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.