First Covenant Church of Seattle v. City of Seattle

CourtUnited States State Supreme Court of Washington
Citation120 Wn.2d 203,840 P.2d 174
Docket NumberNo. 56377-2,56377-2
Parties, 61 USLW 2334 FIRST COVENANT CHURCH OF SEATTLE, Appellant, v. CITY OF SEATTLE, Respondent.
Decision Date20 November 1992
A.T. Wendells, Clinton, Fleck, Glein, DeSmet & Thomson, P.S., Gordon S. Clinton, Seattle, for appellant

Mark H. Sidran, Seattle City Atty., Robert D. Tobin, Asst., Seattle, for respondent.

Steven T. McFarland, Annadale, Va., Angela C. Carmella, Professor of Law, Neward, N.J., David C. Hammermaster, Christian Legal Soc., Center for Law & Religious Freedom, Redmond, Carl H. Esbeck, Professor of Law, Columbia, Mo., amici curiae, for appellant on behalf of Christian Legal Soc., Church Council of Greater Seattle, Corp. of the Catholic Archbishop of Seattle, Washington State Catholic Conference, Diocese of Olympia, North Pacific Conference of Covenant Churches, Evangelical Covenant Church, James E. Andrews and Stated Clerk of the Gen. Assembly of Presbyterian Church (U.S.A.), Baptist Joint Committee of Public Affairs, Evangelical Lutheran Church in America, General Conference of Seventh-Day Adventists, Council on Religious Freedom, Americans United Separation of Church and State, Nat. Ass'n of Evangelicals and Nat. Council of Churches of Christ in the U.S.A.

William E. Hegarty, New York City, Stephen J. Kennedy, Seattle, Wash., amicus curiae, for respondent on Behalf of Mun. Art Soc. of New York.

David A. Doheny, Andrea C. Ferster, Elizabeth S. Merritt, Washington, D.C., Stephen J. Kennedy, Frank Williamson, Seattle, amicus curiae, for respondent on Behalf of Nat. Trust for Historic Preservation in U.S. and Washington Trust for Historic Preservation.

DORE, Chief Justice.

We reinstate our holding in First Covenant Church v. Seattle 1, that applying the City's ordinances to the church violates the free exercise guaranties of the First Amendment to the federal constitution and article 1, Section 11 of the state constitution. We have fully considered the Supreme Court's holding in Employment Div., Dep't of Human Resources v. Smith, 2 and we conclude that Smith is distinguishable from this case and does not compel a different result.


Whether applying Seattle's Landmarks Preservation Ordinance to First Covenant violated the church's right to free exercise under the state and the federal constitutions?


First Covenant owns the church located at Pike and Bellevue Streets in Seattle. First Covenant uses its church exclusively for religious purposes.

The City of Seattle adopted the Landmarks Preservation Ordinance 3 to:

designate, preserve, [and] protect, ... improvements and objects which reflect significant elements of the City's cultural, aesthetic, social, economic, political, architectural, engineering, historic or other heritage ...[.]

Seattle Municipal Code (SMC) 25.12.020(B) (1977); Clerk's Papers, at 6. Pursuant to that ordinance, the Landmarks Preservation Board nominated First Covenant's church as a landmark in October 1980. First Covenant objected to the nomination at public hearings, but the Board approved designation of the church as a landmark in January 1981. In April 1981, the Board adopted controls to preserve the exterior of the church.

The church and City unsuccessfully negotiated about the controls that the City would impose on the church. The parties appeared before a hearing examiner in June 1981. The church again objected to its designation as a landmark. The hearing examiner recommended that the city council approve the Board's proposed controls in July 1981.

On September 17, 1985, the city council adopted ordinance 112425, which designated First Covenant's church a landmark. The designation ordinance requires that First Covenant get a certificate of approval before it makes certain alterations to the church's exterior. It also provides that:

[N]othing herein shall prevent any alteration of the exterior when such alterations are necessitated by changes in liturgy, it being understood that the owner is the exclusive authority on liturgy and is the decisive party in determining what architectural changes are appropriate to the liturgy. When alterations necessitated by changes in liturgy are proposed, the owner shall advise the Landmarks Preservation Board in writing of the nature of the proposed alterations and the Board shall issue a Certificate of Approval. Prior to the issuance of any Certificate, however, the Board and owner shall jointly explore such possible alternative design solutions as may be appropriate or necessary to preserve the designated features of the landmark.

Clerk's Papers, at 174-75.

First Covenant filed a declaratory judgment action in January 1986. It sought a judgment that the "religious freedom provisions" of the state constitution prohibited application of the Landmarks Preservation Ordinance to active churches and that application of the Landmarks Preservation Ordinance to its church was void. Clerk's Papers, at 2-5.

First Covenant and the City both filed for summary judgment on the free exercise issues. The court granted the City's motion and dismissed First Covenant's free exercise claims as premature, without prejudice to First Covenant's other contentions. Clerk's Papers, at 104-07. Before trial, the City moved for, and the court granted, dismissal of First Covenant's other claims. A majority of this court concluded, in First Covenant, that First Covenant's claims that the Landmarks Preservation and designation ordinances violated the The majority applied the strict scrutiny analysis of Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), when assessing the free exercise claim. It concluded that landmark preservation was not a "compelling interest" that justified the burden on First Covenant's right to free exercise and, therefore, that applying the City's ordinances to First Covenant violated First Covenant's free exercise rights under the state and federal constitutions. First Covenant Church v. Seattle, supra 114 Wash.2d at 408, 787 P.2d 1352.

                free exercise of religion were not premature.  First Covenant Church v. Seattle, supra 114 Wash.2d at 398-400, 787 P.2d 1352.   A majority, for different reasons, also concluded that applying the City's ordinances to First Covenant burdened the Church's right of free exercise of religion under the federal and state constitutions.  First Covenant Church v. Seattle, supra at 405-06, 412, 787 P.2d 1352.   And the majority, again for different reasons, concluded that the liturgy exemption did not mitigate the burden on free exercise.  First Covenant Church v. Seattle, supra at 407, 412, 787 P.2d 1352

The City appealed. The United States Supreme Court vacated the judgment and remanded it to us for "further consideration in light of Employment Division, Department of Human Resources of Oregon v. Smith ...". 4 The Christian Legal Society (CLS), as amicus curiae, supports First Covenant. The Municipal Art Society of New York and the National Trust for Historic Preservation in the United States filed briefs supporting the City of Seattle.


The Supreme Court remanded First Covenant to this court, for "further consideration in light of" Employment Div., Dep't of Human Resources v. Smith, supra. In Smith, two drug rehabilitation counselors were fired from their jobs because they ingested peyote as part of a religious ceremony. The counselors applied for unemployment compensation. The Department denied their applications because it concluded that the counselors were discharged for "work-related" misconduct The Oregon Supreme Court, in Employment Div., Dep't of Human Resources v. Smith, 5 concluded that denying the counselors compensation violated their First Amendment right to free exercise. The United States Supreme Court vacated the decision and remanded Smith I so that the state court could determine whether Oregon law proscribed sectarian use of peyote. On remand, the Oregon court concluded that the criminal statute proscribed religiously inspired use of peyote; the statute was not valid; and that denying benefits based on conduct proscribed by the invalid statute violated the counselors' First Amendment rights. The Supreme Court granted certiorari.

and, therefore, ineligible under Oregon's compensation statute.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The First Amendment absolutely prohibits the regulation of beliefs "as such" and the government may not compel or punish the expression of religious belief. Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 876-77, 110 S.Ct. 1595, 1599, 108 L.Ed.2d 876, 884 (1990) (Smith II). Justice Scalia presumes that the First Amendment prohibits a law that bans conduct only when the conduct is engaged in for religious purposes or because of the religious belief it displays. Smith II, at 876-77, 110 S.Ct. at 1599.

The Court warns that religious motivation does not place conduct "beyond the reach of a criminal law that is not specifically directed at [the] religious practice". Smith II at 878, 110 S.Ct. at 1599. Justice Scalia compares the application of criminal laws to religiously motivated conduct with the application of general tax laws to persons who believe organized government sinful. He concludes that in both cases "If prohibiting the exercise of religion ... is not the object of the [provision,] but merely the incidental effect of a generally applicable and Justice Scalia suggests that the First Amendment does not bar application of a neutral, generally applicable law to religiously motivated conduct unless the conduct involves "[T]he Free Exercise Clause in conjunction with other constitutional protections", such as freedom of speech, the press, or the right of parents to educate their children. Smith II, at 881, 110 S.Ct. at 1601. The Smith II case does not present a ...

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