NOT LONG AFTER the Civil War, a Catholic missionary named Emil Fleury arrived in Boerne to build a church. Then, as now, Borne was an attractive little town about thirty miles northwest of San Antonio, pleasantly situated on Cibolo Creek with good farmland and excellent hunting nearby. Its founders were German families who had fled the revolutions and persecutions in Europe in the mid-nineteenth century. They were an independent, strong-willed lot whose descendants are prominent in the town even today. Enough of them were free thinkers, members of a progressive movement of the era that was suspicous of churches and organized religion, that Father Fleury was forced to build his church, St. Peter the Apostle, on a hill that was then just outside the town. Today, 120 years later, St. Peter’s is in contention with the city of Boerne once again. This little local dispute has hardened and dragged on until, to the surprise of everyone involved, it will soon be argued before the Supreme Court of the United States. The court will be asked to resolve a rather odd question: Can historicad preservation limit religious freedom? The church Father Fleury built—a small limesone box with a slanted roof—still stands on that hill today. It’s sweet, but unlovely and unremarkable. Next to it stands a much larger church, built in 1923; Father Fleury, then eighty years old, helped lay the cornerstone. This church has a facade of twin towers and is a loose replica of Mission Concepción in San Antonio. It’s attractive enough on the outside simply because it looks much older than it really is. On the inside, the architecture of St. Peter’s is ordinary at best. The only glimmer of charm comes from two stained-glass windows high in the sanctuary. But its real shortcoming is that it is too small. St. Peter’s holds only 200 people while the parish has grown to 1,050 families. Each Sunday, worshippers must be turned away or diverted to a gymnasium nearby.
About six years ago, the church decided to expand. After much discussion, plans were made to preserve the original facade but to tear down the rest of the church and build a new, larger church behind the twin towers. The new church would be made of native wood and stone, just like the old one, and would be similar in style, The congregation approved the plan with a big majority, and there were pledges for more than enough money. All there was left was to get a building permit. St. Peter’s asked Boerne’s Landmark Commission to approve a permit, but in February 1994 the commision said no. A few weeks later, the city council also said no. St. Peter’s sued.
Boerne is not used to the national attention that comes with a Supreme Court case. In Historic Images of Boerne, Texas, a chronicle of life in the town, local author Garland A. Perry covered 25 years in a single sentence: “There were no events of earth shaking importance between 1950 and 1975.” Since then—although this might not be described as earth shaking either—Boerne has been slowly changing from an essentially rural town to a community that threatens to become essentially suburban. Large housing developments, invisible from the road, lurk among the Hill Country trees. Since the town lies close to Interstate 10, a Boerne resident can get to work in north or west San Antonio faster than from many neighborhoods in San Antonio itself and yet still live something akin to life in the country. The suburban migration caused the inconvenient growth of St. Peter’s parish.
Boerne is also a popular destination for short trips. Hunters arrive each fall; all year round, weekenders and day-trippers come to stroll about the pleasant old buildings or search for just the right table or chest of drawers in the row of antique stores along Main Street. Mayor Patrick Heath, who once owned a bakery, said that half of his business came from out-of-towners. Thus, both suburban homeowners, who want to preserve the atmosphere that attracted them to the community, and local business owners, who want to preserve their revenue from tourists, have a strong personal interest in maintaining Boerne’s quaint charm.
And preserve they have. True, there is a gas station as well as a few other modern eyesores amid the old buildings along Main Street, but no more atrocities will be built. They crept in before Boerne passed a preservation ordinance that created a Historic District and a Landmark Commission to approve and police construction, demolition, and renovation within the district. Under this ordinance, the city refused the church’s building permit and refused to budge. As Mayor Heath says, “The city has stood its ground because it adheres to the standards the people’s elected representatives have established. In this case that means the protection of our cultural heritage.”
The Historic District includes everything within a certain number of feet on either side of Main Street. As it happens, only the twin towers and the facade of St. Peter’s were originally in the district. Since the remainder of the building was outside, the church believed it was completely within its rights and in compliance with the law by preserving the towers and the facade while destroying the rest of the old building to build a new one. But the Landmark Commission maintained that if any part of the building was inside the district, then the whole building was inside; it then changed the boundaries to include the whole church. The fact that the church’s proposed addition is attractive makes no difference. “The criteria used,” the ordinance states, “shall not be the aesthetic appeal to the Landmark Commission of the structure or the proposed remodeling, but rather its conformity to the general character of the Historic District.” The commission or the city council could have ruled that the church expansion did indeed conform to the “general character” of the Historic District. As the architect’s model of the addition shows, that would not be an unreasonable conclusion at all. But that’s not what the commission did.
The church, for its part, is frustrated by this insistence on preservation. Preservation of what? No one claims the church is a structure of great beauty. It has little or no important historical significance and is not even 75 years old. Father Tony Cummins, the parish priest, has a small metal plaque nailed near the door to his office. It echoes Garland Perry: “On this site in 1897 nothing happened.”
Having lost the local political battle, the church embarked on a legal fight. the suit has several aspects, but the one that interests the Supreme Court is St. Peter’s claim that the city, by preventing the building of a larger church, is restricting the freedom of religion. St. Peter’s is the only Catholic church in Boerne—the next-closest one is ten miles away—and St. Peter’s is too small for its growing congregation. Here the church’s strongest ally in the law is the Religious Freedom Restoration Act of 1993 (RFRA). It is intended to apply to just such cases as this, where a law that is apparently religiously neutal unintentionally places a burden on a church. Under RFRA the government is allowed to burden a church only when there is a “compelling governmental interest” in doing so and when the law in question is the “least restrictive means of furthering that compelling governmental interest.” Only three governmental interests have been found to be compelling without question: racial equality in education, collection of revenue (wouldn’t you know!), and national security. Zoning, preserving a community’s cultural heritage, and preserving the general character of a historical district probably do not qualify.
With RFRA in place, the church ought to win. The town will argue that RFRA is unconstitutional because Congress, which passed the law in the wake of a court decision, went beyond its power and violated states’ rights. The church will argue that RFRA is necessary for maintaining the constitutional protection of religious freedom.
In this case, I am sympathetic to St. Peter’s. The proposed addition is no burden on anyone, and in my opinion, won’t do any harm to the aesthetics of the town. The solution would be for the town to grant the building permit after all and save everyone a lot of trouble. But that is in the past—what should have happened. Now the question is, What is the law of the land? When it comes to the law, I am not so sympathetic to the church’s position.
People have strong religious beliefs. They are protected by the First Amendment and further protected by the RFRA. However, people also have beliefs that are not religious but no less strong. It may sound like a stretch to say that historical preservation is a stong belief. But belief in a certain kind of life in a certin kind of neighborhood is something many rightly hold dear, and historical preservaion arises naturally from that. Near my house, an expansionist church cut an ugly swath through a formerly peaceful and attractive neighborhood. A non-religious institution would not have been allowed to do it. Why should a church hold a RFRA-like trump card over the lives and property of its neighbors?
No one’s religious belief is being challenged or restricted in this case, and no one is questioning, as they did 130 years ago, the presence of a large Catholic church somewhere in town. The question is only whether the larger church should be right there on that hill. If St. Peter’s had not been a church but an old store whose owners now wanted to tear down to build a shopping mall on the same site, there would be no First Amendment issue here. I don’t agree with the Landmark Commission’s decision, but it is the legal authority. In its eyes the harm is the same whether the building is an inappropriate church or an innapropriate shopping center. A decision to expand is a practical decision, even though the decision was made by a church, and a practical decision is no more sacred and should be no more protected by the Constiution than historic preservation.