The complex question of
"takings" needs more attention [11-5-02]
| The 214th
General Assembly in Columbus approved an overture from Baltimore
Presbytery, asking for a study on the issue of
"takings."
The issue is complex, and it is especially
complex - and important - for the PC(USA) right now.
(1) Churches are often concerned about zoning
and historic regulations, regarding any obstacles as an offense
to religious freedom. As a result they inadvertently join the
"property rights" ideologues who regard any regulation
as a "taking" which ought to be compensated under the
Fifth Amendment.
(2) The 2000 General Assembly, acting out of
sympathy and unaware of broader consequences, approved a
Commissioners' Resolution on the Klamath Basin controversy but
in the process asserted that "taking water rights is taking
private property." This was out of keeping with the General
Assembly's longstanding support of environmental regulations,
rejecting the simplistic argument that they constitute a
"taking."
We offer three short looks at this issue.
Bob Stivers, of
Presbyterians for Restoring Creation, reported on the action of
the 214th General Assembly, examining the way it
responded to an action by the 213th Assembly dealing
with a water crisis in the Klamath Basin.
Gene TeSelle,
Witherspoon Issues Analyst, examines the way in which churches
are being drawn into the campaign against "takings,"
in the name of "freedom of religion" and of their own
institutional self-interest.
Charles
Forbes, Stated Clerk of Baltimore Presbytery, has worked
with the presbytery committee that wrote the 2002 overture. He
traces some of the complexities of the "takings"
issue, as individual interests and rights come in conflict with
community needs and interests.
Do you have thoughts on the
"takings" issue?
Please send a note and we'll share you views here. |
Background from Bob
Stivers
A longer version of this report is
found on another page on our website.
The complex issues of "takings"
The most controversial environmental action by the 214th
General Assembly was an Overture from Baltimore Presbytery on
"takings." Takings has to do with the Fifth Amendment to the
Constitution that stipulates compensation for property taken by
government. By extension, some Presbyterians would include as takings
any devaluation of private property that results from government
regulation, for example, zoning, historic preservation, and
environmental laws. The Overture called for a study of takings and
declared that last year's General Assembly action on the Klamath River
drought referred only to that situation and did not establish
Presbyterian policy.
Last year the General Assembly approved a
Commissioner's Resolution that affirmed in very simple language
"that the taking of water rights is taking private property."
Passed in the waning moments of the 213th Assembly and without much
consideration of the implications, this simple declaration alarmed
Presbyterians concerned about the environment. Were it to become
national policy, such a declaration would effectively gut environmental
laws and regulations, not to mention all regulatory activity. The public
could not afford to compensate all the private parties who would demand
compensation. The courts would be clogged, and far right, property
rights extremists would have a big victory.
In contrast to the simple language of last year's
Overture, the issue of takings is actually very complex. While the basic
ethical principles are easy enough to identify, the working out of these
principles must be on a case by case basis. Surely the community should
have the capacity to regulate the behavior of individuals, but just as
surely individuals should be compensated when community action so
restricts their use of private property to cause financial ruin. When
these two principles collide, the courts must decide, and such decisions
are seldom easy.
To this legal complexity must be added the ambiguous
situation in Klamath Falls, Oregon, last summer. Drought depleted the
supply of water for irrigation, and government officials refused to
release all the water to satisfy normal allocations. This decision was
based on the best information available to the officials at the time and
on their efforts to save two endangered fish species. Farmers demanded
compensation and later took illegal action to open the irrigation gates.
These actions set off a heated conflict into which
property rights extremists willingly jumped to advertise their cause.
While farmers suffered and the action of the officials was open to
second-guessing, little attention was drawn to the deeper implications.
Are their limits to takings claims? Does the community have rights to
protect itself against environmental degradation? Should water that
flows through private property also be considered private property?
These and other issues including the use of church property and the
freedom to make changes to historic church buildings are complex and
difficult to resolve.
The Overture from the Baltimore Presbytery passed
overwhelmingly in committee and was adopted by the Assembly. It gives
the Advisory Committee on Social Witness Policy and the Advisory
Committee on Litigation authority to conduct a study of takings. The
Advisory Committee on Social Witness Policy has yet to determine the
scope of the study. If confined to environmental issues, the study could
be done as an extension of existing environmental policy. If a broader
study is needed, the process will be more elaborate and costly.
~~~~~~~~~~~~~
Witherspoon Issues Analyst Gene
TeSelle adds this comment:
CHURCHES AND LAND USE
REGULATION:
A PLEA FOR SANITY
Religious zealots often claim that the "free
exercise" clause of the First Amendment is being violated by the
secular state. Their bottom line is that free exercise of religion is
respected only when the state gives special consideration to religious
institutions. They deny that this is a violation of the the
"establishment" clause, only a proper observance of the
"free exercise" clause.
Their most effective "wedge issue" is to
attack zoning and historic regulations that affect churches. (A
different kind of issue, with different kinds of alliances, is how to
deal with day care centers, programs for the homeless, and other
unanticipated features of church life.)
Here's a bit of background.
Most legal scholars feel that the Supreme Court tilted
the wrong way in the Smith decision in 1990, emphasizing too
rigidly the force of "neutral laws of general applicability"
in a Native American peyote case.
The supposed remedy, the Religious Freedom Restoration
Act (RFRA), went to the other extreme, requiring that government avoid
"substantially burdening" the exercise of religion; thus any
law must be in furtherance of a "compelling government
interest" and be pursued with the "least restrictive
means." This act was struck down by the Supreme Court in 1997 for
exceeding the constitutional powers of Congress.
Most religious bodies in their institutional mode,
including the mainline denominations, supported RFRA. Congregations told
horror stories about restrictions because of zoning, land use
regulation, and historic preservation, and many denominational officials
were tired of dealing with these disputes.
It may well be that land use regulations are sometimes
applied with blatant prejudice against religious or ethnic groups. On
the other hand, it may often happen that religious bodies cry prejudice
when they are merely inconvenienced, for the legal framework requires
that land use ordinances be based on good planning principles that are
applicable to all property owners. In the current situation, religious
congregations sometimes give the impression that they are wrapping
themselves in the First Amendment to gain special privileges. When that
happens, they are perceived by their neighborhoods, and by city and
county jurisdictions, as nothing more than obtrusive bits of real estate
represented by truculent lawyers.
Replacing RFRA we now have the Religious Land Use and
Institutionalized Persons Act (RLUIPA), passed by Congress and signed by
President Clinton during the campaign year of 2000. The new act keeps
the operative criteria of RFRA ("compelling governmental
interest," "least restrictive means") but tries to avoid
the problems of RFRA by focusing on the two specific issues of land use
and institutionalized persons. But it is obviously far-reaching in its
effects. It has not yet been tested in the Supreme Court.
The Becket Fund for Religious Liberty is a
Washington-based conservative advocacy group with substantial resources.
It is named, of course, for Stephen Becket, martyr for the freedom of
the church -- more precisely, for the immunity of "criminous
clerks" from civil jurisdiction, a tradition that ironically forms
part of the background to the current crisis of clergy sexual abuse.
(The Fund can be found on the web at both Becketfund and RLUIPA.)
The Becket Fund files suits in support of school
choice, prayer, and vouchers, and (most pertinent here) against many
forms of land use regulation by local jurisdictions. With a marvelous
openness that conservatives might find troubling under other
circumstances, the Fund has supported Jewish and Islamic as well as
Protestant and Catholic congregations. Sometimes it acts in concert with
the ACLU, sometimes against it.
When Congress passed RLUIPA it allowed churches
recover attorneys' fees if they win, and this, inadvertently or not,
encourages lawsuits. In a number of the cases filed by the Becket Fund,
furthermore, planning and zoning officials have been sued personally as
well as in their official capacity.
I come to this issue not as a pastor or a presbytery
official but as a neighborhood activist. That means that I have become
aware of how neighborhoods view the churches in their midst. Often what
they see is indifference to community issues except when they need to
engage in special pleading.
A church may be less valuable to its
community than it thinks; but it may be more valuable than it
thinks, and in other ways than it anticipated. A church may discover
that it has become part of what planners call the "fabric" of
the neighborhood.
When churches step into the world of property and
construction, they are expected to follow the same rules as everyone
else. They interact with others in shared space. Others are affected by
what they do. This is not exactly what Paul had in mind when he said,
"We have this treasure in earthen vessels" (II Cor. 4 :7); but
it is a legitimate extension of his point.
When churches face change in their communities and try
to re-shape their programs - in other words, when they try
"redevelopment" - one resource is a Philadelphia organization,
Partners for Sacred Places. It tries to develop win/win relations
between religious congregations and their communities.
Religious buildings are often an irreplaceable asset
to their communities. It is estimated that one third of all child care
services are housed in religious properties. Many human services
agencies make use of religious facilities, usually paying rents well
below market value. Programs for youth and senior citizens, food
pantries and homeless shelters, often begin in religious buildings,
later becoming independent.
Partnerships make sense from both sides. Grant-giving
agencies like the "track record" that congregations have built
up; but they often are reluctant to give grants to institutions that
look "sectarian" or compete with each other. Both the
congregation and the community bring something to each other. Contact:
Partners for Sacred Places, 1700 Sansom Street (10h Floor),
Philadelphia, PA 19103; (215) 567-3234; e-mail partners@sacredplaces.org;
web site www.sacredplaces.org.
You may want to check out Charles Forbes'
essay on the complexity of conflicting private-public interests in
the "takings" controversy.
