Eminent Domain -- A Threat To Free Exercise Of Religion?

As traditionally understood, eminent domain is the right of government to take property at fair market value for a public use, usually for parks, roads, schools and the like. Over the last 50 years or so, it has expanded to include takings for urban renewal. But in recent years the power has been used to seize property from owners unwilling to sell to private developers favored by the city because of the potential for increased tax revenue. Next week, in Kelo v. City of New London (Conn.), the Supreme Court will examine that issue. The outcome could be particularly critical for churches.

The question is which direction the court will go in Kelo and what impact it might have [cases involving the use of eminent domain against churches to increase tax revenue]. Some expect new limits on government power. A landmark ruling on eminent domain at the state level - used for 20 years as precedent in many cases, including by the state court in Kelo - was reversed by the Michigan Supreme Court just six months ago.

In the 1983 decision in Poletown v. City of Detroit, the Michigan court approved the taking of 500 acres to sell to General Motors for a plant. Hundreds of homes and businesses and six churches were condemned. In July 2004, the court called the Poletown decision "a radical departure from constitutional principles" and overturned it in County of Wayne v. Hathcock.

"[I]f one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, mega-store or the like," the court said.

The US Supreme Court accepted the Kelo case shortly after the Michigan court rendered that decision.

The logic applies not just to churches, but also to private schools, hospitals, charities, and other untaxed entities. Take the land, sell it at a bargain-basement price to a developer, and get it on the tax rolls would be the temptation facing every land-locked community or fast-growing municipality. In effect, not-for-profits would be at the mercy of government.

As would owners of modest homes -- for the Kelo case isn't about a church, it is about taking homes in an older middle-class neighborhood for redevelopment as a marina and high-dollar condos.

Hopefully the Court will safeguard the rights of all property owners, and guarantee that our churches are not driven from town in the pursuit of additional taxes.