O'Malley Miller: "Fresh with the history of hundreds of years of religious wars which their ancestors had fought in Western Europe, the authors of the Constitution recognized that religion is an area into which government should be especially loathe to enter."
By O’Malley Miller, Munger, Tolles & Olson, and Legal Counsel for the Roman Catholic Archdiocese of Los Angeles
Now that the Sturm und Drang of the litigation filed by the Los Angeles Conservancy has abated, it is perhaps worthwhile to look back over the landscape littered with complaints and answers, depositions and declarations, in order to see if we can determine what the broad shape of this dispute is really about.
On the one hand, the Roman Catholic Archdiocese of Los Angeles proposes to build a new cathedral for the Third Millennium and proposes to place that cathedral in the same location as the cathedral of St. Vibiana. At the time St. Vibiana was built, approximately 56,000 people lived in the Los Angeles Archdiocese, which stretched from Santa Barbara to the Mexican border. At present, that Archdiocese consists of some 4.4 million Catholics, the most populous archdiocese in the United States, and second only to Mexico City in North America. During the intervening 100-plus years, certain liturgical and canonical modifications have occurred in Catholicism. Most important are the reforms of the Second Vatican Council, which were adopted in the 1960's and which set forth the modern requirements for practicing Catholics.
By these standards, St. Vibiana's physical layout is liturgically inappropriate because it cannot accommodate a gathering of the Archdiocese's over 1,000 priests in the sanctuary to concelebrate mass with the Archbishop. Another example is that the twin rows of columns which trisect the nave impair the ability of worshippers to see what is going on at the altar.
Considering all of this, the donors, who propose to give approximately $45 million to build a "state-of-the-art" cathedral, conditioned their gifts on none of the money being used to preserve St. Vibiana's. Lest these generous donors be considered cultural philistines, it is important to note that in the past, the lead gift foundation has given millions of dollars to repeatedly repair the damages inflicted on the old St. Vibiana's by repeated earthquakes.
These donors, who, not surprisingly, are devout Catholics, said, in effect, that they had "been there, done that" and would prefer that their monies be spent so that the members of the Archdiocese of Los Angeles would have the opportunity to worship in a church which truly meets their worship needs. The location for the new cathedral was selected by Archbishop Cardinal Roger Mahony. The selection was based upon not only important symbolisms (e.g., a commitment to the historic heart of the City) but also upon a desire to demonstrate that the Archdiocese was committed to the poorest parts of the City and would not flee it willingly for more comfortable suburban environments.
Commencing December of 1994, the Archdiocese undertook communications with the Los Angeles Conservancy in order to express its desire to build a new cathedral and to inform the Conservancy that no monies were available to repair and restore the old church.
The representatives of the Conservancy have stated repeatedly that the old church could and should be preserved. They believed the preservation of vestiges of our past are important indicators of who we are and how we came to be where we are today. The Archdiocese concurs in this evaluation and points to some 2,000 years of Catholic tradition to prove its bona fides.
What we have, then, is a dispute which is based upon competing values. On the one hand, the Conservancy values structures or places which mark the passage of our forbearers and which highlight for us our common heritage. As stated above, the Archdiocese also values these ideas and has worked hard to preserve its own important structures (e.g. Saint Monica's and the Mission San Gabriel) where it had the ability and wherewithal to do so.
On the other hand, for the Archdiocese this ultimately not about buildings. Ultimately, from the Archdiocese's point of view, this is about whether or not its members should have the right to practice their religion in a setting and in a manner which they choose. We would submit that, in accordance with the First Amendment of the United States Constitution and the provisions of the Religious Freedom and Restoration Act of 1993, any attempt to regulate those activities by the City of Los Angeles or the State of California (much less the Conservancy) must meet a "strict scrutiny" test. In other words, the government must demonstrate that the regulation sought to be imposed furthers not just any interest, but a "compelling state interest." While government may have an interest, even a serious interest, in furthering historic preservation, the Los Angeles Conservancy cannot seriously argue that the importance of those interests outweighs the fundamental rights guaranteed by the First Amendment.
For those who are really interested in knowing what the law is in this area, don't be misled by references to the Second Circuit's St. Bart's case. The real law has been codified by the United States Congress after St. Bart's by its enactment of the Religious Freedom and Restoration Act of 1993 which has been declared constitutional by both the Fifth Circuit (the Flores case) and the California Supreme Court (the Smith case).
The First Amendment is not an elegant construct. It is spare, lean and lo the point. Only forty-five words long, it commences as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" The First Amendment then goes on to talk about freedom of speech. Fresh with the history of hundreds of years of religious wars which their ancestors had fought in Western Europe, the authors of the Constitution recognized that religion is an area into which government should be especially loathe to enter.
The Archdiocese of Los Angeles believes that this wariness should extend to the City of Los Angeles. Indeed, the Archdiocese of Los Angeles believes that a proper respect for the rights of freedom of worship should also lead the Los Angeles Conservancy into withdrawing from this unpleasant dispute.
By Jack Rubens, Sheppard, Mullin, Richter & Hampton, and Legal Counsel for the Los Angeles Conservancy
When Judge Robert O'Brien issued a preliminary injunction on June 19 which enjoined the Archdiocese from continuing its unlawful demolition of St. Vibiana Cathedral's bell tower, the court vindicated what the Los Angeles Conservancy had been saying all along—everyone has to follow the rules, even the Archdiocese. Indeed, the court stated that the Archdiocese "simply wants to handle the situation on its own terms and within its own time frame," with the "inevitable" result that the Archdiocese ran "headlong into applicable legal requirements."
The court ruled that the City and the Archdiocese produced no credible evidence that the bell tower constitutes an "imminent hazard", or that the 3.5 earthquake on May 23 "drastically" increased the damage to the bell tower, as the Archdiocese claimed. The court also firmly rejected the Archdiocese's claim that the City's designation of the Cathedral as Historic Cultural Monument No. 17 in 1964 interferes with the free exercise of religion.
The court agreed with the Conservancy that, since the bell tower was not an imminent hazard and did not qualify as an "emergency" under CEQA, the City cannot issue a demolition permit until the city complies with CEQA, Public Resources Section 5028 and the City's Cultural Heritage Ordinance.
As part of the media barrage unleashed by the Archdiocese after it started to tear down the bell tower without a demolition permit on Saturday morning, June I, the Archdiocese obscured the facts surrounding the aborted demolition.
The Archdiocese continues to frame the debate as a choice between the existing Cathedral and a new Cathedral complex. That is not, and has never been, the issue. From the moment Cardinal Mahony announced the cathedral Square project in January, 1995, the Conservancy has strongly supported it. The real issue is whether the retention of the Cathedral as part of the new project is possible, either as a freestanding structure or as part of the new cathedral. As one example, the new complex will include a conference center with capacity for 800 people. If St. Vibiana Cathedral was adapted for that use, the rehabilitation cost (which is certainly far less than the $20.9 million suggested by the Archdiocese) could be offset by the savings in new construction costs.
The Conservancy has never stated, either publicly or privately, that the Cathedral must be preserved. The Conservancy has steadfastly maintained, however, that the Cathedral is one of the City's oldest and finest historic landmarks, and that its proposed demolition should be evaluated as part of an environmental impact report CEQA applies across the board, even to religious structures.
Last February, the Archdiocese and the Coalition to Save the Cathedral of St. Vibiana jointly sponsored a two-day workshop to explore preservation alternatives. It was agreed that the results of the workshop would lay the foundation for the alternatives analysis in the EIR for the project (ironically, the Archdiocese now claims that CEQA review should not be required at all). By the end of the workshop, it was apparent that there was enough room on the site to retain the Cathedral, if the Archdiocese wants to do so.
After demolition was halted, the Archdiocese claimed for the first time that the designation of the Cathedral as a Historic Cultural Monument violated its right to the free exercise of religion under the First Amendment.
While that statement makes a nice sound bite on the evening news, it falls apart under scrutiny. The City's Cultural Heritage Ordinance ranks as one of the weakest preservation ordinances adopted by a major U.S. city. The City has no authority under the Ordinance to prohibit demolition, only to delay it for up to360days and require an EIR prior to demolition. The Ordinance is a facially neutral law of general application which provides only minimal protection for historic buildings, some of which are religious structures. California courts have consistently upheld the application of land use and zoning laws to religious groups, including the ability of local governments to deny permits for church activities altogether.
In the only federal case to review the constitutionality of the application of a preservation ordinance to a church owned property (the 1991 St. Bartholomew’s case, for those of you who are interested in these things), the Second Circuit rejected the church’s claim that New York City's Landmark's Law violated the free exercise clause, notwithstanding that the Landmark's Law includes the authority to prohibit demolition altogether (as compared to the City’s Cultural Heritage ordinance, which does not). The analysis in St. Bartholomew's is consistent with the standards set forth in the Religious Freedom and Restoration Act of 1993.
For 18 years, the Conservancy has been a strong advocate for the revitalization of downtown Los Angeles. The construction of new buildings with architectural merit, combined with the restoration and reuse of noteworthy historic structures, offers the best hope for the renewal of the historic core (as demonstrated by the rehabilitation and expansion of the Central Library). The Archdiocese and the City have a unique opportunity to do both by creating a vibrant, new cathedral and preserving the City’s first landmark building. Let’s see if it's possible.
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