Article Title

Ministry and Mortar: Historic Preservation and the First Amendment After Barwick

Publication Title

Washington University Journal of Urban and Contemporary Law


On July 2, 1986, the New York Court of Appeals refused to exempt the Church of St. Paul and St. Andrew in New York City from the city's landmark preservation ordinance on the basis of the Free Exercise Clause of the first amendment. Although Church of St. Paul and St. Andrew v. Barwick involved a declaratory judgment action and the court based its decision on ripeness, it reaffirmed the constitutional standard for religious organizations announced six years earlier in Society for Ethical Culture v. Spatt. The court in Barwick relied on the Spatt court's holding that application of the New York City preservation ordinance to religious property was constitutional unless the law,as applied, "physically or financially prevents or seriously interferes with the charitable purpose." Thus, the Spatt court applied what was essentially a taking standard to religious groups because the court felt that preservation statutes regulated "secular activities."

In Church of St. Paul and St. Andrew v. Barwick, the court extended the Spatt holding to require a church to comply with landmark regulations even if it sought to renovate the worship building for continuing religious use. The New York Court of Appeals ruled that preservation statutes do not implicate the first amendment as long as they merely regulate church buildings and church property development. The court held that all constitutional claims by religious groups fall under the less stringent taking standard first applied in charitable, nonprofit cases. The Church of St. Paul and St. Andrew, determined to prevent what it considered unjust infringements on religious freedom, unsuccessfully appealed to the United States Supreme Court.