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Wednesday, August 16, 2006

Using Eminent Domain to Take A Cross

Today's New York Times has an article on a taking that raises interesting establishment clause issues.  President Bush signed a law that will have the federal government use eminent domain to take a memorial on a hill in San Diego that features a 29-foot Latin cross.  The cross presently sits on land owned by San Diego, and has been the subject of years of litigation.  Both federal and state court judges have held that the placement of the cross is unconstitutional (according to the story, on the basis of the California, rather than the federal, constitution).  The taking by the federal government makes the federal constitutional issue clearer, and makes the case more cert-worthy.  Last month, Justice Kennedy granted a stay of a federal court order that would have required San Diego to remove the cross, writing that “Congress’s evident desire to preserve the memorial makes it substantially more likely that four justices will agree to review the case in the event the Court of Appeals affirms the district court’s order” that requires removal of the cross.

As I've noted previously, there is an interesting Pennsylvania case pending that raises establishment clause issues in the context of a economic-development taking transferring property to a religious school, and the interaction of the establishment clause and the power of eminent domain might make an interesting note topic.  Both of these cases appear to have a way to go before the Supreme Court will have a shot at addressing them, which to me makes them a more attractive subject for a note than something the Court has recently addressed.

Ben Barros

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