By Jim Schutze
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In the case of St. Ann's, Dahlstrom says the precedent set in the New York case may not be enough to legally justify the designation of the school as a historic landmark. "There are some factual differences between what was happening in New York and our case, which I really don't want to get into now, but I think they help distinguish our case."
In the New York case, the court concluded that the loss of future income generated by the proposed tower did not place a significant financial burden on the owner. Because the landmark ordinance did not interfere with the current use of the building, the court reasoned, the owners would continue to make the same profits off the building as they had before the office tower was proposed.
But St. Ann's is not a historic landmark now, nor was it on the city's list for buildings under consideration for preservation until after the Hispanic groups realized they couldn't match Harwood Pacific's $4 million offer. Second, and perhaps more importantly, the diocese is trying to sell a surplus property to pay off an existing debt. Unlike the owners of Grand Central Station, the diocese is not arguing that designation will limit its abilities to make a profit on a future development.
The St. Ann's case also raises questions about whether the city is interfering with the church's free exercise of religion.
In its correspondence with the city, diocese officials have stated that if they are unable to sell St. Ann's, they will be forced to cut back on educational, social, and other services. If that's true, a court may agree that the city is violating the diocese's constitutional rights, says Douglas Laycock, a law professor at the University of Texas in Austin.
"The city is interfering with the church's management of its own property, and it's interfering in an internal matter of the church," Laycock says. "That's simply none of the government's business."
In 1997, Laycock argued on behalf of the archbishop of San Antonio in a case it brought before the U.S. Supreme Court against the city of Boerne. The South Texas diocese had asked the city for a construction permit to expand its sanctuary because its congregation had outgrown the building. The city denied the request because the sanctuary had been designated a landmark under its historic-preservation ordinance, which restricted how the building could be altered.
In that case, the diocese argued that the city's preservation ordinance violated the 1993 Religious Freedom Restoration Act, which was designed to give religious organizations greater protection from city ordinances and other laws that adversely affect religious freedoms. Congress passed the RFRA in response to an earlier Supreme Court ruling, in which Congress felt the court had gone too far in interpreting the separation of church and state.
In siding with Boerne, the court nullified the act and, in the process, created uproar over religious freedom across the country. The decision was clearly designed to send Congress a message that the court, not Congress, is the final interpreter of the Constitution. That battle is hardly over, but in the meantime, the court in Boerne gave states the green light to adopt their own version of the act.
Last month, Gov. Bush announced his full support for the Texas Religious Freedom Restoration Act, which was quickly embraced by a broad coalition of religious organizations, including everyone from Baptists and Jews to Native Americans. Like its federal predecessor, the legislation is generally designed to keep governments from stepping on religious freedom. For example, the law might prevent cities from disciplining police officers who chose to wear crosses while in uniform.
Not surprisingly, the diocese is tracking the legislation closely, hoping its passage might enable it to expand its argument that the designation of St. Ann's is a violation of its constitutional rights.
"I think it would help," Dahlstrom says of the legislation.
As part of its case, the diocese could argue that its attempts to find other ways to commemorate Little Mexico, including everything from saving portions of the building and creating a mini-museum to renaming the city block, were rejected in favor of an overly intrusive designation process.
"The bishop has never had a problem with commemorating the cultural significance of what went on in the area," Dahlstrom says. "But does preserving a building that needs a significant amount of work go too far? Are there less intrusive ways of accomplishing the goal? Yes, there are."
Rogers says he's curious about how the Texas RFRA could impact the St. Ann's case, but when he spoke to the Observer late last month he had not yet read through the proposed legislation. But Catherine Horsey, executive director of Preservation Dallas, says RFRA creates a potential for disaster--not just in the St. Ann's case, but also in the city's overall effort to enforce the preservation ordinance.
"If the Texas Religious Freedom Restoration Act, which is retroactive, passes, then the churches can do pretty much what they want to. It absolves churches and religious groups from any state or local law that they believe interferes with their religion. That includes druids who worship trees and everything on up," Horsey says. "One of the things about preservation that is so frustrating is, nothing is ever safe."