Property Rights, Eminent Domain, and the “Ground Zero Mosque”

A few conservative commentators have advocated using the power of eminent domain to take the land on which the “Ground Zero mosque” is scheduled to be built (see here and here). The idea seems to have originated with New York Republican gubernatorial candidate Carl Paladino.

Legally, such a taking wouldn’t be as simple as Paladino seems to think. If New York state government tries to condemn the land in question, it will have to either admit that the true purpose is to prevent the construction of a Muslim facility, or concoct some other rationale to hide its motives. If the government is honest about its purposes, the proposed taking would almost certainly violate the owners’ First Amendment rights to freedom of speech and religion, for reasons senior Conspirator Eugene Volokh outlines here.

If, on the other hand, the government tries to put together an alternative justification for the condemnation, it runs into a different problem. Even under the otherwise highly permissive Kelo decision, the Supreme Court has said that “pretextual” takings (condemnations where the officially stated purpose is just a pretext for some other agenda) are forbidden. What exactly counts as a “pretextual” taking after Kelo is a matter of great dispute, one that has divided lower courts (see this excellent article by Daniel Kelly for the details). Nonetheless, there is a good chance that a transparent effort to cloak an effort to suppress unpopular speech or religious observances in some construction project would be viewed with suspicion by courts.

The state government could reduce the risk of having the taking declared pretextual if it condemned the entire area around Ground Zero and turned it into some sort of memorial. This is essentially what the federal government has done with the area around the site where Flight 93 crashed in Pennsylvania. In that event, it would be far more difficult to argue that the official justification for the condemnation of the Muslim property was a pure pretext for getting rid of a Muslim religious facility. After all, many other owners would have lost their land as well, most of them presumably non-Muslims.

However, the area around Ground Zero is extremely valuable and contains numerous businesses and other facilities, including some that have politically influential owners. Condemning it all would be extremely costly and would give rise to enormous political opposition. It is therefore highly unlikely that the state will choose to condemn the entire area merely to get rid of the “Ground Zero Mosque” (which is actually neither a mosque nor on Ground Zero). When and if Paladino becomes governor, I doubt that even he would find such a plan to be politically palatable.

Legal issues aside, condemnation of the “Ground Zero Mosque” is a terrible idea. One of the important benefits of property rights is that they allow unpopular minority groups to express their views and live by their own values in peace. I have previously emphasized this point here, and here.

I don’t think the sponsors of the “Ground Zero Mosque” are radical Islamists or supporters of terrorism; indeed, many of the real Islamists claim that the project is a “Zionist conspiracy.” But the Cordoba Initiative leaders do have some abhorrent views on terrorism and related issues. That, however, is not sufficient reason to deprive them of their property rights. If it were, the property rights of many unpopular groups would be put at risk. As New York Mayor Michael Bloomberg puts it, “The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right.”

There is some irony in the fact that New York City Mayor Michael Bloomberg has eloquently defended the property rights of the “Ground Zero Mosque” owners even though he recently presided over gross abuses of property rights in the Atlantic Yards and Columbia University cases, among others. He strongly supported both of these extraordinarily dubious takings. Still, Bloomberg’s hypocrisy doesn’t make him any less right about the Ground Zero controversy.

UPDATE: From media accounts, it is hard to tell whether the planned Cordoba Islamic Cultural Center actually includes a mosque or not. Therefore, I may have been too quick to conclude that there is no actual mosque involved. Whether there is going to be a mosque or not perhaps depends on one’s definition of “mosque. ” As far as I can tell, the Center will have an area devoted to Muslim prayer, but that area may not amount to a full-blown mosque, just as a Christian prayer room isn’t necessarily a church. Be that as it may, none of the arguments in my post turns on the question of whether the Cultural Center will actually include a mosque or not.

UPDATE #2: The Cordoba Initiative website states that the planned facility will include “a mosque, intended to be run separately from Park51 [the planned community center] but open to and accessible to all members, visitors and our New York community.” So maybe there will be a mosque after all, though the Cordoba website isn’t very clear on the issue of exactly what that entails. In any event, as I emphasized above, the presence or absence of a mosque doesn’t make any difference with respect to the points I’m making.