Churches and Eminent Domain:

In this recent Findlaw column, Cardozo Law School Professor Marci Hamilton criticizes Senator Ted Kennedy's proposal to give church property special protection against condemnation.

I agree with Prof. Hamilton's bottom-line conclusion: that church property should not be given greater protection against takings than other property owners enjoy. I also tentatively agree that Kennedy's proposal may violate the Establishment Clause, though this issue is really outside my area of expertise.

However, I think Hamilton is mistaken in her claim that church property is not unusually vulnerable to "economic development" condemnations of the sort that the U.S. Supreme Court upheld in Kelo v. City of New London. To support her claim that "there is no real issue when it comes to churches and eminent domain," Hamilton relies on an excellent forthcoming article by Notre Dame law professor Nicole Garnett. Hamilton claims that the Garnett article proves that local governments usually try to avoid condemning churches because of the likelihood of strong political opposition.

However, the relevant part of the article (pp. 13-23) proves no such thing. It focuses principally on the city of Chicago's retreat from efforts to condemn Catholic churches in the 1950s and 60s. The Catholic Church is well-organized for political mobilization and lobbying and had extensive political connections in Chicago at the time, as Garnett notes. Moreover, as Garnett also points out, Catholics were a majority of Chicago voters at the time, and area Catholics had a very strong commitment to their local parish churches. The fact that a politically powerful church to which the majority of local voters belonged was able to resist condemnation politically does not mean that churches with less political clout will be equally successful. Similarly, the fact that Bill Gates' mansion or George W. Bush's ranch is unlikely to be condemned does not mean homeowners in general are not vulnerable to takings - particularly those who are poor or politically weak. Even the Catholic Church has sometimes been victimized by condemnation in areas where it is less politically influential than it was in 1950s Chicago. For example, numerous Catholic churches were condemned in the notorious 1981 Poletown case, which resulted in the forcible displacment of some 4000 people in order to build a new factory for GM.

The Becket Fund for Religious Liberty Amicus Brief in Kelo cites numerous cases where church property has indeed been targeted for condemnation, almost always in places where the denomination in question was less politically powerful than the Catholic Church in 1950s Chicago. It also explains why church property is unusually vulnerable to economic development condemnations that seek to increase economic growth or raise tax revenue:

Because religious institutions are overwhelmingly non-profit and tax-exempt, they will generate less in tax revenues than virtually any proposed commercial or residential use. Accordingly, when a municipality considers what properties should be included under condemnation plans designed to increase for-profit development and increase taxable properties, the non-profit, tax-exempt property of religious institutions will by definition always qualify and always be vulnerable to seizure.

Politically influential churches will usually be able to force the government to desist, but the politically weak are unlikely to be so fortunate.

Ultimately, I believe that the best way to prevent targeting of churches for condemnation is to limit the power of eminent domain more generally, by abolishing "economic development" takings. Alternatively, states could give heightened protection to religious and secular nonprofit institutions alike. The meeting place of a secular civic group or, for that matter, that of an atheist organization, is no less worthy of protection than are churches. This approach would reduce the special vulnerability of church property without raising the sorts of Establishment Clause concerns that bedevil Ted Kennedy's proposal. But we should not ignore the evidence that churches (at least those belonging to politically weak denominations) are indeed vulnerable to economic development takings.

NOTE: I have followed Prof. Hamilton in using the word "church" as a synonym for all property owned by religious organizations, including non-Christian ones. Obviously, houses of worship belonging to religious minorities are no less vulnerable than Christian ones, and in some cases more so, if the minority in question is locally unpopular.

Dick King:
If houses of worship become exempt from takings, people will declare their houses to be houses of worship in ad hoc religions.

8.23.2006 5:26pm
Tracy Johnson (www):
This summer I visited the Lutheran church in Springfield Illinois located on the grounds of the Abraham Lincoln house. (We were researching ancestors.)

In addition to the ancestor info, the pastor gave us a free tour. It turns out the Church sits on federal property (park land) for the Abraham Lincoln home. She told us there a stipulation (or agreement, I can't recall,) that the church may continue to function as long as it has a congregation.

Also as a side benefit, the church is protected from the regular panhandlers in the area because the sidewalk is also park land and such activity is shooed off by the Park Rangers (probably a federal offense too.)
8.23.2006 6:16pm
Joe Jackson:
The Beckett Fund also filed a brief in the recent Ohio case, Norwood v. Horney:

The brief includes numerous examples of Kelo-style takings from religious institutions.
8.23.2006 6:38pm
Gabriel Malor (mail):
There is some body of work indicating that religious institutions already have some constitutional protection from eminent domain takings. Also, RLUIPA and derivative state statutes also serve to protect churches. I encourage you to check out

Shelley Ross Saxer, Eminent Domain Actions Targeting First Amendment Land Uses, 69 Mo. L. Rev. 653 (2004)

for more info.

A lexis search wouldn't hurt, either.
8.23.2006 6:46pm
I thought I was against eminent domain for economic development. Then I moved to downtown Denver, where slum- and absentee landlords have caused a gaping hole in an otherwise much-improved Convention Center-Downtown area. Screw those guys. Take their dilapidated, hobo/drug/crime infested buildings and make them into a glittering yuppie shopping mall. That's what I say.
8.23.2006 7:02pm
Houston Lawyer:
I would be happy if the local government would enforce property restrictions on churches that apply to other property owners. A long-abandoned church burned about 20 months ago in my neighborhood. It had long since become a crack house and burned on the coldest day of the year. It was a two-story brick structure and the fire left it too dangerous to enter.

As the wrecking crane was approaching the building, my congresswoman Sheila Jackson-Lee intervened. City money was spent to shore up the building, and it has been sitting there ever since full of half-burned debris.

Some churches deserve to go and I don't see why a church's property should be above the law.
8.23.2006 7:06pm
Randy R. (mail):
I agree with the above posters, with the caveat that any church of historic or architectureal significance should be spared. I don't care who owns it, as long as they don't tear down the beauties that we have. and they tend to sit in inner cities, and in poor areas.
8.23.2006 7:11pm
Gabriel Malor (mail):
Seriously, folks, takings actions can often infringe on free exercise activities. Stopping such infringements is not "above the law", Houston Laywer. Rather the Constitution prohibits that activity.
8.23.2006 7:16pm
This should be obvious but what developers are really after is the land under the building and its potential to generate income. For inner cities (such as Chicago) what may have been blighted area a few short years ago and not generating much tax revenue can now suddenly be hot property for any number of reasons. While I am somewhat sympathetic to Randy R's argument above, I say the if that parcel of land that this beautiful church sits on can be better put to some other use, to the benefit of all, tear it down.
8.23.2006 7:30pm
DenverAtty: The situation you portray in downtown Denver is answerable if the City is able to declare those buildings as "blight." The Kelo decision, and the issue with churches raised by Ilya, is not based upon the blighted nature of the existing development - and blight was identified as sufficient reason for government use of eminent domain in the Supreme Court's Berman v. Parker decision of 1954, even if the land condemned is later transferred to private property owners.

Ilya had a good post recently on the issues with "blight" designations, and how some loosely written state laws can allow local governments to declare virtually any property as "blighted." But, I am assuming that even Ilya would not object to the condemnation of truly blighted properties based upon a strict definition. Am I correct, Professor Somin?
8.23.2006 8:07pm
An interesting recent case was Cottonwood Christian Center v. Cypress Redevelopment Agency, a California District Court decision.

Another factor, raised in that case and others, is the Religious Land Use and Institutionalized Persons Act, known quaintly as RLUIPA. It raises additional bars to condemnation of religious institutions, although perhaps not quite as many as some of the proponents of the statute envisioned.
8.23.2006 8:17pm
Randy R. (mail):
BT: And I fear for any society that so cavalierly rips apart its history just to make a buck, and tears down beauty just to put up yet another banal shopping arena. Does everything have to be reduced to how much money it generates?
The irony of course is that the fact that architectural tourism CAN actually generate economic development that is far more lasting than yet another Gap or Banana Republic. We CAN have both, and many places that have torn down their architectural beauties wish that they didn't.
To leave things as they are is actually the conservative viewpoint anyway, isn't it?
8.24.2006 1:00am
Randy R. (mail):
I realize this is a bit off point, but I have a fav story to tell. Here in Washington, there is the New York Ave. Presbyterian Church. It's this horrible monstrosity built prominantly at the apex of a triagular interesection in the heart of downtown DC.
There once was a much nicer church, built in the 1850s. It was small, but quite charming. It served its purposes for over 100 years. Then, in the 1950s, the church merged with another congregation, and suddenly the church was too small. So they did the obvious -- they tore down the charming church, and built the monstrosity.
Now, guess what white folk were doing in the 50s and 60s? They promptly moved out to the suburbs. By the 70s, the congregation shrunck so much it could hardly keep up on the expenses. They eventually became an urban church servicing office workers, and they limp along somewhat successfully.

The irony? Had they kept their small charming church, it would be just big enough to handle their current needs. So sometimes, you have to prevent developers and owners of historic properties from tearing down old buildings, because it's in their own best interests!
8.24.2006 1:06am