Friday, August 18, 2006
President Bush has signed HR5683 into law, which provides that the federal government will seize San Diego's Mt Soledad Veterans' Memorial and pay just compensation for the property. The Memorial, originally owned and created by the city of San Diego, is controversial because it features a large Latin cross. Courts have concluded that the Memorial violates the religious establishment provisions of the California Constitution. By taking the property through eminent domain it is surely the intention of the drafters to transform the establishment issue into a federal constitutional question. No doubt the proponents think that they will fare better under the 1st Amendment than under California's Constitution. Now, here's the property angle: Is this taking for a public use? True, Midkiff said that public use is satisfied whenever the taking is "rationally related to a conceivable public purpose," and Kelo qualified that conclusion somewhat with respect to takings for purely economic development purposes. In HR5683, Congress states the purpose of the condemnation is to continue the practice of honoring World War II and Korean War dead by exhibition of this cross, together with unspecified secular symbols. Here are my preliminary thoughts:
1) If the cross violates the federal establishment clause the taking ought not be regarded as a public use. Of course, the Court might simply decide that the Memorial violates the establishment clause and ignore the latent public use issue, but it could kill two birds with a single stone by reasoning that the taking violates public use by reason of its being a forbidden religious establishment. True, this course of action violates various Ashwander v. TVA principles, but those principles are frequently honored in the breach.
2) Even if the cross is not a forbidden religious establishment should we accept Congress's declaration of purpose at face value? Surely the purpose behind this legislation is to pre-empt California's Constitution and to confer a litigation advantage to the defenders of the Memorial. Is that a public use? This question becomes more difficult when you recall that in O'Brien, the draft-card burning case from the Vietnam era, the Court said it would not strike down legislation otherwise valid on the basis of a illegitimate purpose.
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