Cordoba House and the First Amendment

Is there any reason to oppose the mosque that isn't bigoted, or demagogic, or unconstitutional?

This article is from the archive of our partner .

Muslim American citizens have a constitutional right to build a religious and cultural center anywhere in this country that Christians or Jews may build one. This is so clear and obvious that opponents of the planned Muslim center near Ground Zero usually concede or avoid the point. Then they say that the center should not be built at this location anyway. I guess they mean that these Muslims should give up their right voluntarily--or under duress.

And why do they say this? Well, the two obvious possibilities are bigotry and political opportunism. Maybe they associate this Muslim center with the perpetrators of 9/11. That would be bigotry, since the only real connection is that both are Islamic. Or maybe, in the case of Republican politicians and right-wing commentators, it is simply a matter of taking advantage of a political opportunity that has fallen into their laps.

Both of these reasons are fairly unattractive. Is there any reason to oppose the mosque that isn't bigoted, or demagogic, or unconstitutional? None that I've heard or read.

Republican Rep. Peter King said on CNN yesterday that "the issue is not that there's a legal right to build the mosque, but that those involved should listen to public opinion, which is strongly opposed to the project." But the whole point of the First Amendment is that the freedoms it guarantees are not constrained by public opinion. You don't need a Bill of Rights to protect people's right to do or say things that are popular. The First Amendment would be of limited value if every exercise of freedom that wins its protection immediately faces the second hurdle of a popularity contest.

Some people say that tact or respect for the survivors of victims of 9/11 should dissuade these Muslims from building their center on this particular spot. This argument avoids both the constitutional question and the issue of bigotry. It says your concern is protecting the feelings of people whose feelings deserve protection, whatever those feelings might be--even if those feelings, in some other person or some other situation, might seem bigoted.

In First Amendment jurisprudence, there is a concept known as the "heckler's veto." Is it OK for the government to silence a speaker whose speech so offends some listeners that they may turn violent? The answer is generally "no." Except in true emergencies, the government's duty is to protect the speaker, not to silence him. The parallel is not exact, of course--no 9/11 families (that I know of) have threatened violence--but the principle is similar: opponents of someone's First Amendment rights should not get a veto over their exercise.

Presumably the 9/11 families don't speak in unison. Some of them, of course, are Muslims. Others may be liberals or even card-carrying ACLU members. (This was New York after all.) Some may actually like the idea of a Muslim center radiating ecumenical vibes right near Ground Zero. Is there any reason that the wishes of these victims should be trumped by the wishes of other victims?

Then there is the more ethereal notion that Ground Zero is sacred ground. This raises the question: how would a mosque nearby desecrate this ground? Would a church or synagogue on this spot be considered a sacrilege? Hard to imagine. So what is different about a mosque?

Opponents of the mosque have their own analogies. What about a theme park near the Civil War battlefield at Manassas? What about a Japanese cultural center at Pearl Harbor? What about a convent full of nuns praying at Auschwitz (a project Pope John Paul II shut down). I confess that I never did understand what was wrong with nuns devoting their lives to praying at the site of a Nazi death camp. As for the other what-abouts: the difference is that our constitution does not guarantee freedom of theme parks, or freedom of national (as opposed to religious) cultural centers. It guarantees freedom of religion, which (to make the banal but necessary point) is one of the major disagreements we have with Osama bin Laden.

I usually find that the best way to test my position on some controversy is to put it in a cage with a Charles Krauthammer column on the same issue and see if my reasoning survives. But Charles's column on Friday about the mosque controversy (from which I took the above examples) didn't put up much of a fight. Even if this mosque has no connection with terrorism today, Charles writes, "Who is to say that the mosque won't one day hire an Anwar al-Aulaqi--spiritual mentor to the Fort Hood shooter and the Christmas Day bomber"? Right, and who is to say that the Fifth Avenue Synagogue won't hire Bernie Madoff as its next cantor? Or that the Pope won't appoint some child molester as Archbishop of Boston? Obviously, freedom of religion can't be contingent on such what-ifs.

(To be fair, Charles was toying with an aside in New York Mayor Michael Bloomberg's strong pro-mosque statement. Bloomburg said that the mosque builders should show "special sensitivity" due to its location. How does Krauthammer get from here to a terrorist Imam taking over the mosque? Find out for yourself. And no doubt you're wondering what Andrew Sullivan makes of it all.)

You would think, from the fuss, that this Muslim center was planned for right on top of Ground Zero. In fact, it will be two and a half blocks away. How much farther away does it have to be in order to avoid the stain of sacrilege by association? Will five blocks do? A mile? Should it have to be in a different borough of the city? Can't opponents see how incredibly insulting and hurtful this controversy must be to Muslims in America and everywhere else?

This article is from the archive of our partner The Wire.