WASHINGTON (ABP) — A closely divided Supreme Court ruled June 23 that municipal and other governments have broad power to seize private property — including, possibly, houses of worship — for public purposes.
And while churches continue to enjoy heightened protection from such incursions due to the First Amendment's freedom-of-religion protections, the ruling means they may face increased attempts at property seizure — and the costly litigation that often results.
In a 5-4 ruling, the high court upheld the right of New London, Conn., to seize and raze several private homes and replace them with a waterfront office, retail and housing project. The court's majority held that the depressed industrial town's leaders could claim and redevelop the property for the “public use” of creating new jobs and increasing tax revenue.
The court said the right of “eminent domain,” provided to governments by the Fifth Amendment, allows the project. It would be located on the Thames River, adjacent to a new $300 million research facility for the Pfizer pharmaceutical corporation.
The homes that would be destroyed are located in the historic Fort Trumbull neighborhood. Many of them date from the late 1800s. One of the homeowners, Wilhelmina Dery, was born in her Fort Trumbull home in 1918 and has lived there her entire life. The house has been in her family for more than 100 years.
Dery and others sued the city, saying that such economic development was not a legitimate public use under the Fifth Amendment. Historically, eminent-domain seizures of private property were limited to such public uses as erecting schools, roads and airports. In 1954, the Supreme Court expanded the justifications for eminent domain, saying cities could seize “blighted” areas for re-development.
But the latest ruling means increasing tax revenues and creating jobs can also be viewed as legitimate public purposes for seizing private property.
“Those who govern the city [of New London] were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference,” said Justice John Paul Stevens, authoring the majority's opinion.
Stevens was joined by justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy and David Souter.
But Justice Sandra Day O'Connor, in a tart dissenting opinion, said the ruling departed with decades of legal tradition on eminent-domain cases and would mean wealthy interests could always trump individual home and small-business owners in such cases.
“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random,” she wrote. “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.”
Jared Leland, the media and legal counsel for the Becket Fund for Religious Liberty, echoed O'Connor's concern that the ruling renders the poor more powerless — but that it also may make it more difficult for houses of worship to avoid getting entangled in such cases.
“By this [ruling's] standard, governments are naturally going to target institutions that are, by definition, not creating tax revenue,” Leland said. “So, religious institutions could be inherently targeted or disparately treated or discriminated against because of their alleged lack of economic benefit to the community.”
The Becket Fund filed a friend-of-the-court brief in this case, and has been involved in several recent cases in which municipalities attempted to seize church properties and replace them with for-profit economic development.
However, Leland also noted that churches enjoy a heightened level of protection due to the First Amendment's protections. Additionally, certain federal and state laws make it more difficult for governments to seize religious properties without compelling justification.
“So, religious institutions are still protected; unfortunately, the private homeowner has really lost a big battle today,” he said.
The case is Kelo vs. City of New London, No. 04-108.