[*PG205]“THEIR PRESERVATION IS OUR SACRED TRUST”1—JUDICIALLY MANDATED FREE EXERCISE EXEMPTIONS TO HISTORIC PRESERVATION ORDINANCES UNDER EMPLOYMENT DIVISION V. SMITH
Abstract: Religious property owners have both successfully and unsuccessfully challenged historic preservation ordinances as burdens on the free exercise of religion. Courts considering this conflict typically rely on Employment Division v. Smith, in which the United States Supreme Court held that neutral laws of general applicability that incidentally burden religion are not subject to strict scrutiny. Ambiguities in Smith, however, have left courts free to use their own interpretive discretion and have made attempts to apply free exercise precedent particularly difficult in the historic preservation context. This Note reviews the historic preservation movement and free exercise jurisprudence, then analyzes cases that have attempted to balance these two often conflicting interests. The Note argues that the strictures of Smith are too rigid, producing results either over- or under-inclusive of free exercise rights. Only through the application of a case by case balancing test can courts adequately adjudicate inevitable free exercise/historic preservation conflicts.
The Framers of the Bill of Rights wrote the Free Exercise Clause to ensure that the United States government did not directly impose restrictions on any citizen’s religious beliefs or practices.2 Conflicts between government action and religious practice are inevitable, however, because United States citizens practice such a variety of religious faiths that, often, religious conduct necessarily conflicts with the regulations of either federal, state, or local governments.3 Therefore, [*PG206]throughout the history of free exercise jurisprudence, the United States Supreme Court has considered free exercise challenges to government regulations ranging from mandatory Sunday closing laws to compulsory school attendance laws.4
Currently, the debate whether the application of historic preservation ordinances to historic religious properties violates the Free Exercise Clause is one of the most prominent in free exercise jurisprudence.5 Some religious property owners desire an exemption from landmark designation because it imposes upkeep costs and limits on renovation that are financially burdensome.6 Municipalities are very reluctant to grant exemptions, however, because historic preservation has become such an important tool in building community character and revitalizing urban economies.7 Litigation results when the two sides cannot compromise; and religious property owners have alleged in court that preservation ordinances impose an unconstitutional free exercise burden.8 Courts are left with the difficult task of deciding whether the Constitution’s protection of free exercise rights trumps the government’s preservation interests and in turn requires an exemption to the preservation ordinance for the historic religious property owner.9
Courts considering this conflict typically rely on the U.S. Supreme Court’s decision, in 1990, in Employment Division v. Smith.10 Ambiguities in Smith, however, have left courts free to use their own [*PG207]interpretive discretion and have made judicial attempts to apply free exercise precedent particularly difficult in the historic preservation context.11 Accordingly, courts deciding cases involving this free exercise/historic preservation conflict have interpreted Smith to produce contradictory decisions in what look like very similar cases.12 The strictures of Smith require courts considering this conflict to either: 1) protect only preservation rights by applying the case’s neutral holding to preservation laws and not scrutinizing their effect on free exercise rights; or 2) protect only free exercise rights by determining preservation laws fit into one of Smith’s exceptions and applying strict scrutiny.13 The former will result in courts upholding the preservation ordinance no matter what the factual situation, and the latter will result in courts always striking down the ordinance regardless of the severity of its impact.14 Consequently, with Smith as the controlling free exercise case, no legal framework exists that allows courts to balance free exercise rights with historic preservation interests to determine the most equitable outcome in this conflict.15
Part I of this Note reviews the history of historic preservation in the United States.16 This part details the evolution of the preservation movement from its humble beginnings, to its role as an important municipal land use tool, to the Supreme Court’s ratification of preservation as a valid use of the police power.17 Part II introduces the Free Exercise Clause and traces the Supreme Court’s ever-fluctuating interpretation of that clause’s scope.18 This part discusses the impact of Smith’s revolutionary holding on the Supreme Court’s application of strict scrutiny in previous free exercise cases.19 Part III considers Smith’s impact on cases involving the application of historic preservation ordinances to historic religious properties, and articulates how ambiguities in Smith left courts too much discretion.20 Finally, Part IV analyzes the two general approaches courts apply to the free exer[*PG208]cise/historic preservation conflict and proposes a balancing test as an alternative and more equitable analysis for resolving the conflict.21
Private individuals dedicated to preserving individual landmark buildings mounted the first preservation efforts in the United States.22 Occasionally, these concerned citizens persuaded state and city governments to use public funds to purchase landmark buildings, but the government had no comprehensive plan for the preservation of important historic structures.23 Congress, however, condemned several Civil War battlefield sites in the 1890s and preserved them as memorials.24 In 1896, in United States v. Gettysburg Electric Railway Co., the United States Supreme Court upheld Congress’s purchase of Gettysburg as a valid use of eminent domain—the first Supreme Court case to consider historic preservation issues.25 Government involvement was limited, however, and through the turn of the century the preser[*PG209]vation of landmark buildings continued to depend on the ability of concerned citizens to garner the attention of philanthropists.26
In 1926, in Village of Euclid v. Ambler Realty Co., the Supreme Court forever changed the historic preservation framework when it held that zoning constituted a valid exercise of the police power.27 Because they considered zoning and historic preservation to be analogous, various local groups became emboldened by the case’s result and slowly began regulating entire historic districts in an attempt to preserve neighborhood character and urban identity.28 In 1954, in Berman v. Parker, the Supreme Court upheld government regulation solely motivated by aesthetic purposes and provided a further boon to the preservation movement.29 By the early 1950s, historic preservation had evolved from private and sporadic attempts to save significant [*PG210]landmark buildings to a legitimate means of community-building through rehabilitation of community landmarks.30
During the 1950s and 1960s, federally funded highway and urban renewal projects fueled the decay of historic city neighborhoods and the suburbanization of America.31 The resulting destruction of celebrated older buildings, like the original Pennsylvania Station in New York City, taught the public and government officials the drastic consequences of losing extremely important landmarks to the wrecking ball.32 The resulting swell of support for historic preservation led Congress to pass the National Historic Preservation Act of 1966 (“NHPA”).33 The NHPA brought national attention to the need for historic preservation and set up a comprehensive legal framework to address America’s concern for historic buildings.34
The NHPA has three major components.35 First, the NHPA created the National Register of Historic Places, a list compiled by the Secretary of the Interior that encourages preservation by documenting the significance of historic structures.36 Second, the NHPA created the Ad[*PG211]visory Council on Historic Preservation, an independent executive agency that has the responsibility to review all federal agency action that affects historic properties listed on the National Register.37 Finally, the NHPA established a federal grant program to encourage the creation of State Historic Preservation Offices (“SHPOs”) to administer state-wide preservation efforts.38 Although it provided national guidance to the preservation movement, along with federal tax and other economic incentives, the NHPA delegated the bulk of preservation work to the states.39 In turn, enabling statutes passed by state legislatures delegated the actual regulation to local governments.40
Municipal preservation boards comprise the heart of the preservation movement because state legislatures authorize them to designate historic landmarks and regulate historic districts.41 These boards establish procedures for the consideration of landmark nominations and criteria on which to base landmark status.42 Typically, once a preservation board grants landmark status to a property, the owner must file a petition with the preservation board for permission to [*PG212]make structural alterations or visible changes.43 In addition, designation typically requires a property owner to keep the exterior of the property in good condition.44
Preservation ordinances were subject to takings challenges from the start, but state and federal courts usually upheld government regulatory actions as valid land use regulation.45 Many courts reasoned that landmark designation was a rational use of the police power because preservation provided economic benefits to municipalities by increasing tourism and property values.46 As of 1977, however, the Supreme Court had never explicitly upheld preservation as a valid use of a municipality’s police power; therefore, state and federal courts were not bound to support preservation interests.47
State and federal courts were bound shortly thereafter because in 1978, in Penn Central Transportation Co. v. City of New York, the Supreme Court conclusively decided the legality of historic preservation ordinances.48 The Court upheld New York City’s Landmarks Preservation Law against a challenge by the Penn Central Transportation Company (“Penn Central”).49 The conflict began when New York City’s Landmarks Preservation Commission denied Penn Central’s proposal to build an office tower atop Grand Central Station, an official New York City historic landmark.50 Penn Central alleged that the denial consti[*PG213]tuted a taking of its property without just compensation under the Fifth and Fourteenth Amendments because the designation arbitrarily denied it full use of its property.51 The Court engaged in what it called an “ad hoc” factual inquiry, considering the economic impact of the regulation, the investment-backed expectations of the property owner, and the character of the government action.52 After detailed contemplation of these factors, the Court concluded that the Landmarks Law did not interfere with current or expected use of the property, and, accordingly, did not effect a taking.53
Penn Central clarified several important unresolved legal issues surrounding the preservation movement.54 First, the Court observed that government regulation to preserve the character of a community and desirable aesthetic features was a valid exercise of the police power.55 Justice William Brennan, writing for the majority, noted that the preservation of historic structures enhanced the quality of life for all citizens.56 Second, the Court concluded that landmark laws do not constitute discriminatory or spot zoning.57 Although decisions to landmark certain property may target particular individual structures, they are not arbitrary when based on a comprehensive plan.58 Third, the Court noted that regulation to promote the general welfare often burdens some property owners more than others, but, standing alone, unequal treatment does not effect a taking.59 Finally, the Court held that a substantial economic burden caused by a preservation law is constitutional as long as the property retains reasonable economic value.60 Therefore, courts will uphold preservation ordinances even when they restrict land [*PG214]owners from exerting full control over their property.61 After Penn Central, historic preservation moved into the mainstream and became a common tool used by city planners to revitalize downtown neighborhoods.62 Adaptive reuse of older buildings, and the resulting increase in downtown visitors, generates revenue that ensures economic viability to otherwise struggling cities and towns.63
Religious structures, because of their stature, location, and architectural significance, frequently are subject to landmark designation or are located in historic districts.64 The financial burden of landmark status can be substantial, and many churches find it interferes with their ability to run charitable or educational programs.65 Although most challenges to preservation laws fail under the Penn Central analysis, religious organizations have gained exemptions from preservation laws based on the Free Exercise Clause.66 One must consider the unsteady development of free exercise jurisprudence, however, before exploring whether the Constitution requires such exemptions for historic religious structures.67
The First Amendment of the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”68 The two religion clauses, known as the Establishment Clause and the Free Exercise Clause, erected the celebrated “wall of separation” between church and state so important to religious freedom in the United States.69 In particular, the Free Exercise Clause prohibits government action that criminalizes or proscribes the practice or declaration of religious beliefs or that compels particular religious expression.70
Many consider the scholarship of Thomas Jefferson and James Madison to be the impetus behind the First Amendment’s explicit protection of religious freedom.71 The 150-year-old tradition of free exercise in the English colonies dramatically affected these two men.72 Four English colonies were founded as havens for religious dissenters and had specific provisions in their charters aimed at creating an atmosphere of religious tolerance for all citizens.73 Along with these [*PG216]early efforts in support of religious freedom, the scholarship of John Locke and Roger Williams also influenced the beliefs of both Madison and Jefferson.74 Taking their cues from these advocates for religious freedom, both Madison and Jefferson articulated not only that the opinions of citizens should be beyond the jurisdiction of civil government, but that society as a whole suffered when citizens were forced to worship at the government’s command.75 Jefferson’s conception of the scope of religious freedom, however, was narrower than Madison’s—he felt it should extend only to religious belief and not to religious conduct.76 He did not believe that state legislatures were a threat to religious belief, and, accordingly, he supported religious freedom only because it was in the best interests of society to allow people to follow their own convictions.77 In contrast, Madison was a more fervent believer, and his concern for the separation of church and state evolved from what he perceived were state-imposed threats to religious practices.78 Madison acknowledged the inevitable clash between religious conduct and secular law, and he felt that states should sustain free exercise rights in all but the most compelling circumstances.79
[*PG217] Based substantially on the strongly expressed convictions of these two political figures, the Framers included explicit provisions that would guarantee religious freedom and separation of church and state in the First Amendment of the Bill of Rights.80 The language of the First Amendment, however, does not clearly articulate whether the Framers intended the scope of the Free Exercise Clause to reflect Jefferson’s action/belief dichotomy or Madison’s concept of religious protection being paramount to all but the most compelling state interests.81
Initially, as drafter of the Bill of Rights and as its chief advocate in Congress, Madison’s beliefs infused the popular understanding of the Free Exercise Clause.82 In 1878, in Reynolds v. United States, however, the U.S. Supreme Court explicitly used Jefferson’s action/belief dichotomy to define the Clause’s scope.83 The Reynolds court considered a constitutional challenge by George Reynolds, a Mormon convicted under a law prohibiting polygamy.84 The Court, relying on the writings of Jefferson, concluded that, although Congress could not regulate religious belief, it could regulate any conduct in violation of “social duties or subversive of good order.”85 Therefore, Reynolds’s conviction would stand because the law against polygamy was not impairing his religious beliefs.86 The [*PG218]Court upheld the application of the criminal statute because the government had shown a rational basis for criminalizing polygamy.87 Moving forward, the Court’s rational basis standard hindered its ability to grant exemptions to criminal laws for religious conduct because the government needed only to provide a rational basis to legally impinge upon the religious conduct in question.88
Reynolds remained the most important free exercise case decided during the Clause’s first 150 years.89 In 1940, in Cantwell v. Connecticut, the U.S. Supreme Court extended the protections of the Free Exercise Clause to state action in its second major free exercise decision.90 With the increase in regulation following the New Deal, and the inclusion of state laws within the scope of the First Amendment, the Court saw an increase in cases involving clashes between secular laws and religious conduct.91 The Court continued to rely more or less on the rational basis analysis articulated in Reynolds when considering free exercise claims.92 Therefore Jefferson’s idea, that religious conduct could be burdened incidentally by state action as long as beliefs remained free from government influence, dominated free exercise analysis up through the 1950s.93
[*PG219] Madison’s concern for protecting religious conduct, however, did not remain dormant.94 In 1963, in Sherbert v. Verner, the U.S. Supreme Court radically changed the course of free exercise jurisprudence when it required the state to show a compelling interest in any state action that burdened the free exercise of religion.95 The Court concluded it would apply strict scrutiny to any law or decision that incidentally burdened religious conduct even when religious beliefs were unaffected.96 The Court, therefore, had shifted its conception of the scope of free exercise rights from Jefferson’s action/belief dichotomy to Madison’s support of religious conduct in all but the most compelling circumstances.97 Sherbert involved Adell Sherbert, a Seventh-day Adventist fired by her employer because she refused to work on Saturday, her Sabbath celebration.98 South Carolina had found her ineligible for unemployment benefits because, by refusing to work on Saturday, she had refused to accept both suitable and available work.99
The Court concluded that only a compelling state interest could justify the burden on religion imposed on Sherbert by the state, and the decision to deny her unemployment was therefore subjected to strict scrutiny.100 Justice Brennan, writing for the majority, asserted that South Carolina’s ruling essentially fined Sherbert for her Saturday worship; thus, the state’s denial of benefits was tantamount to economically coercing Sherbert’s religious beliefs.101 The Court concluded that conditioning benefits on particular behavior infringed upon the Sherbert’s freedom of religion because it required her to choose between abiding by the tenets of her faith and maintaining her livelihood.102 In addition, because an exemption for Sherbert alone would not detrimentally affect the entire unemployment statutory scheme, the state had no com[*PG220]pelling interest in denying her unemployment benefits.103 Accordingly, the state’s decision failed the Court’s strict scrutiny analysis and Sherbert’s benefits were reinstated.104
Similarly, in 1972, in Wisconsin v. Yoder, the U.S. Supreme Court again required an exemption from a neutral and generally applicable law to accommodate religious conduct.105 In Yoder, Amish parents were convicted of violating Wisconsin’s compulsory school attendance law because they refused to send their children to school after the eighth grade.106 Relying on Sherbert, the Court subjected Wisconsin’s compulsory school attendance law to strict scrutiny.107 The Court noted that, because of the unique tenets of the Amish faith, compulsory high school attendance threatened to undermine an Amish child’s unique religious development.108 The Court concluded that the State’s interest in providing universal education was not compelling because, when removed from school, the Yoders still planned to educate their children in a “learning-through-doing” vocational program.109 Therefore, the State’s very strong interest in education was not sufficient to overcome the law’s incidental burden on the Amish faith, and the Yoder Court exempted the Amish from the law.110
Until 1990, commonly it was understood that any free exercise claim resulting from an incidental or direct burden imposed by a neutral, generally applicable law would subject that law to strict scrutiny.111 In Sherbert and Yoder, after the challenging parties showed that the challenged law infringed on free exercise rights, the burden shifted to the state to show the law had a secular purpose, advanced a compelling state interest, and constituted the only feasible means for achieving the state’s purpose.112 The Court’s application of strict scrutiny made it virtually impossible for the government to sustain its burden, and as a result, it almost always struck down the challenged laws.113
In 1990, however, in Employment Division v. Smith, the U.S. Supreme Court did not apply strict scrutiny to a contested Oregon law that allegedly violated the Free Exercise Clause.114 Smith involved two Native Americans whose bosses fired them when they were convicted for peyote use under an Oregon drug law, and to whom the state denied unemployment benefits.115 Because the claimants ingested peyote for sacramental purposes at a ceremony of the Native American church, they alleged the denial of benefits burdened their free exercise of religion.116 The claimants relied on what they perceived to be Sherbert’s holding—that when religious conduct resulted in a loss of employment, a state’s refusal to provide unemployment benefits was a free exercise violation.117 The Court rejected the claimants’ position and concluded that in past cases, including Sherbert, it had never held that a religious burden exempted citizens from an otherwise valid and generally applicable law like the Oregon drug law.118
By not requiring Oregon to show a compelling state interest in its peyote ban, the Court revolutionized free exercise jurisprudence.119 Writing for the majority, Justice Antonin Scalia stated that “the right of free exercise does not relieve an individual of the obligation to [*PG222]comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”120 In other words, the Court concluded that as long as the state did not intend to burden religious conduct, the Court would uphold the state’s interest against any free exercise challenge.121 The Court concluded that the challenged peyote law was neutral and generally applicable; hence, it burdened only the conduct of the adherents and not their religious beliefs.122 Accordingly, the Court held that the law did not violate the Free Exercise Clause because the burden it imposed on religion was incidental and not intentional.123
Essentially, Smith rejected the paramount protection for religious acts advocated by Madison and instead embraced Jefferson’s support for government action that did not directly burden or coerce religious beliefs but significantly interfered only with religious conduct.124 Relying on Reynolds, in which the Court upheld Jefferson’s action/belief dichotomy, the Court stated that conditioning a person’s responsibility to follow general laws on his religious beliefs effectively made each citizen a “law unto himself.”125 The diverse range of religious beliefs in America, Justice Scalia argued, would require exemptions from a staggering array of laws—including vaccination laws, drug laws, and animal cruelty laws—that would frustrate the important objectives of those laws.126 Members of a particular religious group may desire exemptions to allow for conduct otherwise proscribed by law, but the Court concluded it was not constitutionally required to grant them.127 Various state legislatures had made excep[*PG223]tions for peyote use in their drug laws before Smith was decided, and the Court concluded that the political process remained the most suitable place for such determinations.128
Although the Court rejected the application of strict scrutiny to most free exercise claims, Justice Scalia carved two exceptions from Smith’s basic holding to account for seemingly contrary precedent.129 First, the Court distinguished past religious exemptions on the grounds that the challenged laws implicated the Free Exercise Clause in conjunction with other constitutional protections.130 Therefore, when other constitutional violations were alleged in conjunction with a free exercise violation, such as the rights of parents to direct their children’s education seen in Yoder, the Court would apply strict scrutiny and require the state show a compelling interest in the contested law.131 The Court concluded that no hybrid rights were implicated when the state denied the Smith claimants unemployment benefits; hence, the incidental effects of the otherwise neutral law did not offend the claimants’ First Amendment rights.132
Second, the Court concluded that Sherbert’s compelling interest test also applied to laws that had a state-imposed system of individualized exemptions.133 Justice Scalia highlighted that, in Sherbert, South Carolina had the discretion to grant exemptions to unemployment eligibility because the “good cause” language in the statute invited consideration of the particular circumstances behind a claimant’s unemployment.134 The Court noted it had required that refusals in cases of religious hardship be subjected to strict scrutiny supported by a compelling government interest because individual considerations by government actors provided easy means to discriminate.135 Because the peyote ban applied to all Oregon citizens and had no system of [*PG224]individualized exemptions, the Smith Court distinguished Sherbert and refused to apply strict scrutiny.136
In 1993, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the U.S. Supreme Court upheld Smith and, in striking down four city ordinances, attempted to clarify its controversial ruling.137 The Hialeah Court considered the validity of ordinances the Hialeah city council passed to prohibit various types of animal sacrifice.138 The newly formed Santeria community sued, arguing that the ordinances collectively burdened their free exercise rights by forbidding their most important ritualistic element—animal sacrifice.139 The trial court held that the ordinances were a valid use of the police power because the City grounded its prohibition of animal sacrifice in public safety, animal cruelty, and sanitation concerns.140
The Court concluded that the Hialeah ordinances were facially neutral; but that facial neutrality alone did not make a law neutral and generally applicable under Smith.141 The Court determined that the City “gerrymandered” the ordinances to proscribe only the religious sacrifices of the Santeria church, and not Kosher slaughter or other animal killings.142 The laws directly targeted the Santeria faith because other regulations could have met the same ends without prohibiting animal sacrifice rituals, revealing the council’s intent to end only Santerian practices.143 The Court also determined that the ordinances did [*PG225]not fall within Smith because they were not generally applicable.144 By, in effect, prohibiting only Santerian sacrifices, the Court found the laws substantially underinclusive and certainly distinguishable from the across-the-board criminal prohibition in Smith.145 The Court noted that the ordinances aimed to protect public health and prevent animal cruelty.146 Although the City should have distributed the responsibility to meet those aims evenly throughout the populace, the Hialeah ordinances imposed the burden only upon religious practices and not various secular killings.147 Therefore, the ordinances were not generally applicable because they only applied to animal sacrifice performed in a religious context.148
Because the ordinances were neither neutral nor generally applicable under Smith, the Court subjected Hialeah’s laws to Sherbert’s strict scrutiny analysis.149 Justice Anthony Kennedy quickly dismissed the City’s defense because the religious “gerrymandering” that he had previously noted proved that the City left unregulated most of the conduct that implicated its stated aims.150 He concluded that the City’s interest in those aims was far from compelling because the council failed to create means that met its articulated ends.151 In addition, the ordinances were too underinclusive to meet the narrowly tailored standard precedent required.152
Despite the protections the Court’s application of Smith provided to the Santeria adherents in Hialeah, legal scholars routinely criticized Smith for narrowing the scope of the Free Exercise Clause and ignoring thirty years of legal precedent that gave religious interests much broader protection.153 Opponents of the decision also lamented that [*PG226]Smith inadequately protected the free exercise rights of religious minorities whose practices more often conflict with neutral laws.154 In addition, scholars criticized Smith because it left the state of free exercise jurisprudence in chaos.155 In response to this popular outcry, in 1993, Congress passed the Religious Freedom Restoration Act (“RFRA”) and restored Sherbert’s strict scrutiny as the legal analysis applicable to free exercise claims.156 RFRA’s reign was short lived because, in 1997, in City of Boerne v. Flores, the U.S. Supreme Court held RFRA unconstitutional.157 In 2000, in response to Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).158 RLUIPA requires the government to show a compelling interest in any land use regulation that “substantially burdens” religion, effectively reinstating Sherbert as the controlling legal analysis.159 Because the constitutional [*PG227]status of the law is uncertain, few courts have decided RLUIPA claims on the merits and the few post-RLUIPA courts that have considered the conflict often have applied the more familiar Smith analysis.160
Preservation ordinances impose financial costs for upkeep and restoration that may drain funds from a religious group’s charitable, educational, or religious missions.161 Consequently, many congregations find that design control threatens their religious autonomy and burdens their free exercise of religion.162 As discussed above, the nation’s utmost concern for free exercise of religion resulted in its protection by the First Amendment—protection that runs to the present day.163 Historic preservation, however, remains an important government interest and a tool used to maintain the character and economic integrity of urban spaces.164 The U.S. Supreme Court has acknowledged and upheld the government’s interest in preserving its built heritage, and the successes of the preservation movement are well documented.165
Since the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith, courts have ruled inconsistently on the impact of free exercise jurisprudence on the application of preservation ordinances to historic religious structures.166 This judicial inconsistency is a result of Smith’s lack of clarity in articulating what constitutes a neutral law of general applicability and what triggers the hybrid rights or individualized exemption exceptions.167 Without regard to the facts of a case, the strictures of Smith require courts to choose one of two alternatives: 1) follow Smith and conclude that incidental burdens imposed by preservation ordinances on the free exercise of religion are per[*PG229]missible; or 2) determine that preservation ordinances fit into a Smith exception and thereby require an exemption for all religious structures.168 These alternatives are familiar because courts still waver between the conflicting views of Jefferson and Madison as to the true scope of the Free Exercise Clause.169
Before considering how courts decide free exercise and historic preservation conflicts under Smith, first it is important to consider how courts struck a balance between these two interests before the Smith revolution.170 In the 1970s and 1980s, Sherbert v. Verner’s strict scrutiny dominated the analysis, and courts typically gave preferential treatment to religious denominations that brought lawsuits contesting the application of zoning ordinances to their worship spaces.171 Few preservation cases were decided, but zoning ordinances that incidentally burdened religion failed strict scrutiny because, by failing to maintain community health or safety, they did not serve a compelling government interest.172 Hence, under Sherbert, courts mandated exemptions to zoning and preservation ordinances for historic religious properties in almost all cases.173
Several courts deciding zoning cases that involved this clash of interests, however, interpreted the mandates of Sherbert less strictly.174 For example, in 1983, in Grosz v. City of Miami Beach, the United States Court of Appeals for the Eleventh Circuit upheld the prohibition of religious services in a rabbi’s home, which was located in an R-4 resi[*PG230]dential-only district.175 He alleged that the city’s ban on religious services in the R-4 district was a free exercise burden, so the court performed an ad hoc balancing of the two parties’ interests.176 The court did not apply strict scrutiny despite citing both Sherbert and Wisconsin v. Yoder.177 Instead, it concluded that the rabbi’s ability to walk only a few blocks to hold services swung the balance in the government’s favor, even when the zoning ordinance did not serve a compelling government interest.178 Therefore, the court upheld the city’s interest in maintaining its residential-only zone because of the relative insignificance of the rabbi’s free exercise burden.179
Similarly, in 1981, in Bethlehem Evangelical Lutheran Church v. City of Lakewood, the Colorado Supreme Court balanced the interests of the Church with those of the City before deciding whether the government action was a violation of the Free Exercise Clause.180 The City had conditioned the granting of building permits on the Church’s willingness to undertake various public improvements for the surrounding streets and sidewalks.181 The court concluded that the burden on the Church was minor considering the project’s scope and the City’s “substantial interest” in creating a safe flow of traffic around the Church’s property.182 Therefore, conditioning the permits was well within the scope of the City’s police power and did not unconstitutionally burden the Church’s free exercise of religion.183
The Eleventh Circuit’s balancing in Grosz and the articulation of a substantial interest test in Bethlehem Evangelical did not represent [*PG231]adequately the state of free exercise jurisprudence before Smith.184 The cases did show, however, that courts have the ability to consider sensibly the implications for both parties when deciding whether the government or religious interest should prevail.185 Though both cases involved zoning ordinances, courts typically treat historic preservation interests analogously.186
Smith created an entirely new legal framework within which courts must consider the collision between historic preservation interests and free exercise rights.187 The Smith decision initially seemed to favor historic preservation interests because common sense dictated that preservation ordinances were facially neutral laws of general applicability.188 Accordingly, under Smith, no exemptions would be granted when ordinances incidentally burdened the free exercise of religion.189 For example, in 1990, in St. Bartholomew’s Church v. City of New York, the United States Court of Appeals for the Second Circuit upheld the New York City Landmarks Preservation Law against a free exercise challenge by a midtown Episcopal church.190 In 1967, pursuant to the Landmarks Law, New York City’s Landmarks Preservation Commission had designated St. Bartholomew’s Church and Community House historic landmarks.191 Some fifteen years later, the church filed a petition with the Commission to replace the Community [*PG232]House with a fifty-nine story office tower.192 The Commission denied that petition and two others that followed, and the Church brought suit alleging a violation of the Free Exercise Clause.193
The Second Circuit relied heavily on Smith in affirming the district court’s decision.194 The circuit court concluded that the Landmarks Law was facially neutral within the meaning of Smith, and thus, the incidental burden on religion it imposed did not violate the Church’s free exercise rights.195 The Church argued that, because over fifteen percent of the regulated buildings in New York were religious, the Landmarks Law was neither neutral nor generally applicable.196 The Second Circuit reasoned, however, that such a high number reflected only that religious structures, more often than secular, fall into the neutral criteria the board developed.197 In addition, the court found the law generally applicable because the Commission did not intend to discriminate against religion when it chose which buildings to landmark.198 Many state courts followed St. Bartholomew’s and held that preservation ordinances were neutral and generally applicable for Smith purposes.199
Courts looking to escape from the strictures of Smith, which many legal scholars believed was wrongly decided, held that preservation ordinances were neither neutral nor generally applicable.200 If a law was not neutral or generally applicable, the Smith court had concluded it would apply strict scrutiny and require the law to further a [*PG233]compelling state interest.201 For example, in 1992, in First Covenant Church v. City of Seattle, the Washington Supreme Court held that Seattle’s Landmarks Preservation Ordinance was neither neutral nor generally applicable.202 First Covenant sued for declaratory relief when the Seattle Preservation Committee conferred landmark status to a church building, alleging the designation burdened the congregation’s free exercise of religion.203 “Because the sites, improvements, and objects they govern are arbitrarily selected, and the selection process requires individual evaluation of each building, site or improvement,” the court distinguished the ordinance from the generally applicable criminal law in Smith.204 In addition, the ordinance lacked neutrality because it alluded to religious facilities and included a liturgical exception.205
St. Bartholomew’s and First Covenant demonstrate how Smith’s ambiguity left leeway for different interpretations of what constitutes a neutral law of general applicability.206 In the latter case, the Washington Supreme Court distinguished landmark ordinances from the criminal statute in Smith because such ordinances granted government actors the power and discretion to choose whether a building would be landmarked.207 Advocates for religious property owners concurred and argued that targeting individual buildings in this manner opposes application of the words “generally applicable” to any part of the preservation scheme.208 Because the preservation committee applied landmark [*PG234]status only to particular buildings, several property owners argued that they unfairly bore the burden of maintaining a neighborhood’s historic character.209
Government officials, however, only decide to landmark buildings that meet specific threshold criteria, which are predetermined, explicit, and not religiously motivated.210 The decision to landmark does involve discretion and matters of taste, but, in 1978, in Penn Central Transportation Co. v. City of New York, Justice Brennan explicitly stated that subjective elements considered in the landmarking process do not make the final decision arbitrary.211 Rather, like zoning, historic preservation is a form of land use planning that treats similar property in a similar manner within a generally applicable scheme.212 Unlike the Santeria adherents in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, religious congregations subject to preservation ordinances do not alone bear the burden of maintaining an area’s historic character.213 The ordinances apply equally to adherents and non-adherents when their property meets certain criteria; thus, for Smith purposes, they are generally applicable laws.214 In dicta, in 1997, in City of Boerne v. Flores, the U.S. Supreme Court itself referred to the preservation ordinance at issue as a law of general application.215 Therefore, although earnest, the Washington Supreme Court was misguided when it concluded that preservation ordinances lack general applicability.216
[*PG235] As to neutrality, preservation ordinances are both facially and substantively neutral as required by Hialeah.217 On their face, they do not specifically target religious beliefs, groups, or practices for discrimination.218 In effect, preservation commissions do not “gerrymander” preservation ordinances to target particular religious conduct like the laws in Hialeah, and they do not apply them to religious buildings at the exclusion of secular structures.219 Finally, commissions do not apply landmark status only to property owners motivated by religious belief.220 Therefore, though Smith may have been vague, careful consideration of the Court’s opinion mandates that future courts consider preservation ordinances as neutral and generally applicable laws.221
If the law in question is neutral and generally applicable, the second determination courts must make under Smith is whether it fits into one of the exceptions Justice Scalia articulated in the majority opinion.222 Unfortunately, the Smith Court neglected to articulate the scope of the exceptions presented, leaving future courts wide latitude in determining what laws implicate hybrid rights or have in place a system of individualized exemptions.223 Hence, courts considering clashes between free exercise and historic preservation that would prefer to subject the law in question to strict scrutiny often determine it fits within one of the Smith exceptions.224 As evidenced by the cases decided before Smith, once the state is required to show a compelling government interest, the congregation alleging the free exercise burden will be exempt from honoring the municipality’s preservation ordinance.225
In Smith, Justice Scalia distinguished Sherbert by carving out an exception to the Court’s ruling for laws that have in place a system of [*PG236]individualized exemptions not present in the Oregon peyote law.226 South Carolina’s unemployment scheme, in Sherbert, had an exemption-granting process that vested a high degree of discretion in government officials to determine who could be exempt from the statutory requirements for unemployment compensation.227 According to Justice Scalia, the Sherbert Court required strict scrutiny of the denial of unemployment benefits resulting from Sherbert’s religious conduct because the government’s open-ended discretion could have resulted in religious discrimination.228 Courts, acting with little guidance as to whether the scope of this exception extends beyond the unemployment context, have disagreed on whether preservation ordinances contain a system of individualized exemptions.229
The New York City Landmarks Preservation Law had an economic hardship provision in place, which allowed for exemptions from landmark designation upon the demonstration of financial hardship, when the Second Circuit decided St. Bartholomew’s in 1990.230 The Church had even availed itself of that provision, but the Landmarks Commission determined it did not prove the necessary hardship and upheld the denial of the permit.231 Therefore, the court knew that the Commission had the discretion, based on a careful review of a property owner’s finances, to grant an exception to the Landmarks Law.232 When deciding the case, however, the Second Circuit did not even consider whether the preservation ordinance fit within the individualized exemption exception articulated in Smith.233 It is likely, as has been argued since, that the court felt that the exception was too targeted to include preservation laws.234 The “good cause” standard that had guided the exemption-granting process in Sherbert—allowing anyone to be de[*PG237]nied unemployment for a “good cause”—had provided an easy opportunity for the government worker to discriminate, and forced the Court to apply strict scrutiny to counter the broad delegation of power.235 The discretion of the preservation board in St. Bartholomew’s, however, was limited to consideration of detailed economic criteria.236 Accordingly, the court correctly applied the Smith standard because the decisionmaker was unable to impinge upon the property owner’s First Amendment rights.237
In contrast, in 1996, in Keeler v. Mayor of Cumberland, the U.S. District Court for the District of Maryland concluded that Cumberland’s preservation ordinance did have in place a system of individualized exemptions.238 In Keeler, Cardinal William H. Keeler sued on behalf of the Sts. Peter and Paul Roman Catholic Church when the City of Cumberland denied the church’s request to tear down the monastery and chapel.239 The historic chapel and monastery, in serious disrepair, not only drained the church’s funds, but also inadequately met the needs of the current congregation.240 The district court determined that the individualized exemptions in the Cumberland ordinance gave the city the discretion to grant exemptions from preservation laws for the following reasons: 1) financial hardships; 2) deterrents to major improvement programs; and 3) structures whose preservation would not serve the general welfare.241 These provisions distinguished Cumberland’s ordinance from the across-the-board criminal prohibition of pe[*PG238]yote use in Smith.242 Because the ordinance fell squarely within a Smith exception, the district court required the government to show a compelling interest for its refusal to grant an exemption for religious hardship when exemptions from landmark status were available for secular reasons.243 Applying strict scrutiny was determinative because the court, like all other courts ever considering the issue, determined that historic preservation was not a compelling government interest.244
Where Hialeah provided guidance to courts on how to analyze whether laws were neutral or generally applicable, no analogous case exists to guide the determination of the meaning of the individualized exemption exception.245 Despite the differences between the unfettered discretion employed by government officials in Sherbert and the guided decision making of preservation boards, the Keeler court read Smith broadly, and held that the preservation ordinance at issue contained individualized exemptions.246 The Keeler court’s analysis is suspect because, if a court stretched the individualized exemption exception to include preservation laws, the other laws that the exception would include would almost entirely swallow Smith’s holding.247 If read literally to apply to any law with an enumerated exception to its main proposition, rather than limited to discretionary exemptions like Sherbert’s “good cause” standard, so many laws would be subject to the compelling interest test that Smith itself would become meaningless.248 It is unlikely that Justice Scalia and the Smith majority intended to cre[*PG239]ate an exception that vastly weakened Smith, particularly in light of their concern that exemptions to neutral laws would allow a citizen “to become a law unto himself.”249 In addition, the Smith Court chose not to overrule Sherbert, but to limit it through the individualized exemption exception—an exception the Court applied only in the unemployment context.250 Therefore, the intent of the Court in Smith argues against the Keeler court’s broad reading of the law and supports preservationists’ notion that the economic hardship provisions in preservation ordinances do not implicate the individualized exemption exception.251
Justice Scalia articulated a second exception to Smith’s basic holding—the hybrid rights exception—that is implicated when free exercise concerns are coupled with another constitutional infringement.252 The Smith Court again failed to articulate adequately the scope of the exception and left another area of the law important to the free exercise debate open for disparate interpretation.253 Accordingly, a circuit split has emerged over the meaning of the hybrid rights formula articulated in Smith.254 Despite all this activity in the lower [*PG240]courts, few courts have considered in detail whether preservation ordinances implicate the hybrid rights exception.255
The Washington Supreme Court was willing to tackle the issue and, in First Covenant, it concluded that the Seattle preservation ordinance implicated the hybrid rights exception because the ordinance also burdened the congregation’s free speech.256 The Washington court noted that speech can be nonverbal if it is “sufficiently imbued with elements of communication.”257 Because congregations build houses of worship to convey a religious message, and First Covenant itself claimed its church building was “an expression of Christian belief and message,” the court held that church architecture was equivalent to religious speech.258 Accordingly, because the free exercise burden was coupled with an infringement on free speech, the preservation ordinance implicated hybrid rights.259 Because it was held to be an exception to Smith, the court subjected the preservation law to strict scrutiny and concluded it did not serve a compelling government interest.260
Advocates for religious property owners also argue that preservation ordinances implicate constitutional rights other than free exercise rights when applied to houses of worship.261 They claim that architectural changes that have followed in the wake of doctrinal changes prove that a house of worship is both a profession of faith and religious speech.262 The physical arrangement of both the exte[*PG241]rior and interior of a religious structure, therefore, conveys messages of faith to its congregation that the state should not alter.263 In addition, design control of religious structures allegedly implicates the Establishment Clause because it unconstitutionally entangles the government in the congregation’s religious affairs.264 Architectural choices made in design review affect the messages conveyed by a religious structure and, in turn, affect the congregation’s spiritual formation.265 As a result, a preservation committee’s choices may require it to take sides in a religious dispute when that dispute involves ecclesiastical design choices.266
Preservationists rebut these theoretical assertions with the reality that no court, besides the Washington Supreme Court, has considered architecture a form of protected speech—religious or otherwise.267 If courts accepted the “architecture-as-speech” proposition, they would also be required to subject zoning ordinances to strict scrutiny.268 Accordingly, a municipality’s land use capabilities would be severely hindered because it would have to grant exemptions for any minor economic burdens suffered by religious property owners resulting from the application of a zoning ordinance.269 Preservationists argue that, as with the individualized exemption exception, the Smith majority [*PG242]created the hybrid rights exception to distinguish precedent and not to swallow Smith’s basic holding.270 The Washington Supreme Court incorrectly concluded that historic preservation ordinances implicate hybrid rights because the Smith majority intended courts to narrowly construe the hybrid rights exception.271
Until the U.S. Supreme Court decides the constitutionality of RLUIPA, EmploySment Division v. Smith is controlling and courts must judge any free exercise claim guided by its holding.272 If interpreted as intended by the majority, courts considering whether a particular preservation ordinance burdens free exercise will find for the local government because they will decide that preservation laws are neutral and generally applicable.273 Therefore, courts will uphold these ordinances because they incidentally burden religion and do not target it directly.274 Many scholars and courts do not find this result satisfying because the Smith decision does not provide sufficient free exercise protection in general and, in particular, endangers the rights of minority religious groups.275 If the government refuses a permit for an addition to house a new liturgical practice and instead works with the church to incorporate the practice in the existing space, free exercise [*PG243]concerns become very real.276 First, by denying the permit, the commission interferes with the church’s ability to celebrate its liturgy how it chooses.277 Second, by working with the church, the commission creates an atmosphere of worship catered to its own desires and perhaps in violation of the congregation’s wishes.278 Though religion itself is not purposefully targeted by preservation laws, Smith is certainly underinclusive in its religious protections because it provides no relief, or even consideration, to congregations finding themselves in the bind articulated above.279 The Smith analysis requires courts to focus only on the nature of the law—whether it is neutral and generally applicable—and pays no heed to the detrimental effect of the contested law on religious faith or conduct.280
If one of the Smith exceptions is determined to govern, or RLUIPA is found constitutional, however, the legal analysis is equally unsatisfactory.281 The court will apply strict scrutiny and any preservation ordinance burdening a religious structure will fail because it was not enacted to protect the public’s health or safety.282 Accordingly, the court will grant all religious property owners exemptions from historic preservation laws, even for the most minor religious burdens, and create free exercise protections that are overinclusive.283 If this Sherbert/Yoder standard governs, it will result in the alteration of important historic buildings for what are, in essence, economic reasons.284 For example, a planning board’s refusal to allow vinyl siding on a church does not en[*PG244]mesh the government in church affairs, control the focus of a congregation’s worship, or compel the church to make any religious proclamations.285 Yet, absent a compelling government interest, a court applying strict scrutiny would consider such a small burden to be sufficient grounds for an exemption, resulting in permitting a church to put vinyl siding (or anything else) on a historic religious property.286 In addition, granting exemptions for purely economic burdens may also implicate the Establishment Clause because it involves treating similarly situated groups differently based on their religious beliefs.287 Granting exemptions to religious property owners may constitute government support of religion because courts would not grant non-religious property owners the same exemptions.288
The literature attempting to make sense of the clash between historic preservation and free exercise rights typically advocates for either the under- or over-inclusive legal analysis the courts already employ.289 Preservationists rely on the Smith analysis to uphold the government’s historic preservation interests against the free exercise claims of religious congregations.290 Advocates for religious groups attempt to move the analysis to the Sherbert standard by either refusing to apply Smith or by placing preservation ordinances into one of its two exceptions—the hybrid rights or individualized exemption exceptions.291 A satisfactory [*PG245]and pragmatic solution seems to elude all who attempt to resolve this conflict of interests because courts and scholars alike remain polarized, clinging blindly to either Madison’s or Jefferson’s conception of the scope of free exercise rights.292 Though having its own drawbacks, the best solution entails courts making an ad hoc factual inquiry into each set of circumstances that implicates this conflict.293 Only through a close examination of each factual situation can a court determine whether the First Amendment requires an exemption from a preservation ordinance for a religious property owner.294
As described above, no legal test yet conceived under the federal constitution adequately has balanced constitutionally protected free exercise rights with constitutionally sanctioned historic preservation interests.295 The conceptions of neither Jefferson nor Madison adequately determine the scope of free exercise rights guaranteed by the First Amendment, and the tests courts use based on these two philosophies are either under- or over-inclusive of free exercise rights.296 Therefore, it seems that only through a case by case balancing test can a court adequately consider the interests of both the government and the religious congregation.297
Judicial balancing tests can be onerous because they involve detailed consideration of the facts of each particular case—including economic, social, and religious issues that judges may be reluctant to consider—and also lack bright-line rules that courts can easily apply.298 In addition, balancing tests can create difficulties for those [*PG246]looking to precedent for guidance because the cases often turn on minute factual distinctions.299 Despite their difficulties, justice requires courts to apply a balancing test when religious congregations challenge preservation laws on free exercise grounds.300 Bethlehem Evangelical Lutheran Church v. City of Lakewood and Grosz v. City of Miami Beach, two cases decided before Smith, show how a court sensibly can balance historic preservation interests and free exercise concerns.301 Again, these cases considered zoning, but they offer an example of coherent analysis that allows for the adequate consideration of the interests of both the government and the religious congregation.302
As opposed to simply focusing on the law in question or the alleged free exercise burden, the Bethlehem Evangelical and Grosz courts carefully looked at the totality of the conflict.303 Using these analyses as guides, a court deciding whether to uphold the government’s interest in the preservation of historic religious properties against a congregation’s free exercise allegation should consider 1) the character of the free exercise burden; 2) the impact on the religious congregation if the decision of the preservation committee is upheld; 3) the nature and necessity of the alteration being proposed; 4) the ar[*PG247]chitectural or historic significance of the structure; and 5) the economic impact on the community that will result from the loss or alteration of the historic structure.304
The first two factors in the balancing test summarize the religious congregation’s interest by considering not only the nature and extent of the free exercise burden but also the effect of forcing the congregation to pursue other options outside the desired architectural alterations.305 The most important factor in the analysis, and also the most in need of clarification, is the character of the free exercise burden.306 Although preservation laws never directly burden religious belief or expression, they do burden religious congregations by placing demands on their resources, or by forcing growing congregations to remain in smaller, older buildings.307 The basis of most alleged free exercise burdens in the preservation context, therefore, is really economic.308 Accordingly, a court must first determine the threshold question of whether the economic burden should be considered a [*PG248]sufficient free exercise infringement to be balanced against the municipality’s historic preservation interests.309
Consideration of two cases already discussed provides two possible alternatives to guide this threshold consideration in the proposed balancing test.310 Under the Smith standard, the determination of whether a law actually burdened free exercise hinged on “whether the claimant has been denied the ability to practice his religion or coerced in the nature of those practices.”311 Following Smith, as seen above, the U.S. Court of Appeals for the Second Circuit, in 1990, in St. Bartholomew’s held that neutral regulations that diminish the income of religious organizations were not free exercise violations.312 Thus, the court concluded that the denial of significant revenue did not implicate free exercise rights even when, as the Church alleged, the denial forced cuts in many charitable programs.313 The ordinances imposed economic harms that simply made the practice of religion more expensive, and, therefore, they were not unconstitutional because they did not infringe directly upon religious beliefs.314
In contrast, in 1992, in First Covenant Church v. City of Seattle, the Washington Supreme Court conceded that moderate and generally applicable burdens like a sales tax did not implicate free exercise concerns.315 The court reasoned, as previously discussed, that a more onerous financial burden, even if caused by a generally applicable law, could violate free exercise rights if it severely restrained religious activity.316 The court concluded that landmark designation “so grossly diminishes the value of the Church’s principal asset” that it unconstitutionally burdened the congregation’s free exercise of religion, and it granted an exemption to the preservation ordinance.317 Other relig[*PG249]ious congregations also advocated for a broader understanding of free exercise because they believed the charitable and educational missions affected by preservation ordinances were equivalent to expressions of religious belief.318 Therefore, they characterized regulations that affect such enterprises as free exercise burdens equivalent to the suppression or coercion of religion.319
The First Covenant articulation that economic burdens that extend beyond a mere nuisance can be legitimate free exercise burdens is the more appropriate analysis for this balancing test.320 By considering a broader scope of economic burdens, the proposed balancing test honors the Constitution’s explicit protection of religious freedom.321 Although the U.S. Supreme Court also protects historic preservation interests, the sacred place religious freedom holds in United States history requires any doubt in this balance be resolved in favor of free exercise rights.322 Therefore, even when a religious congregation articulates a burden that seems solely economic on its face, if it imposes more than a minor economic hardship, the court would balance the interest against the opposing preservation concern.323
In addition, allowing a broad articulation of free exercise burdens complies with the Court’s mandate to protect the separation of church and state.324 In Smith, the Supreme Court explicitly stated that the role of the judiciary does not include considering at length the centrality of a practice or act to a particular religion.325 Hence, any appropriate judicial balance considering competing preservation and free exercise interests should require little, if any, judicial inquiry into what acts are necessary to the religious beliefs of any congregation.326 By forcing courts to balance any economic burden imposed upon religious property owners that extends beyond a mere nuisance, this balancing test, in accord with Smith, keeps the judiciary from deciding what building [*PG250]plans, architectural symbols, etc. have religious meaning to a congregation.327
As applied, this threshold consideration would rule out alleged free exercise burdens that are purely secular concerns.328 For example, in 1998, in First Church of Christ, Scientist v. Ridgefield, the Church alleged that the preservation committee’s veto of the congregation’s plan to vinyl side the church was a free exercise burden.329 Under the First Covenant analysis, the refusal to allow vinyl siding on a church is more equivalent to the burden imposed by a sales tax than to anything that actually could implicate religious belief or expression.330 It is difficult to imagine that the costs of maintaining the clapboard exterior posed significant financial burdens beyond the typical recurring maintenance costs any property owner faces.331 Accordingly, under the proposed balancing test, a court would conclude that the burden is purely economic, and the free exercise challenge would fail.332 In a case like St. Bartholomew’s, where the economic loss imposed by the preservation law allegedly required cutting church programs and charitable missions, there is a potential free exercise burden because such losses may implicate religious belief or expression.333 Even though the Church’s new office tower would serve a purely secular function, the income would be used to enhance the [*PG251]worship and activities of the congregation necessary for its vitality as a religious community.334 The financial burden imposed by the preservation ordinance in this case is much more onerous than a trifling nuisance like a sales tax because it arguably implicates religious expression.335 Accordingly, the alleged burden would pass the threshold consideration, and the court would next weigh that burden against the City’s historic preservation interests.336
The second factor in the proposed balancing test considers the congregation’s alternatives in meeting its desired end without altering its historic structure.337 For example, if an overcrowded house of worship is contemplating building an addition, adding additional liturgies could solve the problem without altering a historic structure.338 The existence of what could be considered a viable alternative to renovation, demolition, or some other course harmful to the building would weigh heavily in the government’s favor.339 Likewise, the inability to find an alternative to alteration, coupled with an imposition on the congregation’s worship, would weigh much more heavily on the property owner’s side.340 If the religious practices of a congregation were severely limited, the court should require that the government’s interest be extremely strong to counteract such a burden.341 These first two factors provide for the adequate judicial consideration of the free exercise burden that is lacking under the Smith analysis, which [*PG252]considered only the nature of the law in question and not its effect on the religious property owner.342
The last three factors in this balancing test determine the extent of a municipality’s interest in preserving a historic religious property.343 First, the congregation must present plans to the court that detail how it proposes to change the historic structure so the court can consider the visual impact of the proposed alteration.344 The greater the change in the structure, the stronger the city’s interest is in maintaining the property in its current state.345 In addition, the court should consider the relationship between the renovated structure and the surrounding properties—any addition or renovation should be in keeping with the architectural scale and style of the neighborhood.346
In determining the building’s architectural and historic significance, the court must consider who built it, its place in American architectural history, and the significant historic events that took place there.347 For the most part, the preservation committee will have on record the consideration of these factors that took place during the original determination of whether the building should be designated a historic landmark.348 Although the court should not find these determinations controlling upon its decision, it should find readily available information detailing the facts the committee relied on in initially concluding that the building was worth protecting.349 [*PG253]The court should draw its own conclusions about what weight to assign to the building’s historic significance when balancing against the alleged free exercise burden.350
Finally, the court also should consider the economic impact granting an exemption to the religious property owner will have on the community.351 The property owner must show the court that its proposed change will have minimal adverse effect on property values and tourism in the surrounding area.352 If the structure, however, draws a significant amount of tourism to the city, and the property owner is proposing to replace it with a parking lot, the religious burden will have to be significant for the court to award an exemption to the preservation ordinance.353 If the structure brings very little revenue to the city, then a minor economic burden might be sufficient to support a court-granted exemption.354 The latter factors in the balancing test, therefore, provide for an adequate consideration of the government’s interest, something missing when strict scrutiny under Sherbert was the guiding legal framework and preservation rights were effectively ignored.355
Employment Division v. Smith, the currently binding U.S. Supreme Court free exercise case, created an inadequate legal framework for judicial consideration of free exercise and historic preservation conflicts. Under Smith, courts insufficiently protect free exercise rights because they do not scrutinize preservation ordinances when they [*PG254]burden a congregation’s free exercise of religion. If courts conclude that preservation laws trigger either of the Smith exceptions, however, they apply strict scrutiny and fail to protect historic preservation interests because they conclude that preservation ordinances never further a compelling government interest. Hence, under both interpretations of Smith, either free exercise rights or historic preservation interests are left without adequate judicial protection. Only through the application of a case by case balancing test, which considers the nature of the free exercise burden and the extent of the government’s interest in preserving the historic religious structure, can courts adequately adjudicate the inevitable free exercise/historic preservation conflicts. A balancing test will provide courts with the freedom to analyze each party’s situation and ground their decisions in important social, economic and religious considerations ignored by courts trapped within Smith’s rigid strictures.