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.