Dispatches from the Creation Wars

Monaghan’s Town Constitutional?

I have been meaning to write more about Tom Monaghan’s new Florida town, Ave Maria, for a while now. Monaghan, founder of Domino’s Pizza, is building an entire town near Naples, Florida, and according to numerous news reports, he plans to make it into, essentially, his own little theocracy. No business would be allowed to open unless it agrees to follow his rules, among which are that no business may offer things which he deems to be immoral according to his conservative Catholic beliefs.

That means no medical clinics that perform abortions. Heck, it means no distribution of birth control, which a thinking person might think would only increase the need for abortions. It means no cable company can offer pornographic movies, no newsstand could sell unapproved magazines, and so forth. No word on whether church attendance would be compulsory, or whether businesses could refuse to hire someone with different beliefs.

It should be noted that there is some disagreement over how extensive this control will be. Monaghan himself gave a speech in Boston where he boldly declared his vision for the town:

“We’ve already had about 3500 people inquire on our Web site about buying a home there – you know, they’re all Catholic,” Monaghan says excitedly. “We’re going to control all the commercial real estate, so there’s not going to be any pornography sold in this town. We’re controlling the cable system. The pharmacies are not going to be able to sell condoms or dispense contraceptives.”

However, with many news reports saying exactly that over the last few weeks, the website for the town says that this is not the case. Monaghan is quoted there as saying that “his ideas about barring pornography and birth control apply only to the Catholic university property” not to the town itself. Since everything is still in the planning processes, we can’t really know what the truth is at this point. For the purposes of this post, I’m going to assume that the initial reports were accurate.

Can they do this legally? It’s highly doubtful. He’s going to try and get away with it by allowing individuals and families to own their own homes and property, but only leasing the commercial property so he can control what kinds of businesses may open. Civil liberties groups, however, are already planning suits challenging the constitutionality of such a scheme and there is at least one precedent that supports their legal theory.

Marsh v Alabama is a 1946 Supreme Court ruling involving a “company town”, a de facto city owned by a corporation, in that case a shipbuilding company. Ironically, that case involved the right to distribute religious literature in the town, something that the company forbid. And they claimed essentially the same thing that Monaghan is going to claim in Ave Maria, that the commercial property is privately owned and therefore may regulate itself without regard to the restrictions put on governments.

In Marsh, however, the court ruled against the company town. They ruled, essentially, that if the company operates as a de facto government – provides law enforcement, builds roads, controls zoning restrictions, etc – then it is a government and therefore subject to constitutional restrictions. Here is a relevant passage from the ruling:

We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a ‘business block’ in the town and a street and sidewalk on that business block. Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The ‘business block’ serves as the community shopping center and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.

Many people in the United States live in company-owned towns. These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens they must make decisions which affect the welfare of community and nation. To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.

Likewise, Justice Frankfurter argued in a concurring opinion:

A company-owned town gives rise to a network of property relations. As to these, the judicial organ of a State has the final say. But a company-owned town is a town. In its community aspects it does not differ from other towns. These community aspects are decisive in adjusting the relations now before us, and more particularly in adjudicating the clash of freedoms which the Bill of Rights was designed to resolve – the freedom of the community to regulate its life and the freedom of the individual to exercise his religion and to disseminate his ideas. Title to property as defined by State law controls property relations; it cannot control issues of civil liberties which arise precisely because a company town is a town as well as a cogeries of property relations. And similarly the technical distinctions on which a finding of ‘trespass’ so often depends are too tenuous to control decision regarding the scope of the vital liberties guaranteed by the Constitution.

Mr. Monaghan seems unworried about the legal questions, but of course he is relying on the advice of the Thomas More Law Center, the legal organization he founded. The TMLC are the same group who was sure they could win in Dover, and now says they think they can win in Gull Lake, Michigan as well (a case considerably less winnable than Dover).

Comments

  1. #1 Perry Willis
    March 6, 2006

    I am initially disturbed that a private owner of property might be prohibited by government action from determining how his property is used. It seems to me that the best outlet for the desires of some to shield themselves from the world would be to allow them to do it on their own property. Such an outlet would remove some or much of the temptation for people to band together to use the government for such purposes.

    Ed, you and I would both argue, I think, that bar owners should be allowed to having smoking in their bars because it is their property. Doesn’t it also follow that an owner of a strip mall should be able to ban strip clubs or condom sellers on the same basis?

  2. #2 Ed Brayton
    March 6, 2006

    Perry Willis wrote:

    Ed, you and I would both argue, I think, that bar owners should be allowed to having smoking in their bars because it is their property. Doesn’t it also follow that an owner of a strip mall should be able to ban strip clubs or condom sellers on the same basis?

    I think it depends on the critical question of whether the owner of that strip mall is also the government, as it was in Chickasaw, Alabama in the Marsh case and apparently will be in Ave Maria, Florida as well. If the local government is the landlord, then they are of course constrained by the Constitution.

  3. #3 Bulman
    March 6, 2006

    I agree that sounds scary, but the distinction is between private property rights (and the use and enjoyment of same)and operating as a [i]de facto[\i]government. It’s the whole “my right to swing my fist ends at your nose” idea.

    I think the bar owner thing is a gray area between private/public. Personally, I would rather let market forces decide that issue. However, in the case of a private town/city, we cannot allow little fiefdoms to spring up across the U.S.

    You can be king of your castle, but not someone else’s.

  4. #4 steve s
    March 6, 2006

    Monaghan should move right across the border into Mexico. With his money he could run his own katholic kingdom. or maybe offshore on a huge assembly of boats a la L. Bob Rife.

  5. #5 HairlessMonkeyDK
    March 6, 2006

    Despite the Mohammed-drawings debacle,
    this is what makes me thank finnicky nature that I was born in Denmark and not the U.S.
    I think there’s a few Domino’s Pizzas here in DK,
    but I’ve never eaten there… and now I certainly never will.

  6. #6 David C. Brayton
    March 6, 2006

    Perry–to what extent should a property owner’s rights extend? If we assume that a property owner should be allowed to permit/ban smoking and permit/ban strip clubs, should they be also be allowed to discriminate against people of different races, religions and sexual orientations?

    It seems that Congress does have the constitutional power to regulate all forms of Interstate Commerce (which extends to just about eveything according to Wickard et al). But should Congress have that power? And if it should, when does that power trump the rights of property owners?

    The issues raied by the Ave Maria town are worthy of a small book.

  7. #7 Tim Makinson
    March 6, 2006

    If Monaghan has any sense he’ll split things up so that the town ‘government’ is a seperate legal entity to the town ‘landlord’ – then he can impose whatever daft restrictions he likes as ‘landlord’ without it raising consitutional questions.

  8. #8 Pieter B
    March 6, 2006

    Does anybody want to invest in my liquor/condom/video-rental/stripjoint superstore just outside Ave Maria’s city limits?

  9. #9 Ed Brayton
    March 6, 2006

    Pieter B wrote:

    Does anybody want to invest in my liquor/condom/video-rental/stripjoint superstore just outside Ave Maria’s city limits?

    LOL. Great idea. Don’t forget an abortion clinic and laundromat in the back.

  10. #10 Raging Bee
    March 6, 2006

    I’ll only invest in your superstore if I can distribute pagan pamphlets on your premises. Also, you should put the while thing on wheels in case they buy more land out from under you.

  11. #11 Steve Reuland
    March 6, 2006

    I think there’s a few Domino’s Pizzas here in DK,
    but I’ve never eaten there… and now I certainly never will.

    You’re too late. Monaghan sold the company back in 1998. Refusing to eat there now won’t hurt him.

  12. #12 Keanus
    March 6, 2006

    Monaghan’s effort with Ave Maria bear a close resemblance to the efforts of the Jewish Satmar Hasidic sect to establish a homogeneous religious community in Orange County NY during the late 1970′s. Using agreeable gentile front agents, they purchased several hundred acres of mostly open land about 50 miles northwest of NYC. Once they took title to the land they became open about their ambitions and set about building four to six story apartment buildings plus the commercial entities needed to support their community. Among other things they tried to block all vehicular traffic through their land on the sabbath. They also set about establishing a separate township, successfully seceding from the existing townships (which has been there for over 200 years), and withdrew from the local school systems to they did not have to pay taxes to support the local public school system. My mother lived on land (that had been in my family for generations) that abutted their land. When she moved to more modest quarters and sold her land, the only shopper was one Hasidic family from the Satmar sect, and they would only offer a very low price. It was a classic case of reverse “block busting.” In any event the years since the community, now called Kiryas Joel, was established have witnessed a procession of court cases and legal fights, several of which have gone to SCOTUS. It’s also become involved in fraud, the mixing of church and “town” funds, a conflation of church and state and there’s no end in sight. While Monaghan’s ambitions may play out differently, I suspect that many of the same contentious issues will rear their ugly head and the local county and state government are in for an expensive few decades. Oh, by the way in the Satmar sect, people marry at nineteen, the marriages usually being arranged, and they don’t believe in any form of birth control, so the families are large and the growth rate is phenomenal, so large in fact the the town now wants to annex several hundred adjacent acres to accommodate that growth.

  13. #13 Ian Gibson
    March 6, 2006

    Considering the practicalities of such a town – I guess if everyone who moved there wanted to have such restrictions placed on them, it might work (at least for a while), but surely at some point they’d have to set up security checkpoints where people entering town would be searched for contraception, pornography, Richard Dawkins books, etc.

    How would they filter the internet? What about satellite radio (Howard Stern comes to mind..)

    It’d probably end up like North Korea-Lite, by the sound of it.

  14. #14 steve s
    March 6, 2006

    Does anybody want to invest in my liquor/condom/video-rental/stripjoint superstore just outside Ave Maria’s city limits?

    Posted by: Pieter B [TypeKey Profile Page] | March 6, 2006 12:25 PM”

    HELL yes.

  15. #15 Grumpy
    March 6, 2006

    Would such a town need its own abortion clinic?? As we’re learning about South Dakota, there’s an entire state with only one (ditto Mississippi), and none in North Dakota, IIRC.

  16. #16 Seth
    March 6, 2006

    If we assume that a property owner should be allowed to permit/ban smoking and permit/ban strip clubs, should they be also be allowed to discriminate against people of different races, religions and sexual orientations?

    I think that would follow from any premise of free association, wouldn’t it?

  17. #17 Gretchen
    March 7, 2006

    If towns can ban formula retail and food outlets ( http://www.newrules.org/retail/formula.html ), is that really so different from what Monaghan is trying to do? The line seems kind of arbitrary to me, or perhaps my understanding is off.

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