Third Church brings civil rights lawsuit

The Third Church of Christ Scientist, which occupies a now-landmarked Brutalist modern building on 16th Street, has brought a civil rights lawsuit against the city after having their raze application denied by HPRB last month. According to the Post article, “the church says the landmark designation violates the First Amendment by limiting its ability to freely practice religion.”

One way or another, the church is going to win. But a court victory would be the worst outcome for DC and for historic preservation in general. As I’ve argued before, I don’t believe churches deserve special treatment in historic preservation. Instead, any owner of this building ought to be able to replace it. It’s ugly, interacts badly with the street, is expensive to heat, difficult to maintain, dark, and unwelcoming. The problem isn’t that it’s a church; it’s that it’s a bad building.

A court decision for the church could set precedent regarding other churches. What happens when a church wants to tear down a row house to build a parking lot to accommodate their religious worship? The Becket Fund is salivating at this opportunity to find a test case for RLUIPA which is very sympathetic to their side. Judges are human, and emotional arguments sway them in close decisions. It’ll be hard for a judge to side with preservationists on this awful building and against the sweet congregation members.

The church told community members that after the HPRB, they would pursue an appeal to the Mayor’s Agent, but (unless the press coverage is misleading) it doesn’t look like they are doing that. Maybe the church believes the Mayor’s Agent won’t accept their appeal, or maybe they simply want to help the Becket Fund make a larger point.

Either way, Dupont Circle ANC Commissioner Mike Silverstein made a good point in the Raw Fisher column:

The city should be careful what it wishes for in this case. This civil rights challenge, he said, has the potential to do for the District’s ability to regulate churches what the recent Supreme Court ruling did to the city’s authority over guns…blow it away altogether.

Many of my lawyer friends thought DC’s pursuit of the gun lawsuit was foolish. After losing the circuit appeal, they could have tried to change the law to something less absolute. Instead, they shot the moon at the Supreme Court and now there’s an individual right to bear arms that didn’t definitively exist before. Gun control is worse off becasuse of DC’s actions. If they’re not smarter this time, we could end up with a general right of churches to ignore historic preservation. And that outcome would be far worse, even for the most ardent preservationist, than simply giving in on this one, scarcely historic building.