Landmarking and Establishment

[Douglas Laycock]

        There is something important and powerful to Mark Graber's intuition
about the Establishment Clause, even if it is overstated.  Does government
have any legitimate interest at all in preserving sacred architecture?  I am
inclined to the view that either the architecture is still sacred, in which
case the asserted interest is barred by the Establishment Clause, or
government is confiscating the sacred and converting it to secular uses
(e.g., promoting tourism), and this conversion is barred by the Free
Exercise Clause.  The problem is not hypothetical; a study in New York found
that churches are landmarked at rates 42 times higher than other kinds of
property.  The landmark lobby is one of the more organized and serious
threats to religious liberty in the United States today.

        Still, as Brooks Fudenberg argues, sometimes there are secular
reasons sufficiently strong and sufficiently independent of the sacred to
legitimate government interest.  The old Spanish missions in San Antonio are
preserved in a cooperative arrangement between the Archdiocese and the
National Park Service; I don't know the details, but I think the Park
Service maintains the exterior and the churches maintain the interior.  Some
of the churches are still functioning churches, but the Park Service takes
tourists through when services are not in session.  The missions were the
economic and military outposts of the Spanish empire, as well as religious
outposts; the historic interest is genuine.  I am inclined to think that if
the secular interest is sufficient to legitimate the government's desire for
preservation, it is also sufficient to legitimate the government's paying
for preservation.

        There is also the question of laws prohibiting destruction or
desecration of churches by vandals.  Some on this list have argued that such
laws violate the Establishment Clause.  If not, they suggest some special
interest in preserving churches.  But I think the government interest here
is not in the architecture, but in preventing hate crimes, and that the
architecture matters only so long as the religious organization wishes to
keep it.



Douglas Laycock
The University of Texas School of Law
727 E. 26th St.
Austin, TX  78705

512-471-3275 (voice)
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dlaycock at mail.law.utexas.edu