Marty makes an excellent point here. I think (though I'm not sure
that Marty does) that it would be outrageous if, when a state *does*
rebuild all buildings, or help rebuild them, or provides other services
short of rebuilding (e.g., taxpayer-paid internal sprinkler
installation, partly subsidized earthquake retrofitting, etc.), it
nonetheless excluded churches, synagogues, homes that are used for
regular synagogue meetings or Bible study, and the like. Yet surely
there is a risk here that the state is indeed preferring religious
buildings; even if there's no deliberate desire to help religion because
religion is somehow good, many people who are trying to evaluate a
building's "historic" status may well be understandably influenced by
that building's being religious, since religious buildings are often
seen as especially important to a community and to the community's
history.
Yet would this go the other way, too? Would landmarking ordinances
that *burden* the property owner, by barring it from reconstructing the
building, thus be per se unconstitutional under the Free Exercise Clause
when applied to churches and the like, on the theory that there's no
neutrality here?
Eugene
Marty Lederman writes:
Nevertheless, even if the sort of "formal neutrality" rule espoused in
Thomas's Mitchell plurality becomes the governing doctrine, as I think
it will, these cases are still difficult, because there's nothing
neutral, or objective, about the decision to fund the rebuilding of the
Pilgrim Baptist Church. Illinois presumably does not rebuild all
buildings destroyed by fire, or all "community services" buildings, or
all churches, for that matter. The decision to rebuild this particular
structure is very subjective, and discretionary. I suppose it's
possible that the decision to fund would be made completely without
regard to the building's status as a church, but that seems unlikely,
no?: Isn't it at least a strong possibility that the state would not
pledge a million dollars if the building had never been a synagogue and
church? And if its religious status is part of the reason for the
pledge, isn't that a form of religious favoritism that is problematic
under the EC, even if the Thomas view prevails?
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