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Aug 08 2010

Upset About Mosque Near Ground Zero? Blame Tom Jefferson

They say you should never discuss religion and politics among friends and family but who cares what “they” say anyway? Today’s NY Post’s front page, which I saw yesterday in the deli, reads:   “Mike’s Mosque Mania.” I’ll summarize the article so you won’t have to bother to read the Post:  The author chastises NYC Mayor Mike Bloomberg for his support of the construction of a mega Mosque and Islamic Learning Center two blocks away from the Ground Zero. Bloomberg stated that opponents of the mosque, who have speculated over “where the money comes from,” ought to be ashamed of themselves. The Post says Mike just doesn’t get it; its not that a mosque is being built, its that its an insult to those fallen and hurt from 9-11 to build one so close to the site of the attack that was perpetrated “in the name of Islam.”   That the Post fails to see the hypocrisy in their not being concerned about insulting the entire NY Muslim community hardly comes as a surprise, but what is shocking is how quickly they and many, many others are so quick to throw away one of the most basic founding principles of our country: The Separation of Church and State.

The doctrine says more than it is an individual’s right to worship without government intrusion whatever God they see fit in generally whatever manner they see fit.  It also stands for the proposition that the government shall not favor one religion over another nor limit one religion in a way that it would not limit some other religion.

The main proponent of this doctrine was Thomas Jefferson who also came up with the phrase “The wall of separation between Church and State.”  Many of his writings and letters focused on this issue and he was key in formulating the Establishment Clause in the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What is particularly ironic is that many of the anti-Mosque folks are over at Fox News which is headquarters of the Constitutional Doctrine – If the Founding Fathers Did Not Intend It or Foresee It, Then It Shall Not Be.  So we are told to overlook changes in society and technology and be guided by 18th century slaveholders on one hand, yet we are supposed to ignore one of their bedrock principles on the other hand.  I don’t get it.  As a trial lawyer, I really don’t get it.

If the City tried to stop the mosque or force it locate elsewhere or reduce its size, the lawsuit against the City would be a slam dunk win.  The government cannot take any actions  prohibiting the free exercise of religion. That’s it, case over.  What would the City’s argument even be:  “But, Your Honor, people of that religion attacked us two blocks away in the name of their God.”  If that was a viable argument then you could not build a Christian Church in Alabama, Georgia or Mississippi, where the Ku Klux Klan ran a campaign of terror for decades in the name of Christ.  I am also tired of hearing this analogy:  “This is like letting the Germans build a monument to Hitler near a Holocaust memorial.”  No it is not.  The Holocaust was a systemic, government-operated mass homicide.  Building a monument to the engineer and perpetrator of that homicide is profoundly offensive.  If this group wanted to build a monument to Osama Bin Laden, then that could be stopped of course.

But this is a private group using private funds to build a house of worship on private property.  The government cannot stop this.  And unless you believe the Constitution only applies to Christians and Jews, we should not want to stop it.

Freedom is messy and it is, to quote the most quotable president ever, George W. Bush, “hard work.”  Yes, I can understand the feelings this generates in families that lost loved ones on 9-11. But many family members also support the mosque saying that allowing its construction would be the greatest example of why we are different than the Al-Qadias of the world. This nation is supposed to stand for something far greater than our individual feelings and concerns.  Do we just pay lip service to those beliefs or do we stick to them even when it is uncomfortable to do so? What would Jefferson say? This:

To suffer the civil magistrate to intrude his powers into the field of[religious] opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty.(Statute for Religious Freedom, 1779).

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