Eminent domain: Seize a church, build a mall?

Sunday, August 7, 2005

Forget Ten Commandments displays and prisoners’ rights — the
religious-liberty issues before the Supreme Court last term. It’s “eminent
domain” that has stirred up the most reaction among religious groups.

The case — Kelo v. City of New London — involved the Fifth, not the
First, Amendment (specifically, the “takings” clause: “nor shall private
property be taken for public use, without just compensation”). But the fallout
from the Court’s ruling could have a significant impact on the free exercise of

The facts in Kelo are straightforward. The city council in New London,
Conn., wanted to use its power of eminent domain to take nine homes from their
owners in order to develop private office buildings. The proposed seizure was
part of an economic-development plan to create jobs and increase tax

On June 23, the Supreme Court ruled 5-4 that taking these homes to promote
economic growth was permissible public use under the Fifth Amendment — even
though the private property goes to another private owner.

Although the Court
has previously defined “public use” broadly as “public purpose,” the Kelo
decision expands the use of eminent domain as a means to promote economic

That’s what has some religious groups worried. With cities and counties
looking for more tax revenue, tax-exempt religious institutions are inviting
targets. According to the Becket Fund for Religious Liberty, “the power to
condemn houses of worship, soup kitchens, and homeless shelters under
Kelo is boundless.”

If you find it hard to imagine local governments seizing churches or
synagogues to build shopping malls, then consider the current zoning conflicts
involving religious institutions around the nation. Government officials are
increasingly insensitive or even hostile to houses of worship, passing
ordinances excluding them from various neighborhoods or restricting their
ability to expand.

Zoning, of course, isn’t “taking” — and attempts by governments to seize
church property are still fairly rare. But as Cottonwood Christian Center in Los
Alamitos, Calif., discovered in 2000, when local governments want more revenue,
churches are fair game. Cottonwood spent several years fighting the city’s
attempt to take church land (purchased to build a larger place of worship) and
sell it to Costco Corp. for a big store. After much litigation, the case was
finally settled last year when the church agreed to build on another piece of
property in the same area.

St. Luke’s Pentecostal Church in North Hempstead, N.Y., didn’t fare as well.
After years of worshiping in a rented basement, the congregation was finally
able to buy a piece of property where it could build a church. Through a series
of convoluted actions, the city managed to condemn the property for private
retail development. The church battled back in court only to lose its case — and
its land — in 2002.

Meanwhile, in East St. Louis, Ill., the Masjid Al-Muhajirm mosque bought land
to build a place of worship. Unfortunately for the Muslim community, a group of
developers coveted the land for a residential complex. When the mosque wouldn’t
sell, the developers persuaded the government’s development authority to condemn
the land in 1999. Although the government admitted that the purpose of the
condemnation was to transfer private land to another private party, it argued
that doing so was a valid “public use” because the land was blighted. The
Muslims won in the trial court, but lost on appeal. In 2001, the developers got
the land.

If a modest number of religious groups had problems pre-Kelo, many
more can expect property takings post-Kelo. Although the First Amendment,
federal law and public opinion still help shield houses of worship, the loss of
Fifth Amendment protection is seen by many religious leaders as a real threat to
religious freedom.

Religious groups are now joining forces with other opponents of Kelo
to support legislation on the federal and state levels that would discourage
eminent-domain abuse. (Some states already have such laws.) A bill introduced
last month by Sen. John Cornyn, R-Texas, would prohibit any government entity
that accepts federal aid for a development project from using eminent domain to
promote economic growth. Given the public backlash against Kelo, prospects for
passage could be good.

Unlike the many culture-war conflicts that divide Americans, the fear of
losing property unites people across religious and ideological lines. Justice
Sandra Day O’Connor’s dissent in Kelo — a blistering parting shot — has
already become a rallying cry for opponents of the majority decision:

“Any property may now be taken for the benefit of another private party, but
the fallout from this decision will not be random. The beneficiaries are likely
to be those citizens with disproportionate influence and power in the political
process, including large corporations and development firms. As for the victims,
the government now has license to transfer property from those with fewer
resources to those with more. The Founders cannot have intended this perverse

Charles C. Haynes is senior scholar at the First Amendment Center, 1101
Wilson Blvd., Arlington, Va. 22209. E-mail: chaynes@freedomforum.org.

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