Responsible preservation requires a balance between public and private interests . . . . This is a conflict between change and continuity, between progress toward the future and preservation of the past.[1]

Since the birth of the country, freedom from religious persecution has been a fundamental value and is embodied in the First Amendment for the protection of all citizens' religious freedom.[2] Citizens nationwide enjoy the free exercise of their religious values in churches, synagogues, and other religious organizations. Many of these religious congregations worship in historic buildings that bestow distinctive cultural and aesthetic value and special character to communities across the nation.[3] Though the historic preservation movement is a fledgling in comparison to religious freedom, the movement has been exponentially gaining in strength over the past thirty years, as evidenced by new ordinances, federal statutes, and judicial protection to preserve America's architectural past.[4] Earlier this year, the United States Supreme Court considered the unique conflict between religious freedom rights and historic preservation in City of Boerne v. Flores.[5]

Flores centers around Congress's 1993 enactment of the Religious Freedom Restoration Act (RFRA).[6] RFRA affords additional protection to religious practices by subjecting neutral, non-religion based government laws (such as preservation ordinances) to judicial scrutiny,[7] usurping the Supreme Court's previous judicial interpretation of the First Amendment.8 In Flores, the Court ruled on the constitutionality of RFRA, thereby affecting the ability of governments to protect religious historic structures and establishments.9 The Flores decision will have significant repercussions on American religion protection law and hopefully has clarified some if its ambiguities.[10]

Using the backdrop of Flores, this article analyzes the consti tutionality and policy behind RFRA and examines RFRA's effects on historic preservation. Part II reviews judicial protections afforded to religious freedom, summarizing relevant case law. Additionally, Part II recounts the growth of the historic preservation movement in the United States and examines judicial opinions resolving conflicts between religious freedom and historic preservation. Part III reviews RFRA and the decisions under RFRA relating to historic preservation. Part IV examines the two views regarding the consti tutionality of RFRA, reviewing the separation of powers doctrine and Congress's power to enact RFRA, and presents the Supreme Court's view as enunciated in Flores. Part V projects the effects that the Court's ruling of RFRA as unconstitutional will have on historic preservation and religious freedom. This is done by using the previous effects of RFRA's compelling interest test as a measuring tool. Part VI analyzes the costs and benefits of RFRA and the reinstatement of the Smith test, with special consideration of the religious freedom benefits that the Court's ruling may forfeit. Lastly, Part VII explores alternatives to the Smith standard that could achieve greater balance between religious freedom interests and historic preservation.

The First Amendment of the United States Constitution prevents Congress from making a law "respecting an establishment of reli gion, or prohibiting the free exercise thereof."[11] This clause of the constitution provides the basis of religious protection in the United States, ensuring that American citizens' religious practices are not unnecessarily impeded by the government.[12] While protecting religious freedom, the government also maintains an interest in preserving the country's historical structures and monuments, as evidenced by the vast body of legislation enacted to protect historic resources.[13] The conflict between the interests of religious freedom and historic preservation can emerge when the government moves to protect a historic structure owned by a religious establishment, such as a church or synagogue.[14] This section provides background case law, defining the interests of religion and historic preservation necessary to fully understand the complex intertwining of religion and historic preservation.

In Sherbert v. Verner,[15] the Supreme Court issued a Free Exercise Clause interpretation which emphasized that governmental regulation of religious beliefs would not be tolerated unless the regulation serves a compelling state interest within the state's constitutional power to regulate.[16] The Court described an interest sufficiently compelling enough to permissibly limit a citizen's First Amendment rights to include[17] "'[o]nly the gravest abuses, endangering paramount interest.'"[18] Additionally, in proving the compelling nature of an interest, the Court required the state to prove that the regulation was the least restrictive means of meeting the state's goal.[19]

In Sherbert, the appellant, a woman seeking unemployment compensation, argued that her religious faith dictated that she not work on Saturday, the Sabbath Day for her faith. The South Carolina Unemployment Compensation Act provided that a claimant is eligible for employment benefits only if available to work and willing to accept employment unless good cause is shown why an offer of employment was declined.[20] The appellant refused to work on Saturdays, preventing her from obtaining employment. The Employment Security Commission found that the appellant's restricted availability disqualified her from receiving employment benefits. The Supreme Court found it unacceptable that the appellant was forced to choose between following the tenets of her religious faith or receiving unemployment benefits, stating that the governmental imposition burdened the appellant's free exercise of religion.[21] The Court ruled that the appellant should not be denied unemployment benefits.[22]

In Wisconsin v. Yoder,[23] the Supreme Court applied the Sherbert standard to a challenge to the Wisconsin Supreme Court's ruling that the religious convictions of parents of Amish school children were invalid on First Amendment grounds.[2]4 In Yoder, Amish parents refused to send their children to private or public secondary school, violating Wisconsin's laws requiring school attendance until age sixteen. The Supreme Court found that forced application of the Wisconsin law to those of the Amish faith would interfere with the "fundamental tenets" of their beliefs, precisely the effect that the First Amendment was fashioned to prevent.[25] The Court affirmed the principle from Sherbert that a facially neutral regulation may unduly burden the free exercise of religion by its application.[26] The Court rejected the state's argument that it had a compelling interest in administering uniform education to all Wisconsin children, noting that the Amish alternative to traditional schooling has allowed the Amish people to function effectively in their self-sufficient commu nity for more than two hundred years.[27] The Court held that the state could not require the Amish children to attend formal high school.[28]

Taken together, Sherbert and Yoder represent strong protections of the free exercise of religion, seemingly applying strict scrutiny to the state's interest for burdening religion. After these decisions, the Court continued to apply the Sherbert-Yoder compelling interest analysis though it became increasingly unwilling to recognize reli gion exceptions.[29] Several state unemployment compensation rules were invalidated using the Sherbert-Yoder analysis when a claimant was denied unemployment benefits due to religion-related conditions.[30] However, outside the employment benefits context, the once-strict scrutiny of the Sherbert-Yoder analysis eroded to a much more lenient standard where the state often prevailed.[31] In more than one instance, the Court refrained from protecting religious interests in favor of rubber-stamping a government regulation, even where the regulation's underlying justification appeared to be less than compelling.[32]

In 1990, the Supreme Court decided Employment Division, Department of Human Resources v. Smith[33] and finally departed completely from the strict scrutiny approach articulated in Sherbert and Yoder. In Smith, the respondents were fired from their job at a private drug rehabilitation organization for ingesting an illegal drug, peyote, used for sacramental purposes in their religion. They ingested the peyote at a religious ceremony of the Native American Church.[34] The respondents were denied unemployment benefits because they had been released due to work-related misconduct. The respondents sued the state, claiming that their free exercise rights under the First Amendment had been violated.[35]

Justice Scalia delivered the Court's opinion, declaring that the state can impose a valid and neutral law regulating religious activities, provided the law applies to all citizens generally—regardless of religion.[36] The Court supported its finding by claiming that free exercise of religion has never exempted citizens from following general laws formulated by the government.[37] Thus, the denial of unemployment benefits to the respondents was affirmed, and the Court expressly denied extending the Sherbert-Yoder analysis outside the unemployment compensation scenario.[38] Though an employment benefits case, the Supreme Court recognized the law in Smith as a "generally applicable criminal law," and thus grouped the Smith decision in a different niche than pure employment benefits cases such as Sherbert and Yoder.[39] Based on the criminal aspects of the Smith case, the majority did not apply the Sherbert-Yoder analysis, overlooking that Smith's basic controversy involved employment benefits.[40]

Further, the majority compared the compelling interest requirement contained in the Sherbert-Yoder analysis to other areas of law that require a compelling interest examination. The Court stated that

The "compelling government interest" requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, or before the government may regulate the content of speech, is not remotely comparable to using it for the purpose asserted here. What it produces in the other fields—equality of treatment and an unrestricted flow of contending speech—are constitutional norms; what it would produce here—a private right to ignore generally applicable laws—is a constitutional anomaly.[41]

The preservation movement began early in the United States as citizens realized the importance of protecting sites of particular significance to America's heritage. In 1813, preservationists saved Independence Hall from demolition and in 1853 saved Mount Vernon from destruction.[43] Though preservation has long been of interest to American citizens, both the federal government and courts have been slow to develop the legal processes to reflect these concerns. Legislation and judicial opinions reflecting historic preservation concerns are therefore a relatively new occurrence.[44]

1. Federal Involvement

As national interest in preservation grew in the late Nineteenth century, the federal government also became more actively involved in the preservation movement, first acting to preserve the country's natural features by establishing Yellowstone National Park[45] and second appropriating money to protect Native American dwellings in the southwestern United States.[46] Congress enacted the Antiquities Act in 1906,[47] the first general federal legislation protecting historic resources,[48] evidencing the growing interest in the preservation movement.[49] This Act provided a foundation for the current preservation scheme coordinated by the Secretary of Interior.[50] During this time period, Congress also founded the National Park Service and defined one of its functions as protecting historic sites, particularly areas too large to be privately preserved, by designating them as national park sites.[51] During the early to mid twentieth century, the federal government showed moderate interest in historic preservation by enacting preservation legislation on a small scale[52] and creating the National Trust for Historic Preservation.[53]

Beginning with the enactment of the National Historic Preservation Act in 1966,[54] federal interest in protecting historic resources heightened. This Act created a National Register of Historic Places, historic districts, and an advisory council on historic preservation.[55] Additionally, Congress provided tax benefits for property containing structures of historic interest in the late 1970s and early 1980s.[56] In the last twenty years, Congress has enacted a flurry of legislation to protect historic resources, reflecting the current emphasis placed on protecting America's rich panoply of resources.[57]

2. Judicial Involvement

Just as the federal government has been slow to react to the strengthening of the preservation movement, judicial recognition of interests in historic preservation has also been slow to develop. In 1954, the Supreme Court first enunciated in Berman v. Parker[58] that the government may regulate based on purely aesthetic interests:

The concept of public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled . . . . If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.[59]

In 1978, the Supreme Court dealt directly with historic preservation interests in Penn Central Transportation Co. v. City of New York,[63] a seminal takings case involving New York City's landmark laws. In Penn Central, the owners of Grand Central Terminal sought to build a fifty story office building over the Terminal. Because the New York City Landmarks Preservation Committee had designated Grand Central Terminal as a landmark,[64] the Commission denied plans for construction of the office building.[65] Owners of the Terminal filed suit against the City of New York, alleging that the application of the landmarks preservation law constituted a taking of property without just compensation.[66] The Court found that the New York City landmarks law as applied to Grand Central Terminal was not a taking because the restrictions it imposed on the Terminal were related to the promotion of the general welfare and allowed reasonable use of the landmark site.[67]

The Supreme Court's majority opinion[6]8 in Penn Central affirms the importance of the growing historic preservation movement in the United States.[69] The Court notes two major concerns that have developed from preservation efforts around the nation: (1) the destruction of historic landmarks, structures, and areas[70] without contemplation of the value of these properties or alternative uses for these structures; and (2) the prevailing belief that structures with particular historic significance enhance the quality of life and preserve the country's past.[71] Additionally, the Penn Central Court's holding that no taking occurred further establishes the overwhelming judicial support for preserving historic structures. By recognizing that a law fashioned exclusively for preservation promotes the general welfare, the Court affirmed a local government's ability to use its police powers exclusively for historic preservation, upholding the legitimacy of historic preservation ordinances.[72] With the Supreme Court's express recognition of preservation ordinances and overarching support for the preservation movement, Penn Central firmly rooted judicial protection of historic preservation.[73]

Conflicts between religious freedom and historic preservation embody a struggle between the constitutional rights of citizens (such as a church or synagogue congregation) and the police powers of the government through which it applies a preservation ordinance or law.[74] Prior to the enactment of RFRA, courts applied the judicially-created analysis for laws and regulations that affect religious activities[75] when religious freedom and historic preservation interests collide.

1. Pre-1990: The Sherbert-Yoder Era

Before 1990, courts relied on the analysis[76] set forth in Sherbert and Yoder.[77] Courts generally gave religious entities special deference when the government imposed regulations using their police powers. For example, in Westchester Reform Temple v. Brown,[78] the court stated that "[r]eligious structures enjoy a constitutionally protected status which severely curtails the permissible extent of governmental regulation in the name of the police powers."[79] The court asserted that though the government's use of its police power may be properly related to the health, safety, and welfare of the community, the police power may be outweighed by the First Amendment guarantee of freedom of religion.[80] The court further pointed out that "the power of [government] regulation [of religious structures] has not been altogether obliterated."[81] Similarly, the court in Bethlehem Evangelical Lutheran Church v. City of Lakewood[82] maintained that churches are subject to the police power of the state but should be given preferential treatment by requiring the state to show a substantial interest[83] before using its power.[84] Thus, the approach followed by the majority of courts faced with religion-historic preservation cases during the Sherbert-Yoder era involved weighing the legitimate concerns of the government and the detrimental effects of the government's regulation on freedom to practice religion.[85] Such a test led to a heavily factually-based analysis, yielding mixed results dependent upon the court's perception of each party's interests.[86] But, as a whole, courts gave deference to free exercise interests unless presented with a compelling government interest.

2. Post-1990: The Smith Era

As noted, the Supreme Court departed from the strict scrutiny Sherbert-Yoder analysis in 1990, requiring courts faced with religion-historic preservation cases to follow the Smith analysis. Though the Smith analysis allows more deference to government regulation than the previous Sherbert-Yoder standard,[87] courts still return mixed results.[88]

One of the most prominent religion-historic preservation cases after Smith is St. Bartholomew's Church v. City of New York,[89] decided in 1990. The case involved a church's challenge of the application of a landmark law, where the church claimed the law to be a burden on its free exercise of religion. In 1967, St. Bartholomew's Church and adjacent structures were designated by the New York Landmarks Preservation Commission as a landmark, prohibiting the alteration or demolition of the Church's buildings without approval by the Commission.[90] In 1983, the Church sought to replace its Community House with a fifty-nine story office tower, but the Commission denied this request. After several more requests were denied by the Commission, the Church brought suit against the city.[91] On appeal to the Second Circuit, the Church alleged violations of the Free Exercise Clause and Takings Clause.[92]

The Church claimed that its right to continue its religious mission was impaired by the Commission because its Community House was no longer a sufficient facility in which the Church could continue its ministerial and charitable services.[93] Further, the Church claimed that renting space in the office tower would generate revenue to expand ministerial and charitable activities.[94] The court applied the Smith test, maintaining that

government regulation may affect conduct or behavior associated with [religious] beliefs. Supreme Court decisions indicate that while the government may not coerce an individual to adopt a certain belief or punish him for his religious views, it may restrict certain activities associated with the practice of religion pursuant to its general regulatory powers.[95]

The court acknowledged the restriction of the landmark law on the Church's ability to raise money and carry out ministerial programs but held that no First Amendment violation existed because of the landmark law's neutral, generally applicable nature.[97] The court pointed out that the Church could still proceed in its religious practice using its current facilities and that the landmark law possessed no discriminatory motive.[98] Based on these findings, the court ruled that no Free Exercise Clause violation existed in the application of the landmark law to St. Bartholomew's Church.[99]

Though Smith seemed to tip the religious freedom/historic preservation conflict toward protection of historic structures by allowing neutral, generally applicable laws carte blanche, some courts have still managed to favor protecting First Amendment freedoms over historic preservation, showing that even after Smith, religious freedom will be judicially protected. In First Covenant Church of Seattle v. City of Seattle,[100] the City of Seattle designated First Covenant Church a landmark by adopting an ordinance which also required First Covenant Church to seek approval from the City before making certain external alterations.[101] First Covenant Church sued the City to prohibit application of the landmark ordinance to First Covenant Church, claiming that the ordinance violated the Free Exercise Clause.[102]

The Washington Supreme Court asserted that the Smith test did not apply to the factual situation set forth in First Covenant and promptly distinguished St. Bartholomew on its facts.[103] In addition, the court deemed First Covenant a "hybrid situation," in which First Covenant Church's claim included multiple protected interests: free exercise and free speech.[104] The court termed the design of the church building to be non-verbal conduct that expresses the Christian belief and message. Based on its hybrid situation determination (derived from the addition of the free speech claim), the court found that First Covenant fell into an exception category, free from the tentacles of the Smith test. The court then applied the Sherbert-Yoder compelling interest analysis.[105]

First, the court determined that the government regulation on First Covenant Church burdened the church in two ways: administratively because the church must seek approval from a government body before changing their structure and financially because the value of the church's property was reduced almost in half.[106] Next, the court ruled that the government did not have a compelling interest to support its enactment. The court opined that historic preservation interests were not strong enough to be deemed compelling because they only encompass aesthetics and cultural interests, not public health or safety.[107] Thus, despite the pro-regulation Smith ruling, the court in First Covenant held that the ordinance at issue was a burden on free exercise of religion and, as such, invalidated the landmark designation ordinance.[108]

Similarly, the court in Society of Jesus v. Boston Landmarks Commis sion[109] also diverged from the holding in St. Bartholomew. Society of Jesus involved a dispute between a Jesuit church and the Boston Landmarks Commission over the constitutionality of the Commission's designation of the interior of the church as a landmark.[110] In 1987, the Commission designated the interior of the church a landmark. The designation limited permanent alterations to the church interior without approval by the Commission. The church promptly challenged the designation on constitutional grounds. The Massachusetts Supreme Court ruled that the Commission's designation of the interior of the church violated state and federal constitutional provisions.[111] Because the court found that the designation violated state constitutional provisions, the court never engaged in a full discussion regarding the federal free exercise violations.[112] But, the court did add that "[t]he government interest in historic preservation, though worthy, is not sufficiently compelling to justify restraints on the free exercise of religion, a right of primary impor tance."[113] Thus, like the First Covenant court, the Society of Jesus court placed the importance of historic preservation as unconditionally subservient to protecting the right of religious freedom and held against preservation interests, despite the recent Smith decision.[114]

Though the facial application of the Smith doctrine would seem to place a pro-preservation slant on religion-preservation conflicts, courts have broad interpretative leeway, making decisions highly reliant on the individual facts of each case. Surprisingly, no more cases have leaned toward protecting preservation interests under the Smith era than during the Sherbert-Yoder compelling interest era.[115] This result is most likely due to the ability of courts to distinguish their cases factually, as in First Covenant, or "sidestep" First Amend ment issues altogether and apply different laws, as in Society of Jesus. Such cases demonstrate the wide room for judicial interpretation in this area of the law.[116] No doubt, RFRA was enacted to replace the previously judicially-created law and narrow the interpretative liberties that courts could take in deciding religion-preservation cases.[117]

In 1993, Congress enacted RFRA[118] in response to the Smith decision.[119] When enacting RFRA, Congress primarily intended to reinstate the Sherbert-Yoder compelling interest test.[120] Specifically, Congress wished to provide protection where religion is burdened by a neutral law of general applicability.[121] To accomplish this goal, Congress enacted RFRA to override the Supreme Court's ruling in Smith which basically allowed the government to impose burdens on religion via neutral, generally applicable laws.[122]

Among the factors motivating Congress to enact RFRA were its finding that neutral laws may burden religion just as other laws do and its finding that the framers of the Constitution recognized free exercise of religion to be an unalienable right of all citizens.[123] Congress further cited the testimony of Reverend Oliver S. Thomas from committee hearings that the impact of the Smith decision has severely undermined freedom to practice religion—prognosticating that every American religion will eventually suffer from the Smith holding.[124] Specifically, Reverend Thomas stated that churches had been zoned out of commercial areas,[125] and Jews had been subjected to autopsies, violating their families' faith.[126] After these considerations, Congress enacted RFRA.

RFRA prevents the government from substantially burdening a person's free exercise of religion, even when the burden results from a neutral law of general applicability.[127] The only exception is where a government demonstrates[128] that the burden placed on an individual is the least restrictive means of furthering a compelling governmental interest.[129] A plaintiff has the initial burden of proof to show that a substantial burden on his or her religion exists.[130] If this burden is satisfied, then the burden shifts to the government to demonstrate that there is a logical and rational connection between its regulation and a compelling governmental interest and that the regulation is neutral and generally applicable.[131] RFRA entitles a person whose religious freedom has been violated to obtain appropriate relief against the government by asserting a violation of RFRA as a claim or defense.[132] Reading the plain language of RFRA, its scope appears to encompass all First Amendment free exercise cases in order to prevent intrusive government regulations on religion.[133]

Since the enactment of RFRA and the renewal of the Sherbert-Yoder test, only two cases have involved both RFRA and historic preservation. The first, Keeler v. Mayor of Cumberland,[134] was decided in 1996 by a Maryland federal district court. The second, City of Boerne v. Flores,[135] was decided by the Fifth Circuit in 1996 and the United States Supreme Court in June 1997 and is discussed in the next section.[136] Several other cases have been heard that involved ordinances restricting the religious practices of churches.[137] Though not directly impacting historic preservation, these cases may prove to be useful analogies for courts hearing RFRA cases involving the application of preservation ordinances to churches.

The Keeler dispute involved St. Peter and Paul's Roman Catholic Church, located on an entire block in the city of Cumberland, Maryland within the Washington Street Historic District.[138] Buildings and structures located within the historic district cannot be destroyed or altered without approval from the Cumberland Historic Preservation Commission. Since 1986 a chapel and monastery on the site were vacant and in disrepair. The cost to repair and maintain the structures was estimated to exceed $380,000.[139] After several failed plans to convert the chapel and monastery, the congregation decided to demolish the structures to build a much needed church annex on the property and eliminate the large financial drain created by the monastery and chapel buildings. In 1995, the congregation applied to the Commission to demolish the chapel and monastery, but the request was denied.[140]

The congregation filed suit, alleging that the City's application of the historic preservation ordinance to the chapel and monastery violated RFRA and the Free Exercise Clause because of the substantial burden it imposed on the free exercise of the congregation's religion.[141] In response, the City argued that RFRA violates the separation of powers doctrine because RFRA imposes the Sherbert-Yoder test, a rule of constitutional interpretation, on the courts. The congregation refuted this claim by urging the court to view RFRA as "'prophylactic statutory protection for the Fourteenth Amendment's free exercise guarantee, as substantively interpreted by the judiciary.'"[142]

The court recounted the tradition of reserving constitutional construction questions to the courts, rather than Congress, noting that the tradition is traceable to the Federalists' arguments for the ratification of the Constitution.[143] The court determined the rule imposed by RFRA to be judicial, not legislative in nature, due to the bald assertion of RFRA to reinstate the Sherbert-Yoder test.[144] Based on this determination, the court found that Congress did not have the power to enact RFRA and held the statute unconstitutional.[145]

After holding RFRA unconstitutional, the court issued a separate order for the congregation's free exercise claim and other claims.[146] The court applied the Smith test and found that the congregation satisfied its initial burden of proving that their free exercise rights were burdened by proving that the new construction was crucial to the spiritual growth of the church.[147] Then the court determined that the ordinance at issue in Keeler cannot be categorized as religiously neutral but placed it in an excepted category mentioned in Smith involving a system of exemptions and exceptions that require the application of principles rather than those articulated in Smith.[148] Due to the ordinance's exemption for several non-religion based circumstances, the court found that the system of exemptions should be extended for religious hardship when such interests outweigh historic preservation.[149] Thus, the court applied a compelling interest analysis, requiring the City to assert a compelling interest to support its ordinance. The court found that the City failed to present a compelling interest and held that the City's denial of the congre gation's application for demolition was an unconstitutional violation of the First Amendment.[150] Thus, despite the court's rejection of RFRA, the court ironically implemented the compelling interest test for different reasons and ultimately found that religious freedom interests should prevail. Keeler provides another example of the widely variant avenues a court can take in resolving a religion-historic preservation conflict.[151]

"A little church that wants to be big will test a new law meant to guarantee freedom of religion."[152]

The Supreme Court granted certiorari to the Fifth Circuit's Flores decision and heard oral arguments in February of 1997.[153] Though the Flores case involved a small church in a small Texas town, many legal scholars and national organizations[154] anticipated that the Supreme Court would take this opportunity to rule on the constitu tionality of RFRA and clarify the law interpreting the Free Exercise Clause.[155] Indeed, the Flores decision should shape First Amendment jurisprudence as it is interpreted by lower courts in the years to come. As stated by one commentator: "'It's the authority of Congress that is at stake, not only to protect the religious liberty but to protect any other constitutional liberties.'"[156] Additionally, the Flores case drew the attention of preservation groups,[157] evidence of the widespread belief that the Supreme Court's ruling on RFRA's constitutionality will dramatically affect historic preservation efforts of governments.[158]

The Flores dispute involved Saint Peter's Catholic Church, built in 1923 and located within a historic district in the City of Boerne, Texas.[159] In 1993, the Church applied for a permit from the City to enlarge the church building without affecting the building's facade. The City denied the Church's application, and subsequent appeal was denied. The Church thereafter filed suit against the City, alleging that the ordinance containing the City's preservation scheme was unconstitutional and violated RFRA.[160]

The majority of the Fifth Circuit's Flores decision analyzed whether Congress had the power to enact RFRA in light of the separation of powers doctrine.[161] The court concluded that Section 5 of the Fourteenth Amendment empowered Congress to enact RFRA and that Congress's enactment of RFRA does not infringe on the court's power to interpret the Constitution.[162] The court also found that RFRA does not facially violate the Tenth Amendment's limitation on the power of states to legislate in traditional areas of state prominence.[163]

2. The Supreme Court's Opinion

Like the Fifth Circuit's opinion, much of the Supreme Court's opinion focused on whether Congress had the power to enact RFRA under the Fourteenth Amendment.[164] The Court determined that RFRA was solely intended to replace the Smith standard. Consequently, the Court ultimately held RFRA unconstitutional, based almost entirely on a separation of powers analysis under Section 5 of the Fourteenth Amendment.[165] The Court then reaffirmed the Smith standard, invalidating the RFRA strict scrutiny test.[166]

The Court presented a panoply of additional reasons to explain why RFRA's strict scrutiny standard should not be imposed.[167] Most notably, the Court argued that RFRA's standard is a significant "intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens."[168] Additionally, the Court asserted that the exercise of religion is burdened by a variety of general laws in an incidental way. These general laws burden every citizen equally—irrespective of their religious beliefs.[169] From a policy perspective, the Court recognized that RFRA's standard imposes a significant litigation burden on states.[170] The Court found that the costs of imposing the RFRA standard far outweigh the minimal benefits of the enactment.[171] The coming discussion of the constitutionality of RFRA uses the Fifth Circuit's analysis in Flores as an analytical model.

The constitutionality of RFRA occupied the majority of the Supreme Court's opinion in Flores. As such, the Court's decision regarding RFRA's constitutionality will have vast consequences on future religious freedom cases, including those dealing with historic preservation issues. Specifically, the Supreme Court addressed whether Congress had the authority to enact RFRA under Section 5 of the Fourteenth Amendment, considering the traditional deference given to courts to interpret the constitution.[172] This section reviews Congress's power to enact RFRA under the Supreme Court's Morgan decision, using the framework of Katzenbach v. Morgan[173] and case law interpreting the constitutionality of RFRA. Two views are presented regarding RFRA's constitutionality followed by the Supreme Court's interpretation of the Morgan issue.

Section 5 of the Fourteenth Amendment of the United States Constitution provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article."[174] Section 5 was first interpreted in Ex Parte Virginia,[175] where the Supreme Court read Congress's power to enact legislation narrowly.[176] The Supreme Court later interpreted Section 5 during the Civil Rights Era in Morgan, which still stands today as the modern interpretation of Section 5.[17]7 In Morgan, the Court held that Congress's authority to legislate under Section 5 is determined by three elements: (1) whether the statute is enacted to prohibit ongoing violations of the Fourteenth Amendment; (2) whether the statute is "plainly adapted to that end;" and (3) whether the statute is consistent with the "letter and spirit of the constitution" and not prohibited by it.[178] The Supreme Court reaffirmed the Morgan interpretation of Section 5 in Oregon v. Mitchell[179] and has continued to follow these principles since Mitchell.[180]

The first prong of the Morgan test focuses on whether Congress enacted RFRA to enforce ongoing violations of the Fourteenth Amendment. This prong of the Morgan test as applied to RFRA turns on the Court's interpretation of what RFRA actually was enacted to do. Lower courts are split in their interpretations of this question.

Some courts, such as Keeler and In re Tessier, assert that RFRA does not enforce ongoing violations of the Fourteenth Amendment but instead "attempts to statutorily impose upon the interpretation of federal statutes a formerly constitutional standard"[181] by bringing back the Sherbert-Yoder compelling interest test. Congress does possess the power to remedy judicial institutional barriers[182] by passing legislation consistent with judicial interpretation to "animate the Court's decisionmaking."[183] However, these courts assert that Congress cannot simply enact any legislation connected to the Fourteenth Amendment, ignoring previous judicial precedent.[184] RFRA neither fine-tunes the Supreme Court's Smith interpretation nor addresses the Court's competence to implement the Smith balancing analysis. These jurisdictions hold that by reinstating the Sherbert-Yoder analysis, Congress abrogated the Court's interpretation of the Constitution in Smith because RFRA applies to all situations where Smith applies—in effect replacing the Smith standard with RFRA's statutory standard.[185] Such a congressional action fails to enforce an ongoing violation of the Fourteenth Amendment and, thus, fails the first prong of the Morgan test.

Other jurisdictions counter this argument with a broader interpretation of Congress's legislative power under Section 5 of the Fourteenth Amendment. The Fifth Circuit in Flores quickly dispensed with this prong by stating that RFRA enforces ongoing violations of the Fourteenth Amendment by enforcing free exercise rights of the First Amendment, which is incorporated by the Fourteenth Amendment through the Due Process Clause.[186] Citing RFRA's legislative history to advance its argument, Flores further expounds that witnesses at congressional hearings stated the immediate need for further protection of religious freedom and that the Senate Judiciary Committee responded to this need by reinstituting the Sherbert-Yoder test.[187]

The court in Belgard v. State of Hawaii[188] countered the notion that Congress did not have the authority to enact RFRA by describing the similarities between RFRA and the Voting Rights Act at issue in Morgan.[18]9 In Morgan, the Supreme Court ruled that Congress had the authority to enact the Voting Rights Act, even though the Supreme Court had directly upheld a standard contrary to the Voting Rights Act[19]0 in Lassiter v. Northampton County Board of Elections.[191] Based on this distinction, the Belgard court asserted that Congress had authority to enact RFRA despite contrary judicial precedent. The court did, however, note that opponents of this view distinguish Lassiter and the Voting Rights Act factually, contending that the Voting Rights Act does not specifically address issues decided in Lassiter.[192]

Thus, when determining whether RFRA was enacted to prevent violations of the Fourteenth Amendment, pre-Flores courts varied in their interpretations of Congress's authority to pass legislation connected to the Fourteenth Amendment,[193] providing differing views of the interaction between courts and Congress in developing the law.[194]

The second prong of Morgan requires examination of whether RFRA is "plainly adapted to that end."[195] Section 5 of the Fourteenth Amendment only affords Congress remedial power to remedy violations of the Fourteenth Amendment,[196] thus RFRA must serve remedial ends. In Flores, three remedial justifications are offered in support of RFRA. They include: (1) deterrence of government violations of the Free Exercise Clause; (2) prohibition on laws that impede freedom of religion; and (3) protection of minority religion rights.[197] The Fifth Circuit determined that RFRA serves a remedial function due to RFRA's additional measure of free exercise protection for persons burdened by neutral, generally applicable regulations, thereby including the rights of more citizens, particularly members of minority religions.[198] Though the Flores court is the only court examined by this article to undertake this second prong of the Morgan analysis as applied to RFRA, the Flores interpretation that RFRA is remedial in nature would probably stand, assuming that the broad view of the first Morgan prong was adopted.[199]

Under the third prong of the Morgan test, RFRA must be consistent "with the letter and spirit of the constitution."[200] This prong mandates that RFRA be consistent with all other provisions of the Constitution.[201] Opponents of RFRA primarily contend that the statute violates the Constitution's separation of powers doctrine.[202] They state that RFRA offends the historic principles laid out in Marbury v. Madison[203] by infringing on the judiciary's power as the ultimate interpreter of the constitution.[20]4 Marbury enunciates this principle by stating that "[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule."[20]5 The Keeler court held that RFRA is judicial in nature, rather than legislative, due to its invalidation of the judicial test set out in Smith. Due to this result, the court maintains that Congress steps into the shoes of the judiciary.[20]6 Keeler's argument is quite compelling, in that the court notes that it is unaware of any other statute where Congress expressly rejects a judicial standard of review.[207]

Proponents of RFRA's constitutionality claim that RFRA does not "second-guess" the intermediate scrutiny Smith test but assert that RFRA necessitates an "ad hoc review of the laws of general applicability that substantially burden the free exercise of religion," regulating all emerging violations of the Free Exercise Clause under RFRA's statutory trigger.[208] Further, Congress can enact "constitutionally overinclusive" legislation without violating the separation of powers doctrine.[209] Thus, proponents assert that RFRA does not supersede judicial precedent but permissibly expands the scope of government regulations subject to judicial scrutiny.[210] But, no matter how creatively courts dance around RFRA's true purpose, the statute itself clearly states Congress's intent to denounce the Smith test, which expressly excluded judicial review of religious burdens relating to neutral laws.[211]

Undeniably, courts have variant opinions regarding whether Congress had authority under Section 5 of the Fourteenth Amend ment to enact RFRA under the three prong Morgan test. Because both sides present cogent arguments supported by judicial precedent, any accurate prediction of the Supreme Court's result in Flores was impossible. Prior to the Court's decision, most federal courts upheld RFRA's constitutionality, adopting the broader view of Congress's authority under Section 5.[212] But regardless of the "majority" lower court opinion, the Court still was presented with the task of adopting their own view.

In the Supreme Court's Flores opinion, the Court began by reaffirming that Congress has only remedial enforcement power, not substantive power under the Fourteenth Amendment.[213] The Court first addressed whether Congress's enactment of RFRA was remedial in nature, and thus, an appropriate enactment under Congress's remedial power. The Court noted that "[t]he appropriateness of the remedial measures must be considered in light of the evil presented."[214] The Court provided a comparison of RFRA and the Voting Rights Act as an illustrative tool. In 1966, the Court had found Congress's enactment aimed at remedying voting rights discrimination to be constitutional under Section 5.[215] The Court's decision relied primarily on the prevalent voting rights discrimination in New York and Congress's direct attempt to eliminate it. In contrast, the Court recognized that no recent religious discrimination incidents have occurred and that evidence of religious discrimination given at hearings was merely "anecdotal" while the thrust of the hearings centered instead on incidental burdens on religion imposed by laws of general applicability.[216] Based on these findings, the Court distinguished Congress's voting rights legislation and RFRA due to the lack of religious discrimination for Congress to remediate.

Additionally, the Court stated that Congress's actions were not even focused on remedying the little discriminatory evidence that was presented at the congressional hearings.[217] The Court concluded that RFRA is completely "out of proportion to a supposed remedial or preventive object" and cannot be considered as devised to prevent unconstitutional behavior.[218] Thus, the Court deemed RFRA's enactment as substantive rather than remedial.

The Supreme Court went further to address whether the "remedial" legislation was adapted to the end which the Fourteenth Amendment was meant to prevent.[219] The Court found that RFRA has a very broad application, imposing restrictions on agencies and officials of state, federal, and local governments and affecting federal, state, and local laws.[220] RFRA contains no other limitations, such as a termination date or geographic restrictions. Even upon comparison of other congressional enactments, RFRA's reach and scope remains noticeably broad.[221] Thus, the Court found RFRA to be too broad to properly address any potential religious discrimination because of the Act's disproportionality with the legitimate ends of Section 5.[222]

The Flores Court chose to employ a narrow Section 5 interpretation of RFRA and ruled RFRA unconstitutional, finding that RFRA exceeded Congress's remedial power under the Fourteenth Amendment.[223] The Court reaffirmed its Smith decision, finding that RFRA directly contradicts the standards for scrutiny set out in the decision.[224] The following section will project the effects that the Supreme Court's ruling will have on historic preservation and religious freedom by comparing the effects of the previous strict scrutiny standard (RFRA- Sherbert-Yoder) with the reinstated intermediate scrutiny standard (Smith).

The Court's decision regarding the constitutionality of RFRA solidified the stronghold of the Smith intermediate scrutiny test and will hopefully provide sorely needed guidance for federal and state courts in this previously uncertain area of litigation.[225] Because most ordinances affording historic protection are neutral and generally applicable,[226] these ordinances fall in the class of government regu lations most substantially affected by the Supreme Court's ruling. Plainly, the difference between intermediate and strict scrutiny applied to historic preservation ordinances, regulations, and laws throughout the country will have a substantial effect on the preservation movement. To more closely measure the effects of this difference, this section analyzes and predicts the effect of both the standards on historic preservation and religious freedom. Further, this section focuses on the application of the compelling interest test to historic preservation, the seminal element in determining the true impact of the standards on historic preservation and religious freedom.

1. Effects of RFRA Alleged by Interested Parties

Before the Supreme Court's decision, the Sherbert-Yoder compelling interest test was applied to cases involving religious freedom and historic preservation. The Sherbert-Yoder test requires that the government present a compelling interest for its enaction once the plaintiff proves that religion is in fact burdened.[227] In addition, the test requires the government to show that the application of the burden is the least restrictive means of furthering that compelling interest.[228]

Proponents of the compelling interest test assert that under Smith, governments have zoned churches out of commercial dis tricts[229] and claim that governments cannot be trusted to formulate exceptions for religious minorities.[230] However, these opponents fail to mention the effect the Sherbert-Yoder test has on a government's ability to exercise its police power (such as the power to zone) to forward the health, safety, and welfare of all citizens. In Smith, the Court denounced the broad application of the compelling interest test to all civic obligations in society that in effect grant religious exemptions for any law or obligation that burdens religion.[231] The Court stated that "[a]ny society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them."[23]2 The Smith Court alludes to the fact that rekindling the compelling interest test will prevent local and state governments from properly exercising their legitimate police powers to control necessary daily activities.[233] Other commentators have been troubled by RFRA's broad application to "all forms of law at every level of government."[234] The amicus brief submitted by fifteen states and territories urged the Supreme Court to take notice of RFRA's massive impact on state sovereignty due to its stringent limitation on police powers that affects all core areas of state and local governance.[235] The coalition's brief focuses particularly on RFRA's "boundless" requirement that the least restrictive means be used when neutral laws affect religious freedom.[236] Historic preservation ordinances are among the laws that state and local governments enact using their police powers.[237] Thus, RFRA's broad limitation on police powers when religion is involved will surely affect governments' abilities to protect religious structures, such as churches and synagogues, because those entities will likely cry "religious burden!" to circumvent government regulation in the future.

Critics of the Sherbert test also acknowledge the troubling incon sistencies latent in the Sherbert-Yoder compelling interest test and state that

[i]t is not clear how many senators or representatives appreciated the inconsistencies in the test they voted to restore. Some of the people who drafted RFRA did notice the problem, but, in what one might regard as an especially cynical piece of draftsmanship, they seized upon the Supreme Court's inconsistencies to obscure the Act's meaning further.[238]

2. Judicial Interpretation of RFRA's Compelling Interest Test

The Court's reinstatement of the Smith test will subject historic preservation laws to only minimal scrutiny, a drastic difference from the former strict scrutiny approach.[240] Consequently, the full effects of the Court's Flores ruling on future religion-preservation cases cannot be fully realized without examining whether historic preservation can be deemed compelling enough to overcome a court's strict scrutiny of the government's interest. Thus, the judicial interpreta tion of the compelling nature of historic preservation largely impacts the magnitude of limitations that RFRA has had on historic preservation. Yoder defines a compelling interest as "truly paramount" and only of the "highest order" to outweigh a burden on the free exercise of religion.[24]1 Penn Central plainly states that historic preservation is a legitimate governmental interest,[242] but subsequent courts disagree as to the "compelling" nature of preservation.

Though not dealing directly with historic preservation, the Bethlehem Evangelical Lutheran Church court balanced the interests of the city in upgrading the streets and improving traffic flow[243] against the burden on religious freedom and determined that the city's interest should prevail.[244] In discussing the interest of the government, the court noted that religious organizations are subject to the government's police powers and that public works projects, such as street improvements, can be compelling enough to overcome a religious interest.[245] Thus, under Bethlehem Evangelical Lutheran Church, historic preservation could conceivably be compelling enough in some situations to overcome religious interests.[24]6 The Keeler court also balanced the government's interest in historic preservation against religious interests and stated that "[t]he ordinance embodies a legislative judgment that the City's interest in historic preservation should . . . give way to other interests, such as furthering major development and protecting property owners from financial hardship" due to the system of exemptions embodied in the ordinance.[247] Thus, the Keeler court found that the government had no compelling interest to support this particular historic preservation ordinance because the system of exemptions present in the ordinance proved that the government's "interest in enforcement is not paramount."[248] However, the court did not foreclose the possibility that historic preservation could be compelling enough to override religious freedom burdens in other scenarios, particularly in the absence of a system of exemptions.[249]

In contrast, the Westchester Reform court took the view that governmental actions (such as minimizing traffic hazards) that forward health, safety, and welfare must yield to religious interests where an irreconcilable conflict exists, implying that police power interests (similar to historic preservation) are never compelling enough to outweigh religion.[250] Additionally, the Supreme Court of Washington in First Covenant Church acknowledged the importance of historic preservation, recognized its positive effects on a com munity's aesthetic appeal, and noted its ability to enhance the quality of life for all citizens.[251] Though these cultural and aesthetic positives are inherent in historic preservation, the court discounted historic preservation interests, stating that they fail to relate to protection of the safety or health of citizens.[25]2 The First Covenant court found that the city's preservation interest was not compelling and generally took a dim view of ever placing historic preservation interests over "paramount" religious freedom.[253] Similarly, the court in Society of Jesus categorically held that a government's interest in historic preservation is not compelling enough to justify burdening religious freedom under our "hierarchy of constitutional values."[254] Based on variant interpretations of the compelling nature of historic preservation, plainly no consensus exists. More courts have held that historic preservation is not compelling enough (either categorically or as applied to their factual scenario) to outweigh religious interests.[255] This trend indicates the Court's ruling in Flores will have a strong effect on historic preservation where before Flores, many courts recognized the religious freedom interests as compelling and preservation interests as less than compelling under the compelling interest test.

Supporters of RFRA argue that the Smith standard did not provide enough protection for religious freedoms.[256] They assert that by using a compelling interest test and "careful balancing and conscientious regulation," courts and legislatures can preserve historic structures while also protecting free exercise of religion.[257] However, the compelling interest test does not allow this balancing luxury, which is evidenced by the trend of courts to reject balancing historic preservation and religion.[258] In contrast, the Smith intermediate scrutiny test does employ an approach to balance these interests.[259]

After Flores, courts will now apply Smith intermediate scrutiny to subsequent conflicts involving religious freedom and historic preser vation.[26]0 The Smith standard gives great deference to government to exercise valid and neutral laws, such as historic preservation laws, requiring only a rational relation to a valid purpose.[261] Though Smith critics assert that such a low level of scrutiny will give governments free reign to burden religious organizations,[262] such circumstances are exaggerated and are outweighed by the positive effects that the Smith test will have on historic preservation.[263]

The Smith test as applied does not give governments presumptive deference to employ their police power at the demise of free exercise rights. As evidence, cases under the Smith test have had varying results. In St. Bartholomew, a historic ordinance was upheld when applied to a church.[264] But in both First Covenant Church and Society of Jesus, the courts held that the free exercise rights of the respective churches were burdened and ruled against the city's preservation ordinances.[265] In addition, the Keeler court applied the Smith test after overruling RFRA and found that a historic preservation ordinance violated a church's free exercise rights.[266] Thus, based on previous applications of the Smith test, the outcome of an unconstitutional ruling of RFRA will yield uncertain results due to differences in factual circumstances of cases, such as differences in ordinances. However, though results are uncertain, the Smith test will give the appropriate weight to historic preservation interests, allowing governments to reasonably use their police powers and preventing religious interests from having a broad exemption from general laws enacted for the safety, health, and welfare of the public.[267]

Based on the differing views of the strength of historic preservation interests prior to the Court's decision, the effects of RFRA were unpredictable, as each jurisdiction maintained its own opinion of the importance of preservation and religious freedom, particularly concerning whether historic preservation is a compelling interest. Regardless of whether the Court had chosen the Sherbert-Yoder or Smith test, a "chilling effect" is likely to occur on governments enacting historic preservation legislation. Both tests have yielded inconsistent results in the past. The Sherbert-Yoder test has been inconsistent due to the varying interpretations of historic preservation as a compelling interest, while the Smith standard's inconsistencies are rooted in the balancing nature of the intermediate scrutiny test. Either standard's uncertainty will impel governments to avoid expensive litigation and transaction costs by avoiding litigation-breeding preservation ordinances.[268] Thus, due to the judiciary's inconsistencies, historic preservation will be detrimentally affected to some degree despite the Court's RFRA ruling. But as a whole, RFRA's implementation of the Sherbert-Yoder test would have produced a more negative impact on historic preservation than the Smith test because governments have less power to enact ordinances solely for preservation purposes.[269] Additionally, governments would be even further chilled from enacting preservation ordinances applicable to religious institutions under Sherbert-Yoder, knowing that they must show a compelling interest behind the ordinance if challenged.[270] Had RFRA been upheld by the Supreme Court, however, religious interests would have blossomed in the absence of constraining preservation ordinances under RFRA. Ultimately, the Court's reinstatement of the Smith test will positively impact preservation efforts, in large part by avoiding the negative effects that the RFRA standard would have had on preservation efforts. However, judicial recognition of the importance of preservation efforts will necessarily diminish the religious freedom of entities impacted by preservation laws.

Though the reinstatement of the Smith standard will positively impact historic preservation, a broad view of the benefits and costs to society of the former Sherbert-Yoder test must be analyzed to fully realize the impact that the change in standards will create. Through this analysis, the benefits of RFRA that will be lost become evident. This section comprehensively examines the costs of RFRA that will now be avoided and concludes by looking in hindsight at whether the negative impact on historic preservation would have been justified by RFRA's positive effects on religious freedom and society as a whole.

1. Prevailing Religious Freedom

America was founded on the principle that citizens are free to practice their religion without government inference.[271] The First Amendment embodies this fundamental birthright of all citizens.[272] RFRA provides broad protection of religious freedom rights, limiting all government burdens on religious freedom, including generally applicable laws.[273] Congressional testimony indicates that neutral laws have placed a significant burden on the religious activities of Americans in the past.[274] Further, because few governments enact religiously-biased laws, most government laws that affect religion are neutral.[275] Thus, to provide citizens with the fullest form of religious freedom feasible under the First Amendment, RFRA's compelling interest test protects religion from its most common foe: the neutral, generally applicable law. With RFRA in place, religious entities and citizens can rest assured that only the most necessary interests will interfere with their religious activities. With this broad grant of religious freedom, religious establishments received special deference in situations such as zoning, historic preservation, and permitting, only affecting religious activities when the governmental interest is extreme.[276] Thus, RFRA provides the benefit of broad religious protection for all citizens to enjoy. In contrast, the main concern with the Smith test lies in its pressures on religious freedom. With the increased use of preservation laws and ordinances, reli gious entities such as churches and synagogues must contend with the frustration of property sales, expansion efforts, and architectural preferences, all of which constrain religious expression.[277]

2. Freedom from Financial Pressures of Government Regulation

Compliance with governmental regulation frequently comes with a price.[278] Generally, the private property owner absorbs the cost of historic preservation up to the level that the regulation becomes a taking.[279] RFRA largely exempts religious entities from bearing this financial burden. In St. Bartholomew, the church congregation contended that the prohibitive cost of complying with historic preservation laws by renovating the existing church structure would be a severe burden and prevent the church from carrying out its ministry.[280] Similarly, the plaintiffs in Keeler argued that they would undergo great financial hardship as a result of the preservation ordinance.[281] If RFRA were applied to both Keeler and St. Bartholomew, the governments' interest in regulating might not be found to be compelling enough to overcome religious interests, and the churches would be saved from financial strain.[282] Additionally, complying with bankruptcy transfer regulations would have cost a church money in donations from a Chapter 7 trustee. But under RFRA, a court ruled that the church could accept these donations.[283] With more financial resources, religious interests can expand their activities.[284] Additionally, many religious establishments seek to better the community through service projects, food banks, and homeless shelters.[285] Lessening financial strain on religious establishments would allow unconstrained religious activities and possibly better the community through more charitable projects. The RFRA test produces the benefits of prevailing religious freedom and relief for religious entities from financial burdens. The reinstatement of the Smith standard will eliminate these benefits.

1. Harsh Blow to the Preservation Movement

RFRA's codification of the compelling interest test was a large step back for the steadily growing preservation movement.[286] RFRA greatly impeded preservation of religious buildings and structures both through challenges of laws by religious entities and the possible chilling effect that RFRA might have on government efforts to protect these structures.[287] In many towns and cities, early community life grew around religious establishments such that the buildings that housed religious entities were often built in the center of town and became the backdrop for the development of the city.[288] Expressing the important qualities of continuity that historic structures bring a community, Silver writes, "[C]ommunities have special irreplaceable values that must be preserved in order to provide a sense of place and continuity in people's lives."[289] RFRA largely prevented governments from preserving structures such as churches and synagogues—buildings which are often excellent examples of the American architectural legacy. Unfortunately, the effects of demolition of structures is permanent.[290]

2. Effects of the Decline of Aesthetic Quality in America's Cities

"[P]reservation is a potential catalyst to retaining an aesthetic quality in the urban environment where people live and work."[291]

It is difficult to imagine the demolition of Notre Dame due to financial burdens on the congregation, or the addition of a modern building to the rear of the City Cathedral to accommodate a growing church membership. Such travesties would decrease the aesthetic appeal of their respective cities—and would do the same in American cities and towns. With the decline of aesthetic appeal comes the decline of tourism. Historic preservation efforts have a direct impact on tourism, frequently making preservation economically beneficial to a municipality.[296] Aesthetic improvements have also been linked to a substantial decrease in crime in a community.[297] Finally, due to increased tourism and public attention, historic districts and sites often raise property values when an area is restored and maintained, thus improving the area's economy.[298]

3. Lost Economic Opportunities

Historic districts have been found to produce other economic benefits for a community, including the "creation of new jobs, stimulation of retail sales," and "dilution of deterioration and poverty."[299] As one commentator noted, "Dollar for dollar, historic preservation is one of the highest job-generating economic development options available."[300] In fact, several states have formalized studies proving precisely this point. In 1993, one such study examined the economic effects of Rhode Island's preservation efforts on its communities by comparing expenditures directly related to government-sponsored preservation programs with the impact of preservation efforts on employment, wage changes, and tax revenues.[301] The study found that for every $10 million spent on preservation through Rhode Island's programs, 285 new jobs were created, $7.4 million was generated in wages, the gross state product increased by $9.2 million, and state and local tax revenues rose by $861 thousand.[302] Texas and Illinois also published similar studies on the economics of their preservation efforts, both finding that preservation stimulated a considerable amount of revenue and jobs.[303] Historic preservation evidently bestows considerable economic attributes on a community. If the RFRA standard had been affirmed by the Supreme Court, preservation of religious structures would have further declined, resulting in a decrease in potential economic benefits derived from preservation.

4. Inner City Revitalization

Since World War II, industry, jobs, and people have moved from cities and towns to outlying suburbs.[304] Historic preservation aids in reducing the problems associated with urban sprawl. In states where the population is rapidly growing, metropolitan areas have become increasingly isolated from economic opportunities that lie in the suburbs.[305] Because many preservation projects are located in the core of a community, visitors are drawn to the preservation activities, bringing economic growth to the inner city rather than the suburbs.[306] Economic growth in the inner city translates into environmental advantages as well, such as savings in proportion of land used for transportation, reduction in energy consumption, and reduction in air pollution.[307] Additionally, reusing older downtown structures can lessen traffic congestion[308] and the need for new infrastructure, such as roads and bridges.[309] Thus, the preservation of religious structures also forwards urban revitalization.

If the Court in Flores had upheld RFRA, the aesthetic appeal of America's cities and towns would likely have been damaged because religious establishments could seek exemptions from preservation laws, allowing demolition and facial changes to historic religious structures.[310] Consequently, cities dependent on visitors drawn by historic landmarks would have suffered economically, and other positive effects resulting from preservation would not have been realized. Thus, because the Court struck down RFRA, the preservation movement will not suffer from these setbacks, and America can enjoy the amenities accompanying preservation.

This analysis of the benefits and costs predicted to result from the use of the RFRA standard demonstrates the clash between two strong interests: religious freedom and historic preservation. Each maintains a strong following willing to argue vehemently and able to point out legitimate concerns for protecting their respective interest. The widespread aesthetic, cultural, and economic effects of preservation demand adequate protection of historic structures, as preservation affords many more benefits to society as a whole than the religious interests of a smaller number of owners of religious properties.[311] Application of RFRA's compelling interest test would not have adequately represented preservation interests but would have instead resulted in an imbalance in favor of religious freedom interests over legitimate state interests such as historic preservation.[312] The Court's reaffirmation of the Smith standard is therefore a major victory for preservationists, but pervasive religious freedom will likely be sacrificed. Based on this troubling reality, this article proposes alternatives aimed to soften the Smith standard's blow to religious freedom, while retaining the Smith standard's benefits to historic preservation.

"[I]t is possible to strike a balance between the competing interests of the religious property owners and municipal governments, rather than negating one interest at the expense of the other."[313]