First Covenant Church of Seattle v. City of Seattle , 120 Wash. 2d 203 ( 1992 )

Dore, C.J.

We reinstate our holding in First Covenant Church v. Seattle¹ 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.

Issue

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?

Facts

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 Ordinance³ 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 free exercise of religion were not premature. First Covenant Church v. Seattle, supra at 398-400. 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. 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.

The majority applied the strict scrutiny analysis of Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (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 at 408.

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.

Analysis

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

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.

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, 108 L. Ed. 2d 876, 884, 110 S. Ct. 1595 (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.

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. 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 otherwise valid provision, the First Amendment has not been offended." Smith II, at 878. Justice Scalia concludes that "free exercise" does not relieve an individual of the obligation to comply with a "neutral law of general applicability on the ground that the law proscribes . . . conduct that his religion prescribes . . .". Smith II, at 879.

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. The Smith II case does not present a "hybrid situation", in which the free exercise claim is "connected to" a communicative activity or parental right. The Court, therefore, concludes that applying Oregon's criminal law to the counselors does not violate the First Amendment. Smith II, at 882.

The Court next considers whether it must evaluate the claim for exemption from Oregon's criminal law under the "compelling interest" test set forth in Sherbert v. Verner⁶ Justice Scalia notes that the Court, applying the Sherbert test, invalidated unemployment compensation regulations in three cases, but that when it applied the test in cases not involving unemployment compensation it upheld the challenged conduct. Smith II, at 883. Justice Scalia states that the Sherbert test does not require an exemption "from a generally applicable criminal law." Smith II, at 884. He contrasts an "across-the-board criminal prohibition" of conduct with a statutory system, like the unemployment compensation scheme, that "len[ds] itself to individuahzed . . . assessment of the reasons for... conduct", creates a "mechanism for individualized exemptions", and contains individual exemptions. Smith II, at 884. Justice Scalia warns that if the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason. Smith II, at 884. He notes that the Court has not invalidated a criminal prohibition under the Sherbert test and concludes that the Sherbert test does not apply to free exercise challenges to across-the-board criminal prohibitions. Smith II, at 884-85.

Justice Scalia opines that applying the Sherbert test broadly will "court anarchy" because "people of almost every conceivable religious preference" could demand exemptions from "civic obligations of almost eveiy conceivable kind" based on their right to freely exercise religion. Smith II, at 888. Justice Scalia concludes "we cannot afford the luxury of deeming presumptively invalid, . . . every regulation of conduct that does not protect an interest of the highest order." Smith II, at 888. He considers it the role of the state legislatures to create free exercise exemptions to drug laws, even if this approach places at a disadvantage minority religions. Smith II, at 890.

Language in the Smith I and Smith II opinions suggests that the Smith II rule applies only to free exercise challenges to criminal prohibitions. Other federal and state courts, however, have specifically rejected this argument and concluded that the Smith II holding is not limited to criminal cases.⁷ The rule of Smith II applies in both civil and criminal cases and may apply in this case if the City's preservation ordinances are neutral and generally applicable.

Smith II states that the "right of free exercise does not reheve an individual of the obligation to comply with a 'valid and neutral law of general applicability . . " Smith II, at 879. First Covenant and the CLS contend that the City's Landmarks Preservation Ordinance is not neutral or generally applicable because the sites, improvements, and objects they govern are arbitrarily selected, and the selection process requires individual evaluation of each building, site, or improvement.

The Landmarks Preservation Ordinance, SMC 25.12, was passed in 1977. The designation ordinance, 112425, was passed pursuant to the general ordinance and "is simply the means by which the Landmarks Ordinance is implemented." Reply Brief of Respondent on Remand, at 30. Thus, although it was enacted after SMC 25.12, we consider it part of the general act.

The designation criteria of SMC 25.12 are neutral. They apply to "[a]n object, site or improvement which is more than twenty-five (25) years old" and meets the designation criteria. SMC 25.12.350. The definitions of "object" and "improvement" are also facially neutral. SMC 25.12.190, .140. See Rector, Wardens, & Members of Vestry of St. Bartholomew's Church v. New York, 914 F.2d 348, 354 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991). Designation ordinance 112425, however, is not neutral. It alludes to religious facilities in the two references to "liturgy". Because the Landmarks Preservation Ordinances specifically refer to religious facilities, they are not "neutral". See Health Servs. Div., Health & Env't Dep't v. Temple Baptist Church, 112 N.M. 262, 266, 814 P.2d 130, 134 (Ct. App.), cert. denied, 112 N.M. 235 (1991).

The landmarks ordinances must also be "generally applicable" laws. Justice Scalia contrasted "generally applicable" tax laws with statutes that contain "a system of individualized exceptions", that "create!] a mechanism for individualized exemptions" or that lend themselves to "individualized governmental assessment" of the conduct governed. Smith II, at 884. Cf. Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 107 L. Ed. 2d 796, 110 S. Ct. 688, 696 (1990). The landmarks ordinances at issue here are unlike a general tax law because they invite individualized assessments of the subject property and the owner's use of such property, and contain mechanisms for individualized exceptions. Ordinance 106348 §§ 3.01, 6.01, 8.01, 9.05; SMC 25.12.350, .420, .490-.500, .570-.600. The City's Landmarks Preservation Ordinance is not generally applicable. Compare American Friends Serv. Comm'ty Corp. v. Thornburgh, 941 F.2d 808, 811 (9th Cir. 1991).

The City and the National Trust for Historic Preservation in the United States (National Trust) insist that Rector, Wardens, & Members of Vestry of St. Bartholomew's Church v. New York,⁸ compels a different result. St. Bartholomew's owned a church and a community house. Both buildings were designated landmarks in 1967, pursuant to New York's Landmark Law. The law provides a detailed hearings and appeals process for those who object to designation and exempts from designation "interiors utilized as places of religious worship". N.Y. Admin. Code, ch. 3, tit. 25, § 25-303(a)(2) (1992).

In 1983, St. Bartholomew's asked for a certificate of appropriateness to replace the community house with a 47-stoiy tower, some of which it would use, the rest of which it would rent as commercial property. The New York City Landmarks Preservation Commission denied approval. The church alleged that the landmark law violated its right to free exercise and was not neutral or generally applicable because it vested discretion in the Commission. The court concluded that the landmark law did not "demonstrate a lack of neutrality or general applicability" and that, absent proof that the Commission exercised its discretion in a discriminatory way, "there [was] no constitutional relevance" to the church's claim. St. Bartholomew's Church, at 354-55.

St. Bartholomew's is distinguishable from this case. St. Bartholomew's accepted designation as a landmark, without objection. First Covenant has objected continuously to designation. St. Bartholomew's sought an exception for an adjunct building, not its church building. First Covenant seeks an exception for its church building. St. Bartholomew's sought an exception to use its property for commercial purposes. First Covenant seeks an exemption so that it may continue to use its chinch for exclusively religious purposes. St. Bartholomew's did not allege that designation reduced its principal asset, only that it impeded its ability to generate additional revenue to expand its programs. Uncontroverted evidence supports First Covenant's claim that designation reduces the value of its principal asset by almost one-half. Finally, the parties in St. Bartholomew's did not challenge the effect of the religious exemption on the New York law's constitutionality, and the religious exemption in the New York law is not "liturgy" based, as is Seattle's. St. Bartholomew's is factually distinguishable and does not control this case.

The rule in Smith II also does not apply because First Covenant's claim presents a "hybrid situation". The cases upon which the Supreme Court relied when it formulated the "hybrid claim'.' exception, as well as other authority, support the view that a "hybrid" case is one in which a single claim encompasses several protected interests.⁹ The church's claim is "hybrid" because designation not only violates First Covenant's right to freely exercise religion, it infringes on First Covenant's rights to free speech.

"Speech" includes nonverbal conduct if the conduct is "sufficiently imbued with elements of communication". Spence v. Washington, 418 U.S. 405, 409, 41 L. Ed. 2d 842, 94 S. Ct. 2727, 2730 (1974). Whether conduct constitutes speech depends on the nature of the activity, combined with the factual context and environment in which the activity is undertaken. Spence v. Washington, supra. There must be " '[an] intent to convey a particularized message" and a great "likelihood . . . that the message would be understood by those who view it'Texas v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342, 109 S. Ct. 2533, 2539 (1989).

First Covenant claims, and no one disputes, that its church building itself "is an expression of Christian belief and message" and that conveying religious beliefs is part of the building's function. First Covenant reasons that when the State controls the architectural "proclamation" of religious belief inherent in its church's exterior it effectively burdens religious speech. We agree with First Covenant's reasoning. The relationship between theological doctrine and architectural design is well recognized. Pak, Free Exercise, Free Expression, and Landmarks Preservation, 91 Colum. L. Rev. 1813, 1840-43 (1991); Carmella, Houses of Worship and Religious Liberty: Constitutional Limits to Landmark Preservation and Architectural Review, 36 Vill. L. Rev. 401, 490-98 (1991); Crewdson, Ministry and Mortar: Historic Preservation and the First Amendment After Barwick, 33 J. Urb. & Contemp. L. 137, 157-58 (1988). The exterior and the interior of the structure are inextricably related. When, as in this case, both are "freighted with religious meaning" that would be understood by those who view it, then the regulation of the church's exterior impermissibly infringes on the religious organization's right to free exercise and free speech. Crewdson, supra; see Society of Jesus v. Boston Landmarks Comm'n, 409 Mass. 38, 42, 564 N.E.2d 571, 573 (1990); cf. Murdock v. Commonwealth, 319 U.S. 105, 87 L. Ed. 1292, 63 S. Ct. 870, 146 A.L.R. 81 (1943); West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A.L.R. 674 (1943); Follett v. McCormick, 321 U.S. 573, 88 L. Ed. 938, 64 S. Ct. 717, 152 A.L.R. 317 (1944).

In summary, we agree with Justice O'Connor, who opined in Smith II that "drug abuse is 'one of the greatest problems affecting the health and welfare of our population' and thus 'one of the most serious problems confronting our society today.'" Smith II, 494 U.S. at 904. But First Covenant's case is distinguishable from Smith II because Smith II is a police power case and this case is not. The less protective free exercise standard set forth in Smith II, therefore, does not apply to First Covenant's claim. The City's preservation ordinances, unlike the statutes in Smith II, are not neutral and generally applicable. Further, Smith II does not apply because the case presents a "hybrid situation": First Covenant's claim involves the free exercise clause in conjunction with free speech. The Sherbert Court's "compelling interest" test, therefore, applies to the justiciable controversy before us.

Applying the Sherbert "compelling interest" test, we address the church's contention that subjecting it to the controls of the Landmarks Preservation Ordinance burdens its right to freely exercise religion. The First Amendment provides that "Congress shall make no law . . . prohibiting the free exercise" of religion. The First Amendment applies to the states through the Fourteenth Amendment. Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 139-40, 94 L. Ed. 2d 190, 107 S. Ct. 1046, 1048 (1987). The First Amendment absolutely protects the freedom to believe, but conduct, even when religiously motivated, is not totally free of government regulation. Sherbert, at 402.

Government regulation is constitutional either if it does not infringe constitutional rights of free exercise, or if any burden on free exercise, direct or indirect, is justified by a compelling state interest in the regulation of subject matter within the State's power to regulate. Sherbert, at 1793-94. The party who alleges that state action restrains his free exercise of religion must "show the coercive effect of the enactment as it operates against him in the practice of his religion." School Dist. v. Schempp, 374 U.S. 203, 223, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963). If a party establishes such an infringement on his right to free exercise, the Court will subject the infringement to strict scrutiny. Hobbie, at 141. The State then must establish that some compelling state interest justifies the infringement and that the enactment is the least restrictive means to achieve the State's end. Sherbert, at 406-09.

The City's ordinances, as this court held earlier, impermissibly burden First Covenant's right to free exercise in two ways. The ordinances burden free exercise "administratively" because they require that First Covenant seek the approval of a government body before it alters the exterior of its house of worship, whether or not the alteration is for a religious reason. Cf. Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 527, 537-38, 496 N.E.2d 183, 194, 200-01, cert. denied, 479 U.S. 985 (1986). Further, they burden First Covenant financially, because they reduce the value of the church's property by almost half.¹⁰

The City alleges that financial burdens do not violate the First Amendment, under Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 107 L. Ed. 2d 796, 110 S. Ct. 688 (1990). The City is mistaken: Swaggart does not control this case. Swaggart held that imposition of California's sales and use tax on the in-state sales of Jimmy Swaggart Ministries did not violate the free exercise clause because the sales tax was not a "precondition to the exercise of evangelistic activity" and was more "akin to a generally applicable income or property tax". Swaggart, at 389-90. The Court warned, however, "a more onerous tax rate, even if generally applicable" might violate the constitution if it too severely impeded religious activity. Swaggart, at 391.

After Swaggart, the State may impose on religious activity a neutral, generally applicable tax that does not act as a prior restraint on religious conduct. Swaggart; Hope Evangelical Lutheran Church v. Iowa Dep't of Rev. & Fin., 463 N.W.2d 76, 80-81 (Iowa 1990). It is clear, however, that a financial burden on religious activity, if too gross, may unconstitutionally infringe on free exercise. Hope Evangelical Lutheran Church v. Iowa Dep't of Rev. & Fin., supra; Murdock, at 111-12 ("It is plain that a religious organization needs funds to remain a going concern." Those who can tax religious practice can make the exercise of religion impossible to maintain.); Follet, at 576 ("Freedom of religion is not merely reserved for those with a long purse"); Sumner v. First Baptist Church, 97 Wn.2d 1, 7, 639 P.2d 1358 (1982) (enforcement of code violates First Amendment because "practical [financial] effect of .. . enforcement would be to close down the church-operated school"). See also Lutheran Church in Am. v. New York, 35 N.Y.2d 121, 129, 316 N.E.2d 305, 311 (1974) (landmark designation that deprives church of reasonable use of land violates Fifth Amendment). Designation of First Covenant's church so grossly diminishes the value of the Church's principal asset that it impermissibly burdens First Covenant's right to free exercise of religion.

The City urges that the "liturgy exemption" alleviates any burden on the exercise of religion. We do not believe that the exemption cures either the "administrative" or the financial infringements of First Covenant's right to free exercise.

First, the plain and ordinary meaning of the term "liturgy", which we employ absent a statutoiy definition of that term,¹¹ does not provide a workable standard that protects the constitutional rights of the chinch. "Liturgy" is a "rite or series of rites, observances, or procedures prescribed for public worship in the Christian church in accordance with authorized or standard form." Webster's Third New International Dictionary 1323 (1971). "Liturgy” essentially refers to prescribed conduct that occurs within the structure. The liturgy-focused exemption in this case is constitutionally infirm because it allows the City to control any nonhtingical elements of religious conduct that require architectural change. Carmella, at 475, 507-08. Further, as we previously observed:

Would a wider door to permit access by handicapped parishioners comprise a liturgical change? Although . . . widening the door does not relate directly to the rites or procedures of worship in the church, it does facilitate the ability of disabled persons to participate in religious services and activities. The anomalies created by the liturgy exception are cumbersome and would result in . . . delays in carrying out routine church work.

First Covenant, 114 Wn.2d at 407.

Secondly, adopting the City's interpretation of the phrase "necessitated by changes in liturgy" as meaning "for religious purposes" does not resolve the ambiguity. First Covenant, at 406. The City still has the right to determine what is or what is not for a religious purpose and it acknowledged at argument that it reserved the right to determine if the "religious purpose" claim was "bona fide". Before this court, the City stated:

tobin: The City of Seattle has no interest in restricting the religious freedom ... of the church . . .

dolliver: Even if you had an interest. . . you have just simply stipulated that away.

tobin: That's true.

dore: That’s not entirely true because . . . You have the right under the language of this [ordinance] ... to make [the church] consult their architects to try to work out a mutually acceptable proposal. [What the church wants] it's not absolute . . . because if you don't like it you have a right to go ... if you can't get together on it then do you automatically grant it or do you hold firm?

tobin: ... I think the ordinance requires the City to grant that kind of approval. Now, if the City objected to that for some reason, ... I think we're required to issue the certificate of approval for demolition, and if the City thought that was not bona fide in some sense, that the church's argument that it was . . . needed for religious purposes was not bona fide, I suppose it would have the option of going into court. . . and [asking] the court to make that kind of decision.

Tape of oral argument before Supreme Court (Oct. 11,1989). From Mr. Tobin's statement, it is clear that the City reserves the right to oversee and challenge First Covenant's decisions about what is liturgy and what is a valid religious purpose. Further, the City's suggestion that if it did not believe First Covenant's interpretation of liturgy was bona fide it would bring the church and the religious question before the courts fosters exactly the kind of religious entanglement the constitution seeks to avoid. The governmental oversight of church action that the City reserves to itself, under the liturgy exception, impermissibly burdens free exercise.

Ordinance 112425 also requires that First Covenant seek the City's approval before it alters its church, even for presumptively valid "liturgical" purposes. The exemption states that if the church proposes an alteration "necessitated by changes in liturgy", "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." Hie requirement that the church negotiate with the City constitutes unjustified governmental interference in religious matters and infringes First Covenant's right to free exercise.

Finally, the liturgy exemption does not mitigate the financial burden that designation imposes on First Covenant. Regardless of how the exemption is construed, the church suffers the same dramatic depreciation in the value of its property and principal asset. In sum, the liturgy exemption does not cure the infringement of free exercise by the Landmarks Preservation Ordinance.

If government action burdens the exercise of religion, but the State demonstrates that it has a compelling interest in enforcing its enactment, that interest will justify the infringement of First Amendment rights. Sherbert, at 406-07. The State, through its police power, may regulate the use of land. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 125, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978). Landmark preservation laws enacted pursuant to legislative authority regulate land use by conserving structures with historic or aesthetic significance that enhance the quality of life of all citizens. Penn Cent. Transp. Co. v. New York City, supra at 108; Carmella, at 428-30. Preservation ordinances further cultural and aesthetic interests, but they do not protect public health or safety. Society of Jesus, 409 Mass, at 43-44; Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 539, 496 N.E.2d 183, 202 (Meyer, J., dissenting), cert. denied, 479 U.S. 985 (1986). We hold that the City's interest in preservation of aesthetic and historic structures is not compelling and it does not justify the infringement of First Covenant's right to freely exercise religion. The possible loss of significant architectural elements is a price we must accept to guarantee the paramount right of religious freedom.

Upon further consideration, in light of Smith II, we conclude that applying the City's preservation ordinances to First Covenant's church violates the church's right to freely exercise religion under the First Amendment.

Although we might distinguish this case from Smith II, and base our decision solely on federal grounds, we decline to do so. Like the State v. Hershberger, 462 N.W.2d 393 (Minn. 1990) court, we eschew the "uncertainty" of Smith II and rest our decision also on independent grounds under the Washington Constitution. See Hershberger, at 396.

Washington, like all the states, may provide greater protection for individual rights, based on its " 'sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.' " State v. Gunwall, 106 Wn.2d 54, 59, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Six nonexclusive factors, set forth in State v. Gunwall, supra, are relevant in determining whether the Washington State Constitution extends broader rights to citizens than the federal constitution:

1. The textual language of the state constitution;

2. Significant differences in the texts of parallel provisions of the federal and state constitutions;

3. State constitutional and common-law history;

4. Preexisting bodies of state law, including statutory law;

5. Differences in structure between the federal and the state constitutions; and

6. Matters of particular state interest or local concern.

Gunwall, at 61-62. The criteria suggest to counsel where briefing might appropriately be directed and helps insure that, if this court uses independent state constitutional grounds, it considers these criteria. State v. Gunwall, supra

at 61-62. If a party does not provide constitutional analysis based upon the factors set out in Gunwall, the court will not analyze the state constitutional grounds in a case. Clark v. Pacificorp, 116 Wn.2d 804, 829, 809 P.2d 176 (1991). First Covenant cites Gunwall, and its argument is complete enough that we will address the state free exercise claim.

Article 1, section 11, of the Washington State Constitution provides that:

Absolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.

The first amendment to the United States Constitution provides in part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .[.]

The text of the state constitution focuses both on belief and on conduct, as evidenced in the terms "worship", "acts", and "practices". Article 1 clearly protects both belief and conduct.

The language of our state constitution is significantly different and stronger than the federal constitution. The First Amendment limits government action that "prohibits" free exercise. Our state provision "absolutely" protects freedom of worship and bars conduct that merely "disturbs" another on the basis of religion. Any action that is not licentious or inconsistent with the "peace and safety" of the state is "guaranteed" protection.

Our state constitutional and common law history support a broader reading of article 1, section 11 than of the First Amendment. Article 1, section 11, as adopted in 1889 and as amended in 1903, contained the same active, broad language noted above. Further, case law interpreting earlier versions of article 1 endorse a broad interpretation of the free exercise provision. In State ex rel. Holcomb v. Armstrong,¹² the court stated that only a danger which was "clear and present, grave and immediate" justified an infringement on the plaintiff 's freedom to exercise her religion. In Bolling v. Superior Court,¹³ this court emphasized that freedom of religion was "vital", that it is "the most important dut[y] of our courts to ever guard . . . religious liberty, and to see to it that these guarantees are not narrowed or restricted because of some supposed emergent situation". Finally, in Bolling this court expressly disapproved the reasoning in Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 84 L. Ed. 1375, 60 S. Ct. 1010 (1940), reasoning upon which the Supreme Court based the Smith II free exercise test. Bolling, at 379-80, 382-85; Smith II, at 878-80.

The United States Constitution is a grant of limited power, authorizing the federal government to exercise only those constitutionally enumerated powers that the states expressly delegate to it. Our state constitution imposes limitations on the otherwise plenary power of the State to do anything not expressly forbidden by the state constitution or federal law. Gunwall, at 66, 67. This also supports construing article 1, section 11 more broadly, to protect free exercise.

Free exercise of religion is not a local concern. As noted above, however, our state exhibits a long history of extending strong protection to the free exercise of religion. Cf. Gunwall, at 67.

Finally, recalling that the Gunwall factors are not exclusive, resort to independent state law is appropriate because Smith II is "uncertain".¹⁴ The majority's analysis in Smith II departs from a long history of established law and adopts a test that places free exercise in a subordinate, instead of preferred, position. Further, one of the cases upon which the Smith II court principally relies, Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 84 L. Ed. 1375, 60 S. Ct. 1010 (1940), was overruled. See West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 635 S. Ct. 1178, 147 A.L.R. 674 (1943); Wooley v. Maynard, 430 U.S. 705, 51 L. Ed. 2d 752, 97 S. Ct. 1428 (1977). Finally, the majority in Smith II accepts the fact that its rule places minority religions at a disadvantage. Our court, conversely, has rejected the idea that a political majority may control a minority's right of free exercise through the political process. Bolling, at 381, 383.

Analysis based on the Gunwall factors clearly demonstrates that resort to independent state grounds is warranted in this case.

Article 1, section 11 of the state constitution absolutely protects "freedom of conscience in all matters of religious sentiment, belief, and worship" and guarantees that "no one shall be molested or disturbed in person or property on account of religion". This constitutional guaranty of free exercise is "of vital importance." Bolling, 16 Wn.2d at 381. If the "coercive effect of [an] enactment" operates against a party "in the practice of his religion", it unduly burdens the free exercise of religion. Witters v. Comm'n for the Blind, 112 Wn.2d 363, 371, 771 P.2d 1119, cert. denied, 493 U.S. 850 (1989); Sumner, 97 Wn.2d at 5. A facially neutral, evenhandedly enforced statute that does not directly burden free exercise may, nonetheless, violate article 1, section 11, if it indirectly burdens the exercise of religion. Sumner, at 7-8; Bolling, at 385-86.

State action is constitutional under the free exercise clause of article 1 if the action results in no infringement of a citizen's right or if a compelling state interest justifies any burden on the free exercise of religion. Witters, at 371; Sumner, at 7-8; cf. Holcomb, 39 Wn.2d at 864. A "compelling interest" is one that has a "clear justification ... in the necessities of national or community life", Bolling, at 385 (quoting Barnette v. West Va. State Bd. of Educ., 47 F. Supp. 251 (S.D.W. Va. 1942), aff'd, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A.L.R. 674 (1943)), that prevents a "clear and present, grave and immediate" danger to public health, peace, and welfare. Sumner, at 9; Bolling, at 385; Holcomb, at 864; State v. Norman, 61 Wn. App. 16, 23, 808 P.2d 1159 (1991). The State also must demonstrate that the means chosen to achieve its compelling interest are necessary and the least restrictive available. Sumner, at 8, 15 (Utter, J., concurring); Holcomb.

Seattle's ordinances, as discussed hilly in our First Amendment analysis, impose unconstitutional administrative and financial burdens on First Covenant's free exercise of religion. The "liturgy exception" in the designation ordinance does not alleviate the harm. As detailed in our analysis of First Covenant's federal right to free exercise, the exemption standard is vague, the exemption still requires that the church seek secular approval before making religiously motivated changes to its facade, and the exemption does not alleviate the adverse financial impact of designation on First Covenant.

The City contends that this court, in Sumner, approved the kind of negotiations that the Landmarks Preservation Ordinance requires. The City is mistaken. Sumner recommended that a municipality make every effort to accommodate religious freedom, rather than uncompromisingly enforce its ordinances. Sumner, at 9-10. Recommending that a City remain sensitive to and accommodate religious interests is not the same as mandating that a church confer with the City before altering its house of worship for religious reasons.

Finally, a compelling state interest does not justify the impermissible burden. Application of the Landmarks Preservation Ordinance is not necessary to prevent a grave danger to the public health, peace, or welfare. Holcomb, at 864; Bolling, at 385; Norman, at 23. Interests, such as preservation of significant structures, are not "of sufficient magnitude to outweigh" the free exercise of religion. Sumner, at 9.

We conclude that imposing the City's Landmarks Preservation Ordinance on First Covenant's church violates First Covenant's right to free exercise of religion under article 1, section 11 of our state constitution.

The City contends that, under Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983), when the Supreme Court granted certiorari it "necessarily determined" that designating the church did not violate First Covenant's right to free exercise under our state constitution. The City is mistaken. First Covenant is entirely distinguishable from Long.

When a case presents both state and federal questions, if the judgment rests on state grounds, the Supreme Court does not have jurisdiction to review the case. R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice § 3.25 (6th ed. 1986). In Michigan v. Long, supra at 1040-41, the Court explained:

[W]hen ... a state court decision . . . appears to rest primarily on federal law, . . . and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.

The "independent" and "adequate" requirements are separate and distinct. A state ground may be adequate but if it is not clear that it is independent of federal law grounds, the Supreme Court may accept jurisdiction. Michigan v. Long, supra at 1066; New York v. Class, 475 U.S. 106, 109-10, 89 L. Ed. 2d 81, 106 S. Ct. 960, 963-64 (1986). The purpose of the rule is to assure that "state courts be left free and unfettered ... interpreting their state constitutions ... [but] that ambiguous or obscure adjudications by state courts do not" bar the Court from determining whether state action violates the federal constitution. Long, at 1041.

In Long, the Court did not cite a single state case in support of its holding that state conduct was unconstitutional. In First Covenant, this court clearly stated that it was adjudicating claims based on both the state and federal constitutions and we cited state and federal case law in support of our holding. Although it may not have been clear that the state grounds upon which we relied in First Covenant were independent of federal law, when the Supreme Court granted certiorari to clarify our adjudication it did not "necessarily decide" that designating First Covenant's church accords with article 1, section 11 of our state constitution.

Conclusion

1. Imposing the City's Landmarks Preservation Ordinance on First Covenant's church violates First Covenant's right to free exercise of religion under the First Amendment.

2. The Supreme Court's decision in Smith II does not compel a different result. Smith II considered the application of neutral, generally applicable criminal laws to religious conduct. Seattle's Landmarks Preservation Ordinances are not neutral or generally applicable. The First Amendment freedom of religion claim in Smith II did not include other protected rights, like freedom of speech. First Covenant's First Amendment claim joins both a protected interest in the free exercise of religion and in free speech. Smith II is distinguishable from this case.

3. St. Bartholomew's does not control our First Amendment analysis. St. Bartholomew's embraced designation as a landmark building without objection; did not seek an exception for its house of worship, but an adjacent building; did not allege that designation reduced its principal asset; and St. Bartholomew's did not consider the constitutionality of a liturgy-based religious exemption. First Covenant, conversely, objected continuously to designation; sought an exception for its house of worship; demonstrated that designation grossly reduced the value of the church's principal asset; and First Covenant challenged the constitutionality of a liturgy-based religious exception.

4. Article 1, section 11 of our state constitution, which absolutely protects the free exercise of religion, extends broader protection than the first amendment to the federal constitution and precludes the City from imposing its Landmarks Preservation Ordinance on First Covenant's church.

5. Michigan v. Long, supra, holds that the Supreme Court may grant certiorari if it is not clear that adequate state grounds support a state court decision or if it is not clear that state grounds, even if adequate, independently support a holding. Our decision in First Covenant rested on adequate state constitutional grounds. While the independence of those grounds may have been unclear, the Supreme Court did not conclude when it granted certiorari that article 1, section 11 permits the City to designate First Covenant's church a landmark.

We reinstate our holding in First Covenant that applying the City of Seattle'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 Smith II and we conclude that Smith II does not compel a different result.

Utter, Durham, Guy, and Johnson, JJ., concur.

1 114 Wn.2d 392, 787 P.2d 1352 (1990), cert. granted, judgment vacated and remanded, 499 U.S. 901 (1991).

2 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990).

3 Now codified as Seattle Municipal Code 25.12.

4 499 U.S. 901 (1991).

5 485 U.S. 660, 99 L. Ed. 2d 753, 108 S. Ct. 1444 (1988) (Smith I).

6 374 U.S. 398, 403, 10 L. Ed. 2d 956, 83 S. Ct. 1790, 1793 (1963) states that "[A]ny incidental burden on the free exercise of appellant's religion may he justified by a 'compelling state interest in a regulation of a subject within the State's constitutional power to regulate . . ..'"

7 Rector, Wardens, & Members of Vestry of St. Bartholomew's Church v. New York, 914 F.2d 348, 354 (2d Cir. 1990) (Second Circuit applies Smith II reasoning to a free exercise challenge to landmarks preservation ordinance), cert. denied, 499 U.S. 905 (1991); Salvation Army v. Department of Comm'ty Affairs, 919 F.2d 183, 194-96 (3d Cir. 1990) (Third Circuit applies Smith II in a free exercise/ zoning case); Vandiver v. Hardin Cy. Bd. of Educ., 925 F.2d 927, 932 (6th Cir. 1991) (Sixth Circuit applies Smith II rule when parents allege Kentucky's equivalency exams law violates free exercise); Health Servs. Div., Health & Env't Dep't v. Temple Baptist Church, 112 N.M. 262, 814 P.2d 130 (Ct. App.) (New Mexico court applies Smith II when church contends day-care license law violates free exercise), cert. denied, 112 N.M. 235 (1991); Black v. Snyder, 471 N.W.2d 715 (Minn. Ct. App. 1991) (Smith II standard applies to civil claims, including breach of contract, defamation, and harassment).

8 Supra.

9 See cases collected in Smith II, 494 U.S. at 881-82. See also American Friends Serv. Comm’ty Corp., 941 F.2d at 810-11; Health Servs. Div., Health & Env't Dep't v. Temple Baptist Church, supra at 265-66; State v. Hershberger, 462 N.W.2d 393, 396 (Minn. 1990).

10 The City, for the first time, disputes the amount of depreciation First Covenant suffered because of designation. The City did not dispute the depreciation at trial or previously on appeal; it relied on the reported depreciation in one of its arguments on appeal (Brief of Respondent, at 12-13, 40); and it still does not present evidence that controverts the evaluation of First Covenant's expert. Construing the evidence in the light most favorable to the nonmoving party we accept the depreciation that the church reported. LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989).

11 State v. Smith, 117 Wn.2d 263, 271, 814 P.2d 652 (1991).

12 39 Wn.2d 860, 864, 239 P.2d 545 (1952) (government’s interest in protecting students and staff from disease outweighs student's right to refuse to have an x-ray).

13 16 Wn.2d 373, 381, 385, 386, 133 P.2d 803 (1943) (flag salute ordinance cannot be enforced against Jehovah's Witnesses who believe salute violates biblical injunction).

14 State v. Hershberger, 462 N.W.2d 393, 396 (Minn. 1990).