Whose domain?

As evangelical and other groups begin their campaigns to support a "constructionist" to replace retiring Supreme Court Justice Sandra Day O'Connor, their hope is to repair what they consider past poor decisions on school prayer, abortion, and placing religious displays on public property. Further from their minds, but of equal potential endangerment to their religious freedom, was the June 23 dictum from the high bench in Kelo v. City of New London. While the Justices produced mixed verdicts in two closely watched Ten Commandments opinions dealing with public property, with the Kelo decision they opened the possibility for government to infringe upon the practice of faith on private property.

In a 5-4 ruling, the Court said that an economic development agency with eminent-domain powers could take the private property of homeowners in New London, Conn., for the "public purpose" of creating jobs.

"Promoting economic development is a traditional and long-accepted function of government," wrote Justice John Paul Stevens for the majority.

New London had planned to enhance 90 acres of waterfront land in its Fort Trumbull neighborhood with new offices, a hotel, and more upscale dwellings. While many in the area sold their property, nine owners of 15 homes held out and went to court to assert their rights under the Fifth Amendment. Two of the plaintiffs, Wilhemina and Charles Dery, live in a house that Mrs. Dery's family has owned for more than 100 years.

That longstanding ownership failed to deter the Court from seeing a greater cause in condemnation and upgrade, rather than upholding individual property rights. Because New London's unemployment rate has soared while its population has dropped, the five majority justices saw justification for seizing the acreage. But the neighborhood's condition was far from disrepair, which the Supreme Court in previous decisions has said is a sufficient rationale for eminent-domain takings.

"Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area," wrote Justice Stevens, "but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference."

Justice Clarence Thomas, dissenting, noted that a string of Court decisions since the 1950s that has upheld "urban renewal" as public use projects has fallen disproportionately, and negatively, on minorities. Meanwhile, Justice O'Connor predicted a chilling effect for future individual rights as a result of Kelo.

"The specter of condemnation hangs over all property," she wrote. "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

And now nothing can prevent the state from replacing a church with almost any revenue generator, considering that houses of worship don't pay property taxes. While Justice Thomas illuminated the harmful effect on minority groups in economic revitalization cases, consequences for religious institutions after Kelo could be just as significant.

Consider the case of Cottonwood Christian Center. Six years ago the city of Cypress, Calif., wanted to take 18 acres owned by the church through eminent domain. Public officials wanted Costco, a discount warehouse retail chain, to put one of its stores on the property instead. Cottonwood had planned to build on the land, but could not obtain proper permits. A five-year legal fight ensued, after The Becket Fund for Religious Liberty filed suit on behalf of the church.

A year ago, after other related property disputes, Cottonwood was able to move ahead with construction plans on other nearby land, when it negotiated a swap with Cypress. Had Kelo been in effect before Cottonwood's case was resolved, would Cypress have felt compelled to cease its eminent-domain action?

The Becket Fund's Anthony Picarello Jr., who penned an amicus brief for Kelo, says probably not.

"To affirm this broad expansion of eminent-domain power is to grant municipalities a special license to invade the autonomy of and take the property of religious institutions," he wrote.

-Paul Chesser is an associate editor for the John Locke Foundation