PA Supreme Court Upholds Use of Eminent Domain to Take Private Property And Turn Over to Religious School

In a case at the intersection of Kelo-style eminent domain and First Amendment church-state issues, the Pennsylvania Supreme Court in In re Condemnation of 1839 North Eighth Street, No. 36 EAP 2006 (Dec. 29, 2007), held that the taking of property designated as "blighted" pursuant to a redevelopment plan, and for a nominal price transferring it to a religious entity did not violate the U.S. Constitution's Establishment Clause.

In 1968, a Philadelphia neighborhood which included the subject property was certified as "blighted" by the city's planning commission.  Thirty-four years later, in 2002, a coalition of Catholic groups asked the city's redevelopment authority to take 39 acres of the neighborhood, including the subject property, and turn it over to establish a "non-denominational, faith-based, not tuition based school."  The city approved of the plan and condemned the property, listing the Catholic group as the developer.  The property owner objected to the taking, alleging:

the taking of the Property was not for a public purpose; that the taking was  arbitrary, capricious and discriminatory; that the taking is the result of a  predetermined illegal commitment to a religiously-affiliated private entity; and that Condemnee’s due process rights were violated.

Slip op. at 3.  The trial court upheld the taking, and held that since the property was declared blighted, it didn't matter to whom the property was transferred.  The Supreme Court affirmed the judgment for different reasons.  It relied on Justice Kennedy's concurring opinion in Kelo and held the record did not support a claim of bad faith by the redevelopment agency, and that the only question was whether turning over the property to a religious organization violated the Establishment Clause. 

The court applied the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), and held (1) that there was a secular purpose in the taking (to eliminate blight), (2) that the primary effect of the taking was to develop a school, and even though the organization was sectarian that religious education was not the principle reason for the taking, and (3) that the taking and transfer to a Catholic group did not "excessively entangle" church and state.

Justice Baer dissented.  He agreed with the court's analysis of parts (1) and (3), but disagreed that the principle reason for the taking was secular.  He argued that government advances religion when it takes property and transfers it to a religious organization to run a religious school for nominal consideration, it is the same thing as government providing direct aid to a religious school.  Justice Baer relied on the stated nature of the organization to support his conclusion that the school would be religious:

The Hope Partnership described the venture as being between “[t]wo  Communities of religious sisters, the Society of the Holy Child Jesus and the Sisters of Mercy. . . .” R.R. at 43, 47. It further explained that “[t]his collaborative venture is being built on the long established Holy Child and Mercy traditions of service, characterized by reverence, compassion, and belief in the life-changing power of education. As vowed religious, we are called to journey with those in need. . . .” Id. One of the purposes of the Sisters of Mercy, which is a Roman Catholic Order, is to operate schools devoted to education under the principles of commitment to God. The school that Hope Partnership seeks to run will be based on a model inspired by Judeo-Christian values that is nondenominational, but assumes the presence of God.

Dissenting slip op. at 2.  Justice Baer would have held that the transfer of the condemned property is no different than direct government aid to a religious organization, and thus the taking would not serve a public use:

I believe this is a case of direct government aid, in the form of a land transfer below market value to a religious organization for the development of a religious school. The state action here is neither directed at, nor directly benefits, individual students without regard to where they choose to apply the aid. Instead, the aid here is essentially a land grant, directly to the religious school, as a consequence of state decisionmaking.

Id. at 6. Given that the Pennsylvania Court based its decision solely on federal law, and that the authorities cited by Justice Baer seem to support his argument, a cert petition to the U.S. Supreme Court may be in the cards.   

The Philadelphia Inquirer reports on the decision here.