Posted by 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).
March 6, 2006
March 6, 2006