The First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..." The Establishment Clause generally requires government neutrality toward religion. It prohibits laws that advance religion or express favoritism toward religion or that foster "an excessive entanglement" with religion. Thus, for example, a law that provides special funding for religious schools or exempts religious property from building code requirements may be found to violate the Establishment Clause.
The Free Exercise Clause, on the other hand, prohibits governmental entities from substantially burdening the free exercise of religion, unless the government can establish that the burden is "the least restrictive means" of furthering a "compelling governmental interest" such as public health or safety. However, "neutral laws of general applicability" need not be justified by a "compelling governmental interest," even if "the law has the incidental effect of burdening a particular religious practice." A law designed to promote secular objectives, for example, such as protecting historic buildings from demolition, would not violate the free exercise clause even though a congregation may be required to spend additional money to rehabilitate a historic house of worship.
While relatively few preservation-related cases have been brought under the First Amendment, claims may arise in response to the designation and regulation of historic religious property.
Free Exercise of Religion
While strong arguments exist in support of the regulation of historic religious property, the law in this area is still evolving. Although not always consistent, the few court decisions addressing this question in the context of preservation laws provide some guiding principles.
The controlling U.S. Supreme Court case on the free exercise issue is Employment Division v. Smith, 494 U.S. 872 (1990). In its decision, the Supreme Court reaffirmed prior case law which held that a government may not "substantially burden" an individual's free exercise of religion unless the government can establish that the burden is the "least restrictive means" of furthering a "compelling governmental interest." The Supreme Court, however, also carved out a major exception to that rule – "neutral laws of general applicability" need not be justified by a "compelling state interest" even if they substantially burden the exercise of religion.
Four distinct issues are typically addressed in considering the constitutionality of the regulation of historic religious properties in view of Smith. First, what is the religious basis for asserting a free exercise violation? Second, is the law a "neutral law of general applicability?" If the law is found not to be neutral or generally applicable, then it must be determined whether, third, the law or action "substantially burdens" the free exercise of religion. Finally, one must consider whether the action was taken in "furtherance of a compelling state interest," and, if so, whether the action is "the least restrictive means" of furthering that interest. Because historic preservation is generally not viewed as a compelling state interest, free exercise cases in this area are lost once a court has determined that the free exercise of religion has been substantially burdened.
Religious Basis for Objection
The Supreme Court has made clear that the individual or institution seeking exemption from governmental laws under the First Amendment must first show that the conduct in question is grounded in religious belief. In other words, the question of whether a religious property owner has a viable free exercise claim depends on the religious nature of the objection. Not every change that a religious property owner desires to make to its property implicates the Free Exercise Clause. Alterations to historic religious property based on practical considerations rather than theological choice warrant no more protection than changes to secular property. For example, courts have ruled that maximizing the value of real estate owned by religious organizations or covering a historic house of worship with vinyl siding does not constitute "exercise of religion."
Although distinguishing between religious and non-religious changes to historic religious property may be difficult, determinations are generally based on whether a proposed change stems from a "sincerely held belief," such as the need to replace a cruciform-shaped window with the Star of David. If a religious property owner establishes that the belief is "sincerely held" and the change is "religious in character," then the government must accept those assertions as true even if it considers them to be illogical or incomprehensible.
Neutral Law of General Applicability
Historic preservation laws are generally viewed as "neutral laws of
general applicability." The object of such laws is to promote the
preservation of historic properties, rather than the suppression of
religious conduct. Moreover, they seek to preserve all historic
properties, whether secular or religious, and without regard to the
religious orientation of the property owner. For case examples, see the
- Rector, Warden & Members of the Vestry of St. Bartholomew's Church v. New York City,
914 F.2d 348 (2d. Cir. 1990), cert. denied, 499 U.S. 905 (1991): New
York City's landmark law is neutral law of general applicability;
- First Church of Christ v. Ridgefield Historic District Comm'n, 737 A. 2d 989 (Conn. App. 1999): Ridgefield historic preservation ordinance is neutral law of general applicability;
- City of Ypsilanti v. First Presbyterian Church of Ypsilanti,
No. 191397 (Mich. Ct. App. Feb. 3, 1998): Ypsilanti preservation
ordinance is "a law of general application which does not burden [the
church] any more than other citizens, let alone burden [the church]
because of its religious beliefs;"
- Centro Familiar Cristiano Buenas Nuevas v. City of Yuma,
No. CV-08-996-PHX-NVW, 2009 U.S. Dist. LEXIS 7225 (D. Ariz. Jan. 30,
2009): Finding that the city was guided by neutral and generally
applicable principles in reviewing and ultimately denying a conditional
use permit application to operate a church on the city's historic main
The Supreme Court in Smith, however, recognized two limitations on
its general rule that substantial burdens on the free exercise of
religion need not be justified by a compelling governmental interest:
(1) where the government "has in place a system of individual
exemptions;" and (2) where the substantial burden involves another
constitutionally protected right. There is little guidance on the law in
this area. Constitutional experts maintain that exceptions under
historic preservation laws, such as "economic hardship provisions," do
not trigger the "individualized exemptions" limitation because they do
not invite "religiously motivated discrimination." While some religious
property owners have argued that historic preservation laws fall into
the "hybrid" constitutional rights limitation on the basis that such
laws infringe on both free exercise and free speech rights, no court has
applied this limitation in the context of historic properties.
Substantial Burden on Religion
Court decisions addressing this issue are both modest in number and
conflicting in result. Nonetheless, the prevailing view is that
enforcement of historic preservation laws against historic religious
property owners does not impose a "substantial burden on religion." In Rectors, Wardens & Members of St. Bartholomew's Church v. New York City,
914 F.2d 348 (1990), the leading federal court case on this issue, the
Second Circuit, found that the application of the landmark law to a
church-owned structure did not impose an unconstitutional burden on the
free exercise of religion, even though the law "drastically restricted
the church's ability to raise revenues to carry out its various
charitable and ministerial programs." See also City of Ypsilanti v. First Presbyterian Church of Ypsilanti,
No. 191397 (Mich. Ct. App. Feb. 3, 1998), in which the Michigan Court
of Appeals recognized that the alleged "burdens are still only
incidental effects of the ordinance...[and do] not burden [the religious
organization] any more than other citizens, let alone the religious
organization because of its religious beliefs;" and Diocese of Toledo v. Toledo City-Lucas County Plan Commissions,
Case No. 97-3710 (Ohio Ct. Common Pleas Mar. 31, 1998), in which the
church failed to establish that denial of permit to demolish a historic
house to construct a parking lot amounted to "an undue burden on the
Diocese's right to freely exercise religion" or that "the denial
prevents the Diocese from continuing existing charitable and religious
Note that some courts have dismissed free exercise claims on the
basis that the claim is not yet "ripe" for review, meaning that judicial
review would be premature because the jurisdiction being sued has not
had the opportunity to make a final, concrete decision on what
alterations or other actions it will permit a religious entity to make
on the subject property. There is still some potential that a
constitutional violation will not occur. See Metropolitan Baptist Church v. Consumer Affairs, 718 A.2d 119 (D.C. 1998), and Church of Saint Paul & Saint Andrew v. Barwick, 496 N.E.2d 183 (N.Y. 1986).
Compelling State Interest
In the event that a preservation law is deemed "non-neutral" or not
of "general applicability," and the regulation of historic religious
property would result in a "substantial burden" on the free exercise of
religion, any restrictions under the law must be justified by the
virtually insurmountable "compelling state interest" test, which only
applies to government interests such as public safety. No court thus far
has ruled that historic preservation meets that test.
The Washington Cases
In a trilogy of cases from the State of Washington, the Washington
Supreme Court has either construed the first amendment more
restrictively against the government or recognized additional
protections for historic religious property owners beyond those
guaranteed by the federal constitution. Among other things, the
Washington court found that Seattle's preservation law was not a neutral
law of general applicability and that even the nomination of
religious-owned historic property violates the free exercise clause.
These decisions reflect a marked departure from controlling U.S. Supreme
Court precedent on the free exercise clause.
Establishment of Religion
In addition to prohibiting substantial burdens on the free exercise
of religion stemming from non-neutral, generally applicable laws, the
First Amendment to the U.S. Constitution also prohibits the
establishment of religion. This prohibition does more than preclude the
federal government or a state from setting up an "official" church. It
also prohibits the adoption of laws that aid religion, or that give
preference to one religion over another religion, or religion in general
over non-religion. In essence, government must be neutral toward
The Establishment Clause and the Free Exercise Clause work in tandem
with each other, striving for the appropriate balance between church and
state. On the one hand, the government may not enact laws or fund
programs that are favorable to, or which give preference to, religious
entities. On the other hand, government may not enact laws or fund
programs that discriminate against religious entities. An issue in many
Establishment Clause cases, in effect, is where to draw the line between
religious preference and religious exercise. For example, under what
circumstances may a governmental entity fund the restoration of a
While the answer is rarely clear cut, the U.S. Supreme Court has
provided some guidance on how to evaluate Establishment Clause claims.
To survive constitutional scrutiny, the challenged governmental action
or program must (1) serve a secular governmental purpose, and (2) have a
primary effect that neither advances nor inhibits religion. See Lemon v. Kurtzman,
403 U.S. 602 (1971). To avoid having an impermissible "primary effect,"
the governmental action must not "(1) result in governmental
indoctrination; (2) define its recipients by reference to religion; or
(3) create an excessive entanglement." (Agostini v. Felton, 521 U.S. 203, 1997).
In interpreting these requirements, the Supreme Court has said that
government may "accommodate" religion, but only where accommodation is
necessary to remove governmental intrusions into personal religious
beliefs or practice (which, in turn, may require analysis under the Free
Exercise Clause). Moreover, although a law may incidentally benefit
religion, it must have a secular effect. Finally, consistent with this
approach, the Court has recognized that some intermingling between
church and state is inevitable in today's world. However, excessive
entanglement is impermissible. Governmental actions that require
substantial intrusion into the doctrinal affairs of religious entities
are not allowed.
Applying these factors, a federal district court upheld city funding
of repairs and improvements for three historic churches in Detroit
against an Establishment Clause claim. See American Atheists v. City of
Detroit Downtown Development Authority, 503 F. Supp. 2d 845 (E.D. Mich.
Religious rights are also protected by federal and state laws. The
primary law at the federal level is the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc. Signed into
law in 2000, this act prohibits any government from enacting or applying
land use laws, including historic preservation laws, to property owned
or used by individuals or religious institutions in a manner that would
"substantially burden" religious exercise without a compelling state
interest, such as public health and safety. RLUIPA also requires "equal
treatment" of religious and non-religious entities and prohibits
discrimination against religious institutions or assemblies. Successful
claimants are entitled to attorneys' fees and possibly damages.
Although RLUIPA applies to a broad range of religious activity, it
does not provide immunity from historic preservation and other land use
laws. Courts have uniformly rejected attempts to make the term
"substantial burden" meaningless, by finding that it applies to broad
range of effects that inhibit or constrain religious exercise. Rather,
they view the "substantial burden" requirement as an important
limitation on the law's scope and have dismissed claims where the
burdens on religious exercise have been incidental or similar to the
type of burdens experienced by any property owner. No single standard
for measuring "substantial burden," has been adopted. Most federal
appeals courts agree, however, that substantial burden must be
interpreted in a manner consistent with First Amendment law and thus
require a showing of coercion or significant restraint on religious
Finally, governmental entities should be aware that even if a
claimant establishes a substantial burden on religious exercise,
accommodations made by local entity to relieve the burden must be
accepted unless they are "unreasonable" or "ineffective." This is an
important limitation in matters involving historic properties, because
it should lead to negotiations that result in preservation-based
While RLUIPA has had a noticeable chilling effect on local government
activities involving historic properties, only a handful of
preservation case has been reported thus far. In Episcopal Student
Foundation v. City of Ann Arbor, 341 F. Supp. 2d 691(E.D. Mich. 2004), a
federal district court dismissed a RLUIPA claim because the
preservation commission's denial of a permit to demolish a student
worship facility did not substantially burden the organization's free
exercise rights. The court reasoned that the commission's action did not
"force [the organization] to choose between pursuing its religious
beliefs and incurring criminal penalties or forgoing government
benefits." It also did not prevent the organization "from engaging in
religious worship, or other religious activities."
Likewise, in Trinity Evangelical Lutheran Church v. City of Peoria,
No. 07-cv-1029 (C.D. Ill. Mar. 31, 2009), a federal court ruled that
the city had not violated RLUIPA in designating and then denying a
permit to demolish a church-owned apartment building to construct a
"family life center." There the court reasoned that the city's actions
did not rise to the level of substantial burden on religious exercise,
notwithstanding alleged increases in costs totaling $1.1 million, where
the city's action only affected one building and one location on the
church campus and did not prevent the church from "continuing its
The vast majority of court challenges brought under RLUIPA, to date,
have primarily focused on land use challenges involving the exclusion of
religious properties from certain locations or discriminatory actions
by prison officials in matters involving institutionalized persons.
By way of background, RLUIPA was adopted in response to the U.S. Supreme Court's ruling in City of Boerne v. Flores,
521 U.S. 507 (1997), that the act's predecessor, the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., was unconstitutional
as applied to the states. Among other things, the Court found that
Congress had exceeded its authority in enacting RFRA, by mandating that
the Free Exercise Clause afford more protection than that required by
the Supreme Court under Employment Division v. Smith. (Note that RFRA is still applied to federal agency actions. See Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418, 2006).
As with RFRA, RLUIPA was adopted in response to the Court's ruling in
Smith. Although the law's constitutionality as applied to challenges to
state or local land use and preservation actions has not been resolved,
the U.S. Supreme Court upheld the law as applied under its
"institutionalized persons" prong in 2005. See Cutter v. Wilkinson, 544 U.S. 709 (2005).
A number of states have enacted varying forms of RFRA, enabling
religious property owners to seek redress from state and local
governments that substantially burden their religious rights without a
compelling governmental reason. Although preservation actions have been
challenged in court under both federal and state RFRA grounds, no court
has ruled in favor of a religious property owner on such grounds. See First Church of Christ v. Historic District Commission,
737 A.2d 989 (Conn. App. 1999), cert. denied, 742 A.2d 358 (Conn.
1999), in which a denial was upheld of an application to install vinyl
siding on historic church against state RFRA claim. See also Centro Familiar Cristiano Buenas Nuevas v. City of Yuma,
No. CV-08-996-PHX-NVW, 2009 U.S. Dist. LEXIS 7225 (D. Ariz. Jan. 30,
2009), in which a denial was upheld of conditional use permit
application to operate church on the city's historic main street under
the Arizona Religious Freedom Restoration Act.