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Tuesday, July 27, 2010

Separation of Church and State Forgotten By Ground Zero Mosque Supporters

Perhaps no topic has inflamed tensions more in New York State politics in 2010 than the proposed construction of an Islamic mosque at 47-51 Park Place in downtown Manhattan. The site of the proposed development (formerly known as the Cordoba Instituten now to be known as Park51) is one block from Ground Zero and also one block west of New York City Hall.

 The Islamic congregation that would use the new mosque has been conducting services at its current mosque since the 1980s. This fact presents a barrier to a claim that a zoning restriction or other governmental prohibition would interfere with the First Amendment right of religious expression.

I speculate whether a governmental action allowing construction - and hence the relocation of the existing congregation - amounts to an establishment of religion (thus violating the Establishment Clause of the First Amendment).

In plainer English, this gets at the concept of a de facto preference towards one faith, which we sometimes see as a result of other groups trying to appease the preferred faith in order to avoid even the accusation of intolerance which is considered toxic in many quarters without any standard of proof. If the New York City Landmarks Preservation Board declines to designate the site as historic, this would ease the way for construction to begin on the site. (In New York City, expect delays anyway, whether of the bureaucratic or litigation variety.). However, an administrative refusal to designate the site as a protected landmark may amount to a government-sanctioned preference that would violate the Establishment Clause. 

Such a state-sponsored preference (whether implicit -- or "de facto" -- or explicit -- which would be "de jure" in Latin) is a hop and skip away from a formal, or de jure, state establishment of an official religion.  This is precisely the abuse the Founding Fathers sought to prevent with the Establishment Clause, which is designed to ensure the separation of church and state.   This same principle, incidentally, is cited as the reason for banning nativity scenes on public property (and sometimes on private property) at Christmas.

This issue will not disappear. The Ground Zero site is very unique and, should an exception be required, may warrant one. There have been very few large civilian tragedies in the history of our nation. Even the epic military tragedies like Gettysburg and Pearl Harbor have been immortalized. The special, and enduring, significance of the 9/11/2001 attack should be recognized by the city and state governments. This significance, and the enduring pain, argue in favor of the governments showing a unique sensitivity to the emotions of the survivors. For those reasons, the entire Ground Zero zone should be preserved as non-sectarian so all religions and people are respected.

Allowing a mosque -- or a new house of worship of any religion to be constructed there -- will spur concerns that city government is favoring a religion, no matter which one. Such favoritism runs afoul of the Establishment Clause and the Equal Protection Clause.

It would be worth a shot to take this before the bench.

Expect updates and further analysis.

Eric Dixon is a New York lawyer. He is available for comment at 917-696-2442 and by e-mail at

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