A Pennsylvania preacher is taking a fight over his city’s demand for a warrantless search of his residence to the U.S. Supreme Court, contending the requirement forces him to choose between two fundamental civil rights.
The appeal has been filed by the Rutherford Institute on behalf of street preacher and evangelist Michael Marcavage.
The case developed when Marcavage’s municipality, the Borough of Lansdowne, told him he would have to allow searches of his residence, which is part of a two-unit rental building, to rent out the other half.
“The sanctity of one’s home should not be undermined for any reason, least of all because of bureaucratic policy-making,” said John Whitehead, president of the institute, when the filing was released today. “Homeowners, whether or not they own rental property, have every right to be free from unreasonable searches by government agents.”
The city’s perspective is different. It demanded to search Marcavage’s residence as part of the process of granting permission to rent out the other half of the residential building.
When he did not get the mandated inspection Sept. 30, 2009, officials posted a notice on the door of Marcavage’s residence that it was “unlawful for landlord to … use, or occupy this building.”
The appeal asserts that the notice set up an unconstitutional government takeover of property.
The ordinance, adopted in 2003, states that anyone who wants to rent out property must obtain a license. As part of the process, an inspection is required, not just of a rental unit but of any owner-occupied portion of the property, including the interior.
The ordinance was amended after Marcavage’s challenge was filed, allowing an inspection by an outside inspector, but the examination still is required.
The institute’s appeal argues that the inspection of non-rental property as a requirement for permission to rent another unit “constitute unreasonable governmental intrusion into one’s home.”
The idea “upsets [the Supreme Court’s] unconstitutional conditions doctrine, allowing Landsdowne to force citizens to choose between two precious fundamental civil rights.”
“It is difficult to imagine any more compelling need for the doctrine’s application than where the ‘benefit’ used to induce the waiver of constitutional rights is itself a thing of great constitutional import.”
The petition explained: “The right to rent real property is more than a mere ‘benefit’ bestowed by the state. Indeed, it has long been recognized that among the valuable rights of owning property are the rights to unrestricted use and enjoyment of it and the right to receive rents. … Laws that purport to interfere with one’s enjoyment of these property interests constitute deprivations of property that trigger the requirements of due process.”
The high court previously has said that “the right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee’s submission to a condition prescribed by the state which is hostile to the provisions of the federal Constitution,” the appeal explains.
“This court should clarify that the doctrine means at least this: that government officials may not ‘condition’ the exercise of one fundamental civil liberty upon the forfeiture of another.”
Marcavage, a ministry director, leader and street evangelist, has been involved in a number of court disputes, but they mostly have been over his right to free speech.
One recent case challenged a decision in Winchester, Va., by city officials to restrict speech if someone else might be offended by it. Marcavage won his case there.
He’s also had disputes over restrictions on speech rights in Philadelphia and New York and other locations, including at the Liberty Bell center, where he was told he could not express his beliefs to passersby.