EAST BAY ASIAN LOCAL DEVEOPMENT v. State

102 Cal.Rptr.2d 280

24 Cal.4th 693

13 P.3d 1122

EAST BAY ASIAN LOCAL DEVELOPMENT CORPORATION et al., Plaintiffs and Respondents, v. The STATE of California, Defendant and Appellant.

No. S077396.

Supreme Court of California.

December 21, 2000.

Daniel E. Lungren and Bill Lockyer, Attorneys General, Roderick E. Walston and Richard M. Frank, Chief Assistant Attorneys General, Carole R. Kornblum, Assistant Attorney General, Louis Verdugo, Jr., Kelvin C. Gong and Kathleen W. Mikkelson, Deputy Attorneys General, for Defendant and Appellant.

Tobin & Tobin, Paul E. Gaspari and Lawrence R. Jannuzzi, San Francisco, for the American Baptist Churches of the West, the Armenian Apostolic Orthodox Church, California Catholic Conference, the California Council of Churches, the California/Nevada Conference of the United Methodist Church, General Conference of the Seventh-Day Adventist Church, Christian Science Committee on Publication for Northern California, Federation of Zoroastrian Associations of North America, Pacific Southwest Region, Christian Church (Disciples of Christ), San Francisco Association of Evangelical Churches, the San Francisco Interfaith Council, Sierra Pacific Synod of the Evangelical Lutheran Church in America, Southern California West Synod of the Evangelical Lutheran Church in America, Synod of Southern California and Hawaii, Presbyterian Church (USA), Synod of the Pacific of the Presbyterian Church (USA), Western Diocese of the American Church of North America, the Church of the Brethren, Congregation Beth Israel, San Diego, the Episcopal Diocese of California, the Episcopal Diocese of Los Angeles, Pomona First Baptist Church, the Roman Catholic Diocese of Monterey, the Rev. Judith Gonsales, Native American Church, St. John Serbian Orthodox Church and the United Church of Christ as Amici Curiae on behalf of Defendant and Appellant.

Sidley & Austin, Jeffrey A. Berman, James M. Harris, Los Angeles, Gene C. Schaerr, John E. Fee, Washington, Dist. of Columbia; Law Offices of Steven Drapkin and Steven Drapkin, Los Angeles, for Pacific Union Conference of Seventh-Day Adventists, Loma Linda University, Loma Linda University Medical Center, Adventist Health, National Council of the Churches of Christ in the U.S.A., National Association of Evangelicals, Christian Legal Society, Seventh-Day Adventist Church State Council, Council on Religious Freedom, California Council of Churches, Interfaith Religious Liberty Foundation, Traditional Values Coalition, Capitol Resource Institute and Baptist Joint Committee on Public Affairs as Amici Curiae on behalf of Defendant and Appellant.

Morrison & Foerster, Zane O. Gresham, J. Edgar Pew, Olive L. Thaler and William M. Fleishhacker, San Francisco, for Plaintiffs and Respondents East Bay Asian Local Development Corporation, the Foundation for San Francisco's Architectural Heritage, the Los Angeles Conservancy, California Preservation Foundation, California Planning and Conservation League, California Chapter American Planning Association, National Alliance of Preservation Commissions and National Trust for Historic Preservation of the United States.

Louise H. Renne, City Attorney, Dennis Aftergut, Chief Assistant City Attorney, Kate H. Stacy and Ellen Forman, Deputy City Attorneys, for Plaintiff and Respondent City and County of San Francisco.

Burke, Weaver & Prell, Susan L. Trevarthen and Nancy E. Stroud, Boca Raton, FL, for American Planning Association as Amicus Curiae on behalf of Plaintiffs and Respondents.

Margaret C. Crosby; Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Ethan P. Schulman and Simon J. Frankel, San Francisco, for American Civil Liberties Union Foundation of Northern California, Inc., as Amicus Curiae on behalf of Plaintiffs and Respondents.

Oliver, Vose, Sandifer, Murphy & Lee, Bradley E. Wohlenberg and Arthur J. Hazarabedian, Los Angeles, for 29 California Cities as Amici Curiae on behalf of Plaintiffs and Respondents.

BAXTER, J.

This case presents issues arising under the establishment clause of the First Amendment to the United States Constitution,¹ and under article I, section 4² and article XVI, section 5 of the California Constitution. The question on which review was granted asks: Does a state law granting religiously affiliated organizations the authority to declare themselves exempt from historic preservation laws violate the establishment clause of the United States Constitution or any of the California Constitution religion clauses? The question arises in the context of a facial challenge to Government Code sections 25373 and 37361,³ which have the effect of granting an exemption from landmark preservation laws to noncommercial property owned by a religious organization that objects to landmark designation and determines in a public forum that the organization would suffer a substantial hardship if the property were designated a historic landmark.

The Court of Appeal found no constitutional infirmity in the law. It concluded that the establishment clause found in article I, section 4 of the California Constitution did not afford broader protection than the First Amendment. It then held that the state may act to reduce an actual or perceived burden on the religious freedom of persons within its jurisdiction, particularly where the state has imposed that burden. The court reasoned that the exemption does not endorse religion. It simply facilitates the efforts of religious organizations to advance their own purposes. The ability of religious organizations to use their property to advance their purposes is no greater by virtue of the grant of an exemption than it was before the landmark preservation law was imposed on them. The law simply restores their ability to use noncommercial property, unencumbered by the restrictions that accompany landmark designation. Thus, the exemption does not provide governmental assistance to religious organizations in carrying out their religious mission. By providing the exemption the state simply stepped out of the way of the religious property owner.

The Court of Appeal also rejected plaintiffs' claim that the exemption violated that part of the free exercise clause of article I, section 4 of the California Constitution (article I, section 4) that guarantees free exercise without "preference." The court reasoned that the dispute concerned only the establishment clause and that, in any event, the free exercise clause of article I, section 4 does not afford greater protection of religious freedom than does the First Amendment to the United States Constitution (First Amendment).

We agree. We conclude that sections 25373 and 37361 are not facially invalid under the establishment clause of article I, section 4 or the First Amendment. We also conclude that the exemption created by those provisions does not violate the nopreference provision of article I, section 4, or article XVI, section 5 of the California Constitution (article XVI, section 5).

We shall, therefore, affirm the judgment of the Court of Appeal.

I

Background.

Plaintiffs, one secular nonprofit community economic development organization that owns properties designated as or eligible for designation as landmark sites, several nonprofit organizations interested in the preservation of historic landmarks in California, and the City and County of San Francisco, initiated this action seeking injunctive and declaratory relief on the ground that sections 25373 and 37361 are facially invalid to the extent that these laws grant noncommercial property owned by religious organizations an exemption from historic landmark designation and regulation. The trial court agreed and granted summary judgment in favor of plaintiffs, declaring that the law violated both the state and the federal establishment clauses and was an unconstitutional delegation of governmental power to private entities. The court therefore enjoined enforcement of the exemption provisions. The Court of Appeal reversed.

The Court of Appeal reasoned that if the landmark preservation law significantly interfered with the ability of religious organizations to freely exercise their religion, the exemption might be constitutionally permissible to alleviate the burden of that interference. (Corporation of Presiding Bishop v. Amos (1987) 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273.) It concluded, however, that it did not have to decide if a significant interference resulted from application of the landmark preservation law, reasoning that even if it determined that there was no burden on the free exercise of religion, the issue would not be resolved since the "limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause." (Walz v. Tax Commission (1970) 397 U.S. 664, 673, 90 S.Ct. 1409, 25 L.Ed.2d 697 (Walz); see also Corporation of Presiding Bishop v. Amos, supra, 483 U.S. at p. 334, 107 S.Ct. 2862.) After reviewing recent First Amendment decisions of the United States Supreme Court, which it believed were not controlling, the Court of Appeal concluded that actual interference with free exercise was not a constitutional prerequisite to a valid legislatively created exemption to accommodate religion. Relying in part on Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1731-1732, 19 Cal.Rptr.2d 625, it held that the Legislature may act to alleviate a burden that rationally can be perceived as posing a significant deterrent to the free exercise of religion, and that "given uncertainty over whether local historic preservation laws adopted pursuant to sections 25373 and 37361 would impinge upon the free exercise rights of religious entities, the state could rationally conclude action was necessary to avert a free exercise claim." The court acknowledged that its conclusion differed from the conclusion reached in Duffy v. State Personnel Board (1991) 232 Cal.App.3d 1, 12, 283 Cal.Rptr. 622, where ...