Experts: Stupak land transfer deal runs afoul of Constitution

U.S. Rep. Bart Stupak has introduced a bill that would transfer a piece of Coast Guard-owned property in Cheboygan to a Christian school free of charge, an action that legal experts say would run afoul of the separation of church and state required by the First Amendment’s religion clauses.

U.S. Rep. Bart Stupak on Capitol Hill (Congressional photo)

If passed, HR 1291 would require the Coast Guard to “expeditiously convey to the Cornerstone Christian Academy, located in Cheboygan, Michigan, without consideration, all right, title, and interest of the United States in and to all real property under the administrative jurisdiction located at 900 S. Western Avenue in Cheboygan, Michigan, subject to all easements and other interests in the property held by such other person.”

The phrase “without consideration” is important; it means that the land would be given to the Christian school without compensation. The school, which is actually called Cornerstone Christian School rather than “academy,” already operates on the property to be given to them. The story of how the situation came to be and how Stupak, a Democrat from Menominee, introduced the legislation, is complex.

The Coast Guard purchased a 22.5-acre parcel of land in Cheboygan in 1979 to build housing for personnel that serve on a large ice-breaking ship stationed in the town in the northern Lower Peninsula. The Coast Guard did not use all of the land for that purpose and in 1987, according to both Jim Granger, the chairman of the Christian school’s board, and Lt. Dave French, a public affairs officer for the Coast Guard’s 9th District Command, they made an arrangement to allow the school to build on a corner of the property down a hill from the housing units.

Neither the school nor the Coast Guard can find copies of that original agreement, but both sides agree that the original arrangement was for the school to pay for the construction of the their own building and to pay the sum of $1 a year for rent on the property the building sits on. They signed a series of leases to that effect over the next two decades.

In 1992, the Coast Guard determined that the portion of the larger parcel on which the school sits was unnecessary for their needs and they deemed it to be surplus property. Officials began the long, slow process of listing the property as surplus with the General Services Administration and went through the steps necessary to divest the Coast Guard of the property.

The original agreement with the school lasted until 2007, when the Coast Guard did a review of the expiring lease agreement. French told the Michigan Messenger that this review “determined that in its previously existing form, the lease exceeded Coast Guard real property authorities. Because the school is a private organization and not an operation that benefits the general public, the Coast Guard may only issue a license to the school in consideration for full fair rental remuneration.”

The Coast Guard then told school officials that they would have to sign a new license that would require them to pay $81 a month, or just under $1,000 a year, to lease the property.

The school, having little choice, signed the lease. At that point, Granger told Michigan Messenger, the school contacted Stupak and asked if he “could do anything to leapfrog over that lengthy process and try to get the property transferred directly to the school.” Stupak submitted a bill to do so in the last session of Congress and now again in the current session.

The process for getting rid of surplus or excess government property requires a series of steps under the Federal Property and Administrative Services Act. Under that law, surplus government property can only be transferred for fair market value and may be disposed of “only after public advertising for bids.” Stupak’s bill seeks to bypass the requirements of federal law and have Congress vote to transfer the property as a gift to the school.

Pete Irons, a professor emeritus of law at the University of California at San Diego and one of the nation’s foremost experts on the religion clauses of the First Amendment, told Michigan Messenger that Stupak’s legislation is clearly unconstitutional.

In an email, Irons said:

Rep. Stupak’s proposed bill, directing the U.S. Coast Guard to convey property in Cheboygan, Michigan, to the Cornerstone Christian School “without consideration” (that is, for no compensation and no opportunity for other potential bidders to purchase it) would violate both federal law and the Establishment Clause of the First Amendment. In effect, Rep. Stupak’s bill would allow the government to provide a “gift” to a religious group of property that is owned by all taxpayers, including those with no religious faith. This is precisely the kind of religious preference the Constitution forbids and the Supreme Court has ruled against in numerous cases.

Dan Mach, director of litigation for the American Civil Liberties Union’s Program on Freedom of Religion and Belief, agreed, saying the bill “appears to be a clear Establishment Clause violation.”

The Establishment Clause has long been interpreted by the courts as preventing the government from taking actions that provide a benefit specifically to a religious group — such as giving such groups public property — as opposed to a general benefit that also helps that religious group, such as police and emergency services, which benefit the public, including religious groups.

Stupak’s bill has not yet come up for a vote or even for consideration in the committee process, but it’s the sort of bill that is unlikely to get voted on by itself. More likely it would get slipped in as an amendment to a much larger bill and pass largely unnoticed.

As the Michigan Messenger reported recently, Stupak is a member of a shadowy Christian group in that calls itself variously “The Family” or “The Fellowship.” Though he has flatly denied any knowledge of the group, which others members have said they are required to swear an oath of secrecy, Stupak lives at The Family’s now-infamous C Street house on Capitol Hill.

According to Jeff Sharlet, who lived with this group and wrote a book about the organization, Stupak has long been an active member of the group, helping to mentor other members and being part of one of the innumerable “prayer cells” through which the organization operates.

Stupak’s office did not respond to requests for comment for this article.