Their Preservation Is Our Sacred Trust—Judicially Mandated Free Exercise Exemptions to Historic Preservation Ordinances Under Employment Division v Smith

Abstract

Religious property owners have both successfully and unsuccessfully challenged historic preservation ordinances as burdens on the free exercise of religion. Courts considering this conflict typically rely on Employment Division v. Smith, in which the United States Supreme Court held that neutral laws of general applicability that incidentally burden religion are not subject to strict scrutiny. Ambiguities in Smith, however, have left courts free to use their own interpretive discretion and have made attempts to apply free exercise precedent particularly difficult in the historic preservation context. This Note reviews the historic preservation movement and free exercise jurisprudence, then analyzes cases that have attempted to balance these two often conflicting interests. The Note argues that the strictures of Smith are too rigid, producing results either over- or under-inclusive of free exercise rights. Only through the application of a case by case balancing test can courts adequately adjudicate inevitable free exercise/historic preservation conflicts.