Friday, August 18, 2006

Federal Condemnation of San Diego's Cross: Public Use?

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.

Comments welcomed.

Calvin Massey

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This comment may be going too far afield, because I don't know the establishment clause cases very well. However, it seems to me from a matter of law and policy to seperate out the "takings" issues from the "establishment clause" issues.

I have been thinking about this especially in regards to the Pennsylvania case Ben has posted about (in which the redevelopment authority transferred property to a religious educational instutiton.)

May I suggest we think about this using a "but for" type test. That is, to ask whether each of the takings would be for public use "but for" the religious nature of the proposed use. For example, I think I know PA case law well enough to say that the comdemnation and transfer of the property in a redevelopment zone (and declared blighted) to a non-religious educational institution, even if private, would have been upheld. The PA court said as much, but had trouble with the establishment clause issues.

My "but for" approach would, in the San Diego case, argue that taking of property for a memorial (with no religious symbolism) would constitute a public use. The memorial is presumably open to public viewing and access, and serves a valid public purpose declared by Congress (commemorating war veterans.)

It is the establishment issues which should be adjudicated seperately. And, I simply don't know how a federal court would rule on a war-veterans memorial which had a cross but did not seem to advance a particular sectarian or denominational agenda. It seems to me that the case law on public religious displays would then enter here on the establishment clause issues.

Treating the takings issues and establishment issues as completely seperate issues for adjudication, of course, does not solve all of these problems. If a taking is not for a valid public use, one could argue, then it is not a valid taking. And, goes the arugment, an establishment clause violation would render the taking not a VALID public use.

But it seems to me it is conceptually clearer not to sadle the takings clause with other constitutional issues. For years, it seems the takings clause was sadled with substantive due process issues, muddying the waters.

Posted by: Kurt Paulsen | Aug 18, 2006 11:33:57 AM

Good points. I think your approach is likely to be the approach taken by the USSC, if and when this case gets there. Your "but for" test maps very neatly onto the Court's thinking in O'Brien, although the Court certainly seems more willing to examine hidden purposes in establishment cases than in other areas, and Kelo suggests that the process by which an economic development takings plan is created and implemented is germane to the public use. Although it's a big leap from Kelo to this case, it seems to me that the process by which this condemnation occurs is at least relevant to the public use issue. Thanks for your comments.

Posted by: Calvin Massey | Aug 18, 2006 12:12:35 PM

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