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Thursday, July 09, 2009

Religion and the Politics of Eminent Domain

Should religious landowners enjoy special protection from eminent domain?  A controversial federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), already applies a presumption of illegality to all zoning and landmarking restrictions that substantially burden religious land use.  Now the cutting-edge question is whether that sort of protection ought extend beyond zoning to condemnation.  That issue has taken on added significance after Kelo, where the Court reaffirmed its expansive view of local governments’ power of eminent domain.

In a forthcoming piece, Christopher Serkin and I argue that RLUIPA’s protections should not be extended to cover religious landowners who find themselves subject to outright takings.  We think that is true for two reasons.  First, the political economy surrounding condemnation is markedly different from that of zoning, so that broadening the Act’s protections to protect against outright takings would be unnecessary and ineffective.  Fundamentally, we believe that RLUIPA’s core zoning provision is best understood as a prophylactic measure preventing hard-to-detect discrimination.  Whether or not this is an adequate justification for RLUIPA in the context of zoning, the prophylactic rationale does not apply to eminent domain.  Condemnation tends to be politically salient, so that preventative legal protection is not needed in order to ward off most forms of anti-religious discrimination by land use authorities.  Second,  the costs of presumptively preventing officials from condemning property are likely to be far higher than the costs of enforcing RLUIPA with respect to zoning.  At worst, a religious group could use the Act to demand holdout value from a government, either imposing unjust expenses on local taxpayers or thwarting important public projects.

The punch line may be surprising: our proposal about condemnation has an important implication for the law’s divisive zoning provision.  We point out that local governments that find themselves unable to zone because of RLUIPA could circumvent the Act by simply condemning religious property. 

This would give local governments a welcome safety valve.  On the other hand, it would also give religious groups some satisfaction by requiring governments to pay just compensation for land use regulations that they otherwise would likely be able to implement free of charge.  While religious assemblies would not continue to receive property rule protection under our proposal, they would continue to enjoy something like liability rule protection.  Our proposal therefore suggests a workable compromise.  Any comments, especially critical ones, would be helpful during revisions.

Posted by Nelson Tebbe on July 9, 2009 at 11:07 AM | Permalink

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