Government and Religion as Landlord and Tenant

Abstract

In 2005, the ACLU filed suit against the federal government alleging that the government’s lease of Martin’s Cove Historic Site in Wyoming to the Church of Jesus Christ of Latter Day Saints violated the Establishment Clause of the First Amendment to the U.S. Constitution. Similarly, the leasing of Balboa Park by the City of San Diego to the Boy Scouts of America was challenged as violating the establishment and equal protection provisions of the federal and state constitutions and on other grounds. These suits illustrate that, whenever the government is involved in leasing public land to a religious organization for private use or leasing private land from a religious organization for public use, there is the potential for violating the U.S. Constitution or for violating state constitutional or legislative provisions.

This Article discusses the legal issues encountered when the government acts as either a landlord or a tenant in a leasing arrangement with a religious organization. Part II focuses on those situations when the religious character of the government’s leasing partner is uncertain; for example, when the tenant is an organization such as the Boy Scouts of America. Thus, as discussed in Part III, the government can run afoul of the Constitution either as a landlord or a tenant if its leasing partner is considered to be religious in character. Part III examines various approaches and cases dealing with alleged state or federal constitutional violations based on the nature of the lease agreement between the government and a religious entity. When the government refuses to lease property to a religious entity, it may violate Equal Protection and/or Free Exercise rights. Part IV concludes by suggesting that when the government enters lease agreements with religious entities, serious consideration should be given to such an arrangement when the transaction requires either party to modify their standard operations and vary from a typical commercial relationship.

Keywords: Establishment Clause, equal protection, land use, religion

JEL Classification: K11, K19, K39