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On the Cordoba House and the First Amendment

August 11th, 2010

I’ve been meaning to write a bit more and clarify my thoughts and feelings on the Cordoba Initiative’s plans for a community center and mosque in lower Manhattan. Last week, I strung together a bit of a rambling post discussing how disappointed I am in the sweeping tide of anti-American behavior taken up in the name of “American values” throughout this nation.

The proposed Cordoba House is an uncomfortable issue for most and brings up conflicting feelings and desires to both defend American freedoms and empathize with the families of September 11, 2001 victims.

Part of my desire to discuss the topic more was the realization that I hadn’t articulated well exactly what it was that I found offensive and anti-American. So let me be clear, opposing the Cordoba House is not anti-American. It is merely the attempts to use the government or government means that is anti-American and, quite simply, unconstitutional.

While technically, the movement to have the former Burlington Coat Factory building landmarked was not specifically tied to the building of a mosque (and it would not have completely blocked the construction, but simply made the plans more difficult as the exterior of the building would have had to be preserved) and was, therefore, not relating to the establishment, promotion or obstruction of religious freedoms. Despite this, few would argue that the facts really hid the between-the-lines anti-Islam motivations thereunder. This would be no different than the post-Edwards v Aguillard move of creationists to remove overt religious references to religion or god in the newly revamped intelligence design movement. Everyone knows the motivation has no basis in science, but in religious ideology.

In the case of the Cordoba House, pushing to landmark and make more difficult the conversion of the building at the proposed site was a measure to use the government to obstruct the construction of a privately funded, otherwise legal religious building and institution. In other words, this move represented an effort to violate the Establishment Clause.

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The verbal opposition to the Cordoba House, the passionate pleas to construct it somewhere else and the simple protests against an Islamic institution did none of those things. Even the publishing of very tasteless advertisements against the Cordoba House is perfectly fine (if tasteless). All of those actions are the expression of first amendment rights. It is the use of the government that gets the opposition into trouble in my book.

But this is also a fault in Americans’ understanding of freedom of expression and freedom of religion. People forget that the first Amendment is not a free pass to behave without consequences. Just as one’s religion cannot command human sacrifice without the charge of murder sticking, one cannot expect to make certain statements or actions and having no consequence to them. Similarly, just because a religion commands opposition to those who deny the existence of a god does not mean that you can levy your religiously mandated punishments on the apostates or atheists.

The Cordoba House will be a monument to many different things to many different people, regardless of whether or not it eventually gets built.

In the case of opposition to the Cordoba House, the language and actions of many (including Sarah Palin, Rush Limbaugh and Rick Lazio) have been nothing short of bigoted and they’ve been called out on it. Lazio has backpedaled a bit of late, but the reality is that one cannot shroud themselves in the free speech clause of the 1st Amendment and expect to not be called out on their racism and religious bias with respect to their opposition to the freedom of religion provision.

A persuasive argument and appeal to the Cordoba Initiative’s good sense with respect to the sensitivity to the sensibility of having an Islamic center in lower Manhattan is perfectly reasonable. At the very least, any such conversation should (and probably was) entertained by those building the product. I think many in America who are not from the area don’t understand that real estate doesn’t exactly run free down here. There is little available space in which to build throughout all of Manhattan and downtown Brooklyn. The acquisition and building process is incredibly drawn out, difficult to navigate and expensive. The likely answer to any appeal is that a suitable replacement space simply is not easily available.

But the answer to this further complication is not, as David Patterson suggested yesterday, to provide state land in an alternate location to the Cordoba House as a replacement property. As a non-believer, I have joked to friends that a state measure to prevent the building of the Cordoba Center that I could agree with would be removing real estate tax breaks to all religious organizations. Any such measure would cream the Catholic Church and Trinity Church (two of the four biggest landowners in New York City) and would likely scuttle the financing for a project as big as the Cordoba Center, as property taxes in New York are astronomical. I don’t really want to see that, but I would rather see that than have our state government promote and facilitate a) religious bigotry against Islam and b) the promotion of turning state property into religious property (presumably at a hefty discount or for free) by offering state land on which to build the Cordoba House.

Sure, this is a difficult issue to deal with, but Patterson is both a lame duck and also a eunuch for suggesting that the solution is appeasement in promotion of expediency over standing for American freedoms. If a private organization or, say, the Catholic Church, wanted to offer up property at an alternative site acceptable to the Cordoba Initiative, so be it. But this new plan represents just another violation of the freedom of religion and the freedom from religion. Let us not forget what Mayor Bloomberg discussed: this is an issue of a private group wishing to conduct private religious activity on their privately owned land. I’ve yet to see any alternative solution that does not involve state action.

As a side note, this is a story that’s not going away soon. The news recently broke that the Cordoba House still has to pass a final hurdle represented by the Public Service Commission. The PSC has to approve the sale of the final portion of the property (owned by Con Edison) to the developers, who only own a portion of the property.

In addition, I wanted to point out that the previously silent, impish Rep. Anthony Weiner actually drafted a rather reasoned and well measured public letter to Mayor Bloomberg commending him for his speech. It is very concise and well written, even if it leaves a rather murky, middle ground position.

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