On Capitol Hill, Senator Kennedy is circulating a "Dear Colleague" letter suggesting that churches should be protected from the government's power of eminent domain. In particular, Kennedy favors amending the Religious Land Use and Institutionalized Persons Act (RLUIPA) to bring eminent domain within the definition of "land use regulations" - and thus to apply RLUIPA's demanding standards to any use of the eminent domain power that affects a religious landowner. (I discussed RLUIPA's standards, and how they work in practice, in a prior column.)
As the majority of courts have held, RLUIPA - as it currently stands -- does not cover "eminent domain." Its express language goes only to "zoning and landmarking" land use regulation, and eminent domain does not fall within these categories. Moreover, the legislative history of the statute did not touch on eminent domain.
Expanding RLUIPA to cover eminent domain is a very bad idea, as I will explain.
The Kelo Decision: Sparking Congress' Interest in the Eminent Domain Power
It's the Supreme Court's recent Kelo decision that has gotten Congress interested in eminent domain. In that case, an elderly woman (among other plaintiffs) was forced to move out of her home in order to make way for private development.
The plaintiffs argued that this was not a taking for "public use" within the meaning of the Constitution's Takings Clause. But the Supreme Court disagreed: It held that local governments retain significant latitude to define what is "public use."
The result was a loud hue and cry. The Court was criticized for setting too lax a standard for what counts as "public use" under the Takings Clause. A few states passed laws responding to Kelo, and Congress has mulled how to react.
Thus far, the House has passed a bill addressing the Kelo issue. But it is expected the Senate will not take action on the House bill.
Now, Kennedy is now trying to stir up interest in providing extra protection for churches and other religious institutions - and for them alone - through RLUIPA. So much for the elderly Mrs. Kelo and the other plaintiffs in her case. Kelo outraged the public because it held that the government could force people like her to give up beloved family homes to give way to malls and the like. In this sense, Kennedy's proposal does not respond to the outcry about Kelo at all.
Kennedy's Bill Is Bad Policy: The Empirical Evidence Goes Against It
Kennedy's "Dear Colleague" letter and draft bill make broad statements about the "need" for an amendment to RLUIPA to protect churches from the government's exercise of the eminent domain power. There are no statistics, but rather just claims about the evils of eminent domain. And as usual, there is absolutely nothing about the other side of the equation: either the larger public good or the likely Establishment Clause violation here.
In truth, the evidence suggests there is no real issue when it comes to churches and eminent domain.
Notre Dame Law Professor Nicole Garnett studied this issue and came to the conclusion that churches tend not to be targeted by eminent domain. In fact, governments tend to avoid it, because there is strong community resistance and probably local politicians do not relish the prospect of uprooting a church. She points to the Chicago highway projects, which buried neighborhoods, but steered clear of most churches.
When governments do go forward with a taking of a church's land, typically it is only because the government has concluded the taking is absolutely necessary. No one should think that churches always cooperate with what is in the larger public's interest. An excellent example is the Holy Redeemer Catholic Church in Chinatown, Philadelphia, which blocked the construction of a much-needed artery within the city for more than three decades. .
Giving Churches Special Protection, as Kennedy Would Do, Is Unconstitutional
It is very hard to argue that such an amendment to RLUIPA would be constitutional.
First, it would dramatically alter the current constitutional standard, set forth in Kelo, for assessing instances in which the eminent domain is exercised under the Takings Clause: rationality review. RLUIPA's standard is the much more demanding "strict scrutiny."
Such a dramatic jump cannot be justified as "congruent and proportional" to the data Garnett gathered, or to the unsupported claims offered by Sen. Kennedy. Therefore, under Court precedent, Congress could not enact the law pursuant to its power under Section 5 of the Fourteenth Amendment. Nor can it unilaterally determine the constitutional standard under the Takings Clause, without transgressing the separation of powers: That standard is for the Supreme Court to set.
Second, this is a violation of the Establishment Clause. Churches would be receiving extraordinary protection for their land and buildings against takings for public use, but no other landowner would receive such a benefit. Public projects would, by necessity, fall disproportionately on land use not dedicated to religious purposes. By singling out churches, the federal government would, once again, just as it has done with RLUIPA generally, create two classes of landowners: those who have to obey local and state land use law and who are subject to takings; and those who are religious and do not. This would be a classic case - even in today's extraordinary movement to shift public resources to religious entities - of politicians defaulting on the public good to put churches in superior financial positions.
It Is Foolhardy to Expand RLUIPA Without First Holding Hearings to Examine Its Actual (and Unintended) Consequences for Communities and Neighborhoods
Before either House of Congress thinks about amending RLUIPA, its members might want to hear from their constituents about the actual, on-the-ground impact of RLUIPA on residential neighborhoods and about local concerns, such as open space, environmental needs, and market value. There are many, many neighborhoods in every state that are currently being negatively affected by RLUIPA, and their residents are mad as hell.
What the denizens of these neighborhoods are coming to realize is that even though religious groups are the ones using RLUIPA to alter the character of their neighborhoods and communities, the ultimate entity responsible for what is being done to them is Congress - where their elected representatives passed RLUIPA without a single thought of how private property owners and community aspirations would be adversely affected by giving special treatment to religious landowners' projects. Nor did Congress pause to ask who exactly was going to pay these churches attorneys' fees when they sued local governments in federal court to exercise their special privileges - of course, with the fee-shifting provision, it's the taxpayers.
Rep. Nancy Johnson of Connecticut sensibly has asked Chairman Sensenbrenner, of the House Judiciary Committee, to hold hearings to get to the bottom of RLUIPA's real impact. Her call should be heeded, and soon. Such hearings may force Congress to come to terms with the fact that it has created an aristocracy of landowners - those that are religious - which has disserved many private property owners.
Meanwhile, members of Congress should resist Kennedy's "Dear Colleague" letter. The public process is already protecting churches, and expansion of RLUIPA - already a bad idea - is an even worse one.
Marci Hamilton: email@example.com