Could eminent domain be used to take an entire religious facility absent the Pillar of Fire facts and assuming other suitable facilities could be found by the religious group? I suppose so.
Could the government take a room within a religious facility and use it for purposes thought sinful by the religious group? That would seem to interfere with the independence of the religious group; it would involuntarily intertwine it with the evil and with the government (assuming that under these facts the two could be distinguished). Antiochus tried to take a holy space for government use. It did not turn out well, and I doubt it would have mattered if he had promised to pay rent. (But perhaps that's like the Pillar of Fire case.) Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Apr 10, 2016, at 3:04 PM, Nelson Tebbe <nelson.te...@brooklaw.edu<mailto:nelson.te...@brooklaw.edu>> wrote: I wrote a paper with Christopher Serkin arguing that RLUIPA should not be read to provide protection against eminent domain — it might be helpful in answering Mary Anne’s first question: http://ssrn.com/abstract=1328921 Nelson On Apr 10, 2016, at 5:47 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Mary Anne Case asked: 1) Why does everyone on the Court seem so blithely to agree with Paul Clement that for the government to take over a room in the Little Sisters’ facility to operate a Title X clinic, even if they paid market price for the room, would of course be impermissible? Couldn’t such a government action be seen as a taking for public use with just compensation? Are RFRA and/or RLUIPA thought more generally to protect religiously motivated property owners from what would otherwise be permissible takings? If so, are there cases? And specifically with respect to access to contraception, might it not sometimes be the less restrictive alternative for a government, for example, to use eminent domain to take over space in, for example, a Catholic health care facility, in which medical goods and services which the facility objects to providing might be made available? 2) When Roberts says, “Well, the way constitutional objections work is you might have to change current law,” why is the response merely “laughter” rather than the observation that a RFRA objection is not a constitutional objection? Two quick reactions: 1. I think that RFRA may well protect religiously motivated property owners from what would otherwise be permissible takings. Indeed, one of the few Sherbert/Yoder-era appellate court victories (however tentative) for a religious exemption claim was Pillar of Fire v. Denver Urban Renewal Authority, 509 P.2d 1250 (Colo. 1973), which held that a church might be able to prevail under the Free Exercise Clause in its challenge to a government action condemning the church that formed the birthplace of plaintiff’s religious denomination. I recognize, though, that this sort of claim (our property is of special religious significance to us) may be different, for substantial burden purposes, from the claim contemplated by the question (we don’t want our property used for sinful purposes, even if it’s taken by the government). 2. Zubik, like other RFRA cases, are – at least ostensibly – about implementing Congress’s will, including its will in enacting RFRA. But Congress, when it enacted RFRA, expressly took the view that religious accommodation claims should be treated as akin to constitutional objections (since it disagreed with the majority opinion in Smith). So “the way constitutional objections work is you might have to change current law” was likely intended (and understood) as shorthand for (a) the way constitutional objections work is that you might have to change current law, (b) Congress meant to incorporate a constitutional-objection way of thinking into RFRA, and (c) RFRA objections thus work the same way. Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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