Comment by Colin L. Black
As historic preservation laws have become increasingly common, so too have challenges to the restrictions imposed by such laws. One of the novel arguments offered by challengers has been that historic preservation laws violate the First Amendment rights of religious groups when their houses of worship or other properties are subject to landmark designation or other historic preservation regulation. These legal challenges by religious groups highlight an important aspect of historic preservation disputes—that they invariably operate on two levels, a “community” level and a distinct “legal” level. Put another way, the impact of historic preservation efforts on churches, their congregations, and their host communities is often far removed from the theoretical and analytical concerns of the constitutional and other legal questions that potentially dictate the outcome of a dispute.
Lawyers working in the area of historic preservation often find themselves straddling these two levels. On one hand, they are working for a community group, preservationist organization, or governmental body that is interested primarily in the practical results of any legal battle; for the client, the important issue is whether the structure stands or falls, for example. On the other hand, the tools that the lawyer possesses to effect the desires of his client are legal tools. In the case of free exercise challenges to historic preservation laws, the lawyer must grapple with legal theory and case law developed without consideration of the concerns of his client and the familiar world of historic preservation law.
This Comment will reflect the dual nature of free exercise challenges to historic preservation laws. Part II will begin on the community level with a look at a small Texas town that took a local dispute all the way to the United States Supreme Court last summer, resulting in the invalidation of a federal statute on constitutional grounds. Part III will then jump to the legal level to examine the Supreme Court case law that comprises the foundation of free exercise jurisprudence in the United States, tracing the development of the doctrine through the landmark case of Employment Division v. Smith, the subsequent passage of the Religious Freedom Restoration Act of 1993, and finally to the Court's recent decision in City of Boerne v. Flores. Part IV will then bridge the two levels by observing how this case law has been applied by the federal appellate courts and the state courts in the context of historic preservation law.
Having shown both that the Supreme Court's free exercise jurisprudence is unsatisfactory and that it could have important consequences for historic preservation, Part V will suggest a more coherent and consistent free exercise jurisprudence, focusing on the nature of the regulated activity and on the degree to which the activity is burdened by regulation. Part VI will apply this suggested approach to the case of Saint Peter the Apostle's Catholic Church in Boerne, Texas, as an example of how the First Amendment should be applied to historic preservation laws. In conclusion, Part VII will return ultimately to the community level to reveal the real-world fate of St. Peter the Apostle's Catholic Church.
About the Author
Colin L. Black. B.A. 1996, Tulane University; J.D. 1998, Tulane Law School.
Citation
72 Tul. L. Rev. 1767 (1998)