Last week the First Circuit issued an opinion relating to the right (or non-right) of the Roman Catholic Diocese in Springfield, Mass to do what it wants with its church. Roman Catholic Bishop of Springield v. City of Springfield, Docket No. 11-1117. Since Springfield is the land from whence my father and all the various Connors folks sprang, so he and others of the clan may very well have been confirmed in that church – and because the decision says some interesting things about religious freedom – let's give it a gander.
Our Lady of Hope was built in 1925. It's not on the National Register of Historical Places, and was never proposed to be included in a local historical district – until a Diocese committee issued a report recommending closing the church. The bishop accepted the report and services ceased as of January 1, 2010.
Canon law talks about what to do with all the religious content of a church when closed, which involves relocating that content, putting it in storage or destroying it, to avoid it being put for "sordid" use. When church property is sold or leased, the Church also puts a clause in the agreement to allow it to remove all religious symbols or obligating the buyer or lessee not to put the property to sordid use.
The local parishioners were not pleased when the announcement was made that Our Lady of Hope was to be closed. They lobbied the City, and what resulted was a single property historic district – just this piece of property. As an historic district, Our Lady now can't be altered in any way that affects exterior architectural features unless the historical commission first issues a certificate of appropriateness, non-applicability or hardship. If you don't get a certificate and you start changing things, you get fined up to $500 a day. To get a certificate, you need to file an application along with "such plans … and other information … as may be reasonably deemed necessary by the commission to enable it to make a determination on the application," and there's a public hearing.
The Diocese filed suit, saying this violates the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. s. 2000cc et seq. and its constitutional rights.
In brief, the Court found unripe all claims except the one challenging the enactment of the ordinance creating the district, and as to that claim, it held that the ordinance burdens were not substantial enough to violate the Church's rights. CJ Lynch wrote the decison (Judges Selya and Howard filling out the panel). Basically, the opinion notes that the Church hasn't said what it's going to do with the property, so most of the controversy isn't concrete enough to rule on yet, and applying multiple factors and a "functional" approach, the Court said that just having to file something isn't enough to violate religious freedom under the Constitution(s) (Mass and US) or RLUIPA.
The Court went out of its way to note the limited nature of its ruling. Without knowing what the Diocese wants to do with the property, it said, it can't tell how substantial the burden is. While the Court noted the "troubling facts" suggesting that the motivation for the creation of the district was to meddle with Church decisionmaking, the Court said that the creation of the district "does not establish a process, apparently neutral, that will in fact result in the denial of any request" that the Diocese may make to the reviewing commission. "Should the [Commission] in fact prevent [the Diocese] when it does have specific plans for the site, from undertaking any portion of its religious practice of deconsecreation, the significance of the Ordinance's background can be evaluated anew in the context of any later challenge."
Hmm. This isn't a neutral ordinance in the sense of a set back requirement applicable to everyone equally. Even if totally neutral, the purpose of an historical district is to protect something for aesthetic or cultural reasons, not to retain privacy or keep noise down. And the specific motive facts are indeed troubling.
Should the state be involved in reviewing plans about the exterior of a church for historical reasons? The focus of the decision is on the lack of intrusiveness of the requirement – just going through the process. Should there be some focus on the flip side of this equation – not just the degree of burden on the Church but also the degree of need by the state? Even if one accepts that this burden isn't substantial, what's the reason for the state to get involved? Excluding the fairly illegitmate reason of meddling in a local Diocese dispute, preserving history in general seems a reason fraught with subjective considerations that may not be what we would like our government to be reviewing vis-a-vis property devoted to religious uses.
If the New York Diocese wants to take down the pretty and historically important facade of St. Patrick's Cathedral and paint the building neon pink, is that anyone's business, as long as nothing in existing ordinances prevents any other property owner in the area from painting their building pink?
In sum, asking owners of property to apply for permits as a general matter seems logical in the first instance, whether they want to build a house or a church. But when the purpose of the permit even obstensibly isn't to make the building stand up or fit in, but rather, the state is saying it values the building's appearance due to its history, that seems a little different to me. This seems particularly true when, as here, the only building in the district is the church. If there are whole blocks within an historical district, then I can conceive of a desire to keep the whole area looking similar as potentially legitimate. You wouldn't want a building – church or whatever – that looked like it landed from Mars in the middle of Williamsburg. (This is my pink point – if no one can paint their building pink that's different than if only the church can't.) But this is the only building in the district, so that can't be a consideration here.
Is there anything that the Diocese could propose to do with the facade of their Church (legal under all the other requirement of applicable ordinances) that would not run afoul of religious rights? If not, then is requiring the church property to be vetted (and no other) … kosher?