Public Agency Faulted in Eminent Domain Case

Public Agency Faulted in Eminent Domain Case: Philadelphia House Was Seized to Aid Religious Group, Which Built Private School
By Mark Scolforo
Associated Press
Tuesday, February 7, 2006; Page A06

"HARRISBURG, Pa., Feb. 6 -- A city agency violated the separation of church and state when it seized a woman's home to help a religious group build a private school in a blighted Philadelphia neighborhood, a state appeals court ruled Monday. In a 4 to 3 ruling, the Commonwealth Court said the Philadelphia Redevelopment Authority should not have taken the property in 2003 so the Hope Partnership for Education could build a middle school."

This is an important ruling given the previous ruling by the Supreme Court(Kelo v. New London) that practically handed the state and local governments carte blanche in matters of eminent domain, contrary to the plain language of the Constitution that the use of eminent domain must be for the "public use" and, in principle, the public good. In the Kelo decision the Court became a body of pro-business, pro-government activists and created an overly broad, over-reaching definition of public use, essentially ignoring the rights of private homeonwers in favor of a private development corporation. The instant case of this Pennsylvania ruling doesn't do anything to discourage such over-reaching as it was decided primarily on the issue of separation of church and state under the establishment clause of the First Amendment, rather than the eminent domain clause of the Fifth Amendment.

It can certainly be said that a school, even a parochial school is a public good. But being a parochial body, this school has no right to benefit from the local government's usage of the eminent domain, as it is clearly a violation of the principles set forth in Everson (1947), McCollum (1948), and other lower courts decisions. (A note to the conservatives among us: Neither case involved the ACLU bringing suit).

"After the ruling, the future is unknown for Hope Partnership Middle School, which has 30 students. Officials say no religious instruction is offered."

Hopefully, the true owners of the property will negotiate a settlement with the religious orders sponsoring the school. Hopefully some private foundations will aid the process with some low-cost funding and grants. But the decision was proper and in accordance with the constitutional principles that is our law.

If Americans want to be safe from a tyrannical application of eminent domain, then they should be approaching their state representatives to initiate state constitutional amendments that make it clear how eminant domain may be used.