Battle Over Saving Old Church Building Goes To High Court

BOERNE, Texas - The Rev. Anthony Cummins wanted to build a bigger St. Peter the Apostle Catholic Church, but the town of Boerne stopped him.

Boerne Mayor Patrick Heath wanted to save the existing 74-year-old church under a historic-preservation ordinance, but a congressional law frustrated him.

Now Father Cummins and Mayor Heath find themselves in the middle of a constitutional conflict.

These leaders of a bedroom community 30 miles northwest of San Antonio are headed to the Supreme Court in a case with major ramifications for religious liberty, congressional authority and judicial power.

The high-court justices will hear arguments Wednesday on the Religious Freedom Restoration Act. Approved by Congress in 1993, the law makes it harder for state and city governments to restrict certain church-related activities - in this case denying the church a demolition permit for an old building.

The Supreme Court is scheduled to rule by July.

The case "will make a tremendous amount of difference in church life in the United States," said Father Cummins, who holds Sunday Mass in a neighboring senior-citizens center because the existing church is too cramped.

Heath, a former Methodist minister who opened a Boerne bakery in 1980, said the act lets religious groups disregard certain state and local laws, like those designed to preserve a city's heritage.

"Everybody's subject to the law, and there aren't any special exemptions to obeying the law," Heath said.

Father Cummins, a native of Ireland assigned to Boerne in 1990, said the city is denying members of his growing parish the right to worship in a church of its choice. The church has offered to preserve the existing twin bell towers and front facade but would replace the 230-seat sanctuary with one that can accommodate 750 worshipers.

"We deserve to be able to build a structure that enhances the experience of a person with faith," Father Cummins said.

City officials said the new church would dwarf the grand old building, destroying the historic ambience that communities have a right to protect.

"Part of that sense of community is our sense of history," Heath said of Boerne, where Main Street is lined with 19th-century stores selling antiques. "We've worked very hard to maintain our distinctive identity as a community with a past, a present, and a future."

Seattle, Boston look to Boerne

Phillip Bell, chairman of the Historic Landmark Commission, said cities as far away as Seattle and Boston have called about the case: "We can't believe the little old city of Boerne is carrying the flag for the United States regarding this issue."

Boerne has only 5,400 residents, but it is the commercial center for an area of about 14,000 residents in the Texas Hill Country. Eight German immigrants founded the community in 1849, and Father Emil Fleury supervised construction of a small Catholic Church completed in 1867.

Shortly after World War I, a growing congregation built another, bigger St. Peter's Catholic Church next door using field stone, featuring two bell towers. Fleury laid the cornerstone for the new building in 1923, seven decades before it became the subject of a Supreme Court lawsuit.

The city refused St. Peter's request for a demolition permit in 1993. P.F. Flores, the archbishop of San Antonio, responded with a lawsuit based on the Religious Freedom Restoration Act.

U.S. District Judge Lucius Bunton III initially declared the act unconstitutional. But the 5th U.S. Circuit Court of Appeals in New Orleans upheld it. The Supreme Court agreed in October to resolve the dispute.

In arguing their case, Heath and attorneys for Boerne employ language already used by the Supreme Court. In 1990, the justices ruled that Oregon could enforce drug laws even against Native Americans who used peyote during religious ceremonies.

In a departure from previous rulings, the court reasoned that governments can prohibit certain religious practices, provided that the laws in question are applied equally to everybody. Previously, the court had demanded that governments give a "compelling" reason for interfering with religious practice.

Religious organizations condemned the easier government standard, saying it threatens minority or offbeat religions. They went to Congress, which responded with the Religious Freedom Restoration Act.

The new law re-established the requirement that governments provide a "compelling" reason for actions that affect religion. It also triggered a legal question that may well decide whether St. Peter's can replace its old church: Can Congress substitute its legal judgment for that of the Supreme Court?

"This case really raises a fundamental issue of who interprets the Constitution: the courts or Congress," said Douglas Kmiec, a professor at the University of Notre Dame Law School.

A town divided

The Supreme Court's decision on the act will not necessarily decide the fate of St. Peter's Catholic Church. It will only decide whether the congressional law can be used during a trial of the case that has already divided the town.

Sue Marvin, planting pansies and snapdragons on the balcony of her Country Spirit Restaurant, said no one wants to deny the parish a bigger facility. But the old church means just as much to the town's non-Catholics.

"It's beautiful in its own handmade way," Marvin said.

Steve Espelage, meanwhile, said he and other church members are tired of attending Mass in the Rainbow Center for senior citizens - a former church gymnasium.

"You look around, and there's a basketball hoop," Espelage said. "It just doesn't have the aesthetics a church has."