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The Ground Zero Mosque: Why or Why Not?

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Reactions are piling up to the proposed “Ground Zero Mosque.” An important vote will be held on the project today. Here’s a photo from Wikipedia on the proposed location of the projected 10-story mosque, which is circled in red:

File:World Trade Center Site 9-23-01 with Cordoba House location.jpg

Dan Senor’s proposed open letter in today’s Wall Street Journal is brilliant, while Peter Beinart’s in the Dail Beast disappoints because it doesn’t answer the central question of whether the mosque should be allowed to be built but chooses rather to attack the Anti-Defamation League which opposes construction.

When I first heard of the project, I dismissed the story as an urban myth, and then as I learned that the proposal was quite serious, I told myself not to cover it as surely New York’s fabled zoning swamp would suffocate what surely was a pipe-dream or pr scheme of some enterprizing showman. (Each year I spend a class on the bureaucratic beauty of the record in the Supreme Court case of Penn Central Transportation Co. v. New York City.)

But here we are, and does anyone doubt that if approved the mosque will be built? As a lawyer who has represented churches and religious schools over the past twenty years as various local governments have blocked various projects and uses, and as a law professor who knows the rule and the progeny of Employment Division v. Smith as well as the commands of the the Religious Land Use and Institutionalized Persons Act of 2000, I know that there are three key questions here.

Should it be allowed to be built?

If not, why not?

And if the city approves the project, ought the federal government to attempt to stop it?

These are three of the most interesting questions at the heart of American life today, and they ought to be posed not just to New Yorkers and pundits, but to every single candidate for Congress now and in 2012 and of course to President Obama and those who would seek to replace him.

My 2007 book on Mitt Romney spent a great deal of time on the issue of religion in American public life, and my friends at Article VI Blog have worked the same field for many years. There is a great deal of anti-religious bigotry in America, much of it on the left and directed at Evangelicals, Catholics, and –especially in recent years as the debate over marriage has grown– at Mormons. The hatred behind this bigotry is often startling as it is so at odds with the American tradition which is of a robust commitment to religious pluralism and the Free Exercise of religious beliefs whatever they may be.

Opponents of the Ground Zero mosque thus have to be prepared to answer the question of whether they would oppose the construction of a diocesan Catholic church or a church plant from Tim Keller’s Redeemer Pres or a new LDS stake on the same site or any site damaged by the attacks of 9/11 and thus in need of rebuilding.

There has got to be one rule, and that one rule may not in the American constitutional tradition discriminate between faiths.

(There is an argument that this stream of the Supreme Court’s case law went very badly wrong, and that unique status for Judeo-Christian traditions as opposed to all of the other great traditions on the part of government would not have offended the intent of the Framers, but I am writing here about the Constitution as it has been interpreted to date. For a review of what those other “great traditions” are, see

Here’s my short set of answers.

I do not believe the Ground Zero mosque should be built.

I oppose it because the land and buildings damaged by the assault are now part of the sacred space of America’s great civic religion. I would oppose the construction of any sectarian project there that wasn’t a rebuild of an existing sectarian use for the same reason.

There is no formal designation for the sacred spaces of America’s civic religion though they extend from the Mall to the Arizona Memorial. The land around Ground Zero is very much part of that space, and any project that politicizes it or brings a religious purpose to those sites should be refused.

If the City of New York will not protect the property from politicization or the use by any religious group, then the federal government ought to use its spending power to secure the result. Federal laws routinely interfere with the use of private property and the decisions of state and local government –see, for example, Section 7 of the Endangered Species Act– and the federal government has every right to closely patrol the purposes to which the Ground Zero area will be put. It was a national trauma, felt most intensely and uniquely in New York, but there is an issue here for every American.

I will devote a great deal of today’s show to this topic. Watch to see if anyone in the MSM can bear to pose these difficult questions to President Obama and other federal office holders.

Your thoughts are welcome at


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