What the Constitution Really Has to Say About the Ground Zero Mosque

As I listen to the debate on the Ground Zero mosque, engage friends and neighbors on the subject, and read editorials in what I hoped would be a more enlightened press, it is disturbing to see so much ignorance of, or indifference to, the Constitution and constitutional values.

Let's begin with the argument that the mosque must be allowed to be built because the First Amendment protects religious freedom. Yes, there is no doubt that the First Amendment protects the free exercise of religion – all religion -- and there should be no debate on whether the leaders of the mosque have the right to build it. They do. But so many, including Mayor Bloomberg of New York, think that the argument should end there. They see those who object to the mosque as hostile to the great American tradition of religious tolerance; indeed, I watched the Mayor on the Jon Stewart show a couple of weeks ago pompously pronouncing this fact to a rewarding round of applause. To which I can only react by asking, “just how much of the First Amendment, Mr. Mayor, have you read?”

There is indeed a great American tradition of religious tolerance. But in addition to protecting the free exercise of religion, the First Amendment also protects freedom of speech and there is just as much a right at stake here for those who use their freedom of speech to argue that building a mosque so close to Ground Zero is inappropriate. Mayor Bloomberg might say, well I don’t disparage the right of those who object to building the mosque; they can say whatever they want. But just as religious expression would be impotent if the state barred the building of places of worship, so speech would be impotent if we did not recognize its potential to seriously mix it up in the marketplace of ideas and, finally, to have the potential to force change.

Think about it this way: if the mosque-deniers should prevail; that is, if the outcry against the mosque should lead not to some legislative act barring it (that would truly breach the First Amendment) but to the mosque’s leaders deciding under the pressure that it would be best to relocate away from Ground Zero, we have to ask ourselves, have we failed the First Amendment's protection of religious exercise or have we witnessed the power of speech to make a difference? Understood for all its vitality, what the nation is going through here is a classic First Amendment exercise. A lesser document might prescribe precisely how this dilemma should be resolved. Instead, our Constitution – here, our First Amendment – carries with it the most tantalizing of contradictions. Not right against wrong, but right against right.

In point of fact, as long as the state is not the party making the decision to move the mosque, there is no First Amendment issue. Sure, you could argue back that while the state did not force the mosque to be moved, it nonetheless did not act to protect the rights of minorities either and that while the letter of the First Amendment may not have been violated, the spirit of the First Amendment – protecting minorities from overreaching majorities – was. But with such a robust discussion it is unclear, really, who is the minority here and I would say that a resolution that does not involve the state acting is exactly what the Founders had in mind when they created the First Amendment.

A few years ago, a group putting together a new Museum of Freedom for Ground Zero asked me to write a narrative history of freedom that could become the spine of their museum. I found it an interesting assignment but as I worked with the organizers, I witnessed the complex and interweaving emotions that attach now to this piece of real estate. The most vocal opponents to the museum, it turned out, were the families who had lost loved ones there on 9/11. They did not want the “resting place,” such as it is, of their kin to become a platform for political or religious argument or gain. At first, we felt that this was a sensitivity born of the freshness of the trauma, one we could overcome. But the feeling did not dissipate; it spread and as it did, it became apparent that the families were right. Dissecting the history of freedom at such a public place meant satisfying every conceivable constituency. Before we even began to think of where the first brick would be laid, we were besieged by various groups asserting that their message was the one that had to be told above all others. Two years after I left the Museum of Freedom’s organizers, I was not surprised to see that they folded under the pressures of the grieving families and despite my connections to the original idea, I had to agree that the museum was a bad idea. In a place of such national trauma, we don’t need more argument. We need peace.

TB