Protecting Your Property Rights

August 1, 2005

There has been much attention focused on the Supreme Court of the United States in recent months.  But, a decision by the high court late last term received little notice a decision that could have dramatic ramifications for the religious community.

In the final days of the term ending in June, the Supreme Court issued a decision involving private property a decision that could have grave consequences for the religious community.  By a vote of 5-4, the high court gave local governments unprecedented power to take private property in whats known as the power of eminent domain.

In the decision in Kelo v. New London, the majority held that the government has the authority to take private property from one individual and give it to another private owner if it concludes that such a transfer would benefit the community through economic development.

The decision not only gives the government a green light to take private property like homes and businesses but churches and religious organizations could be in the crosshairs, too.  

The troubling decision brought a sharp response from the minority Justices Sandra Day OConnor, Antonin Scalia, Clarence Thomas, and Chief Justice William Rehnquist.  Justice OConnor just days before announcing her retirement authored a stinging dissent in the case expressing concern that the majority redefined the meaning of public use.  Justice OConnor wrote that the majority opinion holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary 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.

But Justice OConnor did not stop there.  She warned that in expanding the definition of public use, the majority implied an absurd argument that any single family home might be razed to make way for an apartment building, or any church might be replaced with a retail store, or any small business might be more lucrative if it were instead part of a national franchise.  Justice OConnor added:  The specter of condemnation hangs over all property.  Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.

The Kelo decision turns the Fifth Amendment on its head.

In light of the Kelo decision, the fact that churches and religious organizations are tax-exempt puts them in a precarious position when it comes to evaluating their value to the community.  This Supreme Court decision could very well clear the way for the taking of churches to make room for economic development that will enhance the tax base.

What protections are in place?  Thats a difficult question to answer.  The Religious Land Use and Institutionalized Persons Act (RLUIPA) now on the books is often used to fight encroachment on a churchs property rights.  But how that federal law will fare in safeguarding churches against governments exercising the power of eminent domain is an open question.  We dont know how the courts especially the Supreme Court will view RLUIPA.  Its still an open question at this point.

Since the Kelo decision, there has been emphasis placed on a legislative remedy both at the state level and at the federal level.  State legislatures are now scurrying to craft laws protecting property rights.  And, at the federal level, there is action on Capitol Hill.

Senator John Cornyn (R-TX) has introduced a measure called The Protection of Homes, Small Businesses, and Private Property Act of 2005.  If enacted, this law would prohibit the transfer of private property from one private owner to another private owner, without the existing owners consent, if federal funds were used, and the purpose of the transfer was for economic development instead of public use.

The legislation would restrict the governments use of eminent domain to public use only.  And, most importantly, the bill expressly states that public use does not include economic development.  The scope of the bill would include (1) all exercises of eminent domain power by the federal government, and (2) all exercises of eminent domain power by state and local governments through the use of federal funds.

The measure put forth by Senator Cornyn is a sound and reasonable answer to the disturbing decision in the Kelo case.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice, a Washington, D.C. - based legal advocacy group focusing on constitutional law.