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Tuesday, August 3, 2010

Ground Zero Mosque OK But Nativity Displays Forbidden

The de facto preference of the New York City government towards one mosque, to be constructed on the literal edge of Ground Zero (one block away) and likely to be financed with foreign capital (hmmmm), continues.  And we continue to be worried, as a general rule holds that, no matter the context, a preference towards one is discrimination towards all others.  The Ground Zero mosque controversy is no different.

A constitutional analysis of the Religion Clauses (both freedom of religion and the establishment clause) should consider the following:

(1) A Greek Orthodox Church, destroyed in the 9/11 attacks, has yet to be rebuilt and reportedly is facing government bureaucratic hurdles; and

(2) Numerous nativity displays are routinely banned from public places and even from multi-unit residential developments.

Nativity scenes are generally not situated in public places because of the concern that, however benign the symbolism, scenes depicting the birth of Christ suggest the supremacy of Christianity; hence, the public display leads to an inference (however wrong) that the public entity prefers -- if not endorses -- that faith.  Nativity scenes are now customarily forbidden from public places in order to respect the equality of all faiths under the law and to demonstrate the state's neutrality.  In other words, public entities now customarily strive to avoid the appearance of favoritism, of preferring, any one religion.  This is done to respect the sensibilities of those people who may share in non-preferred faiths and who may be offended by the concept that the state prefers a faith which they do not share, and which by logical extension means that the state accords their faith second-class status. 

This is not of small significance.   Perhaps there is no more efficient way to offend a group of people than to suggest that their faith is inferior to another faith.  Regardless of upbringing, there seems to be an innate human belief system which values the concepts of equality and fairness.   The concept of "my God is better than your God" is guaranteed to spark strong emotions. 

The related concept of one faith possessing a particular site is also highly troublesome.  Ask anyone who's been to Jerusalem recently.  Mosque opponents sense that the mosque would be a beacon, a symbol of triumph, of territorial possession -- of victory in the wake of 9/11.  Yet no one suggests that a new Christian church be established on the edge of Ground Zero (this would also be improper for the exact same reasons).

Our Founding Fathers recognized that such dangers could destroy the secular state.  They rebelled against -- and their ancestors fled -- monarchies which preferred and established state religions.  This sentiment, recognizing the abuses and the risk to the young country of having some citizens feel their faith was second-class, led to the constitutional bedrock principle of separation of church and state, and was the genesis for the Establishment Clause.

Today, New York City's government consciously chose to ignore the lessons of history, of the pre-American Revolution abuses under colonial rule, the religious persecution which characterized most civilized societies up until the advent of the secular state -- the United States being the first.  It also ignored the lessons of appeasement, such as at Munich in 1938.

The powerful symbolism of this development should not be ignored. Somewhere, today, there are visions and celebrations of the first bastion of a new, New World Islamic caliphate, situated at, of all places, the site of the greatest civilian loss of life due to a military or terrorist attack in the history of the United States -- and one of the greatest civilian casualties from any cause ever (natural disasters included).

The root cause of this, it appears, is a manifestation of the Stockholm Syndrome. Maybe city leaders seek to assuage and appease radical Muslims to prevent another attack. More likely, city leaders feel they have the burden of proof to show that they respect the freedom of religion of Muslims.

The First Amendment freedom of religion is freedom from government abridgement of the right to worship. It is laughable to propose that the Islamic congregation which has worshipped in the Tribeca neighborhood of Manhattan (a few miles north of Ground Zero, in an entirely different neighborhood), has had their freedom of religion abridged because of the particular situs of their services. 

Does the freedom of religion include a "right" to select one particular, and uniquely significant (if not outwardly confrontational) site for a house of worship? If so, what is it about the favored group -- in this instance, Muslims -- which creates a corresponding "obligation" of others to suffer the offended sensitivities so that Muslims may not feel intimidated?

In fact, how can something be a "right" if it requires imposing an "obligation" to perform some act or duty by others?  The classic American rights of life, liberty and the pursuit of happiness share one classic trait:  they do not require the performance by anyone else of any act.  This means that one may have and exercise these rights without any imposition or interference with or upon another.  

True rights require no obligation upon others nor impose a burden upon others.

The mosque's construction will infuse a secular, tragic site with one religion's significance and identity. It will start the move towards the Islamification of Ground Zero, and of New York.
Instead, today, the 9/11 victims are told to apologize for making Muslims feel discomfort.  The Muslim community, which largely had a muted reaction to the attacks but a much more strident demand for "tolerance" and protection in their wake, has never distinguished itself in condemning the attacks, the vitriol and venom which engendered them or in disassociating itself from those who supported hateful, dangerous or murderous sentiments.  Yet the Muslim community is enjoying victim status and the preferences which our governments all too often bestow on those it classifies -- rightly or wrongly -- as victims. 

To use an economic analogy, this rewarding of less-than-distinguishable behavior creates a moral hazard.

New York has had its Munich moment.

Let's hope history does not repeat.

Eric Dixon is a New York lawyer.  He will be continuing his research on this topic and preparing a possible amicus brief for anticipated federal litigation.  He can be reached at 917-696-2442 and at

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