Group says city violates separation of church and state

Dover is reacting to a call from a Wisconsin group to halt the transfer of its old city library building to Wesley College.

In a Sept. 20 letter and email to acting City Manager Donna S. Mitchell, a lawyer for the Freedom From Religion Foundation said the move violates the concept of separating government from religion.

The letter did not mention any possible litigation of the city, but protested the move and asked for copies of records relevant to the transaction.

Mitchell said that, at the moment, the city just considers the FFRF letter a request for information, and is treating it as such. The transfer of the library to Wesley still is on track.

“We’re treating this as a Freedom of Information Act request, and we’re moving forward,” Mitchell said.

Work on the transfer should be completed within the next few weeks, she said.

Constitutional questions

The FFRF’s purpose is to “protect the constitutional principle of separation of church and state and to educate the public on matters relating to nontheism,” wrote staff attorney Ryan D. Jayne.

Founded in 1978, the FFRF has more than 29,000 members in all 50 states and works to keep government and religion separate.

The group learned about the sale from an individual Jayne would identify only as a concerned Dover taxpayer. He said they object to the transaction because a religious organization is receiving city property for a token $1 payment.

“The city of Dover may not transfer city property to a church or religious college for less than fair market value,” Jayne wrote. Doing so violates both the U.S. and Delaware constitutions, he said.

In August, city council approved the sale of the 0.86-acre property to Wesley. In October, the property had an estimated fair market value of about $1.1 million.

To get the sale underway, Sen. Colin Bonini, R-Dover, and Rep. Sean Lynn, D-Dover, agreed to commit $1.05 million from their state community transportation funds to the city over the next three years. The agreement came with a caveat the money could only be spent for transportation needs within the city.

Lynn said the CTF funds would free up money Dover would have allocated from its own budget.

Violates First Amendment

That argument, however, is not valid, Jayne said.

 “It is no defense that state legislators offered the city discretionary funds if they improperly advance religion in this way,” he said.

Jayne cited several prior legal decisions, as well as the establishment clause of the First Amendment, which he said prohibits governments from financially supporting religious schools.

In 2016, the FFRF successfully resolved a similar case in Shelby, Tenn., without going to court. However, it won a 2005 lawsuit involving federal grants to a Christian college in Alaska.

The Capital City is trying to do the same thing, Jayne argued.

“The city of Dover violates this principle by giving valuable real estate to a religious entity for a token $1,” he said.

Additionally, Delaware’s Constitution forbids funding religious entities, Jayne said, in that no one “shall or ought to be” required to contribute to the construction or support “of any place of worship or to the maintenance of any ministry” without their consent.

“Maintaining a ministry is exactly what the city does by selling real estate to Wesley College for less than free market value,” he said.

To overcome these legal objections, the college must pay full price for the library property, Jayne said.

Still raises concerns

Notwithstanding the legal details, Mitchell said the city will put the CTF funds to work where they’re needed, repairing Dover’s streets, curbs and sidewalks.

The old library is essentially a white elephant. An estimate of roughly a half-million dollars needed to bring it up to code was “a real eye-opener,” she said.

Mitchell acknowledges there were complaints after the transfer made the news, including from groups advocating its use as a homeless shelter.

But she is comfortable with the decision.

“I could get behind this, knowing I could get our streets fixed and get more done with the funds from the CTF,” she said.

Still, Jayne said constitutional issues raised by the FFRF must be dealt with.

“The simple way to say this is the city cannot give government property to churches or religious colleges,” Jayne said. “It seems to me that from looking at their website that Wesley doesn’t push the religious angle, and you probably could go throughout the college without having a lot of religion pushed on you.

“But the fact is it has a religious affiliation still raises state/church concerns.”