Eminent Domain

Monument to Aesthetic Imperialism

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The Third Church of Christ, Scientist, at the intersection of 16th and I streets in Washington, D.C. (a few blocks north of the White House), is a hard building to like, as even its admirers admit. Designed by Araldo A. Cossutta, a former associate of I.M. Pei, the 37-year-old structure exemplifies brutalism, which Christy MacLear of the National Trust for Historic Preservation concedes is a "challenging style to defend largely because its foundation is grounded in philosophy, as opposed to aesthetics; people simply don't think it is good-looking." You can judge that for yourself. But among the people who don't much care for the church are its owners, who want to replace it with something friendlier. "This brutalist, unwelcoming, bunkerlike building is not a proper representation of our practice or our theology," says church spokesman J. Darrow Kirkpatrick.

Too bad, says Washington's Historic Preservation Review Board, which in December declared the building a landmark. Never mind the persistent mildew, the expense of heating the building and changing light bulbs in fixtures that can be reached only by scaffolding, the cavernous atmosphere of the 400-seat sanctuary, or the sheer ugliness of the exterior. The board has deemed the building historically significant, citing its "amazingly high integrity (in all respects: location, design, setting, materials, workmanship, feeling and association), down to the original carpeting and seat upholstery in the church auditorium." This sort of architectural diktat is in some respects worse than using eminent domain to transfer land from its owners to politically favored developers, since in this case there's no compensation, just or otherwise. Why collect donations from fans of brutalism, or even allocate taxpayers' money, to buy and preserve this "rare Modernist church" when you can force the current owners to maintain it as a monument to aesthetic imperialism?

Last week, with help from the Becket Fund for Religious Liberty, the church challenged the historic landmark designation in federal court, arguing that it violates the First Amendment and the Religious Land Use and Institutionalized Persons Act. Since the Supreme Court has said that "neutral laws of general applicability" do not violate the Constitution's guarantee of religious freedom even if they ban a religion's central rite, the First Amendment argument probably won't succeed. The statutory argument looks more promising: The law cited by the Christian Scientists says a land use regulation that imposes "a substantial burden" on religious freedom is permissible only if it's the "least restrictive means" of serving "a compelling governmental interest." Much hinges on whether preserving the church building counts as a compelling interest; the plaintiffs should hope the case is not heard by a brutalism booster.

A better approach would be to recognize the restrictions that accompany historic landmark designations as a kind of "taking" for "public use" that requires "just compensation" under the Fifth Amendment. If taxpayers were compelled to pay for the maintenance of modernist monstrosities, they might start to object, and this safeguard would protect property owners regardless of their religious beliefs. In 1978 the Supreme Court rejected the argument that the designation of New York City's Grand Central Terminal as a historic landmark qualified as a taking, but that was before a string of cases in the 1980s and '90s establishing that land use regulations, if severe enough, can amount to a taking. The Christian Scientists might not fare very well under those precedents, since they still have use of their church. Yet it's clear the government has taken something of considerable value from them, allegedly for the benefit of the general public. Even assuming that historic landmark laws are justified in principle, why should the church alone bear the burden of its building's forced preservation?

Brian Doherty noted the dispute over the church's future back in December.