Demolishing homes, churches for the 'public good'

by Mary Reichard
Posted 9/08/15, 03:08 pm

Houston’s Fifth Ward, once known as the Bloody Nickel, is a community plagued by crime, drugs, and violence. It’s also home to two churches that work to redeem the community: First Christian Fellowship Missionary Baptist and Latter Day Deliverance Revival Center. Even as life in the Fifth Ward has improved, the city is threatening to turn out the churches’ lights. 

“This city is trying to use its eminent domain powers to kick these churches off their property,” said Jeremy Dys with Liberty Institute, which represents the churches in their fight to keep their property. One church has its actual building there, and the other has its outdoor ministry space on the property. 

The current eminent domain legal climate is 10 years in the making. In 2005, the U.S. Supreme Court handed down a controversial 5-4 ruling in a case called Kelo v. City of New London. The small city in Connecticut used its power of eminent domain to seize Susette Kelo’s little pink house and those of her neighbors—a close-knit, lower middle class community. The city wanted the land so a private corporation could come in and create jobs and pay taxes to New London.

At the Supreme Court, attorneys for the homeowners argued for limits on the government’s power to use eminent domain. The Fifth Amendment guarantees the government won’t take private property for public use without just compensation. To the five-justice majority, “public use” meant something other than electric lines, a railroad, or a police station. It meant tax money for the government.

The four dissenters were Justices Sandra Day O’Connor, William Rehnquist, Antonin Scalia, and Clarence Thomas. The majority ruling was a reverse Robin Hood move, taking from the poor and giving to the rich, the dissenters wrote. 

“Up until about the 1950s, eminent domain was typically used in the United States for what most people would think of as a public use—a road, a police station, city hall, things like that,” said Dana Berliner with the Institute for Justice. She was one of the lawyers on the Kelo case.

A 1950s ruling in Berman v. Parker allowed property to be condemned if it was labeled a slum, meaning areas that were not in good shape and typically were occupied by African Americans.

“The results of that have now been uniformly understood to be terrible because what happened is that people who were poor but owned their own homes and had neighborhoods and communities were all driven out and forced into ‘nice, clean housing projects,’ which was not good for communities of poor people. I mean it’s much better to own your own home, even if it’s not a very nice home, than it is to live in a publicly run apartment building,” Berliner said.

Publicly run apartment buildings, the so-called projects, became crime-ridden disasters. Despite those lessons, the Supreme Court in Kelo v. City of New London accepted the idea that “public use” meant getting rid of a bad area. 

“The result of that is that under federal law, you can always take small businesses for larger businesses, you can take homes for business, because, again, more taxes, more jobs. And of course you can take nonprofits that produce no taxes for anything because whatever it is will produce more taxes than that,” Berliner said. 

But in reaction to the decision, 47 states tightened their laws to prevent the use of eminent domain for private projects. Since then, it’s harder for states to take religious properties or nonprofits for economic development. Churches now have more protection from abuse by eminent domain than they did before the Kelo decision. 

As for Susette Kelo’s little pink house, and those of her neighbors, nothing was built on the land taken by eminent domain a decade ago.

“So it was a nice residential neighborhood … with a corner store and a lot of people who knew each other, and it is now an empty field full of weeds,” Berliner said.

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