This paper will analyze the tension between the historic preservation of sacred places and the free exercise of religion as seen through the recent controversy surrounding the landmarking of Third Church of Christ, Scientist, in Washington, D.C. Assuming Third Church would bring a free exercise and RLUIPA challenge if the District denied a demolition permit, this paper will examine how such a suit would likely fail.
After describing the factual background, the paper will evaluate questions of standing and ripeness. The mere fact of landmarking does not create a cause of action recognized by District of Columbia courts, so any potential suit would have to be brought after administrative remedies are exhausted. The paper will then analyze the potential challenge under pre-RLUIPA free exercise jurisprudence and conclude that despite cases to the contrary in Kansas and Washington State, the denial of a demolition permit is not a violation of free exercise under the Supreme Court's analysis in Employment Division v. Smith. The paper will then address the inherent contradictions within RLUIPA when religious entities try to invoke strict scrutiny to challenge historic preservation laws. While claiming to codify existing free exercise jurisprudence and not confer immunity from land use regulations to religious entities, RLUIPA contradictorily seems to expand free exercise protections by triggering strict scrutiny review upon a showing of an "individualized assessment" by a government body in land use decisions.
Stockton, Bryan, "Preserving Sacred Places: Free Exercise and Historic Preservation in the Context of Third Church of Christ, Scientist, Washington, DC" (2008). Georgetown Law Historic Preservation Papers Series. 29.