EAST BAY ASIAN LOCAL DEVELOPMENT CORP v. STATE

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Court of Appeal, Third District, California.

EAST BAY ASIAN LOCAL DEVELOPMENT CORP., et al., Plaintiffs and Respondents, v. STATE of California, Defendant and Appellant.

No. C024192.

Decided: February 04, 1999

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carole R. Kornblum, Senior Assistant Attorney General, Louis Verdugo, Jr., Supervising Deputy Attorney General, Kelvin G. Gong and Kathleen W. Mikkelson, Deputy Attorneys General, for Defendant and Appellant. Zane O. Gresham,J. Edgar Pew, Olive L. Thaler, Morrison & Forester, San Francisco, Louis H. Renne, City Attorney, Kate H. Stacy, William Fleishhacker, Deputy City Attorneys, for Plaintiff and Respondent. Susan L. Trevarthen, Nancy E. Stroud, Burke, Weaver & Prell, Boca Raton, FL, Amicus Curiae, American Planning Association in support of Plaintiff and Respondent.

We consider whether a statutory exemption from local landmark preservation laws for noncommercial property owned by religious organizations violates the state or federal constitutions, specifically the establishment and equal protection clauses.   Plaintiffs, the City and County of San Francisco and several organizations concerned with landmark preservation, brought this action against the State of California to enjoin enforcement of the religious exemption.   The trial court concluded the religious exemption is unconstitutional and granted plaintiffs' motion for summary judgment.   We shall reverse.

I

In 1957, the Legislature added section 37361 to the Government Code, authorizing cities to acquire real property for the preservation or development of historic landmarks.  (Stats.1957, ch. 864, § 1, p.2078;  statutory references to sections of an undesignated code are to the Government Code.) This section was amended two years later to permit the imposition of “special conditions or regulations” for the protection of historic places or structures.  (Stats.1959, ch.2015, § 1, p. 4655.)   In 1963, the Legislature enacted section 25373, granting essentially the same powers to county governments.  (Stats.1963, ch. 987, § 1, p. 2249.)

Pursuant to sections 25373 and 37361, dozens of California cities and counties enacted ordinances for the protection of historically and aesthetically valuable structures within their jurisdictions.   These ordinances have since been utilized to designate scores of historic districts and hundreds of landmarks, including structures owned by religious organizations.

In 1993, the Legislature amended sections 25373 and 37361 to provide a temporary exemption from historic landmark designation for noncommercial property owned by religious organizations.  (Stats.1993, ch. 419, §§ 1, 2.) The following year, this exemption was made permanent by the enactment of AB 133.  (Stats.1994, ch. 1199;  hereafter AB 133.)   AB 133 added subdivisions (d) and (e) to section 25373, which now reads:

(a) The board of supervisors may acquire property for the preservation or development of a historical landmark.   The board of supervisors may also acquire property for development for recreational purposes and for development of facilities in connection therewith.

(b) The board may, by ordinance, provide special conditions or regulations for the protection, enhancement, perpetuation, or use of places, sites, buildings, structures, works of art and other objects having a special character or special historical or aesthetic interest or value.   These special conditions and regulations may include appropriate and reasonable control of the appearance of neighboring private property within public view.

(c) Until January 1, 1995, subdivision (b) shall not apply to noncommercial property owned by a religiously affiliated association or corporation not organized for private profit, whether incorporated as a religious or public benefit corporation, unless the owner of the property does not object to its application.   Nothing in this subdivision shall be construed to infringe on the authority of the board of supervisors to enforce special conditions and regulations on any property designated prior to January 1, 1994.

(d) Subdivision (b) shall not apply to noncommercial property owned by any association or corporation that is religiously affiliated and not organized for private profit, whether the corporation is organized as a religious corporation, or as a public benefit corporation, provided that both of the following occur:

(1) The association or corporation objects to the application of the subdivision to its property.

(2) The association or corporation determines in a public forum that it will suffer substantial hardship, which is likely to deprive the association or corporation of economic return on its property, the reasonable use of its property, or the appropriate use of its property in the furtherance of its religious mission, if the application is approved.

(e) Nothing in this subdivision shall be construed to infringe on the authority of any legislative body to enforce special conditions and regulations on any property designated prior to January 1, 1994, or to authorize any legislative body to override the determination made pursuant to paragraph (2) of subdivision (d).

Section 37361, as amended, reads substantially the same, except that the text of subdivisions (c) and (d) of section 25373, has been combined in section 37361 as subdivision (c).1

Plaintiffs are the City and County of San Francisco and various private, nonprofit organizations concerned with the preservation of historic landmarks throughout the state.   They initiated this action against the state seeking a declaration that AB 133 is unconstitutional.   Plaintiffs' complaint alleges, principally, that AB 133 violates the state and federal establishment clauses and equal protection guaranties and the state constitutional prohibition against delegating municipal functions to private persons or entities.  (Cal. Const., art.   XI, § 11.)

The parties filed cross-motions for summary judgment.   The court granted plaintiffs' motion and denied that of the state.   The court concluded AB 133 violates the state and federal establishment clauses and is an unconstitutional delegation of governmental powers to private entities.   The court entered judgment declaring AB 133 unconstitutional and enjoining the state from enforcing sections 25373 and 37361 as amended by AB 133.

II

 The First Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment (Everson v. Board of Education of Ewing Tp. (1946) 330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711, 719), forbids any laws “respecting an establishment of religion, or prohibiting the free exercise thereof.”   The establishment clause of the First Amendment prohibits such government action as “sponsorship, financial support, and active involvement of the sovereign in religious activity.”  (Walz v. Tax Commission of the City of New York (1970) 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697, 701.)   The free exercise clause prohibits government from compelling one to do or refrain from doing that which is forbidden or compelled by one's religion.  (School Dist. of Abington Tp., Pa. v. Schempp (1963) 374 U.S. 203, 222-223, 83 S.Ct. 1560, 1571-1572, 10 L.Ed.2d 844, 858.)

Courts have struggled to chart a neutral course between the two religion clauses, “both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.”   (Walz v. Tax Commission of the City of New York, supra, 397 U.S. at pp. 668-669, 90 S.Ct. at pp. 1411-1412, 25 L.Ed.2d at p. 701.)   A conflict may arise, for example, where a neutral, generally applicable law nevertheless impairs the free exercise of religion.   If this impairment is severe, the free exercise clause may be implicated.  (See Hobbie v. Unemployment Appeals Comm'n of Florida (1987) 480 U.S. 136, 146, 107 S.Ct. 1046, 1052, 94 L.Ed.2d 190, 200;  Wisconsin v. Yoder (1972) 406 U.S. 205, 220, 92 S.Ct. 1526, 1535, 32 L.Ed.2d 15, 27.)   Yet the grant of a religious exemption from the ordinary requirements of such a law may, if overly generous, be subject to attack under the establishment clause.  (See Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1, 17-18, 109 S.Ct. 890, 900-901, 103 L.Ed.2d 1, 15.)

In recent years, establishment clause jurisprudence has drifted far from its historic moorings.   As Justice Scalia remarked:  “Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions.”  (Lee v. Weisman (1992) 505 U.S. 577, 644, 112 S.Ct. 2649, 2685, 120 L.Ed.2d 467, 517 (dis. opn. of Scalia, J.).) 2  The establishment clause we necessarily apply to this controversy is the product of decades of judicial exegesis.

 “Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.  [Citations.]”  (School Dist. of Grand Rapids v. Ball (1985) 473 U.S. 373, 385, 105 S.Ct. 3216, 3223, 87 L.Ed.2d 267, 278.)  “[G]overnment may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’  [Citations.]”  (Lee v. Weisman, supra, 505 U.S. at p. 587, 112 S.Ct. at p. 2655, 120 L.Ed.2d at pp. 480-481.)

 In addition to requiring neutrality in respect to religious faiths, the establishment clause protects the right to choose no religion at all.   (Wallace v. Jaffree, supra, 472 U.S. at p. 53, 105 S.Ct. at p. 2487, 86 L.Ed.2d at p. 41.)   These protections derive from a basic interest in respecting individual freedom of conscience, including tolerance of the “disbeliever and the uncertain,” and a conviction that religious beliefs worthy of respect are the product of free and voluntary choice.  (472 U.S. at pp. 53-54, 105 S.Ct. at pp. 2487-2488, 86 L.Ed.2d at pp. 41-42.)

 In Lemon v. Kurtzman (1971) 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745, 755 (Lemon ), the federal high court established three criteria which must be satisfied to avoid conflict with the establishment clause:  (1) the challenged government activity must have a secular purpose;  (2) the principal or primary effect of the activity must be one that neither advances nor inhibits religion;  and (3) the activity must not foster excessive government entanglements with religion.

Under the first criterion, inquiry into the purpose of the challenged government action should be deferential and limited.   If the government articulates a plausible secular purpose, this should be accepted absent a contrary showing by the challenger.  (Wallace v. Jaffree, supra, 472 U.S. at pp. 74-75, 105 S.Ct. at pp. 2499-2500, 86 L.Ed.2d at pp. 55-56 (conc. opn. of O'Connor, J.).)

 Whereas the first criterion of the Lemon test involves a determination whether the purpose behind the challenged action is to endorse or disapprove religion, the second or “effect” criterion “asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.”  (Lynch v. Donnelly (1984) 465 U.S. 668, 690, 104 S.Ct. 1355, 1368, 79 L.Ed.2d 604, 621 (conc. opn. of O'Connor, J.).)   Applying an objective standard, the question becomes whether the challenged action is sufficiently likely to be perceived by reasonable adherents of the controlling religion as an endorsement, or by reasonable nonadherents as a disapproval, of their individual religious choices.  (School Dist. of Grand Rapids v. Ball, supra, 473 U.S. at p. 390, 105 S.Ct. at p. 3226, 87 L.Ed.2d at p. 281.)

The third criterion of the Lemon test is concerned with entanglement with religion and contemplates a determination whether the state will be required to monitor the challenged government activity for its religious content in order to assure that it does not have the unintended effect of encouraging or discouraging religion.   In Lemon, for example, the plaintiffs challenged the use of public funds to support teachers of secular subjects in parochial schools.   The court held the state supervision necessary to ensure those teachers are not using public financial assistance to convey religious messages constitutes excessive state entanglement with religion.  (403 U.S. at p. 619, 91 S.Ct. at p. 2114, 29 L.Ed.2d at p. 759.) 3  In Larkin v. Grendel's Den, Inc. (1982) 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297, the plaintiff challenged a state law prohibiting issuance of an alcoholic beverage license within 500 feet of a church or school if the governing board of the church or school objects.   The court concluded this statute “enmeshes churches in the exercise of substantial governmental powers” in violation of the establishment clause (459 U.S. at p. 126, 103 S.Ct. at p. 511, 74 L.Ed.2d at pp. 306-307) by “substitut[ing] the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body” (459 U.S. at p. 127, 103 S.Ct. at p. 512, 74 L.Ed.2d at p. 307).

It cannot reasonably be argued the purpose of AB 133 is strictly secular.   The amendments to sections 25373 and 37361 apply only to “any association or corporation that is religiously affiliated and not organized for private profit, whether the corporation is organized as a religious corporation, or as a public benefit corporation.”  (§§ 25373, subd. (d), 37361, subd. (c).)  The amendments provide an exemption from historic preservation laws for the noncommercial property of such entities for the express purpose, as stated in the uncodified portion of AB 133, of “ensur[ing] the protection of religious freedom guaranteed by Section 4 of Article I of the California Constitution, and by the First Amendment to the United States Constitution.”  (Stats.1994, ch. 1199, § 3.)

In Duffy v. State Personnel Board (1991) 232 Cal.App.3d 1, 283 Cal.Rptr. 622 (Duffy ), this court questioned the efficacy of the Lemon test in situations where, as here, government action is “intended to equalize religious burdens or otherwise to advance free exercise values.”  (232 Cal.App.3d at p. 11, 283 Cal.Rptr. 622.)  Duffy involved a Department of Corrections requirement that applicants for the position of Catholic Chaplain be “an ‘[o]rdained priest, duly accredited by and in good standing with the Roman Catholic Church.’ ”  (232 Cal.App.3d at p. 6, 283 Cal.Rptr. 622.) We indicated that in such circumstances “[a] rigid application of the Lemontest is particularly inappropriate” inasmuch as “[l]egislation exempting religious observers from generally applicable government obligations would seldom, if ever, pass the ‘purpose’ and ‘effects' [criteria] of the Lemon test since by definition, such legislation has a religious purpose and effect in promoting the free exercise of religion.  [Citation.]”  (Duffy, supra, 232 Cal.App.3d at p. 11, 283 Cal.Rptr. 622.)

 In Duffy, we applied instead a modified test suggested by Justice O'Connor in her concurring opinion in Wallace v. Jaffree, supra, 472 U.S. 38 , 105 S.Ct. 2479, 86 L.Ed.2d 29, which calls for a merger of the purpose and effects criteria of Lemon.   After acknowledging that the challenged government action has the effect of advancing religion, the question becomes whether the action unjustifiably assists religious organizations or merely accommodates free exercise.  (Duffy, supra, 232 Cal.App.3d at p. 11, 283 Cal.Rptr. 622.)  “Under this approach, the ‘purpose’ inquiry does not stand as an independent test, capable of striking down government acts on its own.   Rather, it is an additional, subordinate index of unconstitutionality.   To ascertain whether the statute conveys a message of endorsement, the relevant issue is how it would be perceived by an objective observer, acquainted with the text, history, and implementation of the government act.  [Citation.]”  (232 Cal.App.3d at pp. 11-12, 283 Cal.Rptr. 622;  accord, Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1727-1728, 19 Cal.Rptr.2d 625 [state law requiring a prima facie showing before a litigant may seek punitive damages from a religious corporation].)

 Whether the test suggested by Justice O'Connor in Wallace v. Jaffree, supra, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 and endorsed by this court in Duffy is really an analytic improvement on the three-part test of Lemon, the fact remains neither test is intended to be applied rigidly.   Both tests act only as useful guides for our analysis.  (See School Dist. of Grand Rapids v. Ball, supra, 473 U.S. at p. 383, 105 S.Ct. at p. 3222, 87 L.Ed.2d at p. 276.)

Under the Lemon test, the requirement of a secular purpose “does not mean that the law's purpose must be unrelated to religion.”  (Corporation of Presiding Bishop v. Amos (1987) 483 U.S. 327, 335, 107 S.Ct. 2862, 2868, 97 L.Ed.2d 273, 282.)   The state is not required to maintain a “callous indifference” toward religion.   To do so would amount to preferring those who believe in no religion over those who believe in religion.  (See Zorach v. Clauson (1952) 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954, 962;  Duffy v. State Personnel Bd., supra, 232 Cal.App.3d at p. 14, 283 Cal.Rptr. 622.)   Rather, “when Government activities touch on the religious sphere, they must be secular in purpose, evenhanded in operation, and neutral in primary impact.  [Citations.]”  (Gillette v. United States (1971) 401 U.S. 437, 450, 91 S.Ct. 828, 836, 28 L.Ed.2d 168, 181.)   The establishment and free exercise clauses essentially require a “benevolent neutrality” which will permit religious exercise to exist without sponsorship or interference.   (Walz v. Tax Commission of the City of New York, supra, 397 U.S. at p. 669, 90 S.Ct. at p. 1411, 25 L.Ed.2d at p. 702.)

It is undisputed the alleviation of significant governmental interference with the free exercise of religion is a legitimate purpose within the meaning of the Lemon test.  (See Corporation of Presiding Bishop v. Amos, supra, 483 U.S. at p. 335, 107 S.Ct. at p. 2868, 97 L.Ed.2d at p. 283.)   Plaintiffs nevertheless argue the operation of AB 133 does not bear out its stated purpose of protecting religious freedom because the application of landmark preservation laws to religious properties does not in fact impede religious expression.   Absent a free exercise basis for preferential treatment of religious organizations, plaintiffs argue, AB 133 has the impermissible effect of endorsing religion.

In Sherbert v. Verner (1963) 374 U.S. 398, 403, 406, 83 S.Ct. 1790, 1793, 1795, 10 L.Ed.2d 965, 970, 972, the federal high court held government action which substantially burdens a religious practice must be justified by a compelling interest.   In that case, the court concluded the state's refusal to pay unemployment compensation to a Seventh-Day Adventist discharged for refusing to work on Saturday substantially burdened her free exercise rights.   The court indicated the state's interest in preserving the unemployment compensation fund from fraudulent claims is not compelling.  (374 U.S. at pp. 407-408, 83 S.Ct. pp. 1795-1796, 10 L.Ed.2d at pp. 972-973.)

In Employment Div., Dept. of Human Resources of Oregon v. Smith (1990) 494 U.S. 872, 884-885, 110 S.Ct. 1595, 1603-1604, 108 L.Ed.2d 876, 889-890, the court concluded the compelling interest test of Sherbert v. Verner is inapplicable to claims that criminal laws of general application infringe on the free exercise of religion.  Smith involved a claim by two members of the Native American Church who were fired from their jobs as drug rehabilitation counselors because of their ingestion of peyote and were denied unemployment compensation benefits.   The court explained:  “The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.’   To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is ‘compelling’-permitting him, by virtue of his beliefs, ‘to become a law unto himself,’-contradicts both constitutional tradition and common sense.”  (494 U.S. at p. 885, 110 S.Ct. at p. 1603, 108 L.Ed.2d at pp. 889-890, citations and footnote omitted.)   The court nevertheless suggested the Sherbert v. Verner test may have continued vitality where the state has in place a system of exemptions to the generally applicable law, in which case the state may not refuse to extend an exemption to religious entities without a compelling interest.  (494 U.S. at p. 884, 110 S.Ct. at p. 1603, 108 L.Ed.2d at p. 889.) 4

A number of courts have considered whether application of a landmark preservation ordinance to church facilities violates the church's free exercise rights.   In Rector, Wardens and Members of the Vestry of St. Bartholomew's Church v. City of New York (2d Cir.1990) 914 F.2d 348, a church organization was denied permission to replace a seven-story building adjacent to the church with a much larger office tower.   Both the church and the adjacent building had been designated historic landmarks under a local preservation law.   The federal court of appeals denied the church relief, finding no free exercise violation under the circumstances because the church failed to demonstrate it was unable to carry out its religious mission using the existing, seven-story building.  (914 F.2d at pp. 355-356.)   Although not directly stated, the court apparently determined the landmark preservation statute did not impose a substantial burden on free exercise.   According to the court, landmark preservation laws are comparable to zoning laws, which consistently pass constitutional muster.  (914 F.2d at p. 355;  see Euclid v. Ambler Realty Co. (1926) 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303.)

In Keeler v. Mayor & City Council of Cumberland (D.Md.1996) 940 F.Supp. 879, a church was denied permission to demolish a monastery and chapel located in a historic preservation district and to build a smaller, more modern facility.   The monastery and chapel were a financial drain on the church's resources.   The federal district court granted summary judgment to the church, concluding application of the landmark preservation law under the circumstances violated the church's free exercise rights.   While characterizing the landmark preservation ordinance as a neutral, generally applicable law within the meaning of Employment Div., Dept. of Human Resources of Oregon v. Smith, supra, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, the court refused to apply the standard articulated in that case because the law provided for exemptions.   According to the court, the city was required to present a compelling reason for refusing to extend an exemption to religious organizations and historic preservation is not such a compelling justification.  (940 F.Supp. at p. 886.)

The Washington Supreme Court reached a similar conclusion in First Covenant Church of Seattle v. Seattle (Wash.1992) 120 Wash.2d 203, 840 P.2d 174.   There, the court held the Employment Div., Dept. of Human Resources of Oregon v. Smith, supra, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, standard inapplicable both because the landmark preservation law contained a system of exemptions and because the plaintiff's claim encompassed both free exercise and free speech concerns.   According to the court, the church building itself is an expression of religious belief entitled to protection.  (840 P.2d at p. 182;  accord First United Methodist Church of Seattle v. Hearing Examiner (Wash.1996) 129 Wash.2d 238, 916 P.2d 374, 381 [“United Methodist has demonstrated that the Landmarks Preservation Ordinance, SMC 25.12, severely burdens free exercise of religion because it impedes United Methodist from selling its property and using the proceeds to advance its religious mission.”].)

Even if we were to conclude, as plaintiffs argue, that sections 25373 and 37361, without the exemption provided by AB 133, do not in fact implicate free expression, this would not resolve the matter.   In Walz v. Tax Commission of the City of New York, supra, 397 U.S. at p. 673, 90 S.Ct. at p. 1413, 25 L.Ed.2d at p. 704, the court explained:  “The limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.”   The court reiterated this point in Corporation of Presiding Bishop v. Amos, supra, 483 U.S. at p. 334, 107 S.Ct. at p. 2867, 97 L.Ed.2d at p. 282.)   In Employment Div., Dept. of Human Resources of Oregon v. Smith, supra, 494 U.S. at p. 890, 110 S.Ct. at p. 1606, 108 L.Ed.2d at p. 893, the court stated:  “[T]o say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required․”   In other words, actual interference with free exercise is not the standard.   Government may act to alleviate a burden which “can rationally be seen as posing a significant deterrent to the free exercise of religion.”  (Rowe v. Superior Court, supra, 15 Cal.App.4th at pp. 1731-1732, 19 Cal.Rptr.2d 625, fn. omitted;  contra, Duffy v. State Personnel Bd., supra, 232 Cal.App.3d at p. 12, 283 Cal.Rptr. 622 [“Before the government action can be perceived as a permissible accommodation of religion, there must in fact be an identifiable burden on the exercise of religion that can be said to be lifted by government action.”].)

The state may lawfully act to reduce a burden on the religious freedom of those within its jurisdiction, especially where the burden is one imposed by the state itself.   In doing so the state is not restricted to instances where an actual burden on religious freedom exists.   Between intrusion prohibited by the free exercise clause and assistance prohibited by the establishment clause, the state must have room to maneuver.   In this instance, given uncertainty over whether local historic preservation laws adopted pursuant to sections 25373 and 37361 would impinge upon the free exercise rights of religious entities, the state could rationally conclude action was necessary to avert a free exercise claim.

The exemption provided by AB 133 does not constitute an endorsement of religion.   Although the exemption is limited to non-profit religiously affiliated organizations, it does no more than facilitate the efforts of those organizations to advance their own purposes.   In Corporation of Presiding Bishop v. Amos, supra, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273, the court upheld an exemption from the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) for religious employers.   A building engineer employed at a not-for-profit gymnasium operated by the Church of Jesus Christ of Latter-Day Saints was discharged for failing to certify he was a member of the Church.   He brought an action against the Church under the Civil Rights Act claiming religious discrimination.

Regarding the effects criterion of the Lemon test, the court explained:  “A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose.   For a law to have forbidden ‘effects' under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence.”  (483 U.S. at p. 337, 107 S.Ct. at p. 2869, 97 L.Ed.2d at p. 283, italics in original.)   The court continued:  “[W]e find no persuasive evidence in the record before us that the Church's ability to propagate its religious doctrine through the Gymnasium is any greater now than it was prior to the passage of the Civil Rights Act in 1964.   In such circumstances, we do not see how any advancement of religion achieved by the Gymnasium can be fairly attributed to the Government, as opposed to the Church.”  (483 U.S. at p. 337, 107 S.Ct. at p. 2869, 97 L.Ed.2d at p. 284, fn. omitted.)

Similarly, there is nothing to suggest a religious organization's ability to advance its purposes is any greater by virtue of AB 133 than it was before the historic preservation statutes were enacted.   The exemption provided by AB 133 merely restores to religious organizations the power to utilize noncommercial property which they enjoyed before sections 25373 and 37361 were enacted.   The State has not assisted religious organizations but has merely stepped out of their way.

Nor does AB 133 benefit religious organizations at the expense of others.   In Texas Monthly, Inc. v. Bullock, supra, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1, the federal high court struck down a religious exemption from state sales and use taxes.   Although a majority of the court could not agree on a particular rationale, five members agreed an exemption limited only to religious materials, and not also encompassing other materials of an educational or charitable nature, could not pass constitutional muster.  (489 U.S. at pp. 15-16, 109 S.Ct. at pp. 899-900, 103 L.Ed.2d at pp. 13-14 and pp. 28-29, 109 S.Ct. at pp. 906-907, 103 L.Ed.2d at p. 22 (concurring opinion of Blackmun, J.).)   Such a limited exemption, according to the plurality, conveys a message of endorsement inasmuch as “[e]very tax exemption constitutes a subsidy that affects nonqualifying taxpayers, forcing them to become ‘indirect and vicarious “donors.” ’  [Citations.]”  (489 U.S. at p. 14, 109 S.Ct. at p. 899, 103 L.Ed.2d at p. 13.)

In Estate of Thornton v. Caldor, Inc. (1985) 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557, a state law prohibited an employer from forcing an employee to work on the day designated by that employee as his Sabbath.   The court concluded such a law violated the establishment clause because, in addition to benefiting Sabbath observers, the law had a primary effect of burdening employers and other employees who were forced to work in place of the Sabbath observers.  (472 U.S. at pp. 709-710, 105 S.Ct. at 2917-2918, 86 L.Ed.2d at p. 563.)

By contrast, in Rowe v. Superior Court, supra, 15 Cal.App.4th 1711, 19 Cal.Rptr.2d 625, the Court of Appeal upheld a state law requiring a litigant to present a prima facie case before being permitted to pursue punitive damages against a religious organization.   In finding the law did not amount to an endorsement of religion, the court explained:  “[T]he requirement of such a showing does not burden nonbeneficiaries markedly [nor] compel participation in religious observances or endorse religious ideas or tenets.   Unlike a tax exemption for religious organizations, which has the effect of making the tax burden greater for those not exempt, or a requirement that employers accommodate the schedules of religiously observant employees, section 425.14 imposes no burden upon defendants that are not religious organizations.   Such defendants must respond to frivolous, as well as potentially meritorious, punitive damage claims, whether the same requirement applies to religious organizations or not.”  (15 Cal.App.4th at p. 1733, 19 Cal.Rptr.2d 625, citations omitted.)

Here, too, the exemption from historic preservation laws for religious organizations has no adverse effect on secular entities.   Those entities are subject to landmark preservation laws in any event, and there is no reason to believe their burden is enhanced by the unavailability of non-commercial religious structures for landmark designation.

AB 133 also satisfies the entanglement criterion of the Lemon test.   In assessing the extent of church-state entanglement created by a legislative scheme, we consider “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.”  (Lemon v. Kurtzman, supra, 403 U.S. at p. 615, 91 S.Ct. at p. 2112, 29 L.Ed.2d at p. 757.)   Only entanglements which are “excessive” run afoul of the establishment clause.  (Agostini v. Felton, supra, 521 U.S. at pp. 232-233, 117 S.Ct. 1997, 138 L.Ed.2d at p. 420.)

Rather than entangling government in the determination of religious matters, AB 133 delegates to religious organizations the task of determining whether to invoke the exemption.   Sections 25373 and 37361, as amended by AB 133, provide an exemption if the religious organization “objects” and “determines in a public forum that it will suffer substantial hardship, which is likely to deprive [it] of economic return on its property, the reasonable use of its property, or the appropriate use of its property in the furtherance of its religious mission.”  (§§ 25373, subd. (d)(2), 37361, subd. (c).)  The decision of the religious organization in this regard is not thereafter subject to review by the governmental entity.  (§§ 25373, subd. (e), 37361, subd. (e).)

In Larkin v. Grendel's Den, supra, 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297, the federal high court found an Establishment Clause violation in a state statute prohibiting issuance of an alcoholic beverage license within 500 feet of a church or school if the governing board of the church or school objects.   The court found the statute violated both the effects and entanglements criteria of the Lemon test.   The effects criterion was implicated because the statute introduced the possibility of discriminatory application by religious entities, who might favor liquor licenses issued to members of the church over those issued to non-members, and because “the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred.”  (459 U.S. at pp. 125-126, 103 S.Ct. at p. 511, 74 L.Ed.2d at p. 306.)   The court also concluded the delegation of substantial governmental authority to religious entities effectively entangled those entities in state business.  (459 U.S. at pp. 126-127, 103 S.Ct. at 511-512, 74 L.Ed.2d at pp. 306-307.)

The present matter is distinguishable from Larkin v. Grendel's Den in that AB 133 only restores to religious organizations the power to affect their own interests.   AB 133 essentially grants religious organizations an exemption from landmark preservation laws, to the extent their interests are adversely affected, but with an option to forego the exemption if they so choose.

Had AB 133 simply created a blanket exemption for the noncommercial property of religious organizations, there could be no concern with church-state entanglement.  (See Corporation of Presiding Bishop v. Amos, supra, 483 U.S. at p. 339, 107 S.Ct. at p. 2870, 97 L.Ed.2d at p. 285.)   This would effect a complete separation of church and state.   In our view, this is not changed by the fact that resort to the exemption is within the discretion of the religious organization.   If anything, the requirement that such organization object and decide in a public forum if it will be adversely affected introduces additional free exercise burdens which are antithetical to an establishment of religion.  (Cf. First Covenant Church of Seattle v. Seattle, supra, 840 P.2d at p. 183.)

In Duffy v. State Personnel Bd., supra, 232 Cal.App.3d 1, 283 Cal.Rptr. 622, we found no entanglement in a State Department of Corrections' requirement that an applicant for the position of Catholic Chaplain be “an ‘[o]rdained priest, duly accredited by and in good standing with the Roman Catholic Church.’ ”  (232 Cal.App.3d at p. 6, 283 Cal.Rptr. 622.) Rather than finding an entanglement of church and state in the delegation to the Catholic Church of the power to decide who is qualified to be a state prison chaplain, we suggested:  “If the state were to determine the theological and ecclesiastical qualifications for a person to act as a Roman Catholic priest in the state prison system, it would be engaging in the type of doctrinal entanglement with religion that the establishment clause ․ prohibit[s].”  (232 Cal.App.3d at p. 19, 283 Cal.Rptr. 622.)

Similarly, if the State were to retain the function of deciding whether the exemption provided by AB 133 shall be applied in a given case because the historic preservation designation deprives the religious organization of “the appropriate use of its property in the furtherance of its religious mission” (§§ 25373, subd. (d)(2), 37361, subd. (c)(2)), this would arguably create an entanglement of church and state prohibited by the establishment clause.   Rather, AB 133 delegates this function to the religious organizations themselves.   In our view, AB 133 does not create an entanglement of church and state but rather places a unilateral burden on religious organizations to justify their exemption.   AB 133 does not violate the federal establishment clause.

III

 Article I, section 4 of the State Constitution contains both a free exercise clause-“Free exercise and enjoyment of religion without discrimination or preference are guaranteed”-and an establishment clause-“The Legislature shall make no law respecting an establishment of religion.”   Relying on two California Supreme Court decisions, Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 150 Cal.Rptr. 867, 587 P.2d 663 (Fox ) and Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863, 281 Cal.Rptr. 34, 809 P.2d 809 (Sands ), plaintiffs contend these provisions afford greater protection than their federal counterparts.

In Fox, the court stated:  “The California Constitution, like the United States Constitution, does not merely proscribe an establishment of religion.   Rather, all laws ‘respecting an establishment of religion’ are forbidden.  [Italics original.]   The California Constitution also guarantees that religion shall be freely exercised and enjoyed ‘without discrimination or preference.’   Preference thus is forbidden even when there is no discrimination.   The current interpretations of the United States Constitution may not be that comprehensive.”  (Fox, supra, 22 Cal.3d at p. 796, 150 Cal.Rptr. 867, 587 P.2d 663.)   In Fox, the court invalidated a city practice of illuminating a cross on the city hall during Christmas and Easter holidays.

In Sands, the court upheld an injunction against a school district's use of prayers at graduation ceremonies.   A plurality of the court noted:  “The Attorney General of this state has observed that ‘[i]t would be difficult to imagine a more sweeping statement of the principle of governmental impartiality in the field of religion’ than that found in the ‘no preference’ clause (25 Ops.Cal.Atty.Gen. 316, 319 (1955)), and California courts have interpreted the clause as being more protective of the principle of separation than the federal guarantee (Fox v. City of Los Angeles, supra, 22 Cal.3d 792, 150 Cal.Rptr. 867, 587 P.2d 663).”  (Sands, supra, 53 Cal.3d at p. 883, 281 Cal.Rptr. 34, 809 P.2d 809.)

The present dispute concerns the establishment clause rather than the free exercise clause.   It is the latter which contains the “no preference” language.   Furthermore, notwithstanding the statement of the plurality in Sands, the Fox court did not interpret the California religious freedom clauses more broadly than those of the federal Constitution.   The court merely suggested the federal clauses may be less protective.   There is nothing in either Fox or Sands to suggest the court actually applied a different standard than that applicable to federal claims.   On the contrary, the Fox court relied specifically on federal authorities.

California Courts must independently determine the scope of provisions of the State Constitution.  (Cal. Const., art.   I, § 24;  Sands, 53 Cal.3d at p. 883, 281 Cal.Rptr. 34, 809 P.2d 809.)   However, their scope need not be different from comparable federal provisions.   As we explained in Duffy v. State Personnel Bd., supra, 232 Cal.App.3d at p. 9, 283 Cal.Rptr. 622:  “When appropriate we may interpret rights set forth in our Constitution by a different standard than that applicable to similarly worded clauses in the federal Constitution so long as those rights extend equal or greater protection to those guaranteed by the federal Constitution.  [Citation.]”   Plaintiffs have suggested neither a different standard for evaluating a state establishment clause claim nor any reason why a different standard is appropriate here.

 Plaintiffs suggest further protection is provided by virtue of article XVI, section 5 of the State Constitution, which reads:  “Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose․”   This provision prohibits both financial aid and other types of assistance.  (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 605, fn. 12, 116 Cal.Rptr. 361, 526 P.2d 513.)   However, it does not prohibit “indirect, remote, and incidental state benefits which have a primary public purpose.  [Citation.]”   (Lucas Valley Homeowners Assn. v. County of Marin (1991) 233 Cal.App.3d 130, 146, 284 Cal.Rptr. 427.)

As previously explained, AB 133 does not confer government assistance upon religious organizations.   Rather, it eliminates a burden imposed by government.   AB 133 merely permits religious organizations to assist themselves.   For the same reasons we reject plaintiffs' establishment clause claim under the federal Constitution, we reject their claims based on the religious freedom clauses of the California Constitution.

IV

 The trial court concluded AB 133 violates article XI, section 11, subdivision (a) of the State Constitution, which reads:  “The Legislature may not delegate to a private person or body power to ․ perform municipal functions.”   Although primarily intended as a check on legislative interference with local financial affairs, this provision extends to other forms of interference as well.  (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 500, 96 Cal.Rptr. 553, 487 P.2d 1193.)   However, such interference must relate to “ ‘purely local matters.’ ”  (Ibid.) Delegations of power have been upheld “ ‘if they either fulfill a more than local purpose, under the “larger municipality” doctrine, or promote a “statewide purpose.” ’  [Citation.]”  (Ibid.) 5

Plaintiffs contend landmark preservation has been a matter of local concern since 1959, when the Legislature first delegated power over it to the cities.   Assuming for purposes of argument that plaintiffs are correct, it nevertheless cannot reasonably be doubted the protection of religious freedom is more than a local concern.  (Accord First Covenant Church of Seattle v. Seattle, supra, 840 P.2d at p. 187.)   As previously described, religious freedom is expressly safeguarded by both the State and federal constitutions.   Hence, article XI, section 11 has no applicability to this case.

 Plaintiffs further contend AB 133 violates a more fundamental principle against delegation of legislative powers grounded in the concept of separation of powers.   They argue AB 133 delegates legislative powers to private entities without sufficient safeguards to ensure fulfillment of the legislative scheme.

Plaintiffs did not include a claim in their complaint based on the foregoing principle.   Their unlawful delegation claim, the third cause of action, is based solely on article XI, section 11 of the State Constitution.  “The pleadings define the issues to be considered on a motion for summary judgment.  [Citation.]”  (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252, 38 Cal.Rptr.2d 65.)   A defendant seeking summary judgment need only negate the claims as framed by the complaint.  (Ibid.)

At any rate, AB 133 does not delegate legislative powers to private parties.   Religious organizations have been given no authority to designate or regulate properties to be preserved as landmarks.   As previously explained, AB 133 merely exempts from landmark designation the noncommercial property of religious organizations to the extent such entities conclude they are adversely affected and choose not to be covered.   No safeguards to protect the legislative scheme are provided in AB 133 because none is required.   The Legislature has made a policy decision, founded on concerns about the free exercise of religion, to exempt noncommercial property of religious organizations from landmark preservation laws.   The only decision left to the religious organizations is whether to avail themselves of the exemption.6

V

Plaintiffs' final contention concerns the state and federal equal protection clauses.   They argue no rational basis exists for granting an exemption from historic preservation laws exclusively to religious organizations.

The State argues plaintiffs' equal protection argument has been waived for failure to appeal the trial court's rejection of it.   According to the State, plaintiffs were obliged to file a cross-appeal in order to preserve the issue.

The underlying premise of the State's argument is incorrect.   The trial court did not reject plaintiffs' equal protection argument.   In its order granting plaintiffs' motion for summary judgment, the court indicated:  “Plaintiffs are entitled to summary judgment granting declaratory and injunctive relief, and Defendants are not entitled to summary judgment, as a matter of law for the following reasons, among others [.]”  (Italics added.)   Although the court did not thereafter list equal protection as a ground for its ruling, it did not foreclose such a basis.

“ ‘[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.’ ”  (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 267, 147 Cal.Rptr. 1.)   We will uphold a summary judgment if properly granted on any ground, regardless of the trial court's reasoning.  (Troche v. Daley (1990) 217 Cal.App.3d 403, 407-408, 266 Cal.Rptr. 34.)   We therefore address plaintiffs' equal protection argument.

 Laws discriminating among religious sects are subject to strict scrutiny.  (Larson v. Valente (1982) 456 U.S. 228, 246, 102 S.Ct. 1673, 1684, 72 L.Ed.2d 33, 49.)   However, strict scrutiny is inapplicable to a statute which “is neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion.”   (Corporation of Presiding Bishop v. Amos, supra, 483 U.S. at p. 339, 107 S.Ct. at p. 2870, 97 L.Ed.2d at p. 285.)   The proper inquiry in such a case is whether the distinction drawn is rationally related to the stated purpose.   (Ibid.)

 AB 133 is rationally related to its declared purpose of eliminating any interference with the free exercise of religion occasioned by local historic preservation laws.   Notwithstanding that such preservation laws may not in fact interfere with the free exercise of religion in a given case, the Legislature could rationally conclude such interference was a possibility and take steps to avoid it.   Plaintiffs' equal protection argument is without merit.

VI

The judgment is reversed and the matter remanded to the trial court with directions to vacate the order granting and to deny plaintiff's motion for summary judgment;  and to grant the state's motion for summary judgment and enter judgment accordingly.   The state shall recover its costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.   Section 37361 contains no subdivision (d).   The designation of the subdivision immediately following subdivision (c) as subdivision (e) is obviously a draftsman's error.   Subdivision (e) of section 37361 provides:  “[n]othing in this subdivision shall be construed to infringe on the authority of any legislative body to enforce special conditions and regulations on any property designated prior to January 1, 1994, or to authorize any legislative body to override the determination made pursuant to paragraph (2) of subdivision (d)[sic ].”  The reference to “paragraph (2) of subdivision (d)” is a misnomer and should be “paragraph (2) of subdivision (c).”

2.   Professor Tribe has observed:  “A growing body of evidence suggests that the Framers principally intended the establishment clause to perform two functions:  to protect state religious establishments from national displacement, and to prevent the national government from aiding some but not all religions.   Although the Court in 1947 ‘incorporated’ the establishment clause against the states through the fourteenth amendment, additional evidence suggests that the amendment's authors did not intend to extend the religion clauses to the states.”  (American Const.   Law (2d ed.1988) 1161, fns. omitted.)In his dissent in Wallace v. Jaffree, Justice Rehnquist noted that much Establishment Clause confusion stems from a letter written by Thomas Jefferson in which he explains the First Amendment builds a “wall of separation” between church and State:  “It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.”   (Wallace v. Jaffree (1985) 472 U.S. 38, 91-92, 105 S.Ct. 2479, 2507-2508, 86 L.Ed.2d 29, 66 (dis. opn. of Rehnquist, J.).)

3.   In his dissent in Aguilar v. Felton (1985) 473 U.S. 402, 420-421, 105 S.Ct. 3232, 3242-3243, 87 L.Ed.2d 290, 305, overruled by Agostini v. Felton (1997) 521 U.S. 203, ----, 117 S.Ct. 1997, 2014, 138 L.Ed.2d 391, 420, Justice Rehnquist pointed out the “ ‘Catch-22’ ” paradox of the effect and entanglement prongs of the Lemon test whereby government financial assistance must be supervised to ensure it does not have the unintended effect of endorsing or discouraging religion yet this required supervision results in excessive entanglement with religion.

4.   In response to Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 Congress enacted the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.;   RFRA), which purported to restore the Sherbert v. Verner compelling interest test in all cases where the free exercise of religion is substantially burdened.  (42 U.S.C. § 2000bb, subd. (b).)  However, in City of Boerne v. Flores (1997) 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624, the federal high court struck down the RFRA as beyond the power of Congress to legislate under the Fourteenth Amendment.

5.   The “larger municipalities” doctrine excludes from the reach of article XI, section 11 those state agencies or commissions whose responsibilities extend beyond the boundaries of a municipality or county.  (Daniel Smith, San Francisco Bay:  Regional Regulation for it's Protection and Development (1967) 55 Cal.L.Rev. 728, 762-763;  e.g., People v. City of Los Angeles (1960) 179 Cal.App.2d 558, 565-566, 4 Cal.Rptr. 531 [delegation to State Highway Commission of power to appropriate local park land for highway use].)

6.   Having so concluded, we necessarily reject plaintiffs' Political Reform Act of 1974 argument.   AB 133 does not delegate to religious organizations governmental powers in which they have a personal stake.   The only powers held by private entities as a result of AB 133 are powers over their own property, powers which they enjoyed prior to the enactment of sections 25373 and 37361.   For the same reason, we need not address the parties' arguments regarding the sufficiency of such terms as “noncommercial,” “religiously affiliated” and “public forum” to define or circumscribe the powers delegated to private entities.   Inasmuch as no governmental powers have been delegated, no further delineation is necessary.We also need not address the parties' arguments regarding the availability of judicial review of a religious organization's decision to utilize the exemption provided by AB 133.   The availability of judicial review has no bearing on the issues presented in this matter.   There being no delegation of governmental powers to a private party, there is no occasion to consider whether the exercise of such powers must be subject to judicial review.Finally, we need not address the state's argument that if the procedures for determining whether the religious exemption is applicable are unconstitutional, they may be severed from the remainder of sections 25373 and 37361.

PUGLIA, J.* FN* Retired Presiding Justice, Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

BLEASE, Acting P.J., and DAVIS, J., concur.

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