(concurring) — I agree with the majority's conclusion that application of the Seattle Landmarks Preservation Ordinance (Seattle Municipal Code (SMC) 25.12) to the First Covenant Church of Seattle violates the first amendment to the United States Constitution and article 1, section 11 of the Washington State Constitution. The majority persuasively demonstrates that the United States Supreme Court's opinion in Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) does not compel a different result. Nonetheless, I write separately to emphasize certain facts which require this result and to set forth federal and state constitutional standards we should apply in future cases.
*231I
The majority correctly concludes that Smith is not controlling here because Seattle's Landmarks Preservation Ordinance (the Ordinance) is not a neutral, generally applicable law, and because its application to First Covenant Church of Seattle (hereinafter First Covenant or the Church) impacts other constitutionally protected rights. There are other reasons why the Ordinance is not generally applicable.
The Ordinance applies to an object, site or improvement which is more than 25 years old and has "significant character, interest or value, as part of the development, heritage or cultural characteristics of the City, state, or nation . . .." SMC 25.12.350. The standards for designation are highly subjective. They invite "individualized governmental assessment." Smith, at 884. The Landmarks Preservation Ordinance is not similar to an "across-the-board criminal prohibition". Smith, at 884. The process for landmark designation also indicates it is not generally applicable. Potential landmarks are individually nominated and studied to determine their consistency with the eligibility criteria. SMC 25.12-.370, .420. After public hearings and negotiation with the owner, the city council enacts a designation ordinance with site-specific controls. SMC 25.12.420, .490, .650, .660. Landmark designation is a very specialized, individual determination. As amicus Christian Legal Society so aptly put it: "What is worth preserving, like art, is in the eyes of the beholder. . .." Brief of Amicus Christian Legal Society, at 11.
The dissent ignores the fact that enforcement of criminal and tax laws does not involve such individual, subjective value judgments by governmental officials. This is evident when one compares the Seattle Landmarks Preservation Ordinance with those laws which the Court has approved as applied to religious entities. The Oregon ordinance at issue in Smith simply banned possession of a controlled substance except when prescribed by a medical practitioner. Smith, at 874 (citing Or. Rev. Stat. § 475.992(4) (1987)). In Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, *232381, 107 L. Ed. 2d 796, 110 S. Ct. 688, 691 (1990), the Court considered whether application of a California sales tax which required retailers to pay a tax " '[f]or the privilege of selling tangible personal property at retail . . .'" to the sale of religious merchandise violated the First Amendment. Neither of these statutes required a governmental entity to assess things such as the significance of character, interest or value. There was little possibility that an unscrupulous governmental official could use these statutes to discriminate against religion.
Only the Second Circuit, in Rector, Wardens, & Members of Vestry of St. Bartholomew's Church v. New York, 914 F.2d 348 (2d Cir. 1990), cert. denied, 499 U.S. 905 (1991), has concluded that a landmark ordinance was generally applicable for First Amendment purposes. The majority factually distinguishes St. Bartholomew's. Majority, at 214-16. I also cannot agree with the legal analysis in St. Bartholomew's. Even though the New York landmarks law gave the Landmarks Commission great discretion, the court concluded that it was a generally applicable regulation. 914 F.2d at 354-55. It noted that the United States Supreme Court has upheld landmark laws against claims that they are discriminatory or "reverse spot" zoning. 914 F.2d at 355 (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 132, 57 L. Ed. 2d 631, 98 S. Ct. 2646, 2663 (1978). It assumed that because New York City's landmarks law was not discriminatory or "reverse spot" zoning, it was also generally applicable within the meaning of Smith.
The Second Circuit's analysis is incorrect. Simply because landmark designations may not be arbitrary enough to be reverse spot zoning, it does not necessarily follow that landmark laws are generally applicable where First Amendment rights are also affected. More is at stake here than the investment-backed expectations at issue in the takings context. Penn Central, 438 U.S. at 124, 98 S. Ct. at 2659. In Penn Central, the Court considered whether application of *233New York City's Landmarks Preservation Law to Grand Central Terminal had "taken" its owners' property in violation of the Fifth and Fourteenth Amendments. As the majority correctly notes, the Church's First Amendment rights to free exercise and free speech are also implicated. Majority, at 216-17. While we might tolerate such broad governmental discretion where only a takings issue is involved, it does not follow that we should allow it when other liberties, such as free exercise of religion and free speech, are also affected.
Therefore, the majority correctly concludes that Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) is distinguishable because, among other reasons, the Ordinance is not generally applicable. Thus, the majority properly places the burden on the City to demonstrate a compelling interest in landmark preservation. It has failed to do so.
II
The application of the Ordinance to First Covenant's church is unconstitutional for two reasons. First, as indicated by the majority, it impacts the expression of religious beliefs. Majority, at 216-17. Second, it substantially interferes with the carrying out of the Church's religious or charitable purpose by substantially diminishing the value of its principal asset.
Although financial burdens on religious entities do not constitute a per se free exercise violation, the United States Supreme Court has indicated that an onerous financial burden can violate the First Amendment. Swaggart, at 392. The financial impact on First Covenant's principal asset, its chinch, is severe and was not disputed at the trial court level. The Church's uncontroverted affidavit stated that landmark designation reduced the value of the property from $700,000 to $400,000. Clerk's Papers, at 345-46. Affidavit of John Paul Rea. The dissent's assertion that this is a disputed fact is incorrect.
*234We have previously found financial burdens on churches may raise free exercise issues. In Sumner v. First Baptist Church, 97 Wn.2d 1, 639 P.2d 1358 (1982), we held that the application of a building code ordinance to a church school presented a free exercise claim. Here the magnitude of the financial burden is severe enough to persuade me that landmark designation violates the Church's right to free exercise.
For future cases, I still believe we should require a specific showing of hardship to justify exemption from land use restrictions. We should follow New York's courts by requiring a landmark designation not prevent or seriously interfere with the carrying out of a church's religious and charitable purposes. See First Covenant Church v. Seattle, 114 Wn.2d 392, 415-16, 787 P.2d 1352 (1990) (Utter, J., concurring), cert. granted, judgment vacated and remanded, 499 U.S. 901 (1991).
Ill
The factors we outlined in State v. Gunwall, 106 Wn.2d 54, 59, 720 P.2d 808, 76 A.L.R.4th 517 (1986) support the majority's conclusion that Const, art. 1, § 11 guarantees greater religious freedom than its federal counterpart. I differ, however, with the majority's analysis once it has concluded Const, art. 1, § 11 provides greater protection. It does not devote enough attention to the unique language of our state constitution. Instead, after concluding that the Gun-wall factors indicate Const, art. 1, § 11 contains broader protection than the federal constitution, it largely reverts to the use of terms used in federal First Amendment jurisprudence, such as "compelling state interest" and "least restrictive" means. Majority, at 226-28. Unlike the majority, I would devote more attention to the rich language of Const, art. 1, § 11. A truly independent state constitutional discourse cannot occur if we resort solely to federal jurisprudence in defining rights protected under our state constitution. See Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 762 (1991-1992) (arguing that *235state courts have not developed a legitimate, independent, state constitutional discourse). Accordingly, I offer an alternative to the majority's analysis of Const, art. 1, § 11 which focuses on the unique text of that provision.
Const, art. 1, § 11 provides in pertinent part:
Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safely of the state.
The majority correctly notes that words such as worship, acts, and practices indicate both belief and religiously motivated conduct are protected under our state constitution. Majority, at 224. The language of Const, art. 1, § 11 indicates the drafters considered religious belief and practice to be closely related.
This was a wise decision. Religion is to some extent a communal matter. Ritual in many religions is inseparable from one's spiritual experience of faith. See Wisconsin v. Yoder, 406 U.S. 205, 220, 32 L. Ed. 2d 15, 92 S. Ct. 1526, 1535-36 (1972) (acknowledging that there are situations where religious "belief and action cannot be neatly confined in logic-tight compartments").
For two additional reasons, protection of religious liberty is stronger under Const, art. 1, § 11 than under the free exercise clause of the First Amendment. First, Const, art. 1, § 11 grants Washington citizens affirmative rights that are absolute. The free exercise clause of the First Amendment only limits government action at the point of prohibiting the exercise of religion. It provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;. . .". (Italics mine.) U.S. Const, amend. 1. Thus, the text of Const, art. 1, § 11 indicates we should start with the assumption that government may not interfere with sincerely held religious belief and religious practice.
*236Second, Const, art. 1, § 11 expressly limits the governmental interests that may outweigh the otherwise absolute right to religious liberty. Only the government's interest in peace and safety or in preventing licentious acts can excuse an imposition on religious liberty. The Minnesota Supreme Court in State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990), interpreted similar language in its state constitution15 to limit the types of governmental interests that may burden religious freedom. It contrasted the First Amendment's free exercise clause:
Conversely, the free exercise clause of the first amendment has been interpreted to allow varied government interests to justify such an imposition. See, e.g., Bowen v. Roy, 476 U.S. 693, 707, 106 S.Ct. 2147, 2156, 90 L.Ed.2d 735 (1986) (interest in avoiding case by case inquiries in administration of social security benefits outweighs religious freedom); Goldman v. Weinberger, 475 U.S. 503, 508, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (military's interest in uniformity and discipline outweighs individual's interest in wearing yarmuike).
Hershberger, at 397. Therefore, landmark designation of the church is only valid if it furthers one of the limited, countervailing governmental interests listed in Const, art. 1, § 11: preventing licentious practices or acts that are inconsistent with peace and safety in our state.
Preservation of landmarks is required under the ordinance "in the interest of the prosperity, civic pride and general welfare of the people". SMC 25.12.020. Historic preservation does not prevent licentious behavior, or ensure peace or safety. While the Ordinance has a very noble aim, it simply does not further one of the limited governmental interests that the drafters of our state constitution thought important enough to infringe on religious liberty. Under *237Const, art. 1, § 11, we need not even reach the issue of whether Seattle's interest in landmark preservation is significant. It is not the type of interest which can be furthered at the expense of religious liberty. Although my reasoning differs significantly from that of the majority, I too conclude that application of the Seattle Landmarks Preservation Ordinance to First Covenant Church violates Const, art. 1, § 11.
IV
The landmarks designation of First Covenant's church is invalid as a violation of both the first amendment to the United States Constitution and article 1, section 11 of our state constitution. Our decision restores First Covenant's freedom to express its "purpose, theology, identity, hope, unity and reverence for the divine" through the architecture of its church facilities. Carmella, Houses of Worship and Religious Liberty: Constitutional Limits to Landmark Preservation and Architectural Review, 36 Vill. L. Rev. 401, 450 (1991).
Johnson, J., concurs with Utter, J.
Article 1, section 16 of the Minnesota Constitution provides in pertinent part: "The right of every man to worship God according to the dictates of his own conscience shall never he infringed;... nor shall any control of or interference with the rights of conscience he permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state....."