Tuesday, February 12, 2013
Ngov on Privatizing Public Land to Avoid Violating the Establishment Clause
Eang Ngov (Barry) has posted Selling Land and Religion (Kansas Law Review) on SSRN. Here's the abstract:
Thousands
of religious monuments have been donated to cities and towns. Under
Pleasant Grove City v. Summum, local, state, and federal governments now
have greater freedom to accept religious monuments, symbols, and
objects donated to them for permanent display in public spaces without
violating the Free Speech Clause. Now that governments may embrace
religious monuments and symbols as their own speech, the obvious
question arises whether governments violate the Establishment Clause by
permanently displaying a religiously significant object.
Fearing
an Establishment Clause violation, some governmental bodies have
privatized religious objects and the land beneath them by selling or
transferring the objects and land to private parties. Some transactions
have included restrictive covenants that require the buyer to maintain
the religious object or reversionary clauses that allow the government
to reclaim the land. Others have sold or transferred the religious
object without soliciting bids from other buyers.
This article
provides an in-depth analysis of five cases in which governmental bodies
resorted to privatizing public land to avoid violating the
Establishment Clause. Drawing from Establishment Clause jurisprudence
involving religious displays, this article utilizes the Lemon and
Endorsement tests as analytical tools for resolving the
constitutionality of land dispositions involving religious displays.
This
article considers the purported secular government purposes for selling
or transferring land to private parties. The government has sought to
justify these land dispositions as a means to provide memorials that
honor veterans or promote civic-mindedness, to preserve the religious
object in order to avoid showing disrespect to religion, and to avoid
violating the Establishment Clause. I argue that these purported
government purposes are secondary to a religious interest because there
are other alternatives to achieve the government’s purposes.
I
also examine the effects of these land dispositions on the reasonable
observer. The Herculean efforts exerted by the government to save the
religious monument send a message of government endorsement of religion.
Restrictive covenants that require the private owner to maintain the
religious monument and reversionary clauses that allow the government to
reclaim the monument and underlying land perpetuate state action and
excessively entangle the government.
I conclude that the best
measure to avoid the Establishment Clause is to simply remove the
religious object. Removing the religious object will protect the
dilution of sacred religious symbols through their secularization and
will provide greater inclusiveness in public spaces for religious
minorities and nonbelievers.
Steve Clowney
https://lawprofessors.typepad.com/property/2013/02/ngov-on-privatizing-public-land-to-avoid-violating-the-establishment-clause.html