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'Historic' building versus religious rights

A Christian Science congregation in Washington wants to build a new structure, but preservationists are resisting.

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"We have offered to meet with them on numerous occasions and are more than willing to entertain opportunities for the site," says Rebecca Miller, executive director of the D.C. Preservation League.

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The church sits on property owned by ICG Properties, which proposes including a smaller church on the land along with an office building. The fortresslike design has been controversial from the start, among architects and the public. A neighborhood commission voted unanimously to support the church's desire to rebuild.

The suit to overturn the landmark decision is one of the first under RLUIPA dealing with historic preservation.

"Even though these disputes are astonishingly common, they frequently get negotiated privately ... or get settled by the church tearing the building down before it is landmarked," says Julia Vitullo-Martin, a senior fellow at the Manhattan Institute, a market-oriented think tank in New York. St. Bartholomew's in New York, however, lost an 11-year battle over its community house in 1991.

The D.C. case is particularly interesting because the building doesn't fit the traditional "historic" category and because the congregation says it doesn't reflect its theology, Ms. Vitullo-Martin says. "Making the claim that the Brutalism of the architecture is at odds with their theology is an unusual First Amendment claim."

Yet it's far from certain the church can win in the courts, legal experts say. While there are no litigated historic preservation cases under RLUIPA, there are prior cases under other religious freedom laws.

"I find the church's claim very sympathetic, but courts have been fairly skeptical about claims that a congregation is 'substantially burdened,'" says Robert Tuttle, professor of law at George Washington University. As a technical phrase, that means "the restriction makes the religious activity effectively impracticable."

The courts tend to say, he adds, that if there are alternative uses for the structure, the church could use it as it is or go elsewhere and build another however it likes.

That is not what Third Church has in mind. It has worshiped in downtown locations within blocks of the White House since 1918. (Originally, the congregation met in a building shared with the National Woman's Party on Lafayette Square.) Although they've already spent more than $100,000 "out of the collection plate," the members are staying with their case, says Mr. Kirkpatrick. "No one wants to leave the corner [of 16th and I Streets] and our downtown mission since 1918."

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