Marci Hamilton

The Ongoing Controversy Over the Planned Mosque Near Ground Zero: How It Reveals Important Fault Lines in Americans' Thinking About Religion

By MARCI A. HAMILTON

Friday, September 10, 2010

The public debate over whether a planned Islamic center, which will include a mosque, should be located two blocks from Ground Zero has revealed several critical fault lines in Americans' thinking about religion -- as this column will explain.

The First Fault Line: A Tendency to Oversimplify Religious Identity

First, despite the dizzying diversity of religious believers in the United States, Americans have a strong tendency to oversimplify religious identity.

For example, the Republican Party, or at least elements of it, for several years have been controlled by a narrow set of Christian beliefs that are treated as the only "true" Christian beliefs. In these Republicans' calculus, "Christian" has meant anti-abortion, anti-homosexual, and anti-stem cell research -- with no exceptions. And just as the Republican Party has imposed a single definition of what it is to be Christian, so too has it now in the discourse over the mosque near Ground Zero treated all Muslims as though they shared identical, fundamentalist beliefs.

Of course, these are gross oversimplifications. There is great diversity among both Christian and Muslim believers. There are many Christians who do not share the views of the conservative Christians at the top of the Republican Party, and there are millions of Muslims who do not share, and indeed are repulsed by, the fundamentalist beliefs of the 9/11 hijacking terrorists.

The Second Fault Line: A Tendency to Put Self-Interest Above the Public Interest

Second, when you scratch the surface of religious organizations and their lobbyists, they all too often operate out of self-interest, not the general good. But their image, in America, holds otherwise.

For example, as I discussed in a previous column, the Anti-Defamation League and the American Center for Law and Justice promptly abandoned their previous support for expansive protection for religious property developers, as soon as the mosque controversy erupted.

To call this hypocrisy would be putting it mildly, but that is the least of it. This is a lesson for all Americans and especially for our politicians. Even religious entities act not upon principle, but out of self-interest -- and without regard to others' interests, including the interests of other believers. Moreover, religious leaders do not always set an example for the government, nor should they. The ADL and ACLJ have every right to criticize other believers, even when it creates tensions with their professed beliefs in religious liberty. The government has no such latitude, as Mayor Bloomberg has made clear since the debate began.

The Third Fault Line: Americans' Failure to Truly Understand that While Religious Belief and Speech Are Constitutionally-Protected, Illegal Actions Done In Religion's Name Are Not

Third, and most importantly of all for this column's purposes, Americans too often fail to understand that, no matter what their faith may be, religious believers are subject to secular law when they turn their speech into action. There are religious groups that engage in illegal behavior and we have every reason and right to monitor their actions closely, and if necessary, invoke the law against them.

Of course, Americans understand this point well when it comes to 9/11. They are rightly enraged at the actions of the fundamentalist Muslims who took down the Twin Towers, decimated parts of the Pentagon, and led to the crash of a plane in western Pennsylvania -- a plane that, but for passengers' heroism, could have gone on to sow yet more destruction. The argument is simple and correct: The hijackers and those in league with them killed our people, which makes them the enemy. They deserve to be severely punished to the full extent of the law (whether it is criminal law or the law of war). And their religious beliefs are no defense.

So when an imam or his followers buy the fertilizer for a bomb, or hold meetings at which they are planning deaths, or aid in terrorist training, the authorities need to pay close attention. It is healthy and good for Americans and the authorities to be vigilant and to act to prevent destruction. They may not pursue prosecution solely based on beliefs, though. Conduct is what they must trace and follow. This is the line the Constitution draws, and it is eminently sensible and feasible to follow it.

That is why the federal law against genital mutilation, enacted during the Clinton Administration, is constitutional. Sure, this is primarily a Muslim practice, but the law outlaws the act, not the belief behind it.

When It Comes to Muslims, Americans Know that Reports of Lawbreaking Deserve Swift Investigation -- But When It Comes to Other Faiths, It's Often Another Story

Here's the rub: Americans routinely use religious identity to avoid vigilance of illegal actions by powerful and well-known religious organizations and leaders.

For instance, it seems that no matter how much they learn, Americans keep trying to sweep under the rug the ongoing actions of Catholic bishops in covering up the abuse of children by clergy. Yet the problem is not over. For example, after a New Jersey priest avoided conviction on child sex abuse on a technicality, the bishop pledged to keep him from children and then assigned him without public announcement to a hospital.  Where is the outrage among Americans -- and particularly Catholics -- at the bishops who are sinking their millions into fighting legal reforms for child-sex-abuse victims so that they can avoid legal liability for appalling crimes committed against children? It is hard to be outraged when you just don't want to watch or know.

To take another instance where Americans tend to look away, consider the suffering of the child brides, or the abandoned boys, in the Fundamentalist Mormon sect. Onlookers may wonder, "How bad can a group really be when it dresses its girls and women so modestly?" If you talk to former wives, the answer is pretty bad. The actions the sect's members routinely take are deeply illegal. Yet Utah and Arizona prosecutors fail to crack down on crimes that, in a secular context, would be instantly subject to indictment and, indeed, public outrage.

Why do Americans look away? It seems there is this little voice whispering in the back of the American psyche: "They are religious, so it can't be that bad. They mean well." If religion is no excuse for the bad actions of the Muslims, it is also no excuse for the crimes and torts committed by the Catholic hierarchy and the FLDS, among others.

Americans Look Away From Christians' Lawbreaking -- But Look for Lawbreaking by Muslims Even Without Evidence of It

For the most part, we simply don't want to know that religious actors within our most entrenched religious organizations can act in devastatingly illegal and immoral ways. Yet, with respect to Muslims, we have swung to the other side: Now, they are all likely to be bad, the public's reasoning goes, and, therefore, it is okay to oppose even a house of worship -- and even when its imam specifically disavows and condemns the murderous tendencies of the fundamentalist terrorists.

There is also a high level of protection in the United States for religious speech, including the odious and the tasteless. That brings to mind the Florida evangelical pastor who has designated 9/11 as the day he will burn a Quran at his church. General Petraeus, from the battlefields of Afghanistan, pled with the pastor not to follow through, because it is fomenting anti-American demonstrations. They hate us, they say, because we are religious and cultural imperialists. Or is it simply because we hold beliefs different from theirs? So we have a Christian pastor willing to burn Qurans to show what? That he hates them back? Or that he hates all Muslims? Whatever his message, he has every right to express it in the United States.

I think General Petraeus missed a golden opportunity. Instead of simply providing his on-the-scene assessment, which was accurate to be sure, he should have canvassed the big picture as well. How? By pointing out that the Quran-burning pastor is exercising a right no Afghani or Iranian has, no right Sharia law recognizes -- the freedom of every private citizen to criticize the powers-that-be.

In the end, our men and women are fighting to preserve the core values of our constitutional order against violent takeover. As I said in my previous column, our soldiers are fighting for the right of a mosque to locate despite discrimination. They are also fighting for the pastor to be able to follow through on his misbegotten plan and for many, including myself, to criticize him for bad judgment and an embarrassing publicity stunt. The lively public exchange in response to the pastor's plan actually led him to re-think his plan and to cancel the event. It is even reported that there will be a meeting between him and the imam who seeks to build the mosque near Ground Zero. Now, that's America.

For more from Professor Hamilton on the Quran burning -- in connection with President Obama -- see her article in The Washington Post.


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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