The Yale Law Journal

October 2020

Condemning Worship: Religious Liberty Protections and Church Takings

PropertyConstitutional Law

abstract. Recent eminent-domain actions against houses of worship (“church takings”) along the Mexico-U.S. border have inspired new questions about religious liberty and land use. This Note explores how courts interpret constitutional and statutory religious liberty protections when the government seeks to condemn property owned by faith communities, revealing how courts discriminate between types of religious property. While protecting those structures in which faith communities gather for worship, courts allow condemning authorities to take other properties integral to communities’ religious missions. Courts thus transform houses of worship into paradigmatic property for the free exercise of religion.

author. Yale Law School, J.D. expected 2021; Priest of the Congregation of Holy Cross. I offer my heartfelt thanks to Claire Priest, who first believed in this project, mentoring me with generous care; to members of her Property and Advanced Property seminars, who asked constructive questions and shared wise perspectives; to Akhil Reed Amar, Samuel Bray, Guido Calabresi, William Eskridge, Jr., Nicole Garnett, Richard Garnett, Michael Helfand, Anthony Kronman, John Nann, Chris Pagliarella, Mark Rienzi, Reva Siegel, Kate Stith, James Whitman, and Taisu Zhang, whose insights and instruction shaped my reflection on this topic, leaving fingerprints throughout these pages; to my friends on the Yale Law Journal, especially Lawrence McMahon, whose masterful editing and relentless encouragement brought this Note to life; and to my brothers in Holy Cross, who remind me in moments of trial, Ave Crux, Spes Unica.

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 power8—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 so-called “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 Okl. St. §§ 251 et seq. (“ORFA”), and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc 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 takings 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 property-rule/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 free-exercise protections against condemning authorities—and courts almost always side with them. As this Note will explore, judicial maneuvers to interpret the First Amendment28 and its state-constitutional equivalents,29 federal and state Religious Freedom Restoration Acts30 (RFRAs), and the Religious Land Use and Institutionalized Persons Act31 (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 “liability rule” protection of Calabresi and Melamed’s classic formula—courts block the taking altogether, forcing a voluntary transaction between the government and the faith community. In such cases, there may simply be no transaction at all.

However, as this Note reveals, such interpretations lead courts to discriminate between different types of property owned by faith communities. While courts consistently protect those structures deemed necessary for religious devotion, for ritual prayer, and for worship, many church-owned parcels and buildings have been successfully condemned. Paradigmatically, courts will protect from eminent domain the religious sanctuary itself—that physical structure in which the faith community gathers for worship. But case law reflects that courts do allow condemning authorities to take other connected properties owned by the faith community—including parking lots33 and cemeteries,34 as well as camps and undeveloped parcels of land.35 These properties are taken even though they, like the religious sanctuary, are often integral to the community’s religious mission. In the language of Calabresi and Melamed, courts apply a “liability rule” outside the physical space of the sanctuary itself.

When courts make decisions regarding condemnation based on their own evaluation of how properties relate to religious practice, they engage in problematic judicial line drawing. Even if courts were accurate in their assumption that property outside the brick-and-mortar sanctuary is less “essential” to religious exercise—an assumption many faith communities would dispute as morally and theologically flawed—their resolution of eminent-domain challenges would be grounded in “judicial perception” of religious beliefs and practices, something which established free-exercise doctrine forbids.36 For courts and faith communities alike, this Note will discuss how greater judicial reliance on time-tested religious liberty principles can help.

This Note involves both practical and theoretical components. Part I shows how religious liberty protections create a property rule for churches and other houses of worship that effectively functions within a “rights as trumps” paradigm, imbuing the brick and mortar of these religious structures with constitutional meaning.37 Parts II and III then discuss how courts respond in practice to takings of church property. Part II examines those cases where eminent domain is exercised over the sanctuary itself, detailing how courts interpret constitutional and statutory religious liberty protections to prevent the taking. By way of illustration, Part II studies the attempted condemnation of City Chapel Evangelical Free Church in South Bend, Indiana. Part III surveys cases where eminent domain is exercised over other properties owned by faith communities that courts deem unnecessary for religious worship. Much of the scholarly literature on church takings lumps together both types of cases, perhaps because commentators have overlooked the distinction courts tend to make between these different forms of property.38 Finally, Part IV draws upon personhood theory to explore why courts protect churches from condemnation, rendering them paradigmatic property for the free exercise of religion. This Note uses the term “church” broadly to refer to those physical structures where faith communities of any bona fide religion gather for worship.39 Consequently, it uses the phrase “church takings” to describe exercises of eminent domain over any faith community’s property, not merely condemnation of structures in which Christian worship takes place.

Admittedly, cases involving church takings do not overwhelm the judiciary.40 In an early case involving urban renewal and the condemnation of a church, the Colorado Supreme Court posited that such “direct confrontations . . . have been avoided because legislatures and administrative bodies have generally accorded great respect to religious organizations.”41 While the evidence presented here is incomplete, this Note represents an important step toward understanding how courts respond to religious and governmental actors when their property interests conflict.