Marci Hamilton

The Mosque Controversy Continues: How a Texas Case Regarding a Sikh Temple Illuminates the Issues

By MARCI A. HAMILTON

Thursday, August 19, 2010

With the Republican Party, the Tea Party, and even Sarah Palin now conceding -- as they must -- that it is unconstitutional to stop plans for the proposed Islamic Center project two blocks from Ground Zero, they have had to move their battle against the mosque and Muslims in general toward invoking "sensitivities."

Now, they are furiously waving the American flag; posturing as supporters of the troops, by being the public enemies of everything associated with Islam; and arguing that if the imam had any sensitivity to the feelings of Manhattanites or Americans generally, he would voluntarily move the project elsewhere. In other words, it's the imam who is at fault.

This is all deplorable, base politics, but it is worthwhile to examine where these arguments will take the Americans whom these groups would like to lead.

Those Who Oppose the Mosque Based on "Sensitivities" Are Making an Argument Similar to That of Opponents of Cartoons Depicting Mohammed

Remember the fierce opposition, by Muslim imams and adherents throughout Europe and the Middle East to the cartoons of Mohammed that first appeared in Denmark? The images of Mohammed with a bomb in his turban and as a dog were highly offensive to many Muslims. The imams demanded that the media respect their faith by honoring their sensitivities toward such images.

While the imams had every right to engage in public discourse against images that they found offensive, they had no right to force the media to remove the images they did not like based on their "sensitivities." That is just basic First Amendment law, as I discussed in a prior FindLaw column. No free society can accede to such demands and expect to remain free.

When the anti-mosque provocateurs talk about "sensitivities," they have the same motive the Muslims did with respect to the cartoons: They want the mosque to go away, just as the cartoons' opponents wanted the cartoons to go away. "Don't make us look," is the theme. But that is not how free societies can, or should, work. The idea of a "viewer's veto" is antithetical to the First Amendment.

The more sophisticated among the mosque opponents have argued that they are not really opposed to Muslims or the mosque. Rather, they are just protecting the sensibilities of the families of those who died on 9/11. But they are protecting no one by sacrificing the Constitution's best values. They are facing an either/or choice, and they have made the wrong one.

Thus, unless the anti-mosque contingent wants to endorse the Muslim imams' position on cartoons about Allah, they are going to have to reverse their position or be branded as hypocrites.

The Constitution Protects Speech, But Not Action: The Mosque's Operators Still Must Obey U.S. Law

There is another side to the First Amendment too: It is fully supportive of the rule of law. So when beliefs and speech cross over into action, the government can protect the public welfare. Illegal acts are simply unprotected (though some federal laws like the Religious Land Use and Institutionalized Persons Act, discussed in my last column, grant special protection to religion that cuts across both speech and action).

In Europe, some Muslims crossed the line by putting their displeasure with the cartoons and the cartoonists into violent threats and actions. The First Amendment would give them no cover.

Similarly, if the Muslims who operate and will attend the Islamic cultural center two blocks from Ground Zero were to break the law -- and I have no information that they plan to do so -- they would run afoul of the law, and the First Amendment would offer no protection. Any believer who threatens, plots, or engages in violence, or who engages in genital mutilation, or who intentionally disfigures women must answer to the law, period. (Everyone should look at the recent cover of Time magazine for a graphic illustration of how some Islamicist believers perpetrate horrifying violence against women.) The presence of an Islamic Center in lower Manhattan does not codify Shari'a law. That would require extraordinary legislative and constitutional amendment.

President Obama rightly pointed out that the mosque's operators and believers have the right to be Muslim, and that the principle of the right to believe is fundamental to American religious liberty. However, he should also have pointed out that the 9/11 bombers' actions were completely unprotected and that any group that pursued conduct anywhere remotely close to that attack would be subject to the full force of the criminal law.

Muslims are not the problem. The problem is the network of fundamentalist Muslim terrorists that is targeting the United States, its allies, and our constitutional order.

A Recent Texas Case Provides a Sharp Contrast to the Islamic Center Situation

It is worthwhile to compare and contrast a recent Texas case involving a Sikh temple in a residential neighborhood to clarify what is really happening in New York.

In Austin, the residentially-zoned district limited buildings to places of residence, so when the Sikhs began by worshipping in a mobile home, there was less cause for concern or for litigation. However, knowing full well the zoning requirements, the group then built a sizable pre-fab house of worship on the same residential lot.

Neighbors complained, because their quiet residential neighborhood was no longer residential in character and they feared their property values would fall. This week, a Texas appellate court held in favor of the neighbors, and ordered that the Sikh temple be removed. The court also remarked, however, that worshippers could continue to pray together in the trailer, because that is consistent with the law.

As has routinely happened in recent cases when a religious group plows straight into neutral, generally-applicable land use laws, the group responded to the decision with charges of "discrimination." Now, they are taking the position in the media that no court should be able to order them to remove their house of worship once that it has been built. This is a case, though, where there is no evidence of religious discrimination. Rather, in this case, the facts point to a straightforward application of land-use laws that fairly govern every landowner in the neighborhood. Thus, the Constitution simply does not seem to be at issue here. (Apparently, RLUIPA -- the Religious Land Use and Institutionalized Persons Act, which gives special protections to religious land-owners and land-users-- was not raised in the case and, therefore, the land-use law was applied as intended.)

Compare the Sikh temple situation in Texas to the Islamic Center application in Lower Manhattan. In Texas, the group has taken actions that are in conflict with the land-use laws, and is being asked to conform its actions to the law. The same reasoning applies equally to Sikhs, Christians, and Jews. The movement of the house of worship is driven by neutrality. The same cannot be said for the opposition to the mosque. The movement of the Islamic Center at this point would be the product either of unconstitutional coercion by the government or majoritarian pressure that persuades the Center to choose retreat. The latter would entail implicit acquiescence to a fabricated equivalence between all Muslims and the fanatical radicals.

The Texas situation supports the fairness at the base of the rule of law; the Lower Manhattan controversy threatens to tear the fabric of our freedom.


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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