[*] ASSOCIATE, CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & MARTIN, ATLANTA, GEORGIA; B.S., FLORIDA STATE UNIVERSITY (1994); J.D., FLORIDA STATE UNIVERSITY COLLEGE OF LAW (1997). THE AUTHOR WISHES TO THANK PROFESSOR DONNA CHRISTIE FOR HER HELP IN THE DEVELOPMENT OF THIS ARTICLE AND THE INITIATION OF THE ENVIRONMENTAL CRIMES AND ARCHEOLOGICAL RESOURCES COURSE AT THE COLLEGE OF LAW. Return to text.

[1] John Nivala, Saving the Spirit of our Places: A View on our Built Environment, 15 UCLA J. ENVTL. L. & POL'Y 1, 51-52 (1996-97). Return to text.

[2] See discussion infra Part II (describing the constitutional protections of religious freedom). Return to text.

[3] See discussion infra Part VI.B.2. Return to text.

[4] See discussion infra Part II.B. Return to text.

[5] 117 S. Ct. 2157 (1997). Return to text.

[6] Pub. L. No. 103-141, §3, 107 Stat. 1488 (1993) (codified as amended at 42 U.S.C. § 2000bb (1994)). Return to text.

[7] See 42 U.S.C. § 2000bb(a)(2) (1994). Return to text.

[8] See discussion infra Part III. Return to text.

[9] See discussion infra Part V. Return to text.

[10] See discussion infra Part V.A. (reporting the vast outside interest in the Flores litigation and suggesting the expectancy of potentially broad effects of the case). Return to text.

[11] U.S. CONST. amend. I. Return to text.

[12] See Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 590-91 (1989) (finding that a "government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs" (citations omitted)). Return to text.

[13] See, e.g., Historic Sites, Buildings, and Antiquities Act, 16 U.S.C. §§ 461-467 (1985 & Supp. 1997); National Historic Preservation Act, 16 U.S.C. §§ 470-470w-6 (1985 & Supp. 1997); Preservation of Historic and Archeological Data Act, 16 U.S.C. §§ 469-469c-1 (1985 & Supp. 1997); 16 U.S.C. §§ 431-450rr-6 (1993 & Supp. 1997) (establishing various historic parks and monuments throughout the nation). Return to text.

[14] See discussion infra Part II.C (providing examples of cases where free exercise of religion and historic preservation interests have collided). Return to text.

[15] 374 U.S. 398 (1963). Return to text.

[16] See id. at 402-03 (affirming the standard set out in NAACP v. Button, 371 U.S. 415 (1963)). Return to text.

[17] See id. at 406 (no showing of a rational interest would suffice). Return to text.

[18] Id. at 406 (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). Return to text.

[19] See id. at 407-08. Return to text.

[20] See id. at 400-01. Return to text.

[21] See id. at 404 (likening the appellant's burden to a fine imposed on her for worshiping on Saturdays). Return to text.

[22] See id. at 409-10. Return to text.

[23] 406 U.S. 205 (1972). Return to text.

[24] See id. at 207. Return to text.

[25] Id. at 218. Return to text.

[26] See id. at 220 (failing to find the broad application of Wisconsin's school attendance statute to all citizens in Wisconsin to be dispositive evidence that free exercise of religion was not burdened). Return to text.

[27] See id. at 225-26. The Court also rejected a panoply of alternative arguments by the State, attempting to forward its interest in uniform education. See id. Return to text.

[28] See id. at 235-36. Return to text.

[29] See Russell S. Bonds, Comment, First Covenant Church v. City of Seattle: The Washington Supreme Court Fortifies the Free Exercise Rights of Religious Landmarks Against Historic Preservation Restrictions, 27 GA. L. REV. 589, 595-96 (1993); see also Geoffrey R. Stone, Constitutionally Compelled Exemptions and the Free Exercise Clause, 27 WM. & MARY L. REV. 985, 994 (1986) (describing the breakdown of the strict scrutiny doctrine as applied to religious activity). Return to text.

[30] See, e.g., Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987). Return to text.

[31] See Bonds, supra note 29, at 595-96. Return to text.

[32] See, e.g., Bowen v. Roy, 476 U.S. 693 (1986) (finding that the government did not have to present a compelling justification for requiring an Indian child to be identified by a social security number even though the child's religious beliefs might be burdened); Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988) (holding that the government did not have to show a compelling interest for timber harvesting and road construction on sacred Indian land, as the decision was a matter of internal governmental policy). Return to text.

[33] 494 U.S. 872 (1990). Return to text.

[34] See id. at 874. Return to text.

[35] See id. Return to text.

[36] See id. at 879-80. Return to text.

[37] See id. at 880 (citing United States v. Lee, 455 U.S. 252 (1982)). In Lee, an Amish employer was denied an exemption from collection and payment of Social Security taxes. The employer's argument that his religion opposed participation in government support programs was rejected by the Court. The Court remarked that if religious activities could lead to exemptions from broad laws of general applicability then governmental systems would become too burdensome to properly function. For example, if an individual had a religious objection to fighting in a war, the country could not afford to provide exemptions to all persons claiming these beliefs. See Lee, 455 U.S. at 260. Return to text.

[38] The Court noted that the unemployment compensation program context is unique because eligibility criteria must be considered, allowing deliberation of an applicant's general characteristics. The Sherbert-Yoder analysis prevents religion from being the primary reason for benefits refusal, unless the state has a compelling reason. See Smith, 494 U.S. at 884. Return to text.

[39] Id. at 884. Criminal laws in Oregon, the site of the Smith controversy, prohibited the use of controlled substances, making usage of them a felony. See id. at 874. Return to text.

[40] See id. at 874. Return to text.

[41] Id. at 885-86 (citations omitted). Return to text.

[42] See id. at 880-85. Return to text.

[43] See University of Eastern Michigan, Early History of the Preservation Movement (visited Jan. 19, 1997) [hereinafter Early History] (recounting major events in the preservation movement in America). In 1846, John Washington offered to sell Mount Vernon to Congress for $100,000, and the State of Virginia requested that Congress consider making the home a national shrine. See Melissa A. MacGill, Old Stuff is Good Stuff: Federal Agency Responsibilities Under Section 106 of the National Historic Preservation Act, 7 ADMIN. L.J. AM. U. 697, 702 (1994). Congress did not respond to this request until 1851, when offering to buy the home and make it an asylum for sick soldiers. At this point, John Washington doubled his asking price, and Congress refused to buy Mount Vernon, setting back the preservation effort. See id. However, the Mount Vernon Ladies' Association bought Mount Vernon in 1853, despite the federal government's weak showing for preservation interests. See Early History, supra. Return to text.

[44] See Ralph Michael Stein, Buildings That Go Crash in the Night: A Special Problem in Historic Preservation Law, 16 REAL EST. L. J. 242, 242-43 (1988). Return to text.

[45] See Early History, supra note 43 (establishing Yellowstone National Park in 1872). Return to text.

[46] See id. (protecting Casa Grande (adobe dwellings) in Arizona from ruin by looters in 1889). Return to text.

[47] Historic Sites, Buildings, and Antiquities Act, ch. 593, § 1, 49 Stat. 666 (1906) (codified as amended at 16 U.S.C. §§ 461-467 (1985 & Supp. 1997)). Return to text.

[48] See Early History, supra note 43. Return to text.

[49] The Antiquities Act provides harsh penalties for destroying federally-owned historic monuments, landmarks, prehistoric structures, and other objects of historic or scientific interest. Additionally, the Act gives the President the authority to designate such areas for federal protection. See 16 U.S.C. §§ 461-467. Private efforts were also visible during the early Twentieth Century. Preservation efforts were initiated by private citizens to restore Williamsburg, Virginia, establish the Greenfield Museum, and create the first historic district in the nation in Charleston, South Carolina. See Early History, supra note 43. Return to text.

[50] See Early History, supra note 43. The Antiquities Act established the national policy "to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States." 16 U.S.C. § 461. Return to text.

[51] See Early History, supra note 43. After the National Park Service was established in 1916, the Jamestown and Yorktown sites were designated as historic areas to be protected in the Colonial National Historical Park. See id. Return to text.

[52] See, e.g., 16 U.S.C. §§ 461-467. Return to text.

[53] See 16 U.S.C. § 468 (1985 & Supp. 1997) (establishing the National Trust for Historic Preservation (National Trust)). The National Trust attempts to provide a link between private preservation efforts and public activity initiated by the National Park Service. The National Trust encourages preservation in a variety of ways, including lobbying, sponsorship of an annual conference, and preservation publications. See Early History, supra note 43. Return to text.

[54] Pub. L. No. 89-665, 80 Stat. 915 (codified as amended at 16 U.S.C. §§ 470-470w-6 (1985 & Supp. 1997)). Return to text.

[55] See 16 U.S.C. §§ 470-470w-6. Return to text.

[56] See generally Miriam Joels Silver, Note, Federal Tax Incentives for Historic Preservation: A Strategy for Conservation and Investment, 10 HOFSTRA L. REV. 887, 898-924 (1982) (outlining tax incentives for historic preservation properties). "By the mid 1970s, Congress began to consider historic structures as valuable resources that could be converted, without damage to aesthetic or historic significance, into usable commercial space and housing stock." Id. at 897. Congress's attitude is reflected in the pro-preservation legislation in the late seventies. See id. at 898. Return to text.

[57] See, e.g., 16 U.S.C. §§ 470-470w-6 (1985 & Supp. 1997) (amended in 1980); 16 U.S.C. §§ 469-469c-1 (1985 & Supp. 1997). Return to text.

[58] 348 U.S. 26 (1954). Return to text.

[59] Id. at 33 (citations omitted). Return to text.

[60] Berman involved a dispute over whether the substandard housing and blighted buildings could be destroyed by the government to eliminate injurious conditions to the building's inhabitants. See id. at 28. Appellants in Berman disputed the constitutionality of destroying the buildings under the Fifth Amendment. The Court determined that the government was entitled to use its power of eminent domain to demolish the buildings. See id. at 35-36. Return to text.

[61] See University of Eastern Michigan, Preservation Law (visited Jan. 29, 1997) [hereinafter Preservation Law] (coining the term "aesthetic plus" to describe the pre-Berman rule that required the state to prove a reason to regulate beyond the historic significance of a structure). Return to text.

[62] See id. (commenting on the repercussions of the Berman case). Return to text.

[63] 438 U.S. 104 (1978). Return to text.

[64] New York City's landmarks law allows the Commission to designate buildings as landmarks and designate historic districts. See id. at 110-11. Return to text.

[65] See id. at 115-17. Return to text.

[66] See id. at 119. Return to text.

[67] See id. at 138. Return to text.

[68] Justice Brennan authored the majority opinion for the Supreme Court in Penn Central. See id. at 107. Return to text.

[69] See id. ("Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance."). Return to text.

[70] Of the buildings listed in the Historic American Buildings Survey, begun in 1933, over one-half have been destroyed. See id. at 108 n.2. Return to text.

[71] See id. at 108. Return to text.

[72] See Preservation Law, supra note 61. Return to text.

[73] See id. Return to text.

[74] See City of Sumner v. First Baptist Church, 639 P.2d 1358 (Wash. 1982) (en banc) (recognizing such a struggle involving a church congregation and the police powers of the City of Sumner). Return to text.

[75] See discussion supra Part II.A. Return to text.

[76] For a complete description of the Sherbert-Yoder analysis, see discussion supra Part II.A. Preservation ordinance challenges fell under this framework before the Smith decision in 1990. Return to text.

[77] See, e.g., City of Sumner, 639 P.2d at 1363-64; Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 305-06 (6th Cir. 1983); Jewish Reconstructionist Synagogue of the North Shore, Inc. v. Village of Roslyn Harbor, 342 N.E.2d 534, 538-39 (N.Y. 1975). Some courts failed to cite Sherbert or Yoder, yet seem to adopt analyses similar to that enunciated in Sherbert and Yoder. See, e.g., Bethlehem Evangelical Lutheran Church v. City of Lakewood, 626 P.2d 668 (Colo. 1981) (en banc); Denver Urban Renewal Auth. v. Pillar of Fire, 552 P.2d 23 (Colo. 1976); Westchester Reform Temple v. Griffin, 239 N.E.2d 891, 896-97 (N.Y. 1968) (heard after Sherbert decision but four years before Yoder). Return to text.

[78] 239 N.E.2d 891 (N.Y. 1968). Return to text.

[79] Id. at 896. Return to text.

[80] See id. Return to text.

[81] Id. Return to text.

[82] 626 P.2d 668 (Colo. 1981). Return to text.

[83] Before the enactment of RFRA (codifying the compelling interest language), courts often interchanged "substantial" interest and "compelling" interest language but intended the same level of scrutiny. Return to text.

[84] See Bethlehem Evangelical, 626 P.2d at 674-75. Return to text.

[85] See, e.g., Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 305-06 (6th Cir. 1983) (applying the general rule that "the greater the cost of practicing one's religion, the more probable that the statute creates an unconstitutional infringement"); City of Sumner v. First Baptist Church, 639 P.2d 1358, 1363 (Wash. 1982) (en banc) ("There should be some play in the joints of both the zoning ordinance and the building code. An effort to accommodate the religious freedom of appellants while at the same time giving effect to the legitimate concerns of the City as expressed in its building code and zoning ordinance would seem to be in order."); Jewish Reconstructionist Synagogue v. Village of Roslyn Harbor, 342 N.E.2d 534, 538 (N.Y. 1975) (weighing the interests of the state in regulating and a synagogue's constitutionally protected rights). Return to text.

[86] Compare City of Lakewood, 699 F.2d at 309 (holding that a zoning ordinance prohibiting construction of church buildings in almost all residential districts in a city does not violate the Free Exercise Clause of the First Amendment), with Westchester Reform Temple, 239 N.E.2d at 896-97 (finding zoning ordinance giving planning commission power to determine building setbacks valid but ruling its application to a temple an unconstitutional burden on religious freedom). Return to text.

[87] Under Smith, a neutral and generally applicable regulation is constitutional, even if it incidentally burdens one's religious beliefs. See Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 880-85 (1990); see also discussion supra Part II.A. Return to text.

[88] See Bonds, supra note 29, at 600. Return to text.

[89] 914 F.2d 348 (2d Cir. 1990). Return to text.

[90] See id. at 351. Return to text.

[91] See id. Return to text.

[92] See id. at 352-53. Return to text.

[93] See id. at 353. Return to text.

[94] See id. Return to text.

[95] Id. at 354. Return to text.

[96] See id. Return to text.

[97] See id. at 355. Return to text.

[98] See id. at 355-56. Return to text.

[99] See id. Return to text.

[100] 840 P.2d 174 (Wash. 1992) (en banc). Return to text.

[101] See id. at 177-78. Return to text.

[102] See id. at 178. During the litigation of this case, the Smith decision came down from the Supreme Court. Previously, the state court had applied the Sherbert-Yoder test and determined that there was a burden on free exercise of religion. The City appealed to the United States Supreme Court, and the Court vacated the ruling based on Sherbert, requiring the state court to use the new Smith standard instead. See id. Return to text.

[103] See id. at 181-82. The court distinguished St. Bartholomew on five major bases: (1) St. Bartholomew's failure to immediately reject landmark designation; (2) commercial nature of St. Bartholomew's proposed use; (3) St. Bartholomew's failure to allege that landmark designation reduced its principal asset rather than just its ability to generate additional revenue; (4) St. Bartholomew's failure to challenge the effect of the religious exemption on New York law's constitutionality; and (5) bases of New York law not in "liturgy" like the Seattle law. See id. at 181. Return to text.

[104] See id. at 181-82. Return to text.

[105] See id. at 182. Return to text.

[106] See id. at 183. Return to text.

[107] See id. at 185. Return to text.

[108] See id. at 193. Return to text.

[109] 564 N.E.2d 571 (Mass. 1990). Return to text.

[110] See id. at 572. Return to text.

[111] See id. at 573 ("[T]he landmark designation of the church interior unconstitutionally restrains religious worship."). Return to text.

[112] See id. at 572. Return to text.

[113] Id. at 574. Return to text.

[114] Society of Jesus and First Covenant both embrace the churches' religious challenges without question, while the court in St. Bartholomew delves into the facts of the case. See Karen L .Wagner, For Whom the Bell Tolls: Religious Properties as Landmarks Under the First Amendment, 8 PACE ENVTL. L. REV. 579, 613 (1991). Return to text.

[115] Compare Society of Jesus, 564 N.E.2d at 573 (ruling after Smith decision that the designation of interior of church in Boston is unconstitutional), and First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992) (allowing church to change its structure and applying the Smith test), and Vestry of St. Bartholomew's Church v. City of New York, 728 F. Supp. 958 (S.D.N.Y. 1990) (upholding a government ordinance to preserve church buildings using Smith), with Westchester Reform Temple v. Griffin, 239 N.E.2d 891 (N.Y. 1968) (finding setback ordinance a "constitutional abridgement of religious freedom" under the Sherbert-Yoder analysis), and Jewish Reconstructionist Synagogue v. Village of Roslyn Harbor, 342 N.E.2d 534 (N.Y. 1975) (declaring zoning ordinance affecting synagogue unconstitutional under Sherbert-Yoder), and Bethlehem Evangelical Lutheran Church v. City of Lakewood, 626 P.2d 668 (Colo. 1981) (affirming constitutionality of city's requirement that church make dedication to receive permit under Sherbert-Yoder test). An extensive electronic search of pre- Smith and post-Smith cases shows no substantial differences in case outcomes between courts' applications of the two tests. Return to text.

[116] The wide room for judicial discretion in cases involving religious freedom and government regulation is demonstrated by the confusion state courts have had in applying the Sherbert-Yoder test because courts differ in their interpretations of what a compelling interest is. See Swanner v. Anchorage Equal Rights Comm'n, 513 U.S. 979 (1994) (Thomas, J., dissenting from denial of certiorari). Return to text.

[117] See discussion infra Part III. Return to text.

[118] Pub. L. No. 103-141, § 3, 107 Stat. 1488 (1993) (codified as amended at 42 U.S.C. § 2000bb (1994)). Return to text.

[119] See S. REP. NO. 103-111 (1993), reprinted in 1993 U.S.C.C.A.N. 1892. Return to text.

[120] Some scholars argue that RFRA's compelling interest test is much stricter than the standard applied in the Sherbert-Yoder days. Such a discussion is beyond the scope of this article. For purposes of this article, assume that the Sherbert-Yoder and RFRA standards are identical as Congress intended them to be. Return to text.

[121] See S. REP. NO. 103-111. Return to text.

[122] See id. Return to text.

[123] See id. ("The Nation . . . was founded upon the conviction that the right to observe one's faith, free from Government interference, is among the most treasured birthrights of every American. That right is enshrined in the free exercise clause of the first amendment . . . ."). Return to text.

[124] See id. Return to text.

[125] Though Reverend Thomas did not mention it in his address, churches have also been zoned out of residential areas as well as commercial areas. See, e.g., Town v. State, 377 So.2d 648, 651 (Fla. 1979) (upholding city ordinance zoning churches out of residential areas); Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983) (preventing church construction in almost all residential districts in city). Though the Town and City of Lakewood cases were decided during the Sherbert-Yoder era, intuitively, the Smith test has the potential for more churches to be zoned out of residential districts due to Smith's lesser protection of religious interests. See, e.g., First Assembly of God v. Collier County, 20 F.3d 419 (11th Cir. 1994) (Smith era case upholding ordinance preventing church from locating homeless shelter in residential area); Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F. Supp. 1554 (M.D. Fla. 1995) (denying church permit to operate food bank in residential area). The only ruling invalidating a zoning ordinance within the Eleventh Circuit under the Free Exercise Clause is Church of Jesus Christ of Latter Day Saints v. Jefferson County, 741 F. Supp. 1522 (N.D. Ala. 1990), and was decided during the Sherbert-Yoder era. See First Assembly of God v. Collier County, 775 F. Supp. 383, 388 (M.D. Fla. 1991). Return to text.

[126] See S. REP. NO. 103-111. Return to text.

[127] See 42 U.S.C. § 2000bb-1. "General applicability" requires that the government regulation cannot selectively impose burdens on conduct that is religiously motivated. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993) (finding an ordinance that prevents ritual animal sacrifice not generally applicable due to the ordinance's under inclusion of all animal slayings, non-religious and religious in nature). Return to text.

[128] "Demonstrates" refers to the government meeting "the burdens of going forward with the evidence and of persuasion." 42 U.S.C. § 2000bb-2. Return to text.

[129] See id. Return to text.

[130] See Stefanow v. McFadden, 103 F.3d 1466, 1471 (9th Cir. 1996) (applying RFRA in an action brought by an inmate claiming that his free exercise rights were burdened by confisca tion of a religious book that supported violence against Jews and the government); see also Young v. Crystal Evangelical Free Church, 82 F.3d 1407, 1417 (8th Cir. 1996) (holding that recovery of contributions to church substantially burdens debtors' free exercise of their religion due to emphasis of tithing in religion). Return to text.

[131] See Swanner v. Anchorage Equal Rights Comm'n, 513 U.S. 979 (1994) (Thomas, J., dissenting from denial of certiorari) (questioning the compelling nature of Alaska's interest in preventing discrimination on the basis of marital status); Stefanow, 103 F.3d at 1471; see also In re Tessier, 190 B.R. 396, 400 (D. Mont. 1995) ("The first two elements established, the onus then falls upon the government to show that when weighed against the First Amendment interests of the claimants, enforcement of the law in question advances a compelling government interest by the least restrictive means."). Return to text.

[132] See 42 U.S.C. § 2000bb-1. Return to text.

[133] See Keeler v. Mayor of Cumberland, 928 F. Supp. 591, 599 (D. Md. 1996). Return to text.

[134] 928 F. Supp. 591 (D. Md. 1996). Return to text.

[135] 73 F.3d 1352 (5th Cir. 1996); 117 S. Ct. 2157 (1997). Return to text.

[136] First United Methodist Church of Seattle v. Seattle Landmarks Preservation Bd., 916 P.2d 374 (Wash. 1996) (en banc) was also decided after the enactment of RFRA and involves a religion-historic preservation dispute. Curiously, the plaintiffs did not allege a violation of RFRA and only alleged a violation of the Free Exercise Clause. See id. at 375-76. The case had a similar factual scenario to Keeler, where a church was designated a landmark, preventing alteration of the building without city approval. The Church challenged the designation. The Washington Supreme Court borrowed heavily from its 1993 decision in First Covenant and found that the landmark designation was a severe burden on the congregation's free exercise of religion. See id. at 381. Though this case did not directly involve RFRA, it may have interpretative value because the application of RFRA borrows exclusively from the judicial decisions involving religious freedom. Return to text.

[137] See, e.g., Jesus Center v. Farmington Hills Zoning Bd. of Appeals, 544 N.W.2d 698 (Mich. Ct. App. 1996) (involving ordinance preventing church from using its property as a homeless shelter); Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F. Supp. 1554 (M.D. Fla. 1995) (alleging denial of permit to operate food bank and homeless shelter a RFRA violation). Return to text.

[138] See Keeler, 928 F. Supp. at 593. Return to text.

[139] See id. Return to text.

[140] See id. Return to text.

[141] See id. The congregation also included other counts in their complaint. Other counts included: violation of the United States and corresponding Maryland constitutional provision protecting free exercise of religion, violation of the Fifth Amendment due to an unconstitutional taking, and violation of the Due Process Clause of the Fourteenth Amendment due to arbitrary and capricious actions unsupported by substantial evidence. See id. The coming discussion will deal exclusively with the alleged RFRA violation. Return to text.

[142] Id. at 598 (quoting Memo. of United States at 18). Return to text.

[143] See id. at 601. Return to text.

[144] See id. at 601-02. Return to text.

[145] See id. at 604. Return to text.

[146] See Keeler v. Mayor of Cumberland, 940 F. Supp. 879 (D. Md. 1996). Return to text.

[147] See id. at 884. The congregation presented evidence that construction of a church annex was critical because the existing buildings failed to meet the congregation's current needs. Parishioners expounded that they needed space for religious education programs, weddings, funerals, baptisms, nursery, and parking facilities. See id. Return to text.

[148] See id. at 885. The Keeler ordinance allows for exemptions to construction and alteration rules in specific instances, such as when a structure is a major deterrent to an improvement program or retention of the structure would cause undue financial hardship on the owner. Due to this exemption portion of the ordinance, the court found the ordinance significantly differs from the generally applicable criminal prohibition in Smith. See id. at 885. Return to text.

[149] See id. at 886. The reasoning was that if the ordinance made an exemption for several non-religious reasons, then surely an exemption should be made for religious freedom due to its historical protection as a fundamental right provided to all American citizens since the birth of the country. See id. (stating that laws which restrict religious freedom must advance interests of the "'highest order'") (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)). Return to text.

[150] See id. at 886-87. Return to text.

[151] Cf. First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992); Society of Jesus v. Boston Landmarks Comm'n, 564 N.E.2d 571 (Mass. 1990). Return to text.

[152] Zeke MacCormack, Boerne case is more than church vs. state, SAN ANTONIO EXPRESS—NEWS , Feb. 17, 1997, at 1A. Return to text.

[153] See David G. Savage, Court Questions Law on Religious Liberty Judiciary: Justices Suggest That Congress May Have Exceeded its Power in Passing the '93 Statute That Gives Religious Claimants Special Exemptions, L.A. TIMES, Feb. 20, 1997, at A20. Return to text.

[154] The Flores case has drawn much public interest from a large and diverse coalition of national organizations, including the religious groups, civil liberties groups, and historic preservation groups, many who lobbied for the passage of RFRA in 1993. See Editorial, A Clash of Church vs. State, ROCKY MTN. NEWS, Feb. 25, 1997, at 28A. Return to text.

[155] See id.; see also MacCormack, supra note 152, at 1A. Return to text.

[156] MacCormack, supra note 152, at 1A (quoting Professor Douglas Laycock of the University of Texas, representing the church in Boerne). Return to text.

[157] Both the National Trust for Historic Preservation and San Antonio Conservation Society filed amicus briefs for the Flores case. See Amicus Brief for the San Antonio Conservation Society, City of Boerne v. Flores (No. 95-2074) (supporting petitioner); Amicus Brief for National Trust for Historic Preservation, City of Boerne v. Flores (No. 95-2074) (supporting petitioner). Return to text.

[158] See discussion infra Part V (projecting effects of RFRA on historic preservation). Return to text.

[159] See City of Boerne v. Flores, 117 S. Ct. 2157, 2160 (1997). Return to text.

[160] See Flores v. City of Boerne, 73 F.3d 1352, 1353 (5th Cir. 1996). Return to text.

[161] See id. at 1364. Return to text.

[162] See id. at 1364-65. For a full discussion of the Fifth Circuit's analysis of Congress's power to enact RFRA and separation of powers issue, see discussion infra Part IV. Return to text.

[163] See id. at 1364. Return to text.

[164] See City of Boerne v. Flores, 117 S. Ct. 2157 (1997). For a complete analysis of the Court's treatment of the separation of powers issue, see discussion infra Part IV.B. Return to text.

[165] See Flores, 117 S. Ct. at 2172. Return to text.

[166] See id. Return to text.

[167] See id. at 2171. Return to text.

[168] Id. Return to text.

[169] See id. (providing zoning laws as an example of a generally applicable law that affects religion). Return to text.

[170] See id. Return to text.

[171] See id. Return to text.

[172] See id. at 2170-72. Return to text.

[173] 384 U.S. 641 (1966). Return to text.

[174] U.S. CONST. amend. XIV, § 5. Return to text.

[175] 100 U.S. 339 (1879). Return to text.

[176] Id. at 345-46 ("Whatever legislation is appropriate, that is, adapted to carry out the objects that the amendments have in view . . . ."). Return to text.

[177] See Flores v. City of Boerne, 73 F.3d 1352, 1358 (5th Cir. 1996) ("This continued adherence to the principle that Congress may explicate textually located rights and obligations pursuant to Section 5 persuades us that the three-part test from Morgan remains the benchmark."). Return to text.

[178] Morgan, 384 U.S. at 651. Return to text.

[179] 400 U.S. 112 (1970) (holding that congressional prohibitions of literacy tests in state and national elections are constitutional under Section 5). Return to text.

[180] See, e.g., Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding congressional efforts to remedy past discrimination under Section 5 and expanding upon the Fourteenth Amendment's prohibition on overt discrimination); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (failing to question congressional authority to enact affirmative action programs under Section 5). Return to text.

[181] In re Tessier, 190 B.R. at 405; see Keeler, 928 F. Supp. at 601. Return to text.

[182] See In re Tessier, 190 B.R. at 405. Return to text.

[183] See Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. REV. 437, 461-62 (1994). Return to text.

[184] See id. Return to text.

[185] See In re Tessier, 190 B.R. at 405. Return to text.

[186] See Flores, 73 F.3d at 1358. Return to text.

[187] See id. at 1358-59. Return to text.

[188] 883 F. Supp. 510 (D. Haw. 1995). Return to text.

[189] See id. at 514-15; see also Abordo v. State of Hawaii, 902 F. Supp. 1220 (D. Haw. 1995) (holding that Congress "can act to protect a constitutional right against conduct which has previously been held constitutional by the Supreme Court"). Return to text.

[190] See Belgard, 883 F. Supp. at 514-15. Return to text.

[191] 360 U.S. 45 (1959). Return to text.

[192] See Belgard, 883 F. Supp. at 515. Return to text.

[193] Eisgruber, supra note 183 at 461. Courts agree that the Fourteenth Amendment does provide Congress with a "blank check . . . to pass any legislation connected to liberty or citi zenship." See id. Return to text.

[194] See id. at 461-62. Return to text.

[195] Flores v. City of Boerne, 73 F.3d 1352, 1359 (5th Cir. 1996). Return to text.

[196] See E.E.O.C. v. Wyoming, 460 U.S. 226, 260 (1983) (Burger, J., dissenting) ("Congress may act only where a violation lurks."). Return to text.

[197] See Flores, 73 F.3d at 1359. Return to text.

[198] See id. at 1359-60. Return to text.

[199] If a court took a broad view of RFRA's intent to enforce violations of the Fourteenth Amendment, then logic would dictate that court would also take a broad view of what is remedial to satisfy the second prong. Return to text.

[200] Morgan, 384 U.S. at 656. Return to text.

[201] See id. Return to text.

[202] See, e.g., Keeler v. Mayor & City Counsel of Cumberland, 928 F. Supp. 591 (D. Md. 1996); In re Tessier, 190 B.R. 396 (D. Mont. 1995). Return to text.

[203] 5 U.S. (1 Cranch) 137 (1803); see In re Tessier, 190 B.R. at 405 (stating that RFRA cannot change the meaning of the First Amendment under Marbury). Return to text.

[204] See Keeler, 928 F. Supp. at 601 (citing Marbury and Baker v. Carr, 369 U.S. 186 (1962), to support the proposition that the judiciary is the ultimate interpreter of the Constitution). Return to text.

[205] Marbury, 5 U.S. (1 Cranch) at 177. Supporters of RFRA assert that this quote from Marbury should not be read to prohibit Congress from providing further protection to a constitutional right that has previously been found constitutional by the Supreme Court. See Abordo v. State of Hawaii, 902 F. Supp. 1220, 1231-32 (D. Haw. 1995). Return to text.

[206] See Keeler, 928 F. Supp. at 601-02. Return to text.

[207] See id. at 603-04. Return to text.

[208] Flores v. City of Boerne, 73 F.3d 1352, 1361 (5th Cir. 1996). But see Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 TEX. L. REV. 209, 244 (1994) ("RFRA is not a mere technical change from Smith. Rather, it restores a fundamentally different vision of human liberty."). Return to text.

[209] City of Rome v. United States, 446 U.S. 156, 176 (1980) (Rehnquist, J., dissenting). The majority affirmed this interpretation of the scope of Section 5 of the Fourteenth Amendment. See id. at 175-77. Return to text.

[210] See Flores, 73 F.3d at 1361; see also Abordo, 902 F. Supp. at 1231 (holding that RFRA merely provides more expansive protection of a person's right to free exercise of religion, a constitutionally protected right). Return to text.

[211] See 42 U.S.C. § 2000bb-1 (1994). Return to text.

[212] The Abordo court stated that the majority of courts addressing the constitutionality of RFRA upheld the Act. See Abordo, 902 F. Supp. at 1230. Return to text.

[213] See Flores, 117 S. Ct. at 2167. Return to text.

[214] Id. at 2169. Return to text.

[215] See Katzenbach v. Morgan, 384 U.S. 641 (1966); see also Flores, 117 S. Ct. at 2168. Return to text.

[216] See Flores, 117 S. Ct. at 2169. Return to text.

[217] See id. at 2169-70. The Court did not foreclose enactment of preventive laws when strong reasons exist to believe that unconstitutional behavior might commence. However, the Court determined that RFRA's enactment was too far from such a circumstance. See id. at 2170. Return to text.

[218] Id. at 2170. Return to text.

[219] See id. Return to text.

[220] See id. Return to text.

[221] See id. The Court again compared the Voting Rights Act and RFRA and found the Voting Rights Act to have a much more limited scope, tailored only to the prevalent voting discrimination. No such limitation could be found in RFRA. See id. Return to text.

[222] See id. "[T]he state laws to which RFRA applies are not ones which . . . have been motivated by religious bigotry." Id. at 2171. Return to text.

[223] See id. at 2172. Six out of the nine justices agreed that RFRA should be held unconstitutional based on the Section 5 analysis outlined by the majority opinion. Justices O'Connor, Breyer, and Souter diverged from the majority's analysis. Return to text.

[224] See id. at 2171. Return to text.

[225] See Wagner, supra note 114, at 617-18 (commenting on the need for Supreme Court clarification of religion-preservation conflicts). Return to text.

[226] See St. Bartholomew's Church v. City of New York, 914 F.2d 348, 354 (2d Cir. 1990) ("Because of the importance of religion, and of particular churches, in our social and cultural history, and because many churches are designed to be architecturally attractive, many religious structures are likely to fall within the neutral criteria . . . ."). Return to text.

[227] See 42 U.S.C. § 2000bb-1 (codifying the Sherbert-Yoder test). Return to text.

[228] See id. Return to text.

[229] See supra note 125 and accompanying text. Return to text.

[230] See S. REP. NO. 103-111, at 7 (1993), reprinted in 1993 U.S.C.C.A.N.1892. Return to text.

[231] See Smith, 494 U.S. at 888. Return to text.

[232] Id. Return to text.

[233] Smith alludes to this point because the means to the Court's predicted anarchial end is the broad exemption from laws for religious reasons, thus weakening the overall effect of laws in place. See id. at 890. Such a process weakens the power for state and local governments to effectively use their police powers. Return to text.

[234] Amicus Brief for the San Antonio Conservation Society, the Municipal Art Society, and the National Alliance of Preservation Commissions at 5-6, City of Boerne v. Flores (No. 95-2074) (supporting petitioner). Return to text.

[235] Amicus Brief for States of Ohio, Arizona, Colorado, Delaware, Florida, Hawaii, Idaho, Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, and the Territories of American Samoa, Guam and the Virgin Islands at 24-25, City of Boerne v. Flores (No. 95-2074) (supporting petitioner). Return to text.

[236] Id. Return to text.

[237] See, e.g., Bethlehem Evangelical Lutheran Church v. City of Lakewood, 626 P.2d 668, 670 (Colo. 1981) (local government exercising police powers to impose a condition of a dedication on a church). Return to text.

[238] Eisgruber, supra note 183, at 451. Specifically, drafters of RFRA incorporated the decisions of Sherbert and Yoder to be the models for judicial interpretation of religious freedom violations. See id. However, the Sherbert and Yoder cases in particular were less deferential to the government than other federal jurisprudence in the area. By incorporating only Sherbert and Yoder as guidance, RFRA expressly incorporates the inconsistencies in those opinions that courts have been trying to harmonize for years. See id. at 451-52. Return to text.

[239] See Swanner v. Anchorage Equal Rights Comm'n, 115 S. Ct. 460, 461 (1994) (Thomas, J., dissenting) (rejecting the lower court's denial of certiorari and professing a need to hear Swanner to resolve whether preventing discrimination on marital status is compelling enough to outweigh a burden on religious freedom); see also Laycock, supra note 208, at 222 (stating that the compelling interest test has "fallen into disarray," particularly with lower courts). Return to text.

[240] See discussion supra Part II. Return to text.

[241] Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). Return to text.

[242] See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 129 (1978) (holding "preserving structures and areas with special historic, architectural or cultural significance" to be a legitimate governmental interest). Return to text.

[243] Interests in street and traffic flow are analogous to historic preservation interests. The court in Furey v. City of Sacramento, 592 F. Supp. 463 (E.D. Cal. 1984), discusses the public's general interest in zoning as involving the assurance that a community's beauty, spaciousness, health, and safety will be maintained. See id. at 471. The court cites the Berman decision to support its discussion of these legitimate interests. Berman v. Parker, 348 U.S. 26 (1954). Using Furey's description of the public's interests in zoning, both historic preservation and public works projects would be legitimate interests, as they contribute to the beauty, health, and safety of a community. Thus, both historic preservation and public works interests should be afforded deference as comparable legitimate interests that the government must preserve. Return to text.

[244] See Bethlehem Evangelical Lutheran Church v. City of Lakewood, 626 P.2d 668, 675 (Colo. 1981). Return to text.

[245] See id. Return to text.

[246] In Bethlehem Evangelical Lutheran Church, the court found the city's permit conditions on the Church to be only a minimal burden on religion. Thus, traffic and improvement concerns were found to outweigh religion. See id. Return to text.

[247] Keeler v. Mayor of Cumberland, 940 F. Supp. 879, 886 (D. Md. 1996). Return to text.

[248] Id. Return to text.

[249] See id. Return to text.

[250] See Westchester Reform Temple v. Brown, 239 N.E.2d 891, 896-97 (N.Y. 1968). Return to text.

[251] See First Covenant Church v. City of Seattle, 840 P.2d 174, 185 (Wash. 1992). Return to text.

[252] See id. Return to text.

[253] Id. ("The possible loss of significant architectural elements is a price we must accept to guarantee the paramount right of religious freedom."). Return to text.

[254] Society of Jesus v. Boston Landmarks Comm'n, 564 N.E.2d 571, 574 (Mass. 1990) ("[W]e must accept the possible loss of historically significant elements of the interior of this church as the price of safeguarding the right of religious freedom."). Return to text.

[255] See, e.g., id. (categorically not compelling); First Covenant Church, 840 P.2d at 185 (not compelling as applied, leaning toward categorically not compelling); Westchester Reform Temple, 239 N.E.2d at 896 (not compelling as applied, leaning toward categorically not compelling); Keeler, 940 F. Supp. at 886 (not compelling as applied). Return to text.

[256] See Bonds, supra note 29, at 618-19. Return to text.

[257] Id. at 619. Return to text.

[258] See discussion supra Part V.A. (examining varying interpretations of the weight of a government's interest in historic preservation). Return to text.

[259] The intermediate and strict scrutiny tests have been employed by the Supreme Court in other areas of law. In equal protection law, the Court defines its strict scrutiny analysis as requiring the state to show that its actions are narrowly tailored in furtherance of a compelling state interest. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (Scalia, J., concurring). The Court additionally notes that the compelling interest test is not "'strict in theory but fatal in fact.'" Id. (citing Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring)).

In contrast, the Supreme Court finds intermediate scrutiny to require government action (such as gender classification) to be "substantially related to an important governmental objective." Clark v. Jeter, 486 U.S. 456, 461 (1988). In applying this test, the Court generally weighs the state's interests and the litigant's interests to reach its result. See id. at 462-63 (weighing the interests of state having a six-year statute of limitations for establishing paternity and a litigant's interests in bringing suit after the six-year limitation period).

The Supreme Court's descriptions of the strict and intermediate scrutiny tests in equal protection litigation can be a helpful comparison to provide guidance in understanding the Smith (intermediate scrutiny) and Sherbert-Yoder (strict scrutiny) tests. Though the Smith test does not per se balance neutral regulations burdening religion, courts applying the test have, particularly when faced with a system of exemptions. See discussion supra Part II.C.2. Return to text.

[260] Where a state law is involved, the Smith test might not be applied. See, e.g., Society of Jesus v. Boston Landmarks Comm'n, 564 N.E.2d 571 (Mass. 1990) (ruling on state constitutional violations, failing to apply either Smith or Sherbert-Yoder). Return to text.

[261] See Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 877-79 (1990). Return to text.

[262] See S. REP. NO. 103-111 at 7 (1993), reprinted in 1993 U.S.C.C.A.N. 1892. Return to text.

[263] See discussion infra Part VI.B. Return to text.

[264] See St. Bartholomew's Church v. City of New York, 914 F.2d 348 (2d Cir. 1990). Return to text.

[265] See First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992); Society of Jesus v. Boston Landmarks Comm'n, 564 N.E.2d 571 (Mass. 1990). Return to text.

[266] The Smith exception used in Keeler for a system of exemptions also provides more flexibility to balance religion interests with historic preservation interests by carving out a special category of preservation schemes where courts should be more deferential to religion. See Keeler, 940 F. Supp. at 885-86. These situations also show that Smith does not merely make historic preservation a dominating interest when dealing with neutral laws. Return to text.

[267] In Smith, the majority stated that the Supreme Court has never held that a person's religious beliefs excuse him or her from observing an otherwise valid law that is not based on religion. More eloquently, the Court explained that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law." Smith, 494 U.S. at 879. The Smith test is in line with this concern. Return to text.

[268] When judicial interpretations of an area of law are inconsistent, the result is often a chilling effect on the persons exercising their legal rights. When persons are not sure what the law is, many times they will compensate by avoiding the questionable activity altogether. See Kenneth E. Spahn, The Beach and Shore Preservation Act: Regulating Coastal Construction in Florida, 24 STETSON L. REV. 353, 391-92 (1995) (stating that the inconsistencies in application of Florida's Beach and Shore Preservation Acts will have a chilling effect on development because litigation is decided on a case by case basis); Susanna Felleman, Ethical Dilemmas and the Multistate Lawyer: A Proposed Amendment to the Choice-of-Law Rule in the Model Rules of Professional Conduct, 95 COLUM. L. REV. 1500, 1509 (1995) (asserting that inconsistencies in state ethics rules may cause a chilling effect on the information that a client reveals to his or her attorney); Note, Lawyers' Responsibilities to the Courts: The 1993 Amendments to Federal Rule of Civil Procedure 11, 107 HARV. L. REV. 1629, 1649 (1994) ("Inconsistency arguably increases the frequency and cost of satellite litigation by increasing uncertainty and hence the chance of litigation, increases the ex ante risk that meritorious conduct will be sanctioned and hence the chilling effect of sanctions, and increases the arbitrariness and hence the potential unfairness of sanctions." (citations omitted)). Return to text.

[269] Though in the past, the outcomes of historic-religion cases under the strict and intermediate scrutiny tests have not been vastly different, simply affirming RFRA's compelling interest analysis sends a message to lower courts to return to the days before the relaxation of the Sherbert-Yoder compelling interest test. Additionally, the constitutionality of RFRA would have given courts less room to protect religious and historic preservation interests. Return to text.

[270] Even though results under the Smith test are inconsistent, governments will still be able to more freely enact preservation ordinances knowing that Smith excepts neutral laws from strict scrutiny. In contrast, Sherbert-Yoder provides no such exception but instead imposes an affirmative burden on governments. Based on these differences, governments would be less "chilled" from making preservation laws under the Smith test. Return to text.

[271] See S. REP. NO. 103-111, at 4 (1993), reprinted in 1993 U.S.C.C.A.N. 1892. (recounting America's history as a safe haven for those being religiously persecuted). Return to text.

[272] See U.S. CONST. amend. I. Return to text.

[273] See 42 U.S.C. § 2000bb-1. Return to text.

[274] See S. REP. NO. 103-111, at 4-5. Return to text.

[275] See id. at 6. Return to text.

[276] See id. at 8-9. Return to text.

[277] See John Nolon & Helen Maher, RFRA is not Needed; New York Land Use Regulations Accommodate Religious Use, N.Y. L. J., July 23, 1997, at 5. Since Flores, California localities have already begun to enact legislation that restrains churches from reaching out into the needy community. See Jon Kaiser, Editorial, Churches Extending Charity Collide with Zoning Laws, L.A. DAILY NEWS, July 31, 1997, at N19. Return to text.

[278] For example, to comply with historic preservation regulations, expensive renovation, restoration, and upkeep is often necessary. When a landowner is bound to comply with regu lations that prevent alteration of a structure, the cost is borne at his own expense. However, sometimes the expense and problem resulting from historic designation reaps benefits, such as an increase in property value in the area. See Roy Hunt, Professor at University of Florida College of Law, Lecture at Meeting of Environmental Crimes and Historic Preservation Class (Florida State University College of Law, Mar. 20, 1997) (discussing the rising property values of the historically protected art deco section of Miami). Return to text.

[279] See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 83 (1980) (finding that landowner must bear the burden imposed by government regulations in some situations); Furey v. City of Sacremento, 592 F. Supp. 463, 471 (E.D. Cal. 1984) ("To the extent that the private interest is in the maximum exploitation of a piece of property, it is entitled to no weight whatsoever."). Return to text.

[280] See St. Bartholomew's Church v. City of New York, 914 F.2d 348, 357-58 (2d Cir. 1990). Under Smith, the preservation ordinance was found constitutional, but such a ruling is questionable under RFRA's Sherbert analysis. Sherbert could have easily come to a different conclusion, showing that RFRA does help eliminate governmentally imposed financial burdens on religious entities. Return to text.

[281] See Keeler v. Mayor of Cumberland, 940 F. Supp. 879, 886 (D. Md. 1996). Return to text.

[282] Both St. Bartholomew and Keeler were decided under the Smith test that allowed neutral, generally applicable preservation laws in those cases to forgo strict scrutiny. But, under RFRA, these cases' preservation laws would be required to be compelling. Based on previous erratic application of the RFRA compelling interest test, it is difficult to predict whether application of the compelling interest test would reverse the outcome of those cases. However, facially, the RFRA test would provide more protection—and less financial strain. Return to text.

[283] See Young v. Crystal Evangelical Free Church, 82 F.3d 1407, 1410 (8th Cir. 1996). Return to text.

[284] See Nolon, supra note 277, at 5. Return to text.

[285] See, e.g., St. Bartholomew, 914 F.2d at 355 (carrying out charitable activities). Return to text.

[286] See discussion supra Part II.B. (describing the growth of the preservationist movement in the United States). Return to text.

[287] See discussion supra Part V (describing the effects of RFRA on preservation). Return to text.

[288] See, e.g., Keeler v. Mayor of Cumberland, 940 F. Supp. 879, 880 (D. Md. 1996) (describing a Roman Catholic church in Washington Street Historic District of the City of Cumberland). In Tallahassee, Florida, several churches are located in the midst of the downtown area. A Tallahassee Historic Tour publication lists three churches located among other downtown historic buildings. See HISTORIC TALLAHASSEE PRESERVATION BD., FLORIDA DEP'T OF STATE, TOURING TALLAHASSEE 9-12 (including St. James C.M.E. Church built in 1899, First Presbyterian Church built from 1835-1838, and St. John's Episcopal Church built in 1880). Return to text.

[289] Silver, supra note 56, at 890. Return to text.

[290] See Stein, supra note 44, at 243 (noting that developers and owners irreversibly alter or destroy significant historic structures). Much of alternation and demolition of historic structures occurs in urban areas where other forms of crime attract public attention and prosecutorial resources. See id. at 247. Return to text.

[291] Silver, supra note 56, at 890. Return to text.

[292] See Alexandre Polozoff, Alexandre Polozoff's Walking Tour of Paris (visited Apr. 8, 1997) (discussing the monuments and religious structures in Paris). One of the values of historic preservation is truth or integrity. This value encompasses the special significance that seeing the "real thing" has. Thus, going to Disney's Epcot Center and viewing the model Eiffel Tower would not have the same effect as seeing the original. See Hunt, supra note 277. Return to text.

[293] See Phyllis W. Zeno & Leslie Metzler, The Tears of Tuscany, GOING PLACES, Mar.-Apr. 1997, at 23. Return to text.

[294] See Silver, supra note 56, at 890. Return to text.

[295] See Elizabeth Cameron Richardson, Applying Historic Preservation Ordinances to Church Property: Protecting the Past and Preserving the Constitution, 63 N.C. L. REV. 404, 421-22 (1985); see also NATIONAL TRUST FOR HISTORIC PRESERVATION, INFORMATION SHEET NO. 17, THE PRESERVATION OF CHURCHES SYNAGOGUES AND OTHER RELIGIOUS STRUCTURES 1 (1978) [hereinafter CHURCH PRESERVATION REPORT]. Return to text.

[296] See Stein, supra note 44, at 243; see also Richardson, supra note 295, at 421. Return to text.

[297] See J. BRADLEY O'CONNELL ET. AL., HISTORIC PRESERVATION IN CALIFORNIA: A LEGAL HANDBOOK 115 (1982) (reporting a dramatic change in crime attributable to "residents' enhanced quality of life and increased sense of neighborhood pride"). Return to text.

[298] See Richardson, supra note 295, at 421; see also O'CONNELL, supra note 297, at 112 (recounting results from ADVISORY COUNCIL ON HISTORIC PRESERVATION, THE CONTRIBUTION OF HISTORIC PRESERVATION TO URBAN REVITALIZATION (1979) (studying economic effects of historic preservation for the first time)). Return to text.

[299] O'CONNELL, supra note 297, at 112. Return to text.

[300] Donovan D. Rypkema, Economics and Historic Preservation, 9 J. NAT'L TRUST FOR HIST. PRESERVATION 39, 40 (1995). Return to text.

[301] See INTERGOVERNMENTAL POLICY ANALYSIS PROGRAM, UNIVERSITY OF RHODE ISLAND, ECONOMIC EFFECTS OF THE RHODE ISLAND HISTORICAL PRESERVATION COMMISSION PROGRAM EXPENDITURES FROM 1971 TO 1993 iv-v (1993) [hereinafter RHODE ISLAND STUDY] (summarizing the methodology of the Rhode Island study); see also Edward F. Sanderson, Economic Effects of Historic Preservation in Rhode Island, 9 J. NAT'L TRUST FOR HIST. PRESERVATION 22, 22-23 (1994) (discussing the Rhode Island study). Return to text.

[302] See RHODE ISLAND STUDY, supra note 301, at 27. Return to text.

[303] See SHLAES & CO., ECONOMIC BENEFITS FROM REHABILITATION OF CERTIFIED HISTORIC STRUCTURES IN TEXAS 31-46 (1985) (submitted to the Texas Historical Commission) (finding that Texas rehabilitation programs have generated more than 13,590 jobs and $10.16 million in state tax revenue); SHLAES & CO., ECONOMIC BENEFITS FROM REHABILITATION OF HISTORIC BUILDINGS IN ILLINOIS 67-68 (1984) (submitted to the Preservation Services Section of the Illinois Department of Conservation) (determining that Illinois tax revenues increased more than $29.34 million and 16,100 jobs were created as a result of Illinois's preservation programs). Return to text.

[304] See DONOVAN D. RYPKEMA, THE ECONOMICS OF HISTORIC PRESERVATION 26 (1989). Return to text.

[305] See Charles E. Connerly & Marc Smith, Developing a Fair Share Housing Policy for Florida, 12 J. LAND USE & ENVTL. L. 63, 67 (1996) (stating that Florida is following the nation-wide trend of urban sprawl). Return to text.

[306] See O'CONNELL, supra note 297, at 114; see also A HANDBOOK ON HISTORIC PRESERVATION LAW 26 (Christopher J. Duerksen ed., 1983) ("This [preservation] movement has been a source of vitality in many communities as newcomers renovated old houses and injected funds into dying downtowns . . . ."). Return to text.

[307] See O'CONNELL, supra note 297, at 114. Return to text.

[308] See RYPKEMA, supra note 304, at 38-39. If downtown employees can also do their shopping downtown, then they can walk from their workplace to commercial stores, lessening traffic. See id. Return to text.

[309] See id. Return to text.

[310] See Wagner, supra note 114, at 612-13 (describing the efforts of religious organizations to exempt themselves from landmark laws). Return to text.

[311] See id. at 617. Return to text.

[312] Cf. Richardson, supra note 295, at 429 (failing to advocate the compelling interest test, but instead, arguing for a balanced approach for promotion of preservation efforts through private means using "cooperation and flexibility" so that churches and local governments can work together). Return to text.

[313] Wagner, supra note 114, at 619. Return to text.

[314] Cf. Alan C. Weinstein, The Myth of Ministry vs. Mortar: A Legal and Policy Analysis of Landmark Designation of Religious Institutions, 65 TEMP. L. REV. 91, 157-58 (1992) (concluding that a blanket legislative exemption of churches from landmark designation is unnecessary, but courts should instead achieve the appropriate balance between religious interests and governmental interests). Return to text.

[315] See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (declaring preservation a viable interest). Return to text.

[316] In the Court's Flores opinion, historic preservation was not addressed. See Flores, 117 S. Ct. at 2157. Return to text.

[317] In Penn Central, the majority was composed of Justices Brennan (writing the opinion), Stewart, White, Marshall, and Powell. The dissent was composed of Justices Rehnquist, Burger, and Stevens. Return to text.

[318] See Wagner, supra note 114, at 618-19; see also JULIA H. MILLER, NATIONAL TRUST FOR HISTORIC PRESERVATION, UNTANGLING THE PRESERVATION WEB: UNDERSTANDING THE DIFFERENT APPROACHES TO RESOURCE PROTECTION 6 (1995) [hereinafter RESOURCE PROTECTION REPORT] (stating that many communities have economic hardship provisions in local preservation ordinances). Return to text.

[319] See Richardson, supra note 295, at 429. The government would have to carefully fashion efforts toward both non-profit and religious organizations. See id. Return to text.

[320] Some landmark commissions have advocated laws to provide special accommo dations to religious and non-profit organizations to provide them with a higher return on their property. See Wagner, supra note 114, at 615-16. Return to text.

[321] This alternative operates under the philosophy that some movement forward to achieve the final goal is preferable to none. Brownfields operate under the same philosophy. Brownfields are contaminated former industrial sites that lie undeveloped because developers do not want to take on CERCLA clean-up liability. To promote redevelopment of these areas, the Environmental Protection Agency (EPA) enters into prospective purchaser agreements with developers and limits their scope of liability and, in some cases, lessens the amount of clean-up that the developer must do. Thus, Brownfields redevelopment moves toward the EPA's goal of complete clean-up. But, clean-up is not fully paid by polluters and clean-up efforts by the developer may not be one-hundred percent. See generally Brian C. Walsh, Seeding the Brownfields: A Proposed Statute Limiting Environmental Liability for Prospective Purchasers, 34 HARV. J. ON LEGIS. 191 (1997) (describing the Brownfields problem and proposing solutions); Scott H. Reisch, Reaping "Green" Harvests from "Brownfields": Avoiding Lender Liability at Contaminated Sites: Part I, COLO. LAW., Jan. 1997, at 3 (examining Brownfields and local, state, and federal efforts to redevelop contaminated lands). Return to text.

[322] See KAY D. WEEKS, U.S. DEP'T. OF INTERIOR, PRESERVATION BRIEFS 14, NEW EXTERIOR ADDITIONS TO HISTORIC BUILDINGS: PRESERVATION CONCERNS 1. Weeks discusses the importance of maintaining a historic building's character when making a new addition or renovation. To accomplish this, Weeks describes important elements in conserving a structure's character, including size of addition, consistent building profile, style, and building materials. See id. at 1-9. In Tallahassee, Florida, historic preservationists worked with members of St. John's Episcopal Church to fashion additions to preserve the historic character of the church. The ultimate renovation plans preserved far more of the church's outward character then previous plans. See Interview with David Ferro, Bureau of Historic Preservation, Florida Dep't of State, Tallahassee, FL (Apr. 5, 1997) (discussing St. John's renovation and additions). Return to text.

[323] For example, Tallahassee, Florida has developed a property grant and loan program to promote the conversion of historic structures to bed and breakfast inns, retail stores, hotels, and offices. See DOWNTOWN DEVELOPMENT OFFICE, CITY OF TALLAHASSEE, HISTORIC PROPERTY GRANT AND REVOLVING LOAN PROGRAM (1997) (detailing Tallahassee's program and providing eligibility requirements). Return to text.

[324] For example, New York zoning ordinances allow looser standards of historic preservation requirements for religious entities to mitigate religious burdens, and variances for religious entities are often allowed. See Nolon, supra note 277, at 5. Return to text.

[325] See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978). Return to text.

[326] Though acquiring a historic structure is a viable alternative, regulation of the structure is a less expensive way of effectuating the goal of preservation. Thus, a government's acquisition of a property would probably have to be forced by law. See O'CONNELL, supra note 297, at 29. Return to text.

[327] See RESOURCE PROTECTION REPORT, supra note 318, at 1 (recounting governmental efforts to buy historic resources and turn them into house museums). Return to text.

[328] See O'CONNELL, supra note 297, at 23. Return to text.

[329] See THE ABBEY RESTAURANT, THE ABBEY ESTABLISHED 1968 (advertising the Abbey restaurant and providing background information about the restaurant). Return to text.

[330] See id. The Abbey maintains the massive stained glass windows and fifty foot arched and vaulted ceiling of the original building. Return to text.

[331] See CHURCH PRESERVATION REPORT, supra note 295, at 9-17. Return to text.

[332] See id. at 9 (Christ Church Cathedral, St. Louis, Mo.). Return to text.

[333] See id. at 13 (St. Ignatius Church, Baltimore, Md.). Return to text.

[334] See id. at 15 (Gethsemane Lutheran Church, Austin, Tex.). Return to text.

[335] See id. (Immaculate Conception Church, Westerly, R.I.). Return to text.

[336] See id. at 17 (First Unitarian Church, Richmond, Va.). Return to text.

[337] See O'CONNELL, supra note 297, at 25. Return to text.

[338] See id. Return to text.

[339] See id. Return to text.

[340] See Richardson, supra note 295, at 429. Return to text.

[341] See, e.g., St. Bartholomew's Church v. City of New York, 914 F.2d 348 (2d Cir. 1990). Return to text.

[342] See Richardson, supra note 295, at 429. Tax exemptions are also a motivating factor for private citizens who plan to contribute to historic preservation efforts by donating ownership interests in such properties to the government. See discussion infra Part VII.D (summarizing tax incentives for historic structures). Return to text.

[343] See O'CONNELL, supra note 297, at 22-23. Return to text.

[344] See RESOURCE PROTECTION REPORT, supra note 318, at 1. Return to text.

[345] See HERITAGE PRESERVATION SERVICES, NATIONAL PARK SERV., U.S. DEP'T OF INTERIOR, PRESERVATION TAX INCENTIVES FOR HISTORIC BUILDINGS 2 (1996) [hereinafter TAX INCENTIVES REPORT]. Return to text.

[346] See Silver, supra note 56, at 897-98. Return to text.

[347] A tax credit decreases the amount of tax owed. See TAX INCENTIVES REPORT, supra note 345, at 3. Return to text.

[348] See I.R.C. §§ 46-47 (West Supp. 1997) (establishing the rehabilitation tax credit and stating requirements for receiving it). Return to text.

[349] A certified historic structure must be either: (1) individually listed in the National Register of Historic Places; or (2) located within a registered historic district and certified by the National Park Service as advancing the historic importance of that district. I.R.C. § 47(c)(3) Additionally, certified historic structures are defined as buildings while a historic district must be listed in the National Register of Historic Places. See id. Return to text.

[350] See I.R.C. § 47(a). Return to text.

[351] See I.R.C. § 170(h) (1986 & West Supp. 1997) (qualified conservation contribution). For further discussion of additional qualifications for tax credits, see Silver, supra note 56 (providing a detailed breakdown of the tax incentives afforded to historic preservation). Return to text.

[352] See TAX INCENTIVES REPORT, supra note 345, at 2. Return to text.

[353] See I.R.C. § 501(c)(3) (West Supp. 1997) (listing religious organizations as exempt from federal income taxes). For a comprehensive examination of the tax exemption for churches and other religious organizations, see John W. Whitehead, Tax Exemption and Churches: A Historical and Constitutional Analysis, 22 CUMB. L. REV. 521 (1991-92). Return to text.

[354] See I.R.C. § 501(c)(3). Return to text.

[355] See TAX INCENTIVES REPORT, supra note 345, at 2. Return to text.

[356] See id. Return to text.

[357] See id. at 20; see also RESOURCE PROTECTION REPORT, supra note 318, at 7 (describing property tax freezes for specified time periods). Return to text.

[358] See STEPHEN L. KASS ET. AL., REHABILITATING OLDER AND HISTORIC BUILDINGS: LAW TAXATION, STRATEGIES § 5.1, at 102 (1985). Return to text.

[359] See John Witte, Jr. Tax Exemption of Church Property: Historical Anomaly or Valid Constitutional Practice?, 64 S. CAL. L. REV. 363, 389-401 (1991) (discussing state and local tax exemptions and reporting on the trend toward more inclusive exemptions). Return to text.

[360] Intuitively, state and local tax exemptions make historic properties, including religious properties, an even more attractive investment when added to the federal exemption, particularly due to the avoidance of potentially prohibitive property taxes. See KASS, supra note 358, at § 5.1. Return to text.

[361] Such a declaration would send a message to lower courts to take preservation and religion concerns seriously. It would slightly relax the RFRA compelling interest test in the face of historic preservation interests. Consequently, RFRA would provide strict protection of religious interests but would include a special judicial exception for historic preservation interests where more of a balancing analysis would be employed. Return to text.

[362] See discussion supra Part VII.A. Return to text.

[363] See Ellen Johnson, Constitutional Amendment on Prayer in Schools, CONG. TESTIMONY, July 22, 1997, available at 1997 WL 11235099 (commenting on the low morale of Congress due to the ineffectiveness of recent legislation). Return to text.

[364] See S. REP. NO. 103-111 (1993), reprinted in 1993 U.S.C.C.A.N. 1892. Based on Congress's pro-religion attitudes, Congress might consider this option as a vehicle for national emphasis on religious freedom. However, the majority membership of Congress has changed in the last four years from the democratic to republican party which might change the general congressional attitude on religious freedom. See e.g., David M. Mason, How the 104th. Congress Reformed Itself (visited Apr. 6, 1997) . Additionally, because the congressional majority has made it a priority to "avoid new impositions on state and local governments," the new Congress might be in favor of giving back more preservation powers to local and state governments rather than focusing on religious rights. Id. Return to text.

[365] See RESOURCE PROTECTION REPORT, supra note 318, at 1 (recognizing the merits of private preservation efforts but noting that preservation on an ad hoc basis is not as effective without governmental assistance). Return to text.