert to the Smith analysis. See, e.g., Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F. Supp. 2d 1163, 1176–77 (C.D. Cal. 2003) (holding RLUIPA is an unconstitutional exercise of Congress’s power, and supporting Smith’s application of the Sherbert compelling interest test only in the unemployment context); San Jose Christian Coll. v. City of Morgan Hill, 2002 WL 971779, at *1 (N.D. Cal. Mar. 5, 2002) (holding that RLUIPA did not apply and relying on Smith to deny plaintiff’s motion for a preliminary injunction against application of a municipal zoning ordinance).
161 See Weinstein, supra note 6, at 93.
162 See, e.g., St. Bartholomew’s Church v. City of New York, 914 F.2d 348, 354 (2d Cir. 1990); First Covenant Church v. City of Seattle, 840 P.2d 174, 177–78 (Wash. 1992).
163 See supra notes 68–160 and accompanying text.
164 See supra notes 31–67 and accompanying text; see also Tyler, supra note 23, at 168–71 (recognizing that preservation allows communities to preserve important historic structures, protect against unwanted development, and promote economic stability and the image of the community).
165 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 122 (1978); see, e.g., Tyler, supra note 23, at 60–66.
166 Compare St. Bartholomew’s, 914 F.2d at 354 (concluding that application of the New York City Landmarks Law to the Church did not violate the Church’s First Amendment rights), with First Covenant, 840 P.2d at 185 (concluding that the Seattle preservation ordinance violated the Church’s free exercise of religion under the First Amendment).
167 See infra notes 187–271 and accompanying text.
168 See, e.g., St. Bartholomew’s, 914 F.2d at 354–55; First Covenant, 840 P.2d at 182–83.
169 See supra notes 68–81 and accompanying text.
170 See infra notes 171–186 and accompanying text.
171 See 374 U.S. 398, 403 (1963) (requiring that the law in question relate to “public safety, peace, and order” to be a compelling interest sufficient enough to justify burdening the free exercise of religion); Williamson, supra note 62, at 119.
172 See Thomas C. Berg, The New Attacks on Religious Freedom Legislation, and Why They Are Wrong, 21 Cardozo L. Rev. 415, 429 (1999) (concluding that, because preservation ordinances reflect only aesthetic interests, they categorically cannot justify substantial restrictions on religious freedom in the name of public safety).
173 See Williamson, supra note 62, at 119 (discussing the more factually based analysis some courts performed, considering the clash between zoning and free exercise interests before Smith, but concluding that most courts gave deference to free exercise interests unless the government presented a compelling interest).
174 See, e.g., Congregation Beth Yitzchok v. Ramapo, 593 F. Supp. 655, 660 (S.D.N.Y. 1984) (holding that local occupancy and fire safety regulations did not burden a synagogue’s free exercise of religion).
175 721 F.2d 729, 741 (11th Cir. 1983).
176 Id. at 738–41 (“[A]n ad hoc balancing is appropriate when existing, broad principles do not command the result.”).
177 Id.
178 See id. at 739. The balance weighed in favor of the City because the ordinance did not require the rabbi to stop practicing his religion under threat of criminal prosecution. Id. Rather, he simply had to establish his synagogue four blocks away, a minimal inconvenience compared to the burdens imposed in Sherbert and Yoder. See id.
179 See id. at 741.
180 See 626 P.2d 668, 674–75 (Colo. 1981). The Church wanted to enlarge its parish school by building a gymnasium and applied to the Department of Community Services of Lakewood for a permit. Id. at 669.
181 Id. at 670. The Department conditioned the issuance of the permit on the Church’s making street improvements around the property and dedicating a small parcel of land to the City of Lakewood as a public right of way. Id.
182 See id. at 675 (citing Pillar of Fire v. Denver Urban Renewal Auth., 509 P.2d 1250, 1253 (Colo. 1973)).
183 See id.
184 See Williamson, supra note 62, at 118–19 (“[A]s a whole, courts gave deference to free exercise interests unless presented with a compelling government interest.”).
185 See Grosz, 721 F.2d at 739–40; Bethlehem Evangelical, 626 P.2d at 675.
186 See, e.g., Penn Central, 438 U.S. at 132 (rejecting all attempts by the property owner to distinguish preservation laws from zoning laws and finding the laws constitutional because of their similarity to zoning ordinances).
187 See infra notes 188–271 and accompanying text.
188 See 494 U.S. at 879; Nelson, supra note 5, at 734 (distinguishing preservation laws from the ordinances in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah that directly suppressed religious conduct); Williamson, supra note 62, at 123 (“[T]he facial application of the Smith doctrine would seem to place a pro-preservation slant on religious-preservation conflicts . . . .”).
189 494 U.S. at 878–79; see supra notes 111–136 and accompanying text.
190 914 F.2d at 355.
191 Id. at 351. The church was constructed in 1917 by Bertram G. Goodhue and is a notable example of the Venetian Byzantine style. Id. Goodhue incorporated the porch of the original Romanesque St. Bartholomew’s Church built by McKim, Mead and White, the notable architects of famous buildings like the Boston Public Library and the former Pennsylvania Station in New York. Id. The Community House was built in 1928 by Goodhue’s associates, and complements the church in scale, style and decoration. Id.
192 Id.
193 Id. at 352.
194 Id. at 354–55.
195 St. Bartholomew’s, 914 F.2d at 354–55.
196 Id. The church stated that, of the 600 landmarked sites in New York City in 1990, over fifteen percent were religious properties and over five percent were Episcopal churches. Id. The Second Circuit concluded that churches more often fit into the neutral criteria because of the “importance of religion, and of particular churches, in our social and cultural history, and because many churches are designed to be architecturally attractive.” Id.
197 Id.
198 Id. at 354.
199 See, e.g., First Church of Christ, Scientist v. Ridgefield Historic Dist. Comm’n, 738 A.2d 224, 231 (Conn. Super. Ct. 1998) (“The commission’s decision . . . has not interfered with the right of the plaintiffs or its members to express their religious views, or associate or assemble for that purpose.”), aff’d, 737 A.2d 989 (Conn. App. Ct. 1999); City of Ypsilanti v. First Presbyterian Church, 1998 WL 1993029, at *1–2 (Mich. Ct. App. Feb. 3, 1998) (per curiam) (“[T]he ordinance is a facially neutral, generally applicable law requiring only minimal review to determine that prohibiting the free exercise of religion is not the object of the ordinance but merely the incidental effect.”).
200 See, e.g., First Covenant, 840 P.2d at 180–81.
201 494 U.S. at 882–84.
202 First Covenant, 840 P.2d at 180–81. The First Covenant Church challenged the constitutionality of landmark status that the Seattle Preservation Committee applied to its historic religious structure. Id. at 178. Unlike the church in St. Bartholomew’s, the Church here did not attempt to overturn any particular committee decision. Id.
203 Id.
204 Id. at 180.
205 Id. at 180–81. The court’s treatment of this liturgical exception seems particularly disingenuous because the lawmakers included it to prevent the preservation committee from reviewing changes required by the congregation’s religious liturgy. See id. at 178.
206 See Smith, 494 U.S. at 882–84. Other than Oregon drug laws, and laws in previous cases like mandatory Sunday closing laws and social security taxes, Justice Scalia did not mention what other laws the Court might consider neutral and generally applicable for Smith purposes, and he also provided no criteria or guiding analysis to make such a decision. See id.
207 See First Covenant, 840 P.2d at 180; Douglas Laycock, State RFRAS and Land Use Regulation, 32 U.C. Davis L. Rev. 755, 767 (1999).
208 See, e.g., Carmella, supra note 5, at 479 (“[D]esign control of houses of worship is neither generally applicable nor religion-neutral.”); Laycock, supra note 207, at 767 (“Land use regulation is among the most individualized and least generally applicable bodies of law in our legal system.”).
209 See Carmella, supra note 5, at 479–81.
210 See Penn Central, 438 U.S. at 132 (“[T]he New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city . . . .”); St. Bartholomew’s, 914 F.2d at 354; Nelson, supra note 5, at 733–34; see, e.g., Chi., Ill., Mun. Code � 2-120-620 (1987), available at http://www.cityofchicago. org/Landmarks/pdf/Landmarks_Ordinance.pdf.
211 438 U.S. at 132–33. Justice Brennan stressed that the designation of landmark status can be challenged in court as an arbitrary government action, and that courts were just as able to make that determination in the preservation context as in any other field. Id. Thus, no increased danger exists that cities will apply preservation laws haphazardly. See id.
212 Id. at 131–32.
213 Nelson, supra note 5, at 734; see supra notes 137–148 and accompanying text.
214 See Hialeah, 508 U.S. 520, 542–44 (1993); Nelson, supra note 5, at 734–35.
215 521 U.S. 507, 535 (1997). The Court stated:
[N]umerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.
Id. (emphasis added).
216 See Nelson, supra note 5, at 740, 760; supra notes 202–205 and accompanying text.
217 See 508 U.S. at 533–34.
218 See, e.g., Chi., Ill., Mun. Code � 2-120-620 (1987), available at http://www.cityofchicago.org/Landmarks/pdf/Landmarks_Ordinance.pdf.
219 See Nelson, supra note 5, at 734.
220 See id.
221 See id. at 734–35; supra notes 210–220 and accompanying text.
222 See 494 U.S. at 881–84.
223 Nelson, supra note 5, at 740, 749–50; see Smith, 494 U.S. at 881–84.
224 See, e.g., Keeler v. Mayor of Cumberland, 940 F. Supp. 879, 885 (D. Md. 1996) (concluding that the Cumberland preservation ordinance had in place a system of individualized exemptions).
225 See supra notes 170–186 and accompanying text.
226 See 494 U.S. at 894 (“The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized government assessment of the reasons for the relevant conduct.”).
227 374 U.S. at 400–01.
228 See Smith, 494 U.S. at 884–85.
229 Compare St. Bartholomew’s, 914 F.2d at 355 (deciding that the New York City preservation ordinance was a neutral law of general applicability that fits under the neutral Smith analysis), with Keeler, 940 F. Supp. at 885 (holding that the Cumberland preservation ordinance had in place a system of individualized exemptions and thus was an exception to Smith that should be subjected to strict scrutiny).
230 914 F.2d at 352.
231 Id.
232 See id.
233 See id. at 353–56.
234 Nelson, supra note 5, at 746 (“[E]conomic hardship exemptions utilized in historic preservation ordinances are not open-ended and therefore do not invite discrimination on the basis of religion.”).
235 Id. at 743; see also Smith, 494 U.S. at 884 (“The ‘good cause’ standard created a mechanism for individualized exemptions.” (quoting Bowen v. Roy, 476 U.S. 693, 708 (1986))).
236 See Nelson, supra note 5, at 743. The Commission on Chicago Landmarks has detailed criteria laid out in their Rules and Regulations to guide their consideration of applicants for the economic hardship exception. Comm’n on Chi. Landmarks, Rules and Regulations, art. V (1990), available at http://www.cityofchicago.org/Landmarks/pdf/ Landmarks_Ordinance.pdf. The Commission must consider the current level of economic return on the property and the feasibility of profitable alternatives by looking through the financial records of the property owner and estimates from architects and engineers. Id.
237 See Nelson, supra note 5, at 743–45.
238 940 F. Supp. at 885. The court decided the case when RFRA was still valid law, and the Church also stated a cause of action under RFRA. Id. at 880. The district court, however, anticipating the U.S. Supreme Court’s upcoming decision, found RFRA unconstitutional and relied on Smith to decide the case. Id. at 880–81.
239 Id. at 880. Because the church and monastery comprised part of the Washington Street Historic District, the ordinance required the Church to submit demolition plans to the Cumberland Historic Preservation Commission. Id.
240 See id. at 883.
241 Id. at 886.
242 Id. (“The ordinance embodies a legislative judgment that the City’s interest in historic preservation should, under certain circumstances, give way to other interests . . . .”).
243 Keeler, 940 F. Supp. at 886.
244 Id. (“[T]he City nowhere asserts that historic preservation is a compelling interest of government.”); see, e.g., First Covenant, 840 P.2d at 185 (“Preservation ordinances further cultural and esthetic interests, but they do not protect public health or safety.”); Berg, supra note 172, at 429.
245 See Nelson, supra note 5, at 740.
246 See supra notes 238–244 and accompanying text; see also Carol M. Kaplan, Note, The Devil is in the Details: Neutral, Generally Applicable Laws and Exceptions From Smith, 74 N.Y.U. L. Rev. 1045, 1067 (2000).
247 See, e.g., Kaplan, supra note 246, at 1067. Kaplan stated:
If the holding in Keeler—that where the government provides an exception to its landmark preservation laws for secular reasons, it must also extend exceptions for religious reasons—was correct, then the holding in Smith would surely have been that where government exempts from prohibition certain secular, medical uses of drugs, it is required to exempt religious uses as well.
Id.
248 See id. In addition, under this analysis, a planning commission that allowed a zoning variance for secular reasons would have to show a compelling interest if it denied a variance for religious reasons. See id.
249 494 U.S. at 885 (quoting Reynolds v. United States, 98 U.S. 145, 167 (1878)). Justice Scalia’s language shows his reluctance to provide citizens with exemptions to generally applicable laws. See id.
250 See id. at 883–84. Justice Scalia emphasized in Smith that the Sherbert test has never been used to invalidate any government action besides the denial of unemployment benefits and seemed inclined to limit its application to that context. See id. (“Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law.”).
251 Nelson, supra note 5, at 747.
252 494 U.S. at 881.
253 Compare St. Bartholomew’s, 914 F.2d at 355 (deciding that the New York City’s Landmarks Law was neutral and generally applicable for Smith purposes), with First Covenant, 840 P.2d at 181–82 (concluding that Seattle’s Landmarks Preservation Ordinance implicated hybrid rights).
254 The U.S. Courts of Appeals for the First and District of Columbia Circuits acknowledge hybrid rights only when there is an independently viable constitutional claim along with the free exercise allegation. See Thomas v. Anchorage Equal Rights Comm’n, 165 F.3d 692, 703–04 (9th Cir. 1999) (citing EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C. Cir. 1996) (holding that the addition of an Establishment Clause violation implicated the hybrid rights exception); Brown v. Hot, Sexy & Safer Prods., 68 F.3d 525, 539 (1st Cir. 1995) (noting the absence of an independent substantive due process claim prevented consideration under the hybrid rights exception)). The U.S. Courts of Appeals for the Ninth and Tenth Circuits require only a colorable claim that must not stand independently, but must be more than a simple allegation. Id. at 703 (citing Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998) (requiring a “colorable claim of infringement” to implicate the hybrid rights exception)). The U.S. Court of Appeals for the Sixth Circuit does not accept that the hybrid rights argument is a viable exception to Smith and articulated it will recognize the exception only upon further instruction by the U.S. Supreme Court. Id. at 704 (citing Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (calling the hybrid rights exception “completely illogical” and refusing to consider its application)).
255 See Nelson, supra note 5, at 751–52.
256 840 P.2d at 182.
257 Id. (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)).
258 See id.; see also Carmella, supra note 5, at 490–98.
259 First Covenant, 840 P.2d at 181–82.
260 Id. at 182–83.
261 See, e.g., Carmella, supra note 5, at 478, 492–93.
262 Id. at 452–65. One particularly powerful example of the symbiotic relationship between religion and architecture includes the radical modifications early Protestants made to previously Catholic churches. Id. at 457–58. The longitudinal basilica plan, which focused attention on the altar where the Eucharist had been consecrated, was not suitable for Protestant worship. Id. Therefore, basilica forms were rejected and replaced with churches with central one-room plans that focused the congregation’s attention toward the reading of the gospel from the pulpit. Id. at 459. Thus, the centrality of the Word was embodied in the physical arrangement of both the interior and exterior of the building. See Carmella, supra note 5, at 459. Even today, theologian Paul Tillich observes: “Churches that retain a central aisle leading to a removed altar as the holiest place, separated from other parts of the building, are essentially un-Protestant. . . . [O]nly by the creation of new forms can Protestant churches achieve an honest expression of their faith.” Id. at 472–73 (quoting Paul Tillich, On the Theology of Fine Art and Architecture, in On Art and Architecture 204 (J. Dillenberger & J. Dillenberger eds., 1989) (alteration in original)).
263 See id. at 471 (“Architecture for churches is a matter of gospel.”); cf. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 568–69 (1995) (holding that the choice of whom to allow to march in a St. Patrick’s Day parade was a communicative expression warranting First Amendment protection).
264 Carmella, supra note 5, at 478–79.
265 See id. at 506–07.
266 See id. at 489.
267 See Nelson, supra note 5, at 750 (noting that the U.S. Supreme Court has never suggested that architectural expression requires the same protections as personal decisions, like the right to educate one’s children); cf. Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 164 (3d Cir. 2002) (comparing the eruv, a delimited space used to designate sacred areas for Orthodox Jews, with “the walls forming a synagogue,” and holding that an eruv is not communicative for First Amendment purposes), cert. denied, 123 S. Ct. 2609 (2003) (mem.).
268 Courts, including the U.S. Supreme Court, have recognized the analogous nature of zoning and historic preservation ordinances. See, e.g., Penn Central, 438 U.S. at 131–33.
269 Cf. Bethlehem Evangelical, 626 P.2d at 672–73 (upholding the zoning ordinance against a free exercise challenge that constituted only a minor economic burden on the religious property owner because the zoning law represented a substantial government interest).
270 See Kaplan, supra note 246, at 1067 (“The second way in which courts have destabilized, if not eviscerated, the holding of Smith is by applying a very broad interpretation of the hybrid rights exception.”).
271 See id. at 1084 (“Ideally, the exception should apply only in cases that closely resemble, both substantively and factually, the so-called ‘hybrid’ precedents alluded to in Smith.”).
272 See supra notes 111–160 and accompanying text.
273 See Employment Div. v. Smith, 494 U.S. 871, 892 (1990) (O’Connor, J., concurring) (“[T]he Court holds that where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply.”); supra notes 187–221 and accompanying text.
274 See Smith, 494 U.S. at 878–80.
275 See, e.g., First Covenant Church v. City of Seattle, 840 P.2d 174, 187 (Wash. 1992); Mykkeltvedt, supra note 154, at 608; see also Smith, 494 U.S. at 892 (O’Connor, J., concurring).
276 See Smith, 494 U.S. at 893–94 (O’Connor, J., concurring) (“It is difficult to deny that a law that prohibits religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns.”); Carmella, supra note 5, at 492, 494.
277 See Carmella, supra note 5, at 494.
278 See id. at 494–95.
279 See id. at 422–23 (“Smith simply ignores the impact of general, secular laws on religious communities.”).
280 See 494 U.S. at 878–79.
281 See infra notes 282–294 and accompanying text.
282 See, e.g., First Covenant, 840 P.2d at 185 (“Preservation ordinances further cultural and esthetic interests, but they do not protect public health or safety.”).
283 See Nelson, supra note 5, at 729–30, 750. Throughout her article, Nelson articulates that the so-called “free exercise” burdens alleged by religious congregations are really economic inconveniences. See id. Therefore, applying Sherbert v. Verner will result in exemptions for purely economic (and secular) reasons. See id. at 729–30.
284 Id.; cf. St. Bartholomew’s Church v. City of New York, 914 F.2d 348, 355 (2d Cir. 1990) (holding that economic burdens, even if substantial, do not implicate free exercise rights because they do not burden the religious beliefs or expressions of the adherent). For a discussion of the Sherbert/Yoder standard, see supra notes 95–113 and accompanying text.
285 See First Church of Christ, Scientist v. Ridgefield Historic Dist. Comm’n, 738 A.2d 224, 231 (Conn. Super. Ct. 1998) (“The commission’s decision . . . has not interfered with the right of the plaintiffs or its members to express their religious views, or associate and assemble for that purpose.”), aff’d, 737 A.2d 989 (Conn. App. Ct. 1999).
286 See Sherbert v. Verner, 374 U.S. 398, 406 (1963) (requiring a state to show a compelling interest in any law that burdens the free exercise of religion); First Covenant, 840 P.2d at 185 (articulating that historic preservation is not a compelling government interest); Berg, supra note 172, at 429.
287 Nelson, supra note 5, at 761. In 1971, the U.S. Supreme Court in Lemon v. Kurtzman articulated that to pass constitutional muster, any government action must: 1) serve a secular purpose; 2) have a primary effect that neither inhibits nor advances religion; and 3) avoid excessive state entanglement with religion. 403 U.S. 602, 612–13 (1971). Nelson argues that judicially granted exemptions to preservation laws under the Free Exercise Clause violate the second prong of the Lemon test because such exemptions benefit only religious adherents that worship in a communal structure. Nelson, supra note 5, at 766–67.
288 Nelson, supra note 5, at 766–67.
289 Compare Carmella, supra note 5, at 402–04 (“This article contends that governmental design control of houses of worship violates both the free exercise and establishment clauses of the first amendment.”), with Nelson, supra note 5, at 722–24 (“United States Supreme Court precedent strongly supports those courts that have determined historic preservation laws to be ‘neutral laws of general applicability,’ and presumptively valid under the constitutional standard employed by the Court.”).
290 See, e.g., Nelson, supra note 5, at 731–32.
291 See, e.g., Carmella, supra note 5, at 402–04.
292 Compare St. Bartholomew’s, 914 F.2d at 354–56 (following Jefferson’s conception of the Free Exercise Clause and allowing government to burden religious conduct as long as beliefs are protected), with First Covenant, 840 P.2d at 182–83 (following Madison’s beliefs and requiring a compelling interest for any burden inflicted upon religious conduct).
293 Cf. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124–25 (1978) (articulating standards to consider in an ad hoc evaluation of whether the New York City Landmarks Law was a taking under the Fifth Amendment).
294 See infra notes 304–355 and accompanying text.
295 See supra notes 272–294 and accompanying text.
296 See supra notes 272–294 and accompanying text.
297 Cf. Penn Central, 438 U.S. at 123–24 (explaining the necessity to resort to a balancing test when the Court is “unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require” the Court to declare that the government has effected a taking (quoting Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962))).
298 See infra notes 299–355 and accompanying text.
299 In Grosz v. City of Miami Beach, the Eleventh Circuit stated: “Balancings must avoid constitutionalizing secularity or sectarianizing the Constitution. In this area, where religious guarantees of the Constitution compete with the rights of government to perform its function in the modern era, certitude is difficult to attain.” 721 F.2d 729, 741 (11th Cir. 1983). Considering the uncertainties and inconsistencies courts have already created in this area, a balancing test certainly would not make the outcomes of these conflicts any less predictable. See supra notes 187–271 and accompanying text.
300 See supra notes 272–294 and accompanying text. Despite the ongoing and charged debate over free exercise rights and historic preservation, the number of religious property owners that actually bring their cases to court is very limited. Weinstein, supra note 6, at 111–12 (citing informal studies done in New York and Philadelphia showing that most preservation committees usually granted requests by religious property owners to alter their property). Therefore, because courts would apply the test in a limited number of cases, the balancing test would not be that onerous to judges or the court system. See id.
301 See Grosz, 721 F.2d at 733–41; Bethlehem Evangelical, 626 P.2d 668, 675 (Colo. 1981); see also supra notes 175–185 and accompanying text.
302 See Grosz, 721 F.2d at 734 (“[T]he balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.”); Bethlehem Evangelical, 626 P.2d at 675 (“[W]e must balance the interests involved in the controversy before us and recognize that the state must show a substantial interest without a reasonable alternate means of accomplishment . . . .” (quoting Pillar of Fire v. Denver Urban Renewal Auth., 509 P.2d 1250, 1253 (Colo. 1973))). Both courts frame their balancing test as a substantial interest test, but the courts do engage in a clear balancing of both state and religious interests in both cases. Grosz, 721 F.2d at 733–41; Bethlehem Evangelical, 626 P.2d at 675.
303 See Grosz, 721 F.2d at 733–41; Bethlehem Evangelical, 626 P.2d at 675; see also supra notes 175–186 and accompanying text.
304 As to the first two factors, the Grosz court stated: “The importance of the burdened practice within the particular religion’s doctrines and the degree of interference caused by the government both figure into the calculus.” 721 F.2d at 735. The court also emphasized the need to determine whether the law in question does indeed burden a religious practice. Id. at 735–36. The court in Bethlehem Evangelical differentiated between condemning a church in slum clearance, which resulted in the complete destruction of the church, and the situation at bar, in which the committee required the Church to upgrade the streets surrounding its property, clearly a much less onerous burden. 626 P.2d at 675. As to factors three through five, the Grosz court urged consideration of the underlying policy interest of the government’s action and of the potential injury to those policy interests if the court granted an exemption. 721 F.2d at 734. In addition, the court required consideration of other means to effectuate the government’s end that would lessen the alleged burden. Id. In Bethlehem Evangelical, the court considered the reasonableness of the government regulation and the validity of the end stipulated by the City. See 626 P.2d at 675.
305 See infra notes 306–342 and accompanying text.
306 See infra notes 307–336 and accompanying text.
307 See Weinstein, supra note 6, at 93; see, e.g., City of Boerne v. Flores, 521 U.S. 507, 511–12 (1997) (discussing Church’s need to expand because the church building could not accommodate some forty-sixty parishioners at Sunday masses); St. Bartholomew’s, 914 F.2d at 351–52 (discussing Church’s desire to tear down its community house and replace it with a forty-seven story office tower to generate revenue and provide room for its programs); Keeler v. Mayor of Cumberland, 940 F. Supp. 879, 880–81 (D. Md. 1996) (discussing Church’s desire to tear down historic monastery and chapel that were “a draining financial liability.”). But see Carmella, supra note 5, at 498–99 (asserting that design review does directly burden religious expression).
308 See supra note 307 and accompanying text.
309 For a discussion of the necessity of such a threshold requirement, see Colin L. Black, Note, The Free Exercise Clause and Historic Preservation Law: Suggestions for a More Coherent Free Exercise Analysis, 72 Tul. L. Rev. 1767, 1792–93 (1998).
310 See infra notes 311–336 and accompanying text.
311 St. Bartholomew’s, 914 F.2d at 355 (quoting Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450–51 (1988)).
312 Id. (citing Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 389–90 (1990)).
313 See id.
314 Id.; see also Braunfeld v. Brown, 366 U.S. 599, 605–06 (1961) (upholding a mandatory Sunday closing law against Orthodox Jews who closed their stores on Saturday to honor their Sabbath, thus requiring them to close two days a week and suffer a draining financial burden).
315 840 P.2d at 183 (citing Jimmy Swaggart Ministries, 493 U.S. at 389–90).
316 Id. (“It is plain that a religious organization needs funds to remain a going concern.” (citing Murdock v. Commonwealth, 319 U.S. 105, 111–12 (1943))).
317 Id. at 184.
318 See, e.g., St. Bartholomew’s, 914 F.2d at 353–54; Keeler, 940 F. Supp. at 880–81; see also Carmella, supra note 5, at 406–07.
319 See St. Bartholomew’s, 914 F.2d at 353–54; Keeler, 940 F. Supp. at 880–81.
320 See infra notes 321–336 and accompanying text.
321 See U.S. Const. amend. I.
322 See supra notes 48–67 and accompanying text.
323 See infra notes 328–336 and accompanying text.
324 See infra notes 325–327 and accompanying text.
325 494 U.S. at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.”).
326 See id.
327 See id.
328 See infra notes 329–336 and accompanying text. This threshold requirement also ensures that any exemption granted to a neutral and generally applicable law is given for religious and not secular reasons. See Nelson, supra note 5, at 729–30. Some have argued that, in certain cases, courts granting exemptions to historic preservation ordinances violate the Establishment Clause because they grant protections to religious groups when only economic concerns are at stake—a government preference for religion that violates the First Amendment. See Boerne, 521 U.S. at 536–37 (Stevens, J., concurring) (“[T]he statute has provided the Church with a legal weapon that no atheist or agnostic can obtain.”); Nelson, supra note 5, at 761.
329 738 A.2d at 231.
330 The inquiry turns on a matter of degree, and an economic burden that does not extend beyond a mere nuisance like a sales tax cannot be considered a true free exercise burden. Jimmy Swaggart Ministries, 493 U.S. at 389–90.
331 Cf. Nelson, supra note 5, at 729–30 (arguing that the hardships preservation ordinances place on religious property owners are analogous to the burdens placed on non-religious property owners).
332 If the Free Exercise Clause is not implicated, then the religious congregation has only a takings claim, which should be analyzed under the “charitable purpose” test of Trustees of Sailor’s Snug Harbor v. Platt, 288 N.Y.S.2d 314, 316 (App. Div. 1968) (holding that a historic preservation ordinance as applied to a nonprofit organization may be unconstitutional if it physically or financially prevents the carrying out of the organization’s charitable purpose).
333 See 914 F.2d at 351.
334 See id. at 351–52.
335 See id. at 353.
336 Cf. Grosz, 721 F.2d at 735 (“Courts, therefore, often restrict themselves to determining whether the challenged conduct is rooted in religious belief or involves only secular, philosophical or personal choices.”). To prevent a searing inquiry into religious affairs, then, the religious congregation is given a certain amount of deference when it alleges a free exercise burden that, without much inquiry, seems plausible to the court. See Smith, 494 U.S. at 887.
337 Grosz, 721 F.2d at 739 (considering the alternatives for a rabbi who was proscribed from holding services in his home if the decision of the City was upheld).
338 See, e.g., Boerne, 521 U.S. at 511–12. Or perhaps, with the help of the city, the structure could be placed mostly underground so as not to affect the view of the structure. For a discussion about how compromise between the religious congregation and the city in question is an effective way to solve this conflict, see Williamson, supra note 62, at 152–54.
339 Grosz, 721 F.2d at 737 (discussing the least restrictive means test, applied to both the government and the religious property owner, which requires both parties to attempt to reach their objectives through the least harmful means possible).
340 Cf. id. at 736 (articulating the importance of focusing on the degree of interference caused by the government action); Bethlehem Evangelical, 626 P.2d at 675 (highlighting that church construction is subject to “reasonable regulations”).
341 See Grosz, 721 F.2d at 736.
342 See supra notes 272–294 and accompanying text.
343 See infra notes 344–355 and accompanying text.
344 See, e.g., Chi., Ill., Mun. Code � 2-120-740 (1987), available at http://www.cityofchi-cago.org/Landmarks/pdf/Landmarks_Ordinance.pdf (requiring a permit for any physical alteration of a historic property). Therefore, this information should all be on the record from the presentation the religious property owner originally made to the preservation commission. See id.
345 See Tyler, supra note 23, at 22 (discussing the importance in preservation of maintaining the “historic integrity” of a building and keeping as much original “fabric or features” as possible).
346 See id. at 139–40 (discussing the importance of contextualism, a design approach that encourages compatibility between new and older architecture by encouraging architects to respect the scale, design and materials of historic buildings).
347 Cf. id. at 93–95 (citing U.S. Dep’t of the Interior: Nat’l Register Criteria for Evaluation (2002), at http://www.cr.nps.gov/nr/publications/bulletins/nrb15 (articulating criteria for applying to the National Register, which is very influential in the designation criteria established by local preservation commissions)).
348 See supra notes 42–44 and accompanying text.
349 See, e.g., Chi., Ill., Mun. Code � 2-120-620. Allowing the court to consider the records will save time because it will prevent the necessity of additional findings of fact on the historic and architectural status of the historic religious property in question. See id. (highlighting the preservation commission’s detailed consideration of historical significance).
350 See, e.g., id. A court applying this balancing test would know that the preservation committee determined the building at issue had historic significance; however, as the preservation committee would not have considered the issue in balance with the owner’s constitutional rights, its landmark-status determination would not keep the court from granting an exemption following such balancing. See id.
351 Cf. Bethlehem Evangelical, 626 P.2d at 674–75 (taking into account the effect on the community of not requiring the Church to facilitate the free flow of traffic).
352 Cf. Grosz, 721 F.2d at 735 (considering costs to the community in weighing the effects of not upholding the zoning ordinance). For a discussion about how historic preservation districts stabilize property values, see Tyler, supra note 23, at 65. Tyler also concludes that historic preservation increases tourism, which in turn brings economic benefits to a community. Id. at 171. Therefore, in determining the government’s interest, it is important to consider the effects that changing the community landscape will have on both tourism and property values. See id. at 65, 171.
353 Cf. Grosz, 721 F.2d at 735 (suggesting that concerns that a religious-based exemption would be too costly are legitimate reasons for the denial of such an exemption).
354 See id. at 734–35.
355 See supra notes 111–113 and accompanying text.