A while ago I encountered someone who complained that allowing Cordoba House to go forward in Manhattan demonstrates tolerance for Islam, but not for the families of the people who were killed in the September 11 attacks. Here is how I responded:
It’s not “tolerance” or intolerance either way, and I’ll tell that to any family member of any victim. It’s a constitutional right to the free exercise of religion. And if we use Islam as an excuse betray our fundamental values and deny to some the same basic rights to practice religion, assemble, and use their property, simply because they practice the same religion as the hijackers, then the victims of the attack on September 11, 2001, died in vain. Justice Oliver Wendell Holmes, Jr., was right when he wrote, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.
Grief, even when legitimate, is not an entitlement to undermine the law or to deny rights to others. Building a mosque or practicing Islam are not acts of terrorism, nor are they illegal. Condemn Islam, ridicule Muslims, and deride their beliefs—your speech is constitutionally protected. But they have the same right to build their mosque in Manhattan as practitioners of every other religion have a right to build houses of worship on the property they rightfully own. And I will condemn and ridicule them all, even as I defend their right to be: if others can have their rights taken away simply for being offensive, then my rights might be next.
If people engage in illegal or constitutionally unprotected acts like harboring criminals, inciting violence, or providing “material support” to foreign terrorist organizations, then we can punish them. But being Muslim in Manhattan (and having a place to be Muslim in Manhattan) is not a punishable crime or even a violation of the constitution—even though Muslims flew the planes into the World Trade Center, even though there are lots of Muslims who would love to destroy our government and install a theocratic regime under Sharia.
In this country, you get to practice whatever religion you want, no matter how ridiculous others might think it is, no matter how much anybody finds it offensive. Our laws don’t protect people from offense; they protect people from harm. That means, to paraphrase Thomas Jefferson, if it neither picks our pocket nor breaks our leg, you can be as ridiculous and offensive as you want. If you can’t handle that, then you can’t handle the United States of America.
Your article challenged my thinking on the whole issue of the “Ground Zero Mosque”. But I must say I still disagree with the idea of putting the mosque there–for reasons of common human decency.
You say: “But being Muslim in Manhattan (and having a place to be Muslim in Manhattan) is not a punishable crime or even a violation of the constitution.”
This is true. And nobody is wishing to deny anybody the right to be Muslim in Manhattan…or the right to have a place to worship. Just not THAT place. This is not a “punishment” of Muslims…it is a desire for common respect and decency.
I would be interested in your response to these comments by Charles Krauthammer, who expresses it far better than I could:
“America is a free country where you can build whatever you want — but not anywhere. That’s why we have zoning laws. No liquor store near a school, no strip malls where they offend local sensibilities, and, if your house doesn’t meet community architectural codes, you cannot build at all.
These restrictions are for reasons of aesthetics. Others are for more profound reasons of common decency and respect for the sacred. No commercial tower over Gettysburg, no convent at Auschwitz — and no mosque at Ground Zero.
Build it anywhere but there.”
Aside from zoning discrimination on the basis of religion being illegal under the Religious Land Use and Institutionalized Persons Act (RLUIPA)—a law passed largely at the insistence of Christians and Jews (but not without support from the ACLU) after Employment Division vs. Smith and the failure of the Religious Freedom Restoration Act—Krauthammer simply ignores the facts: Cordoba House will not be at Ground Zero any more than many of the things he describes as falling under zoning laws are also already “at” Ground Zero. Which is to say not “at” Ground Zero, but several blocks away.
In other words, there is no reason to prevent Cordoba House from going forward than simple animosity toward Islam. Which means that government action to stop the project is almost certainly a violation of the Free Exercise clause of the First Amendment. That does not preclude actions by private citizens that are extra-legal but not illegal, including persuasion, protest, or other activities that are also constitutionally protected. But government action, through zoning laws, targeted specifically to one religion at one location, without a compelling government interest (of which there is none) is unconstitutional.
And here’s another problem with Krauthammer’s failure to ascertain the facts: there’s already a mosque in lower Manhattan, just around the corner from “Ground Zero.”