In Pa., church property subject to historic designation

By John Nivala

The Archdiocese of Philadelphia has said that any historic designation of any church property without its consent "allows the government to place undue restrictions on religious structures and property, which in effect interferes with the free practice of our religion."

If Philadelphia were Seattle, that position would be spot on. The Washington state Supreme Court, using the state's constitution, has found that even initiating the designation procedure violates a church's right to free exercise of religion.

Or if Philadelphia were Boston, that position might find traction, as the Massachusetts high court, again using the state's constitution, found the proposed designation of a church interior violated the same right.

Or if Philadelphia were San Francisco, the church, as a "noncommercial property," would be exempt from the designation process.

Pennsylvania and Philadelphia are a different story.

Article I, Section 3, of the Pennsylvania Constitution says "no human authority can . . . control or interfere with the rights of conscience." But in historic designation questions, this butts up against Article I, Section 27, which says Pennsylvanians "have a right . . . to the preservation of the . . . historic and esthetic values of the environment."

The state Supreme Court has said this provision "establishes a state policy for the preservation of historic resources" and that the Philadelphia historic preservation ordinance is consistent with that mandate. The ordinance, in turn, says preservation is a public necessity and enhances "the health, prosperity, and welfare of the people of Philadelphia." The ordinance describes, in detail, the process for designation and the process for reconsideration or modification of the designation. A building is defined as "any structure, its site, and appurtenances created to shelter any form of human activity."

Our courts have ruled that freedom of worship does not mean exemption from reasonable police-power regulations; the historic preservation ordinance is reasonable. But in 2002, our legislature enacted the Religious Freedom Protection Act, which says the state and local governments should not "substantially burden the free exercise of religion without compelling justification." An exception can be made if the burden furthers "a compelling interest" and the means adopted are the "least restrictive" needed.

Putting aside the tempting federal constitutional questions about such legislation, the act does not prohibit historic designation of church property. It does permit the church an opportunity to prove that designation would deny it the means to engage in activities fundamental to its religion. If Philadelphia were Seattle, that task would be a cinch. But Washington is an outlier.

Historic preservation ordinances such as Philadelphia's are neutral laws of general application that do not, on their face, impose a substantial burden on the free exercise of religion. Nor do they in application, given a process for relief if designation imposes a substantial burden. It is the church's obligation to establish that designation would prevent it from carrying out its mission.

John Nivala is a professor emeritus at Widener University Delaware Law School. jfnivala@widener.edu