56 [79 Op. Att’y

CONSTITUTIONAL LAW ) FREEDOM OF RELIGION ) FREE

EXERCISE CLAUSE ) HISTORIC PRESERVATION )

APPLICABILITY OF HISTORIC ZONING ORDINANCE TO A

CHURCH

July 21, 1994

The Honorable Eugene E. Johnson, Sr.

President

Town of Sykesville City Council

You have requested our opinion whether a church located in a

historic district is subject to the district’s zoning regulations.

For the reasons stated below, we conclude as follows: A

church in a historic district is subject to the procedural requirements

of the local historic zoning ordinance ) that is, the church must

submit plans for exterior changes to its building to the local historic

zoning commission. If the church does not assert that the

components of the proposed change are grounded in religious belief

or practice, then the church is subject to the substantive requirements

of the ordinance, including the need for commission approval. If the

church does reasonably assert that any components of the proposed

change are grounded in religious belief or practice, then the

commission may neither question the religious basis of the design

choice nor disapprove it.

I

Background

A church located in the historic district of the Town of

Sykesville is planning to build an addition onto its main building in

order to accommodate its growing congregation. Normally, under

Sykesville’s historic zoning ordinance, a property owner who wishes

to change the exterior of a building located in the historic district

must seek the approval of the local historic zoning commission. 
Gen. 56] 57

The church, however, asserts that the First Amendment to the

United States Constitution, specifically the Free Exercise Clause,

exempts it from the review and approval process of the historic

district commission. Although we have not seen an explanation of

the church’s position, it has been suggested that the church’s refusal

to submit an application for an exterior alteration stems from its

concern that the historic district commission will condition its

approval on costly changes in the plan for the addition.

Understandably, the church would rather spend the money on its

religious functions instead. 

II

Historic Zoning

The Town of Sykesville’s historic zoning ordinance was

enacted pursuant to the authority delegated to the municipality by the

General Assembly under the State enabling law, Article 66B of the

Maryland Code. Because Sykesville’s authority to enact historic

district zoning is limited to powers provided in Article 66B, §§8.01

through 8.15, Sykesville’s ordinance is very similar in structure and

purpose to the State Historic Zoning Act.

Sykesville’s ordinance was enacted in July, 1984. The

purposes of the ordinance include safeguarding the heritage of the

town by preserving the districts and structures that reflect the

cultural, social, economic, political, or architectural history of the

town; strengthening the local economy; improving and stabilizing

property values; fostering civic beauty; and preserving the historic

district for the education, welfare, and pleasure of the town’s

citizens. Ordinance No. 187, §2. The ordinance requires the Mayor

and City Council to appoint a historic zoning commission, which

consists of residents of the town who have special knowledge in

fields like history and architecture. Ordinance No. 187, §5. 

The commission must approve all plans for the “construction,

alteration, repair, reconstruction, moving or demolition of any

Structure, including, without limitation, change of wall or roof

surfacing materials,” located within the historic district, if the

changes would affect an exterior feature of the structure visible from

an adjacent public way. Ordinance No. 187, §8. The commission

may consider only the exterior of the structure and is prohibited from
58 [79 Op. Att’y

Because of the limited scope of the State enabling legislation and 1

the implementing ordinance, we need not consider the Free Exercise

Clause implications of a historic district ordinance that purported to

restrict alteration of the interior of a house of worship. See Society of

Jesus v. Boston Landmarks Comm’n, 564 N.E.2d 571 (Mass. 1990)

(designation of church interior as historic landmark violates freedom of

religion provision of Massachusetts Declaration of Rights).

considering any interior arrangements. Ordinance No. 187, §10. See

Article 66B, §8.07 (a commission shall only consider exterior

feature of a structure). Whereas traditional zoning is primarily 1

directed at the use of land and the density and location of the

buildings, historic zoning is concerned only with preservation of the

exterior appearance of buildings based on architectural and historic

merit. City of Annapolis v. Anne Arundel County, 271 Md. 265, 291,

316 A.2d 807 (1974). To accomplish the primary purposes of

historic zoning area, the exterior of the building must be “preserved

against destruction or substantial impairment by everyone, whether

a private citizen or a governmental body.” 271 Md. at 291-92

(emphasis in original). While the exterior of a building is subject to

the jurisdiction of the commission, the “use of the buildings is

unaffected by historic commission decisions.” 271 Md. at 291.

The Sykesville commission must consider the following factors

when deciding whether to approve or disapprove an application:

A. The historic or architectural value and

significance of the structure and its

relationship to the historic value of the

surrounding area.

B. The relationship of the exterior

architectural feature of the structure to the

remainder of the structure and to surrounding

area.

C. The general compatibility of the

exterior design, arrangement, texture and

materials proposed to be used.

D. Any other factors, including aesthetic

factors, which the Commission deems to be

pertinent.
Gen. 56] 59

We are told that the church in question, built in the mid- 2

Nineteenth Century, does have historical value. Thus, the commission

would use strict judgment when reviewing the church’s plans for the

addition.

Despite the variant wording of the Maryland guarantee, the 3

analysis of claims under it appears to be no different than of claims under

the Free Exercise Clause. See, e.g., McMillan v. State, 258 Md. 147, 265

A.2d 453 (1970); Snyder v. Holy Cross Hosp., 30 Md. App. 317, 352 A.2d

334 (1976). 

Ordinance No. 187, §9. Only the above factors can be considered by

the commission when disapproving an application. Ordinance No.

187, §10. When reviewing applications, the commission is to be

strict in its judgment of plans for structures that have historic and

architectural value and lenient in its judgment of structures that have

little historic value. Ordinance No. 187, §11. 

2

Any person, firm, or corporation that violates the ordinance is

guilty of a misdemeanor and subject to a fine not to exceed $500.

Ordinance No. 187, §17. Every day that a violation occurs is to be

considered a separate offense. Id.

III

Free Exercise of Religion

A. Introduction

The First Amendment provides that “Congress shall make no

law respecting an establishment of religion or prohibiting the free

exercise thereof.” The Fourteenth Amendment makes the First

Amendment, including the portion commonly referred to as the Free

Exercise Clause, binding on the states. Cantwell v. Connecticut, 310

U.S. 296, 303 (1940). Article 36 of the Maryland Declaration of

Rights also provides a lengthier guarantee of “religious liberty.”3

The Free Exercise Clause embraces two concepts, “the

freedom to believe and the freedom to act.” United States v.

Ballard, 322 U.S. 78, 86 (1944). While the freedom of belief is

absolute, the manner in which one acts on one’s beliefs is not and

may be subjected to neutral state regulations. 322 U.S. at 86. A
60 [79 Op. Att’y

 In Smith, a case involving the sacramental use of peyote, the 4

Supreme Court abandoned its longstanding use of the “compelling

interest” test when evaluating religiously neutral laws of general

applicability that have the effect of burdening religious practice. 494 U.S.

at 889. Instead, the Court concluded that “the sounder approach ... is to

hold the test inapplicable” to challenges to “generally applicable

prohibitions of socially harmful conduct ....” 494 U.S. at 885. Justice

O’Connor, in an opinion concurring with the Court’s result but not its

analysis, characterized this holding as one that “dramatically departs from

well-settled First Amendment jurisprudence ... and is incompatible with

our Nation’s fundamental commitment to individual religious liberty.”

494 U.S. at 891. 

statute violates the free exercise of religion when “individuals [are]

coerced ... into violating their religious beliefs” or when the statute

“penalizes religious activity by denying any person an equal share of

the rights, benefits, and privileges enjoyed by others.” Lyng v.

Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 448

(1988).

Courts have observed that “‘[i]nterpretation and application of

the free exercise clause has created, within that field of

constitutional doctrine, areas dotted by unanswered questions.’”

Messiah Baptist Church v. City of Jefferson, 859 F.2d 820, 824 (10th

Cir. 1988), cert. denied, 490 U.S. 1005 (1989) (quoting Grosz v. City

of Miami Beach, 721 F.2d 729, 733 (11th Cir. 1983)). Historic

district zoning as applied to religious institutions is one of those

areas. 

B. Standards for Assessing Free Exercise Claim

In a recent opinion, we described the turbulent history of the

test for determining the legality of a government burden on

religiously motivated practice. 79 Opinions of the Attorney General

45 (1994). 

The current test that must be used for assessing Free Exercise

Clause claims is set out in the Religious Freedom Restoration Act of

1993 (the “RFRA”). The RFRA reflects a congressional decision to

return the jurisprudence of the Free Exercise Clause to what it had

been prior to the Supreme Court’s decision in Employment Division,

Department of Human Resources v. Smith, 494 U.S. 872 (1990).4

The core provision of the RFRA is as follows:
Gen. 56] 61

Government may substantially burden a

person’s exercise of religion only if it

demonstrates that application of the burden to

the person )

(1) is in furtherance of a compelling

governmental interest; and 

(2) is the least restrictive means of

furthering that compelling interest.

42 U.S.C. §2000bb-1(b). The RFRA is intended to “restore the

compelling interest test ... to guarantee its application in all cases

where free exercise of religion is substantially burdened....” 42

U.S.C. §2000bb(b)(1) (emphasis added, citations omitted). The

RFRA is applicable retroactively to both state and federal law. 42

U.S.C. §2000bb-1(6).

The legislative history of the RFRA expresses the intent that

“courts will look to free exercise cases decided prior to Smith for

guidance in determining whether the exercise of religion has been

substantially burdened and the least restrictive means have been

employed in furthering a compelling government interest.” S. Rep.

No. 103-111, 103d Cong., 1st Sess. 8-9 (1993), reprinted in 1993

U.S.C.C.A.N. 1892, 1898. The legislative history does make it

clear, however, that “only governmental actions that place a

substantial burden on the exercise of religion must meet the

compelling interest test” and the act “would not require such a

justification for every government action that may have some effect

on religious institutions.” Id. (emphasis added). 
62 [79 Op. Att’y

IV

Threshold Elements of a Free Exercise Claim

A. Neutrality and General Applicability

“‘A proper respect for both the Free Exercise and the

Establishment Clauses compels the State to pursue a course of

“neutrality” toward religion, favoring neither one religion over

others nor religious adherents collectively over nonadherents.’”

Board of Ed. of Kiryas Joel Village School District v. Grumet, 512

U.S. 687, 696 (1994) (quoting Committee for Public Ed. & Religious

Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973)). 

The historic zoning ordinance in this case and historic zoning

in general easily pass this threshold test. The requirements of

historic zoning apply equally to all structures within a district and do

not treat secular structures and property owners any differently than

religious buildings and institutions.

B. Religious Basis of Objection

The party objecting on religious grounds to a state or local

regulation must demonstrate that the objection is grounded upon a

sincerely held religious belief. Wisconsin v. Yoder, 406 U.S. 205,

215 (1972). Indeed, only beliefs rooted in religion are protected by

the Free Exercise Clause. Thomas v. Review Board of Indiana

Employment Sec. Div., 450 U.S. 707, 714 (1981). Secular,

philosophical, and personal choices and beliefs do not come within

its protection. Yoder, 406 U.S. at 216.

The Supreme Court has acknowledged that determining a

religious belief or practice is a “most delicate question” but realized

that “allowing every person to makes his own standards on matters

of conduct in which society as a whole has important interests”

would be contrary to the very concept of ordered liberty. Yoder, 406

U.S. at 215-16. Furthermore, some practices might be “so clearly

nonreligious in motivation, as not to be entitled to protection.”

Thomas, 450 U.S. at 715. 
Gen. 56] 63

One commentator has argued that a governmental effort to sort 5

out the relationship between design elements in a church and religious

belief would amount to state entanglement in religious affairs and so

would violate the Establishment Clause of the First Amendment: “There

are no neutral principles by which design control authorities can separate

the secular from the religious ....” Angela C. Carmella, Houses of Worship

and Religious Liberty: Constitutional Limits to Landmark Preservation

and Architectural Review, 36 Vill.L.Rev. 401, 483-84 (1991). This

argument is inconsistent with the cases cited in the text above, however,

(continued...)

As stated earlier, religious observances in the form of beliefs

are absolutely protected by the Free Exercise Clause. Cantwell, 310

U.S. at 303-04. Practices or conduct, by contrast, merit protection

only when they flow from a religious belief and are integrally related

to those underlying religious beliefs. Indeed, “no weight measures

on the side of religion unless it can be shown that the government

action ultimately affects religious practice.” Grosz v. City of Miami

Beach, 712 F.2d 729, 736 (1983), cert. denied, 469 U.S. 827 (1984).

Thus, the centrality of the religious observance or practice to the

believer’s faith influences the determination of a First Amendment

infringement.

The Supreme Court has determined on many occasions

whether certain conduct was integrally related to an individual’s

religious beliefs. In Wisconsin v. Yoder, the Court found that refusal

of the Amish to send their children to school beyond the eighth

grade, in defiance of a state compulsory education law, was based on

a “fundamental tenet” of their faith. Yoder, 406 U.S. at 218. A

Sabbatarian who would not work on Saturday was, in the Supreme

Court’s view, following a “cardinal principle” of her religion.

Sherbert v. Verner, 374 U.S. 398, 406 (1963). The Court concluded

that a Jehovah’s Witness who refused to work on weapons did so

because of “religious convictions.” Thomas, 450 U.S. at 715, 716.

See also Syska v. Montgomery County Bd. of Ed., 45 Md. App. 626,

632, 415 A.2d 301, cert. denied, 288 Md. 744 (1980), appeal

dismissed, 450 U.S. 961 (1981) (objections to compulsory

immunization, based on purely secular considerations, “are

philosophical and personal rather than religious [and] do not rise to

the demands of the Religion Clauses”). Cf. 79 Opinions of the

Attorney General at 47-48 (assuming without discussion that an

individual who objected to a photo license did so because of

sincerely held religious beliefs).5
64 [79 Op. Att’y

 (...continued) 5

which engage in precisely the task of “separat[ing] the secular from the

religious ....” As the Supreme Court has observed, “The Establishment

Clause does not exempt religious organizations from such secular

government activity as fire inspections and building and zoning

regulations ....” Tony & Susan Alamo Foundation v. Secretary of Labor,

471 U.S. 290, 305 (1985).

 Several U.S. Circuit Courts of Appeal have used this type of 6

analysis to determine whether zoning restrictions actually burdened a

church’s religious beliefs or only affected secular decisions of the

congregation. See Christian Gospel Church v. San Francisco, 896 F.2d

1221 (9th Cir.) cert. denied, 498 U.S. 999 (1990) (congregation did not

demonstrate that worship in a particular home was essential to religious

beliefs); Messiah Baptist Church v. County of Jefferson, 859 F.2d 820,

825 (10th Cir. 1988), cert. denied, 490 U.S. 1005 (1989) (building a

church on a particular site was not a religious tenet of the congregation);

Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of

Lakewood, 699 F.2d 303, 307 (6th Cir.), cert. denied, 464 U.S. 815 (1983)

(building and owning a church is a desirable accessory of worship, not a

fundamental tenet of church’s religious beliefs).

Not every change that a religious organization wishes to make

to the exterior of a house of worship reflects a sincerely held

religious belief. In fact, many exterior changes bear no apparent

relation to religious belief. For example, suppose that a church needs

new gutters and would prefer to replace its old copper gutters with

much cheaper aluminum ones. It is difficult to see how this choice

could be presented with any sincerity as grounded in the dogma or

religious practice of the church. 

Without attempting in the abstract to catalog these secular

elements of a church’s exterior, we do conclude that some changes

to the exterior of a church, especially the ones that are the result of

routine maintenance, are no different than the alterations that any

property owner in a historic district would make to a structure and

that would require the approval of the historic zoning commission.

As stated earlier, secular choices of a religious institution do not rise

to the level of First Amendment protection. Yoder, 406 U.S. at 216.

Therefore, changes of this nature are subject to the approval of the

historic zoning commission.6

We also recognize, of course, that some exterior design

elements are indeed the architectural expression of religious belief.

For example:
Gen. 56] 65

The underlying religious import of some design elements is self- 7

evident ) a cross on the facade of a church, for example, or a minaret on

a mosque. Other design elements ) the choice of paint color on a church

door, for instance ) might or might not have religious significance,

depending on the beliefs of the church.

Decisions to use clear windows as opposed to

stained glass, or representational stained glass

as opposed to nonrepresentational design, are

rooted in theological choice, and clearly affect

the worship environment. Nor is there doubt

that an aesthetic feature as basic as building

configuration ) square, round, or rectangular

) is inextricably connected to liturgical

experience and ecclesial identity.

Angela C. Carmella, Houses of Worship and Religious Liberty:

Constitutional Limits to Landmark Preservation and Architectural

Review, 36 Vill. L. Rev. 401, 485 n. 319. If the architectural

decision flows from religious belief, it is within the scope of First

Amendment protection. 

We acknowledge that determining whether proposed exterior

changes are the result of religious beliefs and practices can be “a

difficult and delicate task.” Thomas, 450 U.S. at 714. Indeed, a local

historic zoning commission is not free to reject the beliefs held by

the applicant church because the commission considers them

incomprehensible, illogical, or inconsistent. The task of the

commission is to decide whether the beliefs held by the applicant are

sincerely held and whether they are, in the church’s own scheme of

things, religious in character. United States v. Seger, 380 U.S. 163,

184-85 (1965). To that end, the commission is entitled to ask for an

explanation of the religious basis of design elements, if the

significance is not readily apparent. See also Frazee v. Illinois 7

Department of Employment Security, 489 U.S. 829, 833 (1989)

(“[s]tates are clearly entitled to assure themselves that there is ample

predicate for invoking the free exercise clause”). However, the

claim of the religious institution that the design change is an

“essential part of a religious faith must be given great weight.”

Seger, 380 U.S. at 184. The commission cannot inquire into the

truth or falsity of the belief. See United States v. Ballard, 322 U.S.

78, 86 (1944); United States v. Ward, 989 F.2d 1015 (9th Cir. 1992).

Cf. American Union of Baptists v. Trustees of the Particular
66 [79 Op. Att’y

Primitive Baptist Church at Black Rock, Inc., 335 Md. 564, 575-76

(1994) (court may adjudicate church property disputes based on

secular considerations but not “theological or doctrinal” matters).

In the Sykesville situation, the building of an addition might

well be the result of a sincerely held religious belief or practice.

Accommodating all people who wish to worship in the church may

be required by religious doctrine. But there may be no doctrinal

basis for some of the design elements in the addition. The historic

zoning commission is entitled to an appropriate explanation. 

 In sum, our analysis on the threshold issue of whether an

exterior change to a house of worship is the result of a sincerely held

religious belief is essentially two-fold: (1) If the alteration,

construction, repair, reconstruction, moving, or demolition of a

house of worship reflects secular concerns, then the congregation is

subject to the jurisdiction of the commission and must comply with

the requirements that the commission establishes in order to receive

approval of the congregation’s application. (2) If the alteration

stems from a sincerely held religious belief, the congregation must

comply with the administrative procedures of the commission but

may be constitutionally entitled to an exemption from requirements

that would interfere with the planned alteration. See Parts IVC and

V below. 

C. Substantial Burden

The Supreme Court has held that “[a] regulation neutral on its

face may, in its application, nonetheless offend the constitutional

requirement for governmental neutrality if it unduly burdens the free

exercise of religion.” Yoder, 406 U.S. at 205. In one way or

another, every neutral, broadly applicable government regulation

incidentally burdens religious activity to some extent, but that fact

does not immunize religious groups from all regulation. Bowen v.

Roy, 476 U.S. 693 707 n. 17 (1986). In Lyng v. Northwest Cemetery

Protective Ass’n, 485 U.S. 439, 450-51 (1988), the Supreme Court

explained:

It is true that ... indirect coercion or penalties

on the free exercise of religion, not just

outright prohibitions are subject to scrutiny

under the First Amendment.... This does not

and cannot imply that incidental effects of
Gen. 56] 67

The Washington court’s original Free Exercise Clause decision 8

was vacated by the Supreme Court and remanded in light of Employment

Div., Dep’t of Human, Resources v. Smith. On remand, the Washington

(continued...)

government programs, which make it more

difficult to practice certain religions but have

no tendency to coerce individuals into acting

contrary to their religious beliefs, require

government to bring forward a compelling

justification for its otherwise lawful actions.

The crucial word in the constitutional text is

“prohibit”... 

Accordingly, a burden becomes constitutionally significant only

when it places a “substantial burden on the observation of a central

religious belief or practice.” Hernandez v. Commissioner, 490 U.S.

680, 699 (1989) (emphasis added). 

We must ascertain, therefore, whether the church’s burden of

complying with the requirements of the historic zoning ordinance is

“substantial.” If not, no First Amendment infringement will have

occurred. 

1. Administrative Process

As discussed in Part II above, Ordinance No. 187 requires a

church located in the Sykesville historic district to seek the approval

of the historic district commission before the construction, alteration,

repair, reconstruction, moving, or demolition of any structure,

including a change of wall or roof surfacing materials. Ordinance

No. 187, §8. It is our understanding that the application is generally

accompanied by a small fee. The commission either approves,

rejects, or modifies the plans of an applicant by filing a certificate

with the local zoning administrator. Ordinance No. 187, §15. If the

plans are rejected, an applicant, including a church, would have to

modify its plans, a process that may involve dialogue with the

commission in order to ascertain what modifications would result in

subsequent approval of the plans. 

The Washington Supreme Court ruled that a similar process

under Seattle’s landmark preservation ordinance violated a church’s

free exercise rights. First Covenant Church v. City of Seattle, 787

P.2d 1352 (Wash.), vacated, 111 S.Ct. 1097 (1990). The Seattle

8
68 [79 Op. Att’y

 (...continued) 8

Supreme Court refused to follow the Supreme Court’s analysis in Smith

and decided the case on state constitutional grounds. First Covenant

Church v. Seattle, 840 P.2d 174 (Wash. 1992). The court said that

Washington’s Free Exercise Clause was substantially broader than the

Free Exercise Clause of the U.S. Constitution. The cases applying Article

36 of the Declaration of Rights, by contrast, suggest that it has the same

scope as the federal guarantee. See note 3 above. 

landmark commission attempted to designate the church as a

landmark because of its historical value. 787 P.2d at 1354. The

church sought a declaratory judgment that the Seattle ordinance was

unconstitutional, because it violated the church’s rights of religious

freedom. Id. The ordinance would have required the church to

receive approval of the commission before making any alteration of

the exterior of the church. The ordinance provided for automatic

approval of exterior changes that were necessitated by changes in

“liturgy,” but it did require the church to discuss possible alternative

design solutions that might have been appropriate to preserve the

designated features of the landmark.

 The Washington court found that the “practical effect of the

provisions is to require a religious organization to seek secular

approval of matters potentially affecting the church’s practice of

religion.” 787 P.2d at 1359. Also, even if the proposed alteration

were religious in nature, the church still had to submit its plans and

negotiate possible alternatives. Id. The court concluded that these

requirements created an “unjustified governmental interference in

religious matters of the church and ... an infringement of the

church’s right of free exercise” and found that the ordinance was

unconstitutional as applied to religious institutions. Id. In the

court’s view, requiring the church to obtain a certificate of approval

from the commission created a substantial burden on the church’s

First Amendment rights that was not justified by a compelling

interest. 787 P.2d at 1361.

The Washington Supreme Court’s analysis is flawed, in our

view. First, the burdens imposed by “paperwork” and other

administrative costs and requirements associated with submitting

proposed changes to a landmark commission (or, in Sykesville’s

case, a historic zoning commission) do not substantially burden free

exercise rights. The Washington court did not take proper account

of Supreme Court cases to the effect that complying with

administrative procedures of the government do not burden a
Gen. 56] 69

religious institution’s First Amendment rights. In Jimmy Swaggart

Ministries v. Board of Equalization, 494 U.S. 378, 394-95 (1990),

the Supreme Court held that the administrative and recordkeeping

burdens of sales and use taxes “do not rise to a constitutionally

significant level.” Furthermore, in Tony & Susan Alamo Foundation

v. Secretary of Labor, 471 U.S. 290, 305-06 (1989), the Court

concluded that the recordkeeping and paperwork provisions of the

Fair Labor Standards Act did not violate the free exercise rights of

individuals associated with a religious institution. 

If we were to conclude that the burden of complying with the

administrative requirements of a historic zoning ordinance was

“substantial,” we would also have to presume that similar

administrative requirements of other neutral regulatory schemes, like

building codes, fire codes, and land use zoning, were “unduly

burdensome” for the same reason. These types of regulations also

require religious institutions to submit applications to secular boards

for approval. Yet, both federal and state courts have repeatedly

upheld the application of these requirements to religious institutions.

See, e.g., Lakewood Ohio Congregation of Jehovah’s Witnesses v.

City of Lakewood, 699 F.2d 303 (6th Cir. 1983) (residential zoning

requirement); Congregation Beth Yitzcok v. Town of Rampo, 593 F.

Supp. 655 (S.D.N.Y. 1984) (occupancy requirements); Faith

Assembly of God v. State Bldg. Code Comm’n, 416 N.E.2d 288

(Mass. App. 1981) (building code regulations).

Second, the Washington court asserted that requiring a church

to discuss its religious motivations for a change in the exterior of a

church with a secular commission was a substantial burden on

religion. To our knowledge, no court had ever construed the Free

Exercise Clause to render unconstitutional the obligation of one

wishing to be exempt from a governmental requirement to establish

the fact of religious motivation for conduct. To the contrary, free

exercise cases routinely require the person or religious institution

seeking an exemption from neutral governmental regulations to

make an initial showing that the conduct in question is grounded in

religious belief. For example, a conscientious objector had to

demonstrate to the local draft board that his failure to register for the

draft was the result of his religious convictions. United States v.

Seeger, 380 U.S. 163 (1965). Similarly, Sabbatarians had to show

an unemployment compensation board that a refusal to work on

Saturday was the result of sincerely held religious beliefs. Sherbert,

374 U.S. 398 (1963); Hobbie v. Unemployment Appeals Comm’n,

480 U.S. 136 (1987). 
70 [79 Op. Att’y

The Washington court noted that the Seattle ordinance had the

“potential” of affecting the church’s religious rights. The “potential”

of affecting religious rights is not itself a substantial burden under

Free Exercise Clause jurisprudence. The governmental action must

in fact “coerce” an individual into violating his or her beliefs or

“penalize” religious individuals. Lyng, 485 U.S. at 449. Since the

church in Seattle never sought the approval of any plans for an

alteration, no coercion or penalty in fact occurred. 

Finally, the Washington court assumed that all alterations that

a church might make to its exterior are religiously motivated, thereby

extending First Amendment protection to potential alterations that

a church might make for entirely secular reasons. This assumption

is both contrary to fact and inconsistent with the Supreme Court

cases that require a distinction between secular decisions and

religious ones, because only religiously based conduct merits the

protection of the First Amendment. See Part IVB above.

In conclusion, “[i]t is virtually self-evident that the Free

Exercise Clause does not require an exemption from a governmental

program unless, at a minimum, inclusion in the program actually

burdens the claimant’s freedom to exercise religious rights.” Alamo

Foundation, 471 U.S. at 303. The administrative procedures of the

Sykesville Historic Zoning Ordinance do not themselves create a

substantial burden on the church. Thus, the church is not entitled to

a broad exemption from the requirements of the ordinance. 

2. Financial Considerations

The church in Sykesville is apparently concerned that the

historic zoning commission will require the church to spend extra

money on the addition, money that the church believes could be

better spent on the religious functions of the church. In essence, the

church is suggesting that this potential incremental cost is a

“substantial” burden on its free exercise rights.

Being located in a historic zoning district might result in a

property owner’s having to spend more money on alterations to a
Gen. 56] 71

We emphasize the word “might” because we have no way of 9

knowing if compliance with historic zoning requirements would actually

increase costs in every instance. Sometimes compliance ) as to choice of

paint color, for instance ) would involve no extra expense. 

structure’s exterior than if the structure were located elsewhere.9

The commission might require the owner to use more expensive

materials, or it might require the owner to make additional, more

costly alterations. Since the historic zoning commission has never

reviewed the plans for the addition to the church in Sykesville, we

do not know whether complying with commission requirements will

actually require the church to spend more money on the addition.

For the purposes of this section of the opinion, then, we shall simply

assume that compliance with the Commission’s requirements would

increase the cost of the addition.

 The Supreme Court recently considered whether neutral

regulations that diminish the income of a church and consequently

reduce the resources that could be spent on religious uses infringes

on the First Amendment. In Jimmy Swaggart Ministries v. Board of

Equalization, the religious organization argued that the imposition

of a tax on the sale of its religious materials amounted to an

unconstitutional burden, because the tax reduced the income of the

organization. The Supreme Court flatly rejected this argument:

“[T]o the extent that imposition of a generally applicable tax merely

decreases the amount of money [that Jimmy Swaggart Ministries]

has to spend on its religious activities, any such burden is not

constitutionally significant.” 493 U.S. at 391 (citations omitted). 

Swaggert is consistent with earlier cases on the monetary

impact of neutral regulation. In Hernandez v. Commissioner, 490

U.S. 680, 698 (1989), a religious organization argued that the

disallowance of a tax deduction for its practice of “auditing” reduced

the amount of income its members could spend on their religious

activities. The Supreme Court, pointing out that “[t]his argument

knows no limitation,” rejected it. 490 U.S. at 700. The Supreme

Court had earlier recognized that this argument, asserting that an

indirect financial burden violates the Free Exercise Clause, “would

radically restrict the operating latitude of the legislature.” Braunfeld

v. Brown, 366 U.S. 599, 606 (1961) (rejecting argument that Sunday

closing law interfered with free exercise rights of Orthodox Jewish

merchants). The Court noted that if this type of argument were

accepted, statutes could be struck down merely because they tax
72 [79 Op. Att’y

If “maintenance of the landmark either physically or financially 10

prevents or seriously interferes with carrying out the [religious] purpose

...,” the result might well be different. Church of St. Paul and St. Andrew

v. Barwick, 496 N.E.2d 183, 192 n.6 (N.Y.), cert. denied, 479 U.S. 985

(1986). 

income that limits the amount of money that could be contributed to

religious organizations, thereby imposing an indirect burden on the

individual who isrequired by religious conviction to donate a greater

amount to the church. Id. According to the Court, the “list of

legislation of the nature is nearly limitless.” Id. 

This line of cases has been applied to a historic landmark

ordinance. In St. Bartholomew’s Church v. City of New York, 914

F.2d 348, 355 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991),

New York’s landmarks law prevented a church from commercial

development of a site on which a church-owned historic structure

stood. The court accepted that the law “has drastically restricted the

church’s ability to raise revenues to carry out its various charitable

and ministerial programs.” 914 F.2d at 355. Nevertheless, the court

rejected the argument that these opportunity costs were a burden

cognizable under the Free Exercise Clause, because “we understand

Supreme Court decisions to indicate that neutral regulations that

diminish the income of a religious organization do not implicate the

Free Exercise Clause.” Id. 

10

3. Prohibition of religiously based exterior change.

The clearest example in this context of a governmental action

that would substantially burden religious practice is a flat ban. See

Goldman v. Weinberger, 475 U.S. 503 (1986) (implicitly

recognizing burden caused by prohibition on the wearing of a

yarmulke by Jewish military officer). 

Suppose, for example, that a church purchases a structure in a

historic district formerly used as a synagogue and wants to replace

a Star of David on the facade with a cross. This design change

obviously would be grounded in religious belief. A decision by a

historic zoning commission to disapprove the application would

substantially burden the church’s free exercise of religion.
Gen. 56] 73

The RFRA also applies a “least restrictive means” test. 42 11

U.S.C. §2000bb-1(b)(2). In light of our conclusion in Part V that historic

zoning does not serve a “compelling interest,” we need not analyze this

additional test.

The legislative history of the RFRA indicates that the 12

governmental interest in some land use regulations, “such as fire

codes,” is compelling. S. Rep. No. 103-111, at 9 n.18, 1993

U.S.C.C.A.N. at 1899.

If a substantial burden exists, the governmental restriction can

be applied only if it furthers a “compelling governmental interest.”

42 U.S.C. §2000bb-1(b)(1). To that issue we now turn.11

V

Weight of Governmental Interest

“To satisfy the commands of the First Amendment, a law

restrictive of religious practice must advance interests of the highest

order .... The compelling interest standard ... really means what it

says.” Church of the Lukumi Babalu Aye v. City of Hialeah, 113

S.Ct. 2217, 2233 (1993) (internal quotation marks and citations

omitted). An impediment to religious activity is unconstitutional,

wrote the Fourth Circuit, unless it is justified “by a compelling state

interest arising from some substantial threat to public health, safety,

peace, or order ....” Forest Hills Early Learning Center, Inc. v.

Lukhard, 728 F.2d 230, 241 (4th Cir. 1984).12

The interests underlying historic zoning ordinances, while very

significant, are not of comparable importance. In a case upholding

the constitutionality of the New York City Landmarks Law (but not

involving a Free Exercise Clause issue), the Supreme Court wrote of

“a widely shared belief that structures with special historic, cultural,

or architectural significance enhance the quality of life for all.”

Penn Central Transportation Co. v. City of New York, 438 U.S. 104,

108 (1978). Moreover, the preservation of the character of a historic

district, like Sykesville’s, undoubtedly contributes to tourism and the

economic well-being of the community generally. 
74 [79 Op. Att’y

 In light of this conclusion, we need not consider whether 13

the Free Speech Clause of the First Amendment would prevent a

historic zoning commission from disapproving a design element that

communicates a religious message. See Lamb’s Chapel v. Center

Moriches Union Free School Dist., 113 S.Ct. 2141 (1993). See

generally Thomas Pak, Comment, Free Exercise, Free Expression,

and Landmark Preservation, 91 Colum. L.Rev. 1813 (1991). 

Nevertheless, neither the Supreme Court decision in Penn

Central nor any other case upholding a historic district law or

landmarks law suggests that the governmental interests underlying

such laws are “compelling.” Indeed, even the foremost national

advocate for such laws, the National Trust for Historic Preservation,

merely suggested in an amicus brief in First Covenant Church that

landmark designation laws serve “an important public purpose” )

undoubtedly true, but falling short of a “compelling interest.”

Amicus Curiae Brief of the National Trust for Historic Preservation

at 7, City of Seattle v. First Covenant Church, 111 S.Ct. 1097 (No.

90-892) (1991). 

While there is no denying the importance of historic district

zoning, in our view the governmental interest at stake falls short of

meeting the rigorous “compelling interest” standard. Hence, we

conclude that an ordinance may not be applied to prevent a church

or other house of worship from incorporating in the exterior facade

of its structure design elements that reflect the congregation’s

religious beliefs or that are an inevitable by-product of religious

activities within the structure. 

13

VI

Conclusion

In summary, our opinion is as follows: A church in a historic

district is subject to the procedural requirements of the local historic

zoning ordinance ) that is, the church must submit plans for exterior

changes to its building to the local historic zoning commission. If

the church does not assert that the components of the proposed

change are grounded in religious belief or practice, then the church

is subject to the substantive requirements of the ordinance, including

the need for commission approval. If the church does reasonably
Gen. 56] 75

assert that any components of the proposed change are grounded in

religious belief or practice, then the commission may neither

question the religious basis of the design choice nor disapprove it.

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz*

Chief Counsel

 Opinions & Advice

*Amanda Stakem Conn, a volunteer intern in the Opinions Division,

contributed substantially to the preparation of this opinion.

Editor’s Note:

In City of Boerne v. Flores, 117 S.Ct. 2157 (1997), the

Supreme Court held that the Religious Freedom Restoration Act was

unconstitutional, at least in its application to state and local

governments.