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Cal Supremes Exempt Churches From Preservation Laws: On Divided Ruling, Court Upholds Constitutionality of Exemption

A divided California Supreme Court has upheld a state law that allows religious institutions to exempt themselves from historic preservation ordinances. In a 4-3 ruling, the court found that the exemption which applies only to noncommercial property owned by religious institutions violated neither the First Amendment's free exercise clause, nor the state constitution's establishment clause. "These exemptions simply free the owners to use the property as they would have done had the property not been designated a historical landmark," Justice Marvin Baxter wrote for the majority. Justices Janice Brown, Ming Chin and Joyce Kennard joined the opinion. The court majority was met with strong dissents by Justice Stanley Mosk and Kathryn Werdegar, the latter of whom was joined by Chief Justice Ronald George. "Hundreds, if not thousands, of buildings are vulnerable," Elizabeth Merritt of the National Trust for Historic Preservation told the Los Angeles Times. The majority's ruling not only allows religious institutions to avoid certain zoning regulations, it also throws into question the future of many historic structures in the state. But state attorneys who defended the law said churches are different than other landowners. They argued that the law removed a potential infringement on religious expression. At issue are provisions in Government Code 25373, subdivision (d), and 37361, subdivision (c), which the Legislature passed as temporary measures in 1993, and made permanent in 1994. The law prohibits the application of local landmark preservation ordinances to noncommercial property owned by a religious entity if the owner objects to the local regulation. The Government Code sections themselves do not actually exempt any property; they only establish the framework for owners to get the exemption. Several nonprofit development and historical preservation organizations, and the City and County of San Francisco challenged the law. (Ironically, then-speaker Willie Brown carried the legislation to assist a San Francisco church.) The plaintiffs argued that the law violated the First Amendment by conferring a benefit only on religious organizations, providing significant economic advantages to religious groups at the expense of secular property owners. The plaintiffs also argued that the law improperly gave government authority to religious groups, which can essentially approve their own exemptions. The plaintiffs further contended that the law violated the "no preference" provision of Article 1, 4, of the state constitution, and Article XVI, 5, which bars government aid to religious institutions. Sacramento County Superior Court Judge Joe Gray ruled that the law violated both the state and federal constitutions. But the Third District Court of Appeal reversed that decision. The appellate panel ruled that the exemption did not endorse religion; it merely facilitated the efforts of religious organizations to advance their purposes. The state Supreme Court upheld the appellate court ruling. First, the state's high court applied the "Lemon test" derived from U.S. Supreme Court decisions in Walz v. Tax Commissioner, (1970) 397 U.S. 664, and Lemon v. Kurtzman, (1971) 403 U.S. 602. Under the Lemon test, a law passes First Amendment muster if it has "a secular legislative purpose," if its primary effect "neither advances nor inhibits religion" and if it does not "foster an excessive government entanglement with religion." The court ruled that the law passed all three prongs of the Lemon test. "Although application of a landmark preservation law to property owned by a religious entity does not violate a religious entity's free exercise rights, insofar as they law may burden that right, an accommodating exemption is a proper, constitutionally permissible, secular purpose," Justice Baxter wrote. "The exemption in question here seeks only to relieve religious entities of a potential burden on free exercise." As for advancing religion, the court held, "The only impact of the exemption is that the owner may continue to use the property as it sees fit (subject to other applicable laws) to further its religious mission unrestricted by the historic preservation law. That the owner may enjoy an economic advantage over secular owners of landmark properties is not relevant." Finally, the court held that the law did not create any entanglement, or even any relationship, between religious institutions and the government. The court then addressed challenges based on the state constitution. "We do not believe that the protection against the establishment of religion embedded in the California Constitution creates broader protections than those of the First Amendment," Baxter wrote. Neither the language in the state's "no preference" clause nor the legislative history "supports plaintiffs' argument that the clause bans governmental accommodation of religion or religious belief in general," Baxter continued. Nor did the law provide aid to religious institutions as defined in the state constitution and interpreted in California Educational Facilities Authority v. Priest, (1974) 12 Cal.3d 593, the court majority ruled. "While there may be a benefit as compared to properties that are subjected to landmark designation, neither the state nor the local governmental entity expends funds, or provides any monetary support, for the exempted property or its owner," Baxter wrote. In their dissents, Mosk addressed the state constitution, and Werdegar the federal. "This is an easy case," Mosk wrote. "[T]he Legislature has conferred on religious organizations a governmental power that is not enjoyed by other property owners. Such favoritism toward religion is prohibited under out state constitutional provisions forbidding the establishment of religion, the preference for religion, and aid to religion." Mosk wrote that the state constitution is "analytically distinct and more protective of the principle of church-state separation than the First Amendment." Thus, the Lemon test should not control this case, he wrote. And he railed against the majority for basing its decision on the speculative burden of historic preservation laws. "[I]t is not enough that local historic landmark preservation laws might in some conceivable situation impose some burden on a religious organization, however insignificant and however unrelated to a religious mission," Mosk wrote. "The majority's flawed approach could be used to justify exempting religious organizations from any neutral law of general applicability." Werdegar called the exemption a "drastically overbroad measure," that was inconsistent with the First Amendment. "[T]he challenged provisions go far beyond a reasonable accommodation of the exercise of religion and, as a practical matter, grant a significant, unjustified and preferential benefit to religious organizations." Historical protection advocates said that they might ask the U.S. Supreme Court to review the decision. The Case: East Bay Asian Local Development Corporation v. State of California, No. S077396, 00 C.D.O.S. 10114, filed December 21, 2000. The Lawyers: For East Bay: Zane Gresham, Morrison & Foerster, (415) 268-7145. For San Francisco: Kate Stacy, deputy city attorney, (415) 554-4617. For the state: Louis Verdugo Jr., assistant attorney general, (213) 897-2177.
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