Marci Hamilton

The Wrong-Headed Furor over the Planned Mosque at Ground Zero: Mistaking a War on Radical Islamicism for a War on All Muslims

By MARCI A. HAMILTON

Thursday, August 5, 2010

Why are our soldiers dying in Iraq and Afghanistan? Given the flap over the proposal that a mosque be built two blocks from Ground Zero in New York City, I fear that the country has -- and in particular, the Republicans have -- lost sight of the highest values that justify our wars.

Here is the answer: Our men and women are fighting because there is a force in the world that despises our liberty to believe and think as we choose. That force is radical Islamicism. We all know what happened on 9/11, and we all know that those who perpetrated that act of terrorism want our culture to end -- to be demolished and left in the dust. Thus, what we are defending in this war against terrorism, wherever it occurs, is our very way of life -- our right to believe whatever we choose, our right to be free of government compulsion of belief, our women's rights to be equal citizens, and our deep faith in the capacity of peaceful means to negotiate the differences between faiths.

But now, in the controversy over the planned Lower Manhattan mosque, crude politics has polluted the American values that must be vindicated.

The Mosque Near Ground Zero Would Vindicate -- Not Threaten -- Our Core Beliefs

Those who oppose the building of a mosque near Ground Zero ought to know the actual facts about the mosque: According to the imam and his wife, they are moderate Muslims who seek to enter into a more fruitful, peaceful dialogue with America. Thus, they could hardly be further removed from the 9/11 terrorists.

Yet the response from conservative quarters has been that this plan is still, somehow, an affront to the victims of 9/11. Painting with an ugly, broad brush, conservatives are stirring up a fresh hatred against all Muslims by suggesting that any imam who says he is interested in a peaceful dialogue must be lying. There are no moderate Muslims, on their theory. To whip up the political winds at a time when there is precious little of interest in the news (Thank God for summer), they are fomenting hatred of all Muslims -- not just of the malevolent sect that killed Americans on 9/11.

In so doing, they are making a mockery of our men and women who are risking their lives every day, in the Middle East and Afghanistan, for our most precious freedom. The United States has established the most remarkable principle in the history of cultures -- an absolute right to believe whatever you want. Here, the government may not tell you what to believe; if it does, you may go to court and invoke the Constitution itself to defend your freedoms.

The result is a robust marketplace of ideas, encompassing religion, near-religion, and non-religion alike. (Of course, the government can regulate conduct, as opposed to belief or speech, but that is a very different principle.)

So to encourage the New York land use authorities and government to reject this proposal solely because of the owner and developer's religious identity is flatly unconstitutional. It is one of those rare easy cases.

It's Important for Americans to Stand Up for the Rights of the Planned Mosque -- Just as They Would For a Planned Church or Synagogue

Sadly, the American Center for Law and Justice (ACLJ) and the Anti-Defamation League (ADL) have each made an exception to their usual full-throated defense of religious interests, and publicly come out against the mosque proposal. The ACLJ joined the conservative commentators, like Sarah Palin, who have tried to transform this land- use application into a way of energizing the base over terrorism. Yet, the only apparent connection between the application and 9/11 is their co-residence in the wide universe of Islamicism. It's like saying that Jim Jones's Peoples Temple Christian Church Full Gospel, which resulted in the largest mass suicide in history, was Christian. The two groups have thus turned this into an instance of identity politics, rather than any kind of sincere honoring of America's war dead.

We must always beware any tendency to associate Americans' ethnicity or religion with disloyalty or guilt. Even the U.S. Supreme Court committed this error, in the Korematsu case, when it permitted the government, during World War II, to round up Japanese-Americans into interment camps. That decision has been rightly and roundly criticized ever since. Now, with the mosque controversy, we have the chance to do the right thing in the moment -- not merely to reject our actions in retrospect.

Those who oppose the mosque now are no different from those who supported internment then: Their arguments are based on ethnic or religious identity, not on any proof of treasonous motives or of any actions having been taken against the interest of the United States.

Good for the New York Landmarks Preservation Commission -- which rejected arguments that the building into which the Muslim project is moving must be landmarked, and that therefore the project must be limited. At least some entity in this process (along with Mayor Bloomberg) has figured out that neutral principles must apply here. That is where the matter should be left.

How the Religious Land Use and Institutionalized Persons Act Plays into this Odd Situation

There is an interesting background story here, though. Americans should be far more concerned about a federal law that lurks in the background in this case. That law -- the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) -- has been a hammer that has been held by one religious developer after another, to obtain power to overcome land-use laws simply because the applicant for a zoning variance or bye is religious.

RLUIPA has been a bane for homeowners and those in residential neighborhoods who have had the character of their surrounding community dramatically altered by arrogant religious land use applicants. No one's ability to obtain land use approval should turn on their religious identity, but in the U.S. right now, it does, as I discuss in this previous column.

The ACLJ and the ADF, among many others, fought hard to obtain RLUIPA. Thus, it is ironic that they are now publicly demonstrating the very discriminatory anti-religious purpose that they claimed made RLUIPA necessary in the first place. I suppose they fought for the right under RLUIPA to enjoy preferences under land use codes for their own coreligionists, but may not really believe in the same expansive protection for those whose beliefs differ. That is the only way to make sense of their current stance.

In fact, RLUIPA was not necessary. It was another handout to religious lobbyists, and it desperately needs to be reconsidered by the members of Congress.

Perhaps if Congress's members understood that RLUIPA could give the controversial Lower Manhattan mosque project a greater likelihood of success, they might rethink the legislation altogether. In fact, however, if RLUIPA were to protect the mosque project from its opponents -- who are acting on vicious, groundless stereotypes alone -- then the law might, this once, actually be doing justice. But it would prove its worthlessness as well, because the First Amendment plainly prohibits the invidious discrimination against belief that the ACLJ and ADF are now urging the government to embrace.

It is time to drill down to our core value -- the liberty to believe whatever we choose -- and remember that it is to protect this cherished value that our soldiers are dying. If there is any value for which the victims of 9/11 should be remembered, it is the value in rebuffing an attack that is based on the intent to impose one's religious beliefs on others. The ACLJ and the ADF have bungled the issue, but the rest of us need to stand in front of the world and proclaim our devotion to our right to believe and our tolerance of those whose beliefs we do not share or even fear. That is our power against the radical Islamicists.


Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol.com .

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