The latest battle in the eminent domain war involves an intersection between church and state. Officials in Brighton, New York want to expand a park in the city and they are willing to take, through eminent domain, nearly 70 acres of undeveloped land owned by Faith Temple Church to do it. Faith Temple is suing the city to try and keep its land because it has major development plans of its own for the land that include building a new worship center and a school. Legal experts from across the nation are watching the case to see whether the church’s land will receive extra protection or a Brighton triumph will open the floodgates to more takings of land owned by religious institutions.
The case itself is interesting, pitting as it does the government’s power of eminent domain against a church’s right to exercise its religion through expanding its facilities. Feelings want to say that the church’s right should control because it is their land and this involves religious freedom. However, this is close to a traditional eminent domain taking since a park benefits everyone in the city, so this is not a Kelo-style economic benefits taking . . . at least on its face. It may be that the city is planning to turn the park into a money-maker of some sort, but, unlike the church, Brighton officials are being tight-lipped about the details of their development plans.
From a constitutional perspective, if the taking was for a road or a military base this would be a simpler decision, but because a park is for recreation rather than a community necessity, it seems to me that the power of eminent domain does not automatically trump private property ownership here. However, the church’s involvement means that the Religious Land Use and Institutionalized Persons Act (RLUIPA) will play the most significant role in the outcome of the case and it is quite likely that the RLUIPA affords the church the extra protection it is seeking. The U.S. Justice Department, which filed an amicus brief on behalf of the Faith Temple, certainly seems to think that the RLUIPA dictates that Brighton should not be allowed to take the church’s land.
The relevant portion of the RLUIPA states: “No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution – (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”
In non-legal language what that means is that if the power of eminent domain is considered a “land use regulation” under the RLUIPA, then the city of Brighton will lose the case because it will be basically impossible for the city to demonstrate that it is taking the land in furtherance of a “compelling governmental interest.” The RLUIPA defines a “land use regulation” as a “zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership [of such land].” Any government entity, including the city of Brighton, is empowered to use eminent domain by a statute granting it that power. The power of eminent domain clearly “limits or restricts” the owner’s use of the land. Thus, it would seem obvious that eminent domain does constitute a “land use regulation,” but with the way the federal courts interpret law today, any prediction on the outcome of the case is pure guesswork.
One other bit worth noting from this story is the statement of Rabbi Shaya Killimnick on this issue: “In reality, nobody really owns land. The government owns land. What we have is a license from the government to own the land.” Apparently Rabbi Killimnick believes he is living in Cuba, China, North Korea, or some other communist nation rather than the United States of America. No one owns land except the government? Does he even understand the concept of private property? The Founders would tremble in their graves if it came to be understood that they fought for the right to have the government own land. The founding generation considered private property to be one of the three most precious rights given by God to man, rivaled in importance only by life and liberty. Private ownership of property is the bedrock of our economic system and the telltale sign of physical and financial independence. As James Madison put it.
“Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions. . . . Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
The view that the government actually owns the property and simply licenses it to individuals is the very reason for the abuse of the power of eminent domain and is a formula for tyranny. For that fact alone perhaps it is best that the city of Brighton lose this case: apparently more people need to learn that the government does not own us or our land; we own the government.
