Walled Gardens

Ed Brayton at Dispatches from the Culture Wars has drawn my attention to a story I’ve been meaning to post about for some time: Tom Monaghan, the founder of Domino’s Pizza and a wealthy far-right Catholic, is financing the construction of a new town in Florida to be named Ave Maria.

Controversy has ensued because of reports that Monaghan intends the town to be a mini-theocracy, where pornography will be banned from cable TV, bookstores and newsstands, pharmacies will be banned from selling contraception, and medical clinics will not be allowed to perform abortions. To be fair, the town’s official site denies this, although if the news stories are to be believed, Monaghan explicitly said these things at a Catholic men’s conference last year (source). It is possible that Monaghan originally intended the town to enforce these rules, but backpedaled upon learning of the legal issues that would inevitably ensue. Or possibly – a more sinister interpretation – this is still his intent, but it serves his purposes to deny it for now so as to prevent construction from being entangled in the courts.

Either way, it is difficult to believe that an ultra-conservative Catholic magnate who has donated millions of dollars to right-wing causes is sinking $400 million of his own money into the construction of a town without expecting anything in return. And the evidence seems to support that: the Ave Maria site, even while denying any theocratic intent, admits that its lease is designed to prohibit “certain uses that are inconsistent with traditional family values” (source), a code word which in this context always means “right-wing values”. And the developer, Barron Collier, has likewise admitted that it “is asking pharmacies not to carry contraceptives” and if “forced to choose between two otherwise comparable drugstores, Barron Collier would favor the one that honored that request” (source). Given that admission, anyone who seriously believes that a pharmacy which planned to stock contraception would have a fair chance of being granted a lease in Ave Maria is delusional.

If this is indeed Monaghan’s plan, legal challenges would be certain to be raised and would very likely succeed. Brayton cites the Supreme Court case Marsh v. Alabama, in which the Court struck down a very similar attempt by a corporation to buy up land in a suburb of Mobile and create a private town where distribution of literature was forbidden.

The Supreme Court absolutely made the right decision in this case. Without a doubt, people’s private property rights should be respected. On the other hand, there is something deeply disturbing, and intuitively contradictory to the Constitution, about allowing an individual or group to buy up all the land around one of their ventures to turn it into private property where speech and actions they dislike can be forbidden. If such a plan were allowed to stand, the United States could degenerate into a patchwork of tiny fiefdoms, each controlled by a particular religious or political group. The right of free speech would be virtually meaningless because there would be no public property where it would be permitted. (This idea echoes Neal Stephenson’s novel Snow Crash, where a near-future United States of America has collapsed and been replaced by privately owned “franchise nations”).

Monaghan is not the first person to have thought of this. In Utah, the American Civil Liberties Union has been battling for years with the Mormon church, which has been buying up public sidewalks near its temples in order to prohibit demonstrations and preaching on behalf of different religious viewpoints there.

In a similar case, the city of La Crosse, Wisconsin put up a Ten Commandments monument in a public park, and when challenged in court by the Freedom from Religion Foundation, attempted to cure the constitutional violation by selling a tiny parcel of land directly under the monument to a private party for a token sum, while the land all around it remained public property. Incredibly, the FFRF lost this case on appeal by a 2-1 vote after several victories at the lower court level. Happily, a similar tactic failed more recently in Mount Soledad, California, where several attempts to preserve a 40-foot cross on public property by selling the land directly under the cross were rejected by federal courts. Interestingly, the now-disgraced Republican congressman Randy “Duke” Cunningham, currently serving an eight-year prison sentence for accepting bribes, led an attempt to keep the cross where it was by declaring it a national veterans’ memorial (source), despite the fact that no plaque, marker or ceremony indicated that the cross’ purpose was to honor veterans until years after a lawsuit was filed.

None of this opposition to free speech should be surprising. Organized religion in general is inherently hostile to criticism, and virtually every religion that has had the power to do so has attempted to stifle critics and prevent the airing of contrary opinions. Even in the United States, where liberty was first born, religious groups have been trying to get around the Bill of Rights since before the ink was dry on it – which is itself the greatest testament to how important the Constitution is, and why every generation must take up anew the task of defending it. So far, most attempts to carve out mini-theocracies and “rights-free zones” within this country have thankfully failed, but religious encroachment on human rights is ongoing. When Ave Maria is completed, we will see if it is yet another of those attempts that must be turned back by the heroic guardians of our civil liberties.

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • andrea

    I think you’ve hit every pertinent issue on the head. It is a fact that Monaghan did say that he wanted to make Ave Maria no porn, no birth control, etc. It’s bizarre when people lie about stuff that was public and recorded. The excuse is always “I mispoke”, “You misunderstood” or my favorite “It was taken out of context.”

    If it would be built, can you imagine a town more likely to become a classic Peyton Place? Would we have people reporting on each other? How else would you control things like Monaghan wants to? Big Brother tv sets in every house? The fact is theocracies depend on fear, plain and simple. You must have a religious police to make everyone act the way you want.

    The Constitution was intended to stop idiots like this because the Founding Fathers knew what men would try to do. I suspect that if this does try to go through it will be stopped by wonderfully mundane laws like interstate commerce laws, a fittingly pathetic little end just like Capone being taken down by income tax laws.

  • BlackWizardMagus

    Wait a second; America IS a patchwork of private property where no rights are guaranteed. Your house is one; no one has a right to free speech when in your house or whatever surrounding property you own. You can ALLOW them that right, but you as well have the right of property to say “You either get of or shut up” if they happen to be saying things you dislike. The Bill of Rights doesn’t guarantee any rights on OTHER’S private land at all, just your own and public land (most of which now is completely baseless in the Constitution anyway; public parks, forests, mountains, bogs, lakes, etc, are nowhere in the Constitution, and for good reason; the founder’s didn’t want the church to own everything, no, but they were just as opposed to a secual government owning everything for exactly that reason; when land is public, rights are different. You can’t be offensive or deragatory on public land, only on private land where the owner permits it. Also, if we had no public land except government buildings, mailboxes, and roads, we wouldn’t have many arguments of public monuments, because they hardly exist).

    Ave Maria is a perfectly acceptable plan; the university where the rights will be stifled will be no different than the multitude of other universities across the nation. It has everyright to impose those rules as long as you agree to them when you sign up. It is no surprise that a large university is going to have a major effect on the nearby town, of course, constantly bringing in many new, young residents who often protest. A catholic university will definately do this. I certainly would not like him to control the town as a mini-dictator, but how exactly would he do this anyway? Quite clearly, he has to have elections and all, it’s a town. All I can think of is that he or those in agreement with him will be voted into total control, but is that so wrong? Does Utah not have alot of towns Mormon controlled? Do large protestant churches in rural areas and small towns not generally have the entire town government as members? There’s nothing wrong with that. It’s merely democracy.

    So, yeah, I see the potential for abuse, okay. But that always exists, and this guy was almost a billionaire according to one of those sources, so if he wants, he’s going to have power, like every other rich person. If he is planning on just controlling the university, that’s his right. If he is going to indirectly control the town through it, that’s both his right and the norm in this country anyway (how many republicans are on the Chicago city government? 0, yes). As long as he does not use his money or his students to come onto private property to beat the charity out of you, I see no issue.

    Hmm…or is he going to buy the entire area? That just occured to me, but if he is, again, so what? He has a right to own property and to set rules on it. If people move onto his land and agree to his rules, there is no violation of rights; no one is making them move there. Overall, abuse is possible, and indirect pressure will most assuredly exist, but as long as he only controls those who agree to it through legally binding contracts, I think it’s very dishonest to simply assume the worst because he’s catholic.

  • http://www.patheos.com/blogs/daylightatheism/ Ebonmuse

    I certainly would not like him to control the town as a mini-dictator, but how exactly would he do this anyway? Quite clearly, he has to have elections and all, it’s a town.

    The strategy seems to be that, since he holds title to all the land in the town, he would only lease space to individuals and businesses who agreed to his restrictions.

    All I can think of is that he or those in agreement with him will be voted into total control, but is that so wrong? Does Utah not have alot of towns Mormon controlled? Do large protestant churches in rural areas and small towns not generally have the entire town government as members? There’s nothing wrong with that. It’s merely democracy.

    I agree, but there are some rights that are guaranteed by the Constitution and cannot be voted away. Even if the Mormons control the government of a town, for example, they could not pass a law outlawing anti-Mormon speech within the boundaries of that town. People still have the right to protest and to advocate on behalf of their own viewpoint on public property.

    Hmm… or is he going to buy the entire area? That just occured to me, but if he is, again, so what? He has a right to own property and to set rules on it.

    That is exactly what his plan is, but the right to set rules on property you own is not unlimited. The Supreme Court ruled in Marsh v. Alabama that any entity that provides all the functions of a government is bound by the same constitutional restrictions that apply to the government, which I think is an eminently fair decision. You can bar whatever speech you like within the private property of your own house, but if you buy all the land around you and end up supplying the roads, utilities, police and fire service, and other necessities of your neighbors, you cannot demand that they abandon their constitutional rights in exchange.

  • andrea

    The Bill of Rights does guarantee rights on private land, I believe. If it didn’t, then we could have slavery wherever someone felt like it or stereotypical Southern towns where the sheriff is the law and it ain’t US law. It’s like the situation with the Branch Davidians or the militias in various places. Just because they own the property does not mean that illegal activities can go on there just because someone might believe it’s okay religiously.

    It also comes into play if he sells homes in this town and I think that was mentioned. They become private property too. So, what happens if someone buys a home and then doesn’t do what Monaghan says? Can they be run out of town for not practicing the exact version of Catholicism as he does?

  • http://brentrasmussen.com/log/blog/53 Todd Sayre

    Being against abortion AND birth control is like being against car crashes AND seat belts.

  • BlackWizardMagus

    I am afraid I di not know how to quote something with the tags here, since my home board, so to speak, allows only bold and italics. So I’ll just summarize.

    Well, if he owns all the land, so what? That’s his right. When you (you in general, any reader) go to work, you ae giving up rights. That place of business might say, yes, you can own a firearm, but you can’t have one here. You have freedom fo speech at home, but you can’t insult my customers or you’re fired. This is no different; if you don’t like the rules of the man who owns the land, GET OUT.

    Mormon thing; yes, but that’s just it; it’s NOT public property, thus the point is null.

    That is an interesting court decision, and one I think I have heard but failed to consider. If that is their argument, well, alright, but I do not like it. I would have to read that decision to see their logic. I mean, okay, so a private university then has to abide by these rights? Well, strangely, there are a multitude of very strict (I want to say Ebonmusings has a link to a site discussing this) protestant universities, where the school provides education, firemen, policemen, garbage duties, makes rules and deadlines and standards, etc. Yet, free speech is certainly not allowed there! This decision is very ad hoc, for one thing, as there is no clear boundary of where a government-like body starts from merely a large, privately owned area. For another, it’s not based on anything in the Constitution, I would say.

    Now, like I said, there is one thing that is really what should run the show; contract. What does HE agree to do, what do YOU agree to do? With legal exceptions (like undue influence), you can’t rent a house, agree to his strict rules, move in, get settled, then suddenly disregard all his rules. You are in violation of contract, which apply with force of law. In essence, breaking a contract with the house-owner to not have pornography is just the same as breaking a city ordinance to not have pornography. So, ethically, I can’t say I applaud his decision; I do not. But, well, if he wants to spend his own money to make his own little world with his own rules where people voluntarily give up certain rights, just like you do at work or when you move into an apartment or when you drive on public roads, for the privelege to live there, then fine, let him, within the law of course (you can’t have secret cameras and, when they want to move out, use photos from them to blackmail them; blackmail is still blackmail). What real difference is there if one man does this or a small group does this or 51% of voters do this?

  • http://www.patheos.com/blogs/daylightatheism/ Ebonmuse

    Just as an FYI: The “blockquote” tag can be used to quote text in comments.

    This is the part of the decision from Marsh v. Alabama I find most relevant:

    We do not agree that the corporation’s property interests settle the question. The State urges in effect that the corporation’s right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We can not accept that contention. Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.

    I think the key phrase there is “opens up his property for use by the public in general”. This seems to be the situation in Ave Maria; I would guess a similar rationale is at work behind federal antidiscrimination statutes, and also probably in the Utah case where the Mormon church lost an attempt to buy a public sidewalk and ban anti-Mormon protesting there while otherwise allowing anyone to walk through. Not being a Supreme Court scholar, I don’t know how this ruling would relate to the right of a private university to control speech on its own campus, or if such a case has ever even come up. This does seem to be an area where precedent is a bit confused.

    A relevant article from the First Amendment Center:

    After applying the Schmid test, the New Jersey Supreme Court reasoned in New Jersey Coalition that because the mall owners “have intentionally transformed their property into a public square or market, a public gathering place, a downtown business district, a community,” they cannot later deny their own implied invitation to use the space as it was clearly intended.

    I still maintain that allowing the owner of private property to set unlimited restrictions on what people can do and say within that property is intuitively abhorrent to the Constitution. Otherwise, a religious group that constituted the majority in a town, though they could not constitutionally pass laws banning speech against their religion, could easily get around this restriction by selling public land to themselves in a sweetheart deal and then passing rules to eliminate First Amendment rights on the now-private property. The Bill of Rights would be a hollow thing if it could be so easily subverted.

  • BlackWizardMagus

    But that’s not at all an easy subversion. Your example is in error because selling themselves the public land is selling land that wouldn’t exist to begin with! There is very little allowance for public land in the Constitution outside of roads and government offices, which can NOT be privately owned at all. The Constitution was made specifically as a limit on government and nothing else. You think those large farm owners who who wrote the Constitution, where those who lived there, mostly, never left and had rights only allowed to them by the owner, would want the opposite? No.

    I agree that if the SC said so, do it. But, I do not agree that this decision is at all representative of the Constitution or the Founder’s Intent; they supported the right of private property just as much as the right to free speech and such, and indeed, they intoned that those rights were only guaranteed against public government infringement.


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