EAST BAY ASIAN LOCAL DEVEOPMENT v. State

*698 Opinion

This case presents issues arising under the establishment clause of the First Amendment to the United States Constitution, 1 and under article I, section 4 2 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…

I dissent.

In analyzing whether Government Code sections 25373 and 37361 impermissibly grant preferential treatment to religious organizations, both the majority and dissenting opinions herein give short shrift to state authority. In my view, state law and state constitutional principles should be our first and sole referent in this matter. “[A]s the highest court of this state, we are independently responsible for safeguarding the rights of our citizens. State courts are, and should be, the first line of defense for individual liberties in the federal system. It is unnecessary to rest our decision on federal authority when the California Constitution alone provides an independent and adequate state constitutional basis on which to decide.” (Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863, 906 [ 281 Cal.Rptr. 34 , 809 P.2d 809 ] (cone. opn. of Mosk, J.).)

I conclude that Government Code sections 25373 and 37361, which confer on religious organizations a unilateral right to exempt themselves from historic landmark preservation laws applicable to all other property owners, cannot be reconciled with the strict neutrality required by article I, section 4, and article XVI,…

“The challenge posed ... is how to define the proper Establishment Clause limits on voluntary government efforts to facilitate the free exercise of religion.” Wallace v. Jaffree (1985) 472 U.S. 38, 82 [ 105 S.Ct. 2479, 2503 , 86 L.Ed.2d 29 ] (conc. opn. of O’Connor, J.).)

The freedom to exercise one’s religion without government prohibition is a cornerstone of our constitutional system. Motivated by the desire to give that freedom full scope in practice, legislatures sometimes grant religious adherents and institutions special relief from taxes and regulations. Legal efforts to assist religious institutions and promote their activities are also naturally popular with legislators because those organizations perform crucial charitable, educational, and community-building functions that enrich society generally. But however well motivated such laws may be, if they go too far they stand to run afoul of the simple, but fundamental, constitutional principle that government must remain neutral among religious groups and adherents, and between religious and nonreligious members of society—that legislation may not have the purpose or effect of advancing, promoting, or endorsing religion…

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…