Condemning Worship: Religious Liberty Protections and Church Takings.

• Author: Reidy, Patrick E.

NOTE CONTENTS INTRODUCTION: TAKING 228 LA LOMITA CHAPEL 1. BRICK-AND-MORTAR RIGHTS: RELIGIOUS 237 LIBERTY PROTECTIONS FOR CHURCHES A. Religious Worship and the Sanctuary 238 B. Brick-and-Mortar Rights 240 II. PROTECTING WORSHIP: RELIGIOUS LIBERTY 242 AS A PROPERTY RULE FOR CHURCHES A. Constitutional and Statutory Religious 244 Liberty Protections B. City Chapel v. South Bend 247 C. A Property Rule for Churches 253 III. OUTSIDE THE SANCTUARY: LIABILITY 254 RULES FOR TAKINGS INVOLVING OTHER CHURCH-OWNED PROPERTY A. Parking Lots, Summer Camps, and Cemeteries 256 B. Liability Rules Outside the Sanctuary 263 IV. PARADIGMATIC PROPERTY AND PERSONHOOD: 265 WHY COURTS PROTECT CHURCHES FROM CONDEMNATION A. Paradigmatic Property and Personhood 266 B. Renegotiating Judicial Theology 270 CONCLUSION: PROTECTING LA 273 LOMITA CHAPEL The First Amendment protects freedom of religion which has its roots in the hearts and souls of the congregation, not in inanimate bricks and mortar. Yet, religious faith and tradition can invest certain structures and land sites with significance which deserves First Amendment protection. (1)

INTRODUCTION: TAKING LA LOMITA CHAPEL

In October 2018, just outside Mission, Texas, the federal government initiated an eminent-domain action against La Lomita Chapel and its environs in order to construct portions of the Trump Administration's border wall. A historic place of prayer and pilgrimage, La Lomita stands as the Catholic community's "mother church" in the Rio Grande Valley, welcoming worshippers who seek "communion with God" through the 154-year-old chapel's history, serenity, and humility. (2) The proposed border wall would physically cut off parishioners of nearby Our Lady of Guadalupe Catholic Church--and the rest of the Roman Catholic Diocese of Brownsville--from the historic chapel. (3) Popular outcry over the threat to La Lomita inspired members of Congress to bar legislatively federal funding for fencing on the church property, (4) while the Diocese of Brownsville argued in federal court that taking La Lomita would substantially burden its free exercise of religion. (5) In February 2019, U.S. District Judge Crane in nearby McAllen determined that diocesan officials must allow government surveyors access to the property, but his remarks concerning the significant legal challenges to taking La Lomita were revealing: "The government may be wasting its time doing this ... [b]ut it wants to do it anyway." (6)

The history of church-property litigation in the United States confirms what Judge Crane seems to know: courts rarely allow governments to take houses of worship by eminent domain. (7) In those rare instances when the government does seek to exercise eminent domain over a church, litigation overwhelmingly focuses not on public-use limitations or just-compensation guarantees--the two explicit constitutional constraints on federal and state eminent-domain power (8)--but on religious liberty, with parties disputing whether the condemnation constitutes a substantial burden on the faith community's free exercise of religion. Almost always, courts side with the church, preventing the taking. Nonjudicial actors, therefore, simply avoid taking churches, a phenomenon that has been well documented in the literature on eminent domain and properties of "high subjective value"--value to owners not reflected in the price that the properties would achieve in a market sale. (9)

Professors Nicole Garnett, Christopher Serkin, and Nelson Tebbe have revealed the elevated political and economic costs in church takings. Garnett's insightful treatment of expressway construction and Catholic churches in 1950s Chicago illustrates not only the influence of religious groups--there, the Archdiocese of Chicago and its over two million Catholics--over church condemnations, but also, perhaps more instructively, that condemning authorities painstakingly avoid church structures. (10) When mobilized around properties of high subjective value, such "cohesive, well-organized, and narrowly-focused coalitions [as] those that characterized parish-preservation efforts" in Chicago frequently motivated government actors to avoid takings altogether. (11) Serkin and Tebbe observe that the principal constraint on eminent domain "is, and has always been, political"--particularly when churches are involved. (12) As with owners of any property carrying strong emotional attachments, faith communities can resist the government's "voluntary overtures" by generating "unwanted" and thus "potentially effective" political opposition to the government's plan. (13) Throughout the Windy City and across the country, politics often inspires avoidance, keeping many church takings from ever reaching the courtroom. (14)

Faith communities facing condemnation harmonize their collective opposition with notes of religious liberty. When New York gubernatorial candidate Carl Paladino proposed seizing an Islamic prayer space under development as a mosque and community center--channeling widespread hostility toward the socalled "Ground Zero Mosque" in Lower Manhattan--Imam Feisal Abdul Rauf led the communal defense of Muslim religious practice at the site. (15) That defense inspired Governor David Patterson and Attorney General Andrew Cuomo to dismiss the threatened taking as "legally deficient," concluding that "courts would almost certainly reject any use of [eminent-domain] power in which a case could be made that a specific house of worship was being targeted." (16) Patterson's office called the proposed condemnation "an obvious violation of the First Amendment's religion clauses [and] a gross violation of the spirit and intent of the eminent domain provision in state law," (17) while Mayor Michael Bloomberg and President Barack Obama swiftly rose to the Muslim community's defense by invoking religious freedom. (18) In Orlando, Florida, the congregation of Faith Deliverance Temple persuaded city officials to relocate a new Major League Soccer stadium one block west of their family-owned church, rather than endure lengthy and costly litigation. (19) "[I]t's not about the money," pronounced the church founder's son in response to city overtures, but "about being here and being able to worship God freely." (20) And just outside of Tulsa, Oklahoma, Centennial Baptist Church enlisted the Becket Fund for Religious Liberty to threaten "immediate legal action" against the Sand Springs Development Authority, sparking what one local newspaper described as "a battle between God Almighty and the almighty dollar" (21):

To put it simply, the Church property is not for sale.... [T]he Church's right to engage in religious exercise on its property, free from government burden and interference, is fully protected by the First and Fourteenth Amendments of the United States Constitution, the Oklahoma Religious Freedom Act, 51 Old. St. [section][section] 251 etseq. ("ORFA"), and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. [section][section] 2ooocc et seq. ("RLUIPA"). (22)

Reverend Roosevelt Gildon and his "humble church" made national headlines before Sand Springs ultimately decided to withdraw its condemnation proceedings. (23) Not every faith community averts condemnation for its house of worship--for instance, Father Joseph Karasiewicz and the Polish Catholic community in Detroit lost Immaculate Conception Church to the city's infamous Poletown project with General Motors, though only after Cardinal Dearden of the Archdiocese of Detroit intervened in support of condemnation. (24)

Because the government often stands down, litigation challenges to condemnation proceedings against houses of worship are rare. Even so, there are noteworthy cases of eminent-domain actions brought against church-owned property, including La Lomita and many others chronicled throughout this Note. While the vast majority of challenges to condemnation do succeed, the judiciary's approach to such challenges remains largely unexplored. This Note focuses on the legal problems that emerge after eminent-domain proceedings commence, when faith communities raise religious liberty protections to shield their properties from condemnation.

This Note contributes to the property literature on taldngs by exploring how courts interpret religious liberty protections to discriminate between different types of church property in eminent-domain litigation. (25) Where courts disagree over how to comprehend religious exercise, many find themselves granting something less than property-rule protection to elements necessary for the free exercise of religion--including many church-owned properties outside the sanctuary. Courts apply a "liability rule" to these nonsanctuary properties, allowing government condemnation in exchange for just compensation. (26) The propertyrule/liability-rule framework proposed by Guido Calabresi and A. Douglas Melamed can help describe court-drawn distinctions between different types of church property in eminent-domain litigation. (27) But as this Note argues, such distinctions impose an inappropriate judicial theology on church property, one rooted in judge-made determinations of what may be considered essential to faith communities' free exercise of religion.

When the government seeks to exercise eminent domain over a house of worship, faith communities stridently assert constitutional and statutory freeexercise protections against condemning authorities--and courts almost always side with them. As this Note will explore, judicial maneuvers to interpret the First Amendment (28) and its state-constitutional equivalents, (29) federal and state Religious Freedom Restoration Acts (30) (RFRAs), and the Religious Land Use and Institutionalized Persons Act (31) (RLUIPA) in the context of eminent domain effectively create a "property rule" for the church to prevent its taking. (32) Rather than mandating compensation for the church--per the...