Eminent Domain: Churches 'Targeted by the Bulldozers'

Jeff Johnson | Senior Staff Writer | Monday, July 18, 2005

Eminent Domain: Churches 'Targeted by the Bulldozers'

(CNSNews.com) - There is disagreement over whether the U.S. Supreme Court's recent eminent domain decision endangers the property rights of churches, synagogues and other religious institutions. Some argue that the First Amendment and existing laws may offer adequate protection, while others worry that the decision will open the door to a political assault on the property of people of faith.

The Supreme Court's Kelo v. New London ruling, could mean that "religious institutions that are, by nature, non-commercial and, by law, tax exempt, would be the first to be targeted by the bulldozers because of their alleged lack of economic contribution to the community," according to Jared Leland, media and legal counsel for the Becket Fund for Religious Liberty.

The Becket Fund filed a "friend of the court" brief in support of Susette Kelo and the other homeowners' property rights in the Kelo case. On June 23, the nation's high court expanded the definition of "public use" in eminent domain cases, ruling that the city of New London, Conn., could seize property owners' homes for private development that might generate jobs and increased tax revenue.

In her dissenting opinion, Justice Sandra Day O'Connor described the slippery slope she believes the court's majority created with its decision.

"[T]he Court today significantly expands the meaning of public use," O'Connor wrote. "It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordi\-nary private use, so long as the new use is predicted to generate some secondary benefit for the public -- such as increased tax revenue, more jobs, maybe even aesthetic pleasure."

O'Connor voiced another concern, one that resonated with groups advocating on behalf of religious rights. She warned that in expanding the definition of "public use," the majority had come close to embracing "the absurd argument that ... any church that might be replaced with a retail store ... is inherently harmful to society, and thus within the government's power to condemn."

Jay Sekulow, chief counsel for the American Center for Law and Justice, agreed with O'Connor's assessment.

"She's absolutely correct, especially since churches are, of course, tax exempt," Sekulow warned. "I think we've got a risk here that's significant."

Gary Palmer, president of the Alabama Policy Institute, told Cybercast News Service that the threat doesn't stop with the potential for taking away property a religious entity already owns.

"A church might want to purchase a property in a high-growth area and, because city planners and developers know that churches don't bring anything to the table in terms of tax revenues, I think that there's a tremendous potential for all kinds of barriers being set up to prevent a church from acquiring property," Palmer explained.

He also fears the ruling might be used to punish churches that are active in promoting political issues involving morality.

"For instance, here in Alabama," Palmer warned, "it was the churches that rallied, contributed money to the campaign but, really rallied behind defeating a lottery.

"And the churches have been the mainstay of opposition to expansion of gambling in Alabama," he continued, "so much so that one state legislator proposed that -- if churches continue to block these gambling measures that he says would bring substantial revenue to the state -- then, perhaps, they should look at taxing church property."

Leland said, however, that the Kelo decision is not as much of a "devastating blow" to religious groups' property rights as it could have been "because of the strength of the First Amendment and federal and state laws.

"An added or extra level of protection for religious institutions has been stripped away by the court," Leland said. "Nevertheless, there are some very sturdy shoulders to lean on in the First Amendment and federal law."

Palmer is not so optimistic.

"That's one court decision away from meaning nothing," he argued, adding that the same court that just expanded the definition of "public use" in the Fifth Amendment could limit the scope of the "free exercise" of religion in the First Amendment.

"Kelo is the logical progression of activist judges," Palmer continued. "Activism, by either side, undermines the rule of law and, when one side or the other starts making up new rights or denying existing rights, all the rights are undermined."

Sekulow noted that the federal law most often used to fight encroachment on a church's property rights -- the Religious Land Use and Institutionalized Persons Act (RLUIPA) -- has not been contested in the Supreme Court ... yet.

"I think it's an open-ended question right now, and we don't know how the courts are going to deal with that," Sekulow said. "[Someone is] going to test the constitutionality of RULIPA.

"I think it's important to also get state law changes in place," he added.

Lawmakers in Texas appeared to be acting on Sekulow's advice even before he gave it. State senators Wednesday passed Senate Bill 62, which would block city, county and state agencies there from taking advantage of the high court's decision.

The Becket Fund cited 10 cases in its "friend of the court" brief, in which a municipality is or was trying to seize a church's private property and give or sell it to another private entity for commercial development. Without laws such as the one proposed in Texas, Leland warned that the Kelo decision could make such attempts more common.

"One could actually argue that St. Patrick's Cathedral in New York City is in jeopardy of being seized [on behalf of], possibly, Donald Trump, who promises to increase the economic interests and generate greater tax revenue in the city," Leland said.

"Granted, that is a stretch of an example only because of the social and political implications that would have," he concluded. "But it's certainly possible under this new standard."

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