It'll Be a Fine Day When Bars Have All the Money They Need and Private Schools Have To Buy Their Own Property…

Reader Jinnatun points us to the following story emanating from woeful Jersey City, New Jersey. I see it almost as a twisted Philip K. Dick variation on Kelo v. New London:

School's need outweighs bar's operation: planner
…

Can Jersey City use its power of eminent domain to force a property owner to sell to a private, Catholic high school?

The question has become more heated since the U.S. Supreme Court's controversial June decision reaffirming the government's power to take property as long as the owner is compensated.

Whole thing here. The bar in question is called The Golden Cicada and the school is St. Peter's prep.

How does one weigh the relative social value of a bar vs. a school? Call in the greatest legal mind in feudal Japan, Ooka the Wise and have him figure it out. His likely ruling: Have the prep school kids run the bar. After all, is there a greater education than living among drunks and making money off them?

Here's my bet on how it plays out at trial: Even if Colin Ferguson is representing The Golden Cicada, the bar can't lose as long as they get one parochial school grad on the the jury.

Comments

[ChicagoTom]

How does one weigh the relative social value of a bar vs. a school?

What a gimme of a question.

The one with the higher social value is the one thats for ....................... the children!

[R C Dean]

Do we have an additional problem here, if the state taking property to give to a religious institution?

What could be a more overt establishment of religion than taking an establishment (albeit a drinking establishment) to benefit a religious school?

[Number 6]

God is said to look out for drunks and small children, so it seems to be a wash.

[Number 6]

Although it occurs to me that if this Catholic prep school and the one I attended have anything in common, the children are already drunks. I'm not sure how that fits into the equation, but it's in there somewhere.

[joe]

"Do we have an additional problem here, if the state taking property to give to a religious institution?"

If the action is not primarily being done to further religion; if it serves a legitimate secular purpose; and if it does not unduly burden any other party's practice or nonpractice of religion, then no.

The fact that the party receiving a benefit has a religious character does not automatically make the action unconstitutional. Habitat for Humanity can accept a grant to help a housing development, and a church in an historic district can get a grant to reglaze its stained glass windows.

Now, if it could be shown that the city was taking the bar for the greater glory of Jesus, if it was being given to a church to build a shrine, or if the only Buddhist temple in the state was being taken, there could be a problem.

[Hakluyt]

Well, as we know, only the government, as joe has told us, has the ability to discern what is the proper balance. We should just sit around and trust them to make the right decision.

[Hakluyt]

joe,

That's not the Lemon test (the much maligned, but still proper means by which to determine a violation of the Establishment Clause).

The Lemon test is as follows:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion." - Lemon v. Kurtzman (1971)

Of course there isn't a member of the current Court that hasn't at one time or another criticized Lemon, indeed, Scalia has described as a ghoul which can be raised from the dead at will and as quickly interred depending on the wishes of the Court.

[Hakluyt]

Perhaps the Catholic school needs the likely cheap land because so much of the Church's budget is going to the kids they literally screwed around.

[joe]

Are you trying to impress us with your supernatural capacity to quote language? Every point in the Lemon language, I made in my post.

[joe]

"Perhaps the Catholic school needs the likely cheap land because so much of the Church's budget is going to the kids they literally screwed around."

That's a cute one liner, but parochial schools are on a different set of books from the parish's or diocese' operations. In fact, many Catholic Schools are in very healthy condition, financially and in terms of enrollment, even as the diocese of which they are nominally a part goes into bankruptcy.

More likely, the school has outgrown the small parcel it was built on, and simply can't find a willing seller with adjacent land.

[Hakluyt]

joe,

Actually, you missed the point about excessive entanglement. A lot of novices who read this language lump excessive entanglement in with the second prong, which is what you've done essentially, but its a seperate prong that must be met on its own. Basically what you have, out of order, is the first two prongs of the Lemon test.

[Hakluyt]

joe,

That's a cute one liner...

If Catholics can't take swipes over their history then they need to disband.

[Hakluyt]

joe,

Just for kicks, let's compare the language:

If the action is not primarily being done to further religion;

That is part of prong two.

...if it serves a legitimate secular purpose;

That is largely the whole of prong one, though your language would be viewed as problematic if presented in a brief (the state must "have" a secular purpose, whether it "serves" one is a different issue).

...and if it does not unduly burden any other party's practice or nonpractice of religion, then no.

That is the second part of prong.

Nothing you write mentions prong three.

[Hakluyt]

That is the second part of prong two.

Some scholars think that prong three should be collapsed into prong two, however, the Court has never stated that should be the case, and has never overruled Lemon.

[Hakluyt]

joe,

Again, you should leave the law to others.

Are you going to try to tell me how Pickering balancing works now? 🙂

[Hakluyt]

R.C. Dean,

It really depends on the facts of the case. If it looks like the state has tried to create a phony secular purpose, for example, then they'll get nailed (think of the Texas football prayer case from 2000).

[joe]

What would be an example of "excessive entanglement" that wouldn't also "advance or inhibit the practice of religion?"

[JMoore]

Prediction:

The church (most of whose students don't live in Jersey City--interesting little factoid) will get the property for its sports field (not classrooms, mind you--another interesting little factoid). Then, in about 5 years, the entire church property will be condemned so that a developer can put up another tower of swank condos for NYC refugees. Ah, progress.

[Hakluyt]

joe,

Welcome to Con Law 101. 🙂 We went round and round about that issue quite a bit. I believe the excessive entanglement clause has only been used once to invalidate a government action, etc. The confusion that Lemon

[Hakluyt]

The confusion that Lemon test is one of the reasons why I tepidly perfer O'Connor's 'endorsement test' instead ( over Lemon or the seperate coercion test).

[Hakluyt]

joe,

I guess more to the point is the fact that the Court has never used a single test to make its decisions. Indeed, there are at least two or three major decisions in the 1970s and 1980s where the Court doesn't even mention Lemon.

[Shelby]

joe,

There are two issues here. One is the Establishment Clause problem, the other's the takings issue. I know you're up to speed on Kelo; just how comprehensive does the development plan have to be for the taking to have a "public purpose"? Would this situation qualify?

[JMoore]

Not being familiar with the tax code in Jersey City, I can't say for sure, but I'm betting that churches receive a property tax exemption. Assuming that's true, I do hope the city takes into account that it will be making some prime real estate tax-free. That area of JC appears to be booming these days.

[joe]

"BTW, you should be reasonably impressed you got two out of the three prongs."

Well, I don't claim any exceptional knowledge outside of my little niche of expertise.

But, to climb back out of the weeds, the answer to the question is that having a religious character does not automatically exclude a party from qualifying for government benefits, as long as the benefits go towards advancing a public goal, like education or historic preservation, and not just advancing religion.

[Hakluyt]

Shelby,

The majority's directions on that issue border on the realm the meaningless.

[David]

Lemon test considerations aside, who wants to bet that someone affiliated with the school has powerful friends downtown, and thats why this course was taken?

One thing I find unsettling about some ED cases is that it seems that some groups have substituted "it would be nice for us to have X" with "It's a public purpose for us to have X". Strangely, it's those used to getting their own way who seem to make this substitution.

[joe]

Shelby, education is a public purpose. That's been established.

Does a football field advance education? That's a decision for the political branches.

[Hakluyt]

joe,

The problem of course is the stated goal v. the real goal and there are many instances where the state is simply trying elide past the issue of endorsement by creating a fake secular purpose (one of the problems with the Kentucky displays from last term's decisions dealt specifically with that issue). Here we have what is likely a predominantly Catholic region, with a likely predominantly Catholic government claiming that their rationale for taking a bar owner's property is a secular one.

[Hakluyt]

David,

Its certainly a nice form of rent seeking and a way to given spoils to those who scratched your back on the way up.

[Lou G]

Prep class of 2000 here -

While the Cicada is technically in "good condition", it's still somewhat of an eyesore. The field they built was on top of previously awful land (a sandbox in JC complete with syringes, etc.) as well as some ground which was contaminated from an adjacent chemical facility. The school bought out a few buildings, tore them down, and put up a gorgeous facility which is all turf, new stands, etc.

My guess is that this last piece of land they want is for parking for the field and the athletic department offices. And yes, a vast majority of the students are NOT from Jersey City, with some coming from far away as Livingston, Morristown, Summit, etc.

And no, they should not take this man's property.

[JMoore]

I'm emailing the mayor, accusing the entire administration of racism and religious discrimination for attempting to seize this property and turn it over to the Catholic church.

This is, of course, entirely baseless, but hey, it works for the loony left. Maybe I can start a scandal!

[Shelby]

joe,

I certainly understand that education's a public purpose. So is tax revenue, but that by itself didn't suffice for the Kelo court. They also relied on the fact that the seizure was part of a "comprehensive plan" for development of the area. As someone interested in and trained in that field, do you think this situation qualifies?

Hakluyt: Yes, I know the court's decision is overall useless, but joe's views are I think indicative of how many people would view it.

[Phil]

Six fucking posts in a row. That's gotta be a record for you, Gunnels.

More likely, the school has outgrown the small parcel it was built on, and simply can't find a willing seller with adjacent land.

Gosh, that's a shame. Good thing they can just use their friends in government to steal someone else's land.

[joe]

Phil, you misuse the word "theft" more than a Marxist at a Mobil station.

Shelby, "I certainly understand that education's a public purpose. So is tax revenue, but that by itself didn't suffice for the Kelo court. They also relied on the fact that the seizure was part of a "comprehensive plan" for development of the area."

There are a lot of public purposes. Education is a legitimate public purpose. So is transportation. So is redevelopment, including economic development. You seem to have concluded from the Kelo debates that the ONLY thing that qualifies as a public purpose under takings doctrine is the implementation of a comprehensive plan; that's not so. While implementing a comprehensive redevelopment plan for the purpose of economic development is one such public purpose, it's certainly not the only one.

I think that education, by itself, qualifies under the public purpose doctrine. The expansion of the school doesn't have to be part of a redevelopment plan to advance a public purpose; just expanding its educational offerings could qualify.

[Phil]

joe, if I take your car from its parking space, but leave you a check for its NADA value in an envelope in its place, did I steal it?

As you say, lots of things are public purposes. That doesn't mean they all require taking other people's property to achieve. If the school can't find willing sellers, well, tough crap. If the bar wanted to expand into a bigger bar in order to provide more jobs, more tax revenue and more economic activity, I doubt they could get the city council to kick the school out for them.

[Lou G]

Just to clarify:

The extra space will be used to make the field legal by NJSIAA (the high school athletic assoc.). There is currently not enough space behind the end zone to hold official games. Also, they want extra parking spaces it seems.

[joe]

"joe, if I take your car from its parking space, but leave you a check for its NADA value in an envelope in its place, did I steal it?"

I don't know, Phil, does the Constitution contain language explicitly authorizing you to take property? Has the expropriation of my car to you been authorized by a democratic legislature?

I love this reasoning - taxation is theft, except when it goes to defense and the enforcement of contracts. Condemnation is theft, except when the public will own the property.

"As you say, lots of things are public purposes. That doesn't mean they all require taking other people's property to achieve." Amen to that.

Wait a minute, it stops being theft when the thief has a really good reason, and puts it to really good use?

[Phil]

I don't know, Phil, does the Constitution contain language explicitly authorizing you to take property? Has the expropriation of my car to you been authorized by a democratic legislature?

I'm talking about digging beneath to a different order of principle than simply what's Constitutionally allowed, joe. We're allowed to delve into the underpinnings, right? It's Constitutionally permissible for both states and the Federal government to execute people, but we can still argue about whether, from first principles, we should do so, no?

I love this reasoning - taxation is theft, except when it goes to defense and the enforcement of contracts. Condemnation is theft, except when the public will own the property.

I didn't claim either of those things. Don't put words in my mouth. Feel free to argue with anyone who has claimed them, but don't pin them on me just because someone else claimed them and you'd rather argue them now when it's convenient.

Wait a minute, it stops being theft when the thief has a really good reason, and puts it to really good use?

I didn't claim that, either. Can you perhaps limit yourself to the single question I actually asked, or address those other things to people who asked them?

[LEE]

RE: "If the action is not primarily being done to
further religion."
The Catholic Church runs schools ONLY for the purpose of furthering religion!

[Hakluyt]

LEE,

True. One of the primary roles of Catholic schools is to indoctrinate a new generation of tithe payers.

joe,

I think that education, by itself, qualifies under the public purpose doctrine.

The Court has never stated this.

[Stevo Darkly]

Well... they also do some of the non-religious education thing too. Better than many public schools. Which is why non-Catholics sometimes choose to send their kids to Catholic schools.

None of which should be construed as support for the state grabbing someone's private property and giving it to someone else.

I have to admit, though, I kind of love this situation. It will push various buttons, and seems almost custom-designed to make people uneasy about this kind of eminent domain. Especially, but not limited to, those left of center.

If I were writing this as a work of fiction, I'd juice it up with even more button-pushing details:

1) Make it a gay bar. (Hey, with the name like "The Golden Cicada ...")

2) Making the bar owner Asian is a good start, but let's work on that. Make it owned by two lesbians of color.

3) One of whom is a handicapped veteran of the Gulf War.

4) And the other is a practicing Jew.

5) And make the priest in charge of the Catholic school an alcoholic.

6) ... who secretly frequents the Golden Cicada in rather flamboyant civilian clothes for anonymous pick-up sex.

7) And have an altar boy accuse him of molestation.

8) Then have a person or persons unknown leave the Golden Cicada and kill the altar boy's parents in a hit-and-run drunk driving accident.

9) And then the two lesbians of color want to adopt the altar boy.

10) And have someone accuse the alcoholic priest of wanting to destroy the lesbians' means of support deliberately in order to torpedo their chances of having their adoption of the altar boy approved.

11) Make the accuser the lesbians' attorney.

12) Who is an Arab Muslim.

13) Who is shown to harbor a hidden hatred for environmentalists.

14) And have the priest drive a Prius hybrid.

15) In a flashback, show that the drunken driver who left the Golden Cicada and killed the altar boy's parents was driving a Prius.

I think we have the beginnings of an interesting story here. Hell, a miniseries.

[js]

And again the assumption that the school's need serves a more important purpose than the bar is debatable even on those grounds. A bar can be a place to imbibe like crazy but it can also serve as a place to socialize etc. and this DOES in fact serve a community purpose, several actually.

[thoreau]

OK, before I say this, I should make the disclaimer that I oppose this ED taking. Just so there's no confusion.

That said, Hakluyt, you are so completely wrong about Catholic education. My grade school class was close to 50% non-Catholic. The school was in a neighborhood on the edge of the inner city, and any parent who could possibly afford it sent his or her kids to Catholic schools rather than public schools. For high school I went to a public school (we moved), and I was so much better prepared than the other kids. I also learned more about non-Christian religions than most of the public school kids. (Catholic schools believe that religion is an important part of society, so any study of history or culture should include religion, even if the religion isn't Catholic.)

Yeah, I know, some people here don't like religion. Fine, don't send your kids to a Catholic school. But don't go around talking out your ass about the purpose of Catholic schools. First and foremost, Catholic schools are excellent schools. They teach the other subjects far better than most public schools and still have the time to teach religion.

[joe]

"I'm talking about digging beneath to a different order of principle than simply what's Constitutionally allowed, joe."

Me too, Phil. The morality that one applies to the government's actions is different than that which applies to an individual's actions. Ergo, any argument that substitutes the actions of an individual for those of government in an effort to argue against the morality of government can be dismissed. We can certainly argue about the morality of condemning property for various reasons - my point is simply that drawing a comparison between a government condemnation and a car thief is invalid.

"The Catholic Church runs schools ONLY for the purpose of furthering religion!" That's not so - groups like the Jesuits consider the development of the mind to be a good in and of itself.

[thoreau]

joe-

Don't forget the Franciscans. And the School Sisters of Notre Dame. They ran my grade school.

[tomWright]

What next? Will the need of some church for sacramental wine cause some local gov to pass a law subsidizing the purchase through taxes or a bond? Or maybe they will just aquire the stock of a liquor store via eminent domain or asset forfeiture to supply it.

What a load....

This story inspired me to post a rant about the whole Bill of Rights being gone. Felt good, but accomplished nothing.

Tom

[David]

It may have accomplished nothing but it was a pretty good rant, Tom

[Mr. Nice Guy]

I'm with t and joe here.

I hated going to an all-male Catholic high school for social reasons, but the education was excellent. The priests there taught us about contraceptives, believe it or not, and that the many of the stories in the bible aren't to be taken literally. My favorite biology instructor was a priest who never introduced theology in the slightest in his teachings.

I'm still an ex-Catholic, but one of those ultra-rare not-pissed-off-ex-Catholics.

[joe]

MNG, one of my teachers at a Catholic High School got in trouble for teaching her class that sheepskin condoms didn't block HIV, but latex did. She was reprimanded by the diocese.

Thereafter, she did all her contraceptive teaching via hand signals and writing on the chalk board, so she wouldn't be overheard.

That woman deserved a medal.

[Mr. Nice Guy]

joe:

The brothers who taught at my school were Trinitarians, probably the most left-leaning Catholics you could find. They don't go by the book, to put it simply. One brother was a real granola type, who took us out on hikes, and had a "Question Authority" bumper sticker on his beat-up car. Great guy.

[joe]

The nuns in my school had "Jesus is my co-pilot" stickers on their cars.

And they drove like it.

[thoreau]

The teachers at my school were a few nuns and a whole bunch of protestants who didn't like the public schools.

[ChicagoTom]

Although I don't have a problem with Catholic (or any religios school...I went to one myself), let's not kid ourselves here.

I don't deny that there are a lot of good Catholic schools and are inclusive and allow non-Catholics, but the bottom line is that they are set-up and run by the Catholic Church. Most Christian denomination's (Catholics included) main purpose is to convert others to Christianity. That's why they have missionaries, that's why they provide charity, and that's why they have the schools.

That's not to say that they don't value education in and of itself, but the main purpose of any Christian Church is to proselytize, so it's hardly "talking out of ones ass" to believe that the only reason the Catholic Church decided to get into the education business is to try and reach out and convert more people or at the very least to keep catholics practicing.

One may disagree about the motivations of the Church, but its hardly ignorant to hold the opinion that the Church does things primarily to further its own cause.

[Mr. Nice Guy]

My dad told me horror stories about the nuns while he was a kid in school. Like the "penguin" in The Blues Brothers.

By the time I got into grammar school, they weren't allowed to beat the kids anymore. But one sister liked to poke. Really hard. One time I side-stepped, and she jammed her finger against the wall.

"We gotta do it. We gotta go see the penguin."

[wayne]

So, does this mean that you can't go within 1000 feet of a strip club with a gun? Or, does it mean that you can't go within 1000 feet of a school with a hardon?

[wayne]

So, does this mean that you can't go within 1000 feet of a strip club with a gun? Or, does it mean that you can't go within 1000 feet of a school with a hardon?