Constitutional Constraints are Essential to Our Way of Life

Professor Dorf has written a couple interesting posts this week about the Cordoba House imbroglio.

First, the issue is clearly political, not legal—which is to say that objections can be little more than rhetorical, while arguments about the legality of Cordoba House simply will not fly. So politicians will try to squeeze a lot of mileage out of the issue in their campaigns, even though, if elected, they will still be constrained by the same constitutional limits that defeat any legal arguments against Cordoba House. The professor writes:

[W]hen President Obama seemed to back off of his initial strong defense of the Islamic center, he was making a fair point: Much of the opposition to the Islamic Center—including by [Sarah] Palin—did seem to challenge the right to build it and not just the wisdom of doing so. Thus, defending free exercise was not a non sequitur, given the prior (and to a large extent ongoing) campaign. We end up with a very narrow disagreement: Palin and Obama now agree that the planners have a right to build the Islamic Center where they plan to build it; Palin says they should not exercise their right; Obama says it’s not for him to advise them whether to build it or not. Yet that small difference will undoubtedly be the source of much electioneering and demagoguing between now and November.

Second, even when opponents of Cordoba House come up with ostensibly reasonable objections, a moment of reflection typically reveals them to be animated by the “Christian nation” sentiment that, under the religion clauses in the First Amendment, simply cannot be translated into state acts. For example, there may be an argument that Cordoba House has or will have connections to “radical Islam” or Saudi financing. The professor responds:

[W]hen Newt Gingrich . . . says that . . . Cordoba House should not be permitted because there are no churches or synagogues in Saudi Arabia, he both draws attention to the Saudi connection [i.e., that all but one of the September 11 hijackers came from Saudi Arabia] and shows that he’s not really making the claim that ground zero is not the right place for an Islamic Cultural Center. The logical inference to draw from Gingrich’s invocation of Saudi Arabia’s exclusion of non-Islamic houses of worship is that no mosques should be allowed anywhere in America.

And this gets straight to the reason why we separate religious affairs and legal affairs in the United States. The right to free exercise opens the field for, among other things, civil attempts at persuasion: if members of any religion want to persuade others to join, or call upon their tradition for the rhetorical raw materials going into their participation in the public conversation, they are quite welcome to do so. But they are not guaranteed success and they are not guaranteed control over the laws, no matter how widely-shared their beliefs may be in the general population. And the prohibition on establishment or endorsement of a religious argument by the government means, in a very practical sense, that while persuasion from a religious viewpoint is allowed, government acts must be rooted in a broader consensus, which the Supreme Court expresses as “a secular purpose.” It means that even though many Americans may want to squeeze Islam out of our culture, whether because the perpetrators of the September 11 attacks were Muslims or whether they believe the United States is a “Christian nation” (or both), and they can try to persuade people that their views are correct, the government is not permitted to act on that persuasion unless there is some interest, relevant within the context of maintaining a government, that legitimates such action.

In the case of Cordoba House, there may be a legitimate claim that some Muslims want to destroy America and replace our government with Sharia, which would certainly present a threat to the maintenance of our government. But the geographical location of a Muslim facility, despite what it might mean to those would-be destroyers, is not going to result in the overthrow of our government. We have other means to prevent that, including the enforcement of laws against certain criminal conduct, which allow us to address more specifically which individual Muslims present a threat and which really are the kinder-and-gentler practitioners, devoted to tolerance and mutual understanding between different religious viewpoints. We can also turn to the establishment clause, to the extent more powerful and entrenched religious groups have not already eroded its strength, as a tool to prevent Islamic interference with the operation of our laws. And we, through our government, have a strong interest in enforcing our criminal laws and our constitutional separation of religion and state to maintain our government.

But executing those laws sloppily, and without regard for how disparate treatment will muck up precedents for the future, only weakens our government and our nation. Fortunately, most everyone who has joined the debate over Cordoba House recognizes that our laws provide no comfort to objections. The continuing political firestorm, however, has the potential to further weaken public understanding of the laws. Highly visible public figures getting up and saying, in essence, “We have these laws that prevent us from doing what we want to do, and we will respect that, but those laws are wrong,” deepens the public perception that something is wrong with our Constitution. When the next “crisis” comes, will Sarah Palin and Newt Gingrich and others like them still recognize the constitutional constraints? And when the encroach of Islam finally results in the collapse of our commitment to constitutional restraint in our dealings with Islam and other religions, who will be the winners? Certainly not us.