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Legal Commentary: The Volokh Conspiracy
Three Issues in the Debate over the ?Ground Zero Mosque?
By Ilya Somin
The ongoing debate over the ?Ground Zero Mosque? has generated lots of commentary. But I fear that much of it conflates three separate issues: whether the government should use its power to block the construction of the mosque, whether the construction of any Islamic facility near Ground Zero is objectionable, and whether this particular organization is problematic because of the views of its leader. As I see it, the government should not suppress the mosque, and I see nothing wrong with building an Islamic facility near Ground Zero. But objections based on the dubious record of Cordoba Project leader Feisal Abdul Rauf are not so easily dismissed. There are many weak, foolish, and even bigoted anti-mosque arguments out there. But that doesn?t mean there aren?t any good ones.
I. The Role of Government.
Some mosque opponents, such as New York Republican gubernatorial candidate Carl Paladino, have argued that the government should use zoning or eminent domain to block the construction of the mosque. As Eugene Volokh and I have explained in earlier posts, such proposals violate constitutional rights to speech, religious freedom and property. The are also deeply immoral and unjust. A free society must not suppress the freedom of its members merely because their views are objectionable. If Nazis, racists, and communists are entitled to freedom of speech and property rights, so too are the owners of the proposed mosque.
But the fact that the owners have a right to build the mosque that the government must respect does not mean that their exercise of that right is unobjectionable. There are many situations where it may be wrong to exercise a right that should be protected by law. I have a legal right to join the KKK or the Communist Party. But doing so would be deeply wrong nonetheless.
II. Objections to the Presence of any Islamic Center.
Some mosque critics argue that it is wrong to build any Islamic facility near Ground Zero. The most sweeping form of that argument claims that Islam is a generally oppressive, illiberal religion. There are many flaws in Islam as currently practiced in much of the world. But I don?t find such categorical condemnations persuasive.
Islam is a religion with some one billion adherents, with many differing interpretations of its dictates. One can certainly find illiberal and oppressive passages in the Koran and point to them as proof of Islam?s inherent evil. But one can easily perform the same exercise with the Torah and New Testament, which include passages justifying gender inequality, defending the mass murder of the Canaanites, mandating that adulterers be stoned to death, and urging slaves to obey their masters. It would be a mistake to use these passages to ?prove? that Judaism and Christianity are inherently oppressive. Most modern Jews and Christians either ignore them or try to interpret them away. Liberal Muslims seek to do the same with comparable passages in the Koran. It is perhaps true that most modern Islamic societies are illiberal and oppressive. But the same could be said of most majority-Christian societies as recently as a century ago. In both cases, political institutions and levels of economic development probably play a larger role than religion as such.
A more moderate objection to the presence of an Islamic site near Ground Zero admits that Islam is not inherently evil, but contends that a Muslim site in that location would be insensitive. Consider this argument by Charles Krauthammer:
Location matters. Especially this location. Ground Zero is the site of the greatest mass murder in American history ? perpetrated by Muslims of a particular Islamist orthodoxy in whose cause they died and in whose name they killed.
Of course that strain represents only a minority of Muslims. Islam is no more intrinsically Islamist than present-day Germany is Nazi ? yet despite contemporary Germany?s innocence, no German of good will would even think of proposing a German cultural center at Treblinka.
I lost half a dozen relatives in the Holocaust. But I don?t see any inherent problem with having a German cultural center near the site of a former Nazi death camp. So long as the center does not interfere with the operations of the memorial established at the camp, does not promote anti-Semitism, and doesn?t advocate the sort of virulent nationalism that helped cause the Holocaust, it should be unobjectionable. As Krauthammer notes, Germans as a group are not to blame for the Holocaust. And German culture is not reducible to Nazism and anti-Semitism. A center promoting elements of German culture that are not implicated in those phenomena does not somehow offend against the memory of Holocaust victims. A German cultural center that actually condemns Nazism and extreme nationalism while celebrating positive elements of German culture could actually make a useful contribution to reducing prejudice and honoring the victims.
I recognize, of course, that some Jews might still be offended, and avoiding such offense might be a pragmatic justification for not building the center. But the issue is whether the offense-taking would be justified. No one has a moral obligation to change their plans merely because others take unjustified offense.
The same points apply to the proposed Islamic Cultural Center near Ground Zero. Islam is not reducible to terrorism and oppression. A Muslim center near Ground Zero that promotes positive aspects of the Muslim tradition is unobjectionable. One that also denounces terrorism and radical Islamism would be a positive good.
III. Objections to this Particular Center.
Even if there is no good reason to oppose an Islamic facility as such, there are serious objections to Feisal Abdul Rauf, leader of this particular project. For details, see recent articles by Cathy Young, Christopher Hitchens, and Michael Weiss. Hitchens, Weiss, and Young all agree that Rauf?s group has a legal right to build the mosque and do not object to the construction of a mosque near Ground Zero as such. But they also have serious qualms about Rauf?s views, questioning whether he really is an advocate of ?moderation,? tolerance, and peace as his defenders claim. To briefly summarize the case against Rauf, the most important points are that he seems to praise much of the ideology of Iran?s repressive theocratic regime, refuses to admit that Hamas is a terrorist group (which should be a no-brainer even if you think that Israel?s policies in Gaza are unjustified), claims that the US was ?an accessory? to the 9/11 attacks, and sometimes draws a kind of moral equivalency between US foreign policy and Al Qaeda. Weiss also points out that Rauf took part in a bogus ?peace organization? organized by a prominent Malaysian anti-Semite.
As Young notes, there are also more positive attributes to Rauf?s record. For example, he has denounced the 9/11 attacks, criticized some radical Islamist groups, praised the US Constitution, and urged Muslims to respect women?s rights. I don?t think the man is a radical Islamist or a defender of terrorism. Nonetheless, Rauf?s statements are sufficiently troubling that there is good reason to to be skeptical about his mosque initiative unless and until he retracts the above comments or proves that he was somehow misquoted. To borrow from Krauthammer?s Treblinka analogy, it is as if the hypothetical German cultural center there had a leader who claimed that US and British efforts in World War II were morally comparable to the crimes of the Nazis, asserted that Jewish leaders were ?accessories? to the rise of Nazi anti-Semitism, refused to describe the SS as mass murderers, and praised the ideology of a fascist dictatorship. Even if he also denounced the Holocaust, claimed to oppose anti-Semitism, and urged fascists to drop some of their most objectionable policies, we could legitimately harbor serious doubts about his organization. The same goes for Rauf and his Islamic Cultural Center.
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