Pretty much everyone now seems to understand that the proponents of the New York City mosque and community center have a First Amendment right to locate their facility near the site of the World Trade Center. That is, almost everyone now seems to acknowledge that the government cannot constitutionally prohibit a religious organization from constructing a church, a temple, a mosque, etc. at a particular location, if it would allow other faiths to construct such a facility there. Discrimination among religions is the paradigm violation of the First Amendment's guarantee of religious liberty.
So, if this is not a legal dispute, what is it? It is a dispute between two groups of private citizens who must work it out for themselves. Because the First Amendment precludes the government from forbidding the mosque, the proponents of the mosque have the upper hand. They have a constitutional right to do what they want to do, and it therefore falls to their opponents to try to persuade them not to exercise that right.
There is nothing wrong, in principle, with making such an argument. Having the right to do something does not mean that one should do it. Think of burning the American flag or criticizing the war in Afghanistan, both of which are protected by the First Amendment. People might encourage would-be speakers not to engage in such expression, because it might upset others.
A familiar example arose out of the announced intention of the American Nazi Party to march in Skokie, Illinois, in the late 1970s. At the time, Skokie was a predominantly Jewish community whose residents included a high concentration of Holocaust survivors. The very idea that a group of self-styled Nazis would march through Skokie wearing swastika armbands and waving swastika flags was more than some residents of the town could bear, so they attempted to enlist the law to stop the march. The courts held that the First Amendment guaranteed the right of the Nazis to march -- even in Skokie. The objectors, however, still had their own First Amendment right to try to persuade the Nazis to march elsewhere (as long as they did so without resorting to violence or illegal threats).
Here is another example. At the height of the civil rights movement, Martin Luther King, Jr., led marches, demonstrations and protests in cities like Montgomery and Birmingham to protest racial segregation. White residents vehemently objected to such activities in their hometowns, arguing that such actions were insulting and hurtful to those who treasured Southern culture and tradition. Here, too, the courts held that the marchers had a constitutional right to march, although those who objected of course had a First Amendment right to try to persuade the protesters to march elsewhere.
The central question, then, is whether the Nazi marchers, the civil rights protesters, and the proponents of the mosque should voluntarily refrain from exercising their First Amendment rights because their actions offend others. The answer depends on both the reasonableness of the objections and the importance of carrying out the original plan.
In the Skokie situation, I suspect most of us would say that the Nazis' message was extremely hurtful and offensive to the survivors of the Holocaust and that, in the face of such reasonable objections, there was no sufficiently compelling justification for the Nazis to march in Skokie. In such circumstances, I suppose most of us would have signed a petition encouraging the Nazis voluntarily to march elsewhere. (Interestingly, that is more or less what happened. After the courts upheld the Nazis' First Amendment right to march in Skokie, Mayor Richard M. Daley of Chicago brokered an agreement under which the Nazis marched in downtown Chicago instead of Skokie.)
In the civil rights context, however, I imagine most of us would endorse the opposite position. We probably would conclude that the objections to the demonstrations were rooted in racial prejudice and were therefore not worthy of much respect. Moreover, we would understand why it was important for King to march in Montgomery and Birmingham, rather than in Providence and Seattle, if he were effectively to challenge racial segregation. We would therefore probably have signed a petition urging the residents of Montgomery and Birmingham to exercise tolerance and restraint, and to do their best to put aside their anger at the protesters.
What, if anything, do these examples tell us about the dispute over the mosque? To begin, suppose those proposing to construct a mosque and community center near the site of the World Trade Center proclaim that they are supporters of al Qaeda who want to celebrate the 9/11 attack. In that situation, we probably would see them as analogous to the Nazis in Skokie. We would urge them not to exercise their First Amendment rights in that location and to respect the sensitivities of the families of those who died on 9/11. We would take this position not because they are Muslims, but because of the distinct offensiveness of their message.
On the other hand, suppose the marchers in Skokie had not been self-proclaimed Nazis wearing swastika armbands, but members of a German-American group seeking to celebrate German culture. If the residents of Skokie objected to that march, most of us would probably see a sharp distinction between this situation and the Nazi march. We would understand the emotional response of the residents, but we would nonetheless conclude that it is unreasonable and unfair to treat all German-Americans as if they are Nazis. In such circumstances, we probably would encourage the residents of Skokie to exercise tolerance and restraint, rather than to act out of prejudice against German-Americans.
That, finally, brings me to the mosque. In my view, the dispute over the mosque is a lot like my hypothetical German-American march. Just as it would be wrong to treat all German-Americans as if they are Nazis, so too is it wrong to treat all Muslims as if they support terrorism. To make such a judgment about a group is disrespectful, thoughtless, discriminatory and unwise. In a society founded on principles of liberty, equality, individual dignity, and personal responsibility, citizens should be loathe to insist that other citizens should surrender their constitutional rights because of their race, religion, ethnicity, national origin or sexual orientation.
Moreover, in the mosque situation, as in the civil rights example, the proponents of the mosque have very good reasons for wanting to locate the mosque in the vicinity of Ground Zero, because their goal is, in part, to demonstrate the unity between Muslim-Americans and other Americans in our shared and common grief over the events of 9/11. It is just as important for this mosque to be located near the site of the World Trade Center as it was for Martin Luther King to march in Montgomery.
Finally, it is worth noting that there are powerful reasons for the proponents of the mosque not to be "good citizens" by voluntarily acquiescing to the demands of the majority. Once a vulnerable minority agrees to surrender its rights because of the objections of the majority, it has set itself on a dangerous path. Prejudice is self-reinforcing, and if the demand that Muslims not build the mosque in this location were to succeed, it would likely invite other, even greater, demands in the future.
It is no doubt painful for those who oppose the mosque to accept its presence at this location. But they should now take a deep breath, reflect on the values that make our nation great and back off.