Brutalism Is in the Eye of the Beholder: A Congregation Sues D.C. for Making Its Church Building a Historic Landmark
On Aug. 7, 2008, the Third Church of Christ, Scientist filed a lawsuit in the U.S. District Court for the District of Columbia challenging the designation of its church building as a historic landmark. The church is a rare Washington, D.C., example of Brutalism, a modern architectural style popular in the mid-20th century. In December 2007, the D.C. Historic Preservation Review Board designated the church building a historic landmark, effectively barring the congregation from altering the exterior of the building without the district’s permission. Congregants argue that because the concrete building’s enormous size and lack of windows detract from worship and make the space expensive to heat and cool, the district should grant the congregation’s request to demolish the structure and build a new church in its place.
But the district has denied this request, and the church has sued. The church alleges violations of two federal religious freedom statutes – the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) – as well as the Free Exercise Clause in the First Amendment to the U.S. Constitution. (The Free Exercise Clause generally prohibits the government from discriminating on the basis of religion.) RLUIPA grew out of the U.S. Supreme Court’s interpretations of RFRA and the Free Exercise Clause, and is now at the center of many controversies over how the government regulates religious use of land.
To examine how RLUIPA relates to the Christian Science church’s lawsuit, the Pew Forum turns to church-state scholar Robert W. Tuttle.
Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School
Jesse Merriam, Research Associate, Pew Forum on Religion & Public Life
Question & Answer
RLUIPA’s story begins with a Supreme Court case called Employment Division v. Smith(1990). In that case, the high court rejected the “compelling interest” test, which was the prevailing standard for evaluating cases involving the Free Exercise Clause. Under the compelling interest test, a law that substantially burdens an individual or group’s ability to practice religion may not apply to the burdened persons unless the government demonstrates a compelling interest in applying the law to these individuals or groups. Only a few interests, such as public health and safety, have traditionally been considered compelling, so a consistent application of this approach would have exempted religious groups from many laws.
In Smith, the court rejected this approach, declaring that the free exercise analysis should not turn on whether a law substantially burdens a particular religious group or practice but rather on whether a law discriminates against a religious group or practice. Such a discriminatory law, the court explained, is invalid unless the government proves that the law is necessary to achieve a compelling government interest. But for laws that don’t discriminate on the basis of religion, the high court held that the Free Exercise Clause requires merely that courts apply the much less demanding “rational basis” test. This stipulates that a law is valid as long as it reasonably relates to some legitimate government interest – even if it substantially burdens religious exercise. According to the ruling in Smith, almost all nondiscriminatory laws satisfy the Free Exercise Clause, thus dramatically limiting the reach of the clause.
How did the ruling in Smith lead to the passage of RLUIPA?
The Smith decision infuriated many religious liberty advocates, prompting Congress in 1993 to pass the Religious Freedom Restoration Act (RFRA), which sought to reinstate the compelling interest test. In 1997, however, the Supreme Court held in City of Boerne v. Floresthat RFRA could not constitutionally apply to state and local governments. Importantly, though, the high court in Boerne noted that it might have upheld the statute’s application to the state and local governments if Congress had made the law narrower by applying the compelling interest test only to those government actions that are most likely to threaten religious liberty.
In 2000, Congress took up this challenge by passing RLUIPA, a narrower version of RFRA. RLUIPA reinstates the compelling interest test’s application to all levels of government – federal, state and local. But, as its name suggests, it does so only for two types of regulations: those that concern how religious groups use land, and those that deal with the religious exercise of individuals confined to government institutions such as prisons. Congress targeted these two types of regulations after conducting hearings and determining that these were the two areas in which state and local governments are most likely to disfavor or ignore religious interests.
For religious land use, RLUIPA offers additional protection beyond the compelling interest test. Whereas the institutionalized persons provision applies the compelling interest test to regulations that substantially burden the religious exercise of institutionalized people, the land use provision goes further. It not only applies the compelling interest standard to land use regulation but also prohibits land use regulation that discriminates on the basis of religion. This nondiscrimination provision requires the government to regulate religious and secular land use equally.
How have religious groups fared in claiming that particular land use regulations violate RLUIPA?
Religious groups have been more successful under the nondiscrimination provision than under the compelling interest standard. Many lawsuits brought under the nondiscrimination provision have challenged laws that exclude churches but not secular nonprofits from an area. In these cases, courts have held that the government must provide a good reason for excluding the church and not other groups. When the government has not been able to provide such a reason, which is often the case, the religious group has prevailed.
Religious groups have not fared as well, however, under the compelling interest test. This is because many courts have imposed strict limitations on what counts as a substantial burden. For example, in several decisions over the last few years, the 7th U.S. Circuit Court of Appeals has said that to prove a substantial burden, a religious group must show that a land use regulation has made it impossible or impractical for the group to practice its religion. Since land use regulations rarely impose such burdens, courts have rejected many of these challenges before ever having to determine whether the government had a compelling interest.
In the few situations in which religious groups have demonstrated substantial burdens, the groups have generally prevailed because courts have generally held that the government’s particular reason for enforcing a land use regulation falls short of the required compelling interest. In a number of these cases, land use authorities have denied congregations the right to locate or expand churches because neighbors have opposed the traffic that the proposed change would have created. Although traffic control is important, courts have not treated it as a compelling public interest.
This is an unusual RLUIPA case because most such disputes involve the government excluding a church from a particular area. This case is about the government’s effort to preserve a church building.
Another interesting dimension of the case is the church building itself. The building was designed by a well-known architect named Araldo Cossutta and was built in what is called a Brutalist style. As part of the modernist architectural movement, Brutalism flourished from the 1950s to the 1970s. As its name suggests, Brutalism uses raw concrete and stark geometric designs to create an imposing space.
Finding the building unattractive and expensive to heat and cool, the members of the church want to demolish it and build a new one in its place. But the D.C. Historic Preservation Review Board has contended that the church is an especially important example of this architectural style and therefore may not be demolished.
To resolve this case, the U.S. District Court will consult previous judicial interpretations of RLUIPA, RFRA and the Free Exercise Clause, the three standards that the Christian Science church has alleged the district violated. (Although RFRA no longer applies to state and local governments, RFRA still applies to Washington, D.C., because D.C. is under federal law.)
The church appeals to these three legal standards to make two arguments. The first argument, under RLUIPA’s compelling interest provision and RFRA, is that the district has substantially burdened the church’s religious exercise and does not have a compelling interest in imposing such a burden. The second argument, under RLUIPA’s nondiscrimination provision and the Free Exercise Clause, is that the district has unfairly targeted the Christian Science church in determining that its building is a historic landmark.
How do you expect the court to rule?
Prior cases have not really dealt with whether such a historic landmark restriction imposes a substantial burden under federal law, so it’s hard to say how the court will rule. The church’s first argument appears to be the stronger one, however. To understand the church’s first argument, we need to break it into two parts: the church’s burden and the district’s interest.
Let’s start with whether the historic landmark restriction imposes a substantial burden on the church’s religious exercise. The church argues that its designation as a historic landmark burdens it in two ways. First, the landmark restriction requires that the church maintain the building’s dark and unwelcoming exterior, which the church claims undermines its effort to communicate the meaning of its faith. Second, the church argues that the landmark restriction prevents it from adapting the building to make it more inviting to the community and more capable of generating revenue. The church argues that these are substantial burdens that affect its message and livelihood.
The district will argue that these burdens are not substantial because the church can decorate the building’s interior however it pleases and, if it wishes, the church can always move to another building.
If the court does not find a substantial burden, then the court’s analysis ends there and the church loses this first argument. But if the court does find a substantial burden, it must then address whether the district has a compelling interest in preserving the building as a historic landmark. In this latter event, I’m pretty sure the church would win. Traditionally, courts have held that the government has a compelling interest only in health and safety matters, such as curbing disease and criminal behavior. Purely aesthetic matters, like the preservation of historic landmarks, rarely amount to compelling government interests in the eyes of the courts.
What about the church’s second argument? Can the church win on the ground that by prohibiting the church from demolishing the building, the district violated either RLUIPA’s nondiscrimination provision or the Free Exercise Clause?
I think it is very unlikely that the church will prevail in this argument. The Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah (1993) is the relevant precedent on what counts as impermissible discrimination under the Free Exercise Clause and RLUIPA. In the Lukumi case, the high court invalidated an ordinance that prohibited animal sacrifice but permitted other types of animal killings. The court explained that the city, by focusing only on animal sacrifice in its ordinance, did not aim to protect animals in general but rather to prohibit the Santerian practice of animal sacrifice. Such targeted legislation, the court held, violates the Free Exercise Clause.
Now compare the Hialeah ordinance with the district’s designation of the Christian Science church as a historic landmark. In one respect, the review board’s designation might appear to target a religious group because it singled out the Christian Science church in making this designation. But this is only a superficial similarity because all historic landmark decisions single out particular buildings as being worthy or unworthy as historic landmarks. To decide whether the district actually targeted the Christian Science church, we have to consider the criteria that the review board considers in determining whether a building is a historic landmark, and how the board applied the criteria to this particular building.
The D.C. Historic Preservation Review Board’s report explaining its decision is relevant here. The report applies the same criteria to the church that the board applies to other buildings, religious and secular. Nothing in the report suggests that the board landmarked this building due to hostility toward religion in general or the Christian Science church in particular.
So I doubt a court would find that the district violated RLUIPA or the Free Exercise Clause by targeting the Christian Science church. As I mentioned earlier, the real question is whether, under either RLUIPA or RFRA, the landmark designation has imposed a substantial burden on the church.
Some Supreme Court decisions have interpreted the Establishment Clause to prohibit the government from favoring religion over nonreligion. RLUIPA appears to favor religion over nonreligion because it gives only religious groups a legal weapon against burdensome laws. Is there an argument that RLUIPA violates the Establishment Clause? And have courts considered this argument?
There is certainly an argument that RLUIPA violates the Establishment Clause, but I think there is almost zero possibility of the argument persuading the Supreme Court or a lower court to invalidate RLUIPA as unconstitutional.
In Cutter v. Wilkinson (2005), the Supreme Court unanimously rejected this Establishment Clause argument as it applied to RLUIPA’s institutionalized persons provision. In that decision, the court explained that there is an area of church-state law known as the doctrine of accommodation, which permits the government to grant religious groups special protection from burdensome laws. Some examples of religious accommodations are military draft exemptions for conscientious objectors, tax exemptions for houses of worship or exemptions for religious employers from employment discrimination laws.
The Supreme Court has considered constitutional challenges to such religious accommodations for over 50 years. Through these cases, the court has developed rules for determining when religious accommodations violate the Establishment Clause. So the court held in Cutter that the institutionalized persons provision is constitutional because it satisfies these rules.
The land use provision also is likely to satisfy the accommodation rules. It is possible, however, that a court could find that the land use provision violates the rule prohibiting the government from accommodating religious groups in a way that unreasonably burdens other people. RLUIPA’s land use provision would violate this rule if exempting a religious group from a land use regulation imposed a serious burden on the group’s neighbors. For example, RLUIPA may not permit a church to use property in a way that subjects neighbors to excessive noise.
But even if a court held that applying RLUIPA in this way would be unconstitutional, such a ruling would not mean that the land use provision itself is unconstitutional. The ruling would mean only that RLUIPA could not grant an exemption in this particular case.
So, given the unlikelihood of a court finding that RLUIPA’s land use provision violates the Establishment Clause, do you expect the Supreme Court to take a case dealing with this issue?
I think it’s possible but unlikely that the Supreme Court would take such a case. Now that the court has upheld the institutional persons provision in Cutter, most if not all lower courts will look to that case as a precedent for upholding the land use provision. And I don’t think the Supreme Court will reach out to hear a case only to affirm a lower court’s finding that RLUIPA is constitutional. So I doubt we’ll see the land use version of Cutter.
But it’s possible that the Supreme Court would take an “as-applied” challenge to RLUIPA – that is, a case in which someone argues that a lower court applied RLUIPA in a way that violated the Establishment Clause because, in protecting a religious group’s use of land, it unreasonably burdened the religious group’s neighbors. That certainly would make for an interesting challenge.
Photo credit: AP
This transcript has been edited for clarity, spelling and grammar.