Can Professor Volokh please fix his 2010 mistake now?
If a local government official tries to bar someone from doing business in his community just because the person has spoken in support of widespread Christian beliefs, yeah, that's a violation of the First Amendment, and good for Eugene Volokh for saying so.
Not so good is Professor Volokh's opinion
from two years ago that basically says the same thing about the "Ground Zero mosque":
[T]he legal issue is open and shut. The Free Exercise Clause means that the government may not discriminate against an entity because of its religious denomination.
But as those who were watching the Ground Zero case knew, the issue in New York
was not discrimination against
an entity because of its religious denomination. It was the extreme favoritism shown for
the mosque project by local permitting boards, and as in the Chik-fil-A case, this discrimination was explicitly based on the speech-content of the mosque developers, allowing them to religiously develop a literal piece of Ground Zero, something that would never have been allowed for any other religious or ideological group.
Permit board members made soaring speeches about how great it would be to reach out
to Islam in this way:
Community Board 1 member Rob Townley called the plan a “seed of peace,” a message repeated by mosque supporters throughout the night.
“We believe that this is a significant step in the Muslim community to counteract the hate and fanaticism in the minority of the community,” he said.
Just as blatant was the Landmarks Commission, whose historic review explicitly rejected any consideration of the fact that the 51 Park Avenue
building had its top floors penetrated by the landing gear from Flight 175 after this heavy equipment came out the back side of WTC2. The 9/11 history of the building, that it was substantially damaged by of the terrorist attack, was Imam Rauf's explicit rationale
for wanting to build there:
The location was precisely a key selling point for the group of Muslims who bought the building in July. A presence so close to the World Trade Center
, “where a piece of the wreckage fell,” said Imam Feisal Abdul Rauf, the cleric leading the project, “sends the opposite statement to what happened on 9/11.”
Actually not, but set that aside. If any non-favored denomination or ideological group had tried to turn a literal piece of Ground Zero into their soapbox the Landmarks Commission would obviously have taken the 9/11 history of the site into consideration, but when the mosque issue came up they underhandedly excluded all 9/11 connections from consideration by re-activating an application for landmark status that long pre-dated 9/11:
The Landmarks Commission has had a pending application for landmark status for the site since 1989, de Bourbon said. The application had been on hold for more than two decades but was recently reinstated after a review by the commission.
She insisted the current review is unrelated to the controversy surrounding the proposed mosque and Islamic center.
“This is a totally separate issue,” de Bourbon told ABCNews.com
The president himself calls the site “hallowed ground
” (he was referring to Ground Zero in general when he said that, but the specific subject was the Ground Zero mosque), yet the Landmarks Commission used a bureaucratic trick—reactivating an old application for landmark status—to evade this clear historic significance. Professor Volokh was obviously not aware of these shenanigans. The press presented the issue as popular opposition to Islam when it was actually about official speech-content-based favoritism for Islam and the normally savvy professor was naive enough in this instance to believe it.
Because the conservative-libertarian Volokh is so widely respected on both sides of the aisle, his failure of due diligence in 2010 did tremendous damage, dramatically undercutting and practically slandering those conservatives who were fighting New York City
's blatant speech-content based permitting. It would be as if he came out in the Chik-fil-A case on the side of Rahm Emanuel and the other politicians who want to deny building permits to businessmen who voice support the traditional definition marriage.
Actually it was worse, as if he had claimed that the Constitution requires Rahm Emanuel to ban Chik-fil-A. He wasn't just on the side of New York City's blatant Muslim favoritism, he was saying that his position was constitutionally necessary. He couldn't have been more wrong, but maybe now, having gotten the First Amendment right in the Chik-fil-A case, he will want to go back and correct his earlier mistake. Volokh's wide respect has been well earned, and hopefully he will take this opportunity to demonstrate why.
The Harvard Law grad in-chief's legal ruse
Not to embarrass Professor Volokh any further, but President Obama's misrepresentation of the legal issue in the GZ mosque case was not hard to see through
Recently, attention has been focused on the construction of mosques in certain communities — particularly New York
. Now, we must all recognize and respect the sensitivities surrounding the development of lower Manhattan
. The 9/11 attacks were a deeply traumatic event for our country. And the pain and the experience of suffering by those who lost loved ones is just unimaginable. So I understand the emotions that this issue engenders. And ground zero is, indeed, hallowed ground.
But let me be clear [get ready for obfuscation]. As a citizen, and as president, I believe that Muslims have the same right to practice their religion as everyone else in this country. And that includes the right to build a place of worship and a community center on private property in lower Manhattan
, in accordance with local laws and ordinances. This is America
. And our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are.
As Obama spokesman Bill Burton tried to clarify
the next day:
What he said last night, and reaffirmed today, is that if a church, a synagogue or a Hindu temple can be built on a site, you simply cannot deny that right to those who want to build a mosque.
Ah yes, the perfectly impossible “if.” There is not a snowball’s chance in Hell that any other religious group would ever be allowed to claim a part of Ground Zero as a platform for their ideological perspective on the 9/11 attacks. Partisan secular groups would also be barred, by the very mechanisms Obama mentioned: “local laws and ordinances.” This is the function of NYC's Community Board 1 and the Landmark's commission.
As the Chik-fil-A case demonstrates, these local entities can't just do whatever they want. Their decisions have to be speech-content neutral. Muslims have a right to build where other religions are allowed but they cannot be allowed to build where no one else would be allowed, and as the Landmark Commission's tortured avoidance of the historical connection to 9/11 made clear, if the building were seen as connected to 9/11 then no religious or political group of any stripe would be allowed to claim it as their own symbol.
If Con Edison succeeds in evicting
Rauf’s group from Park 51 for non-payment of back rent then maybe some well-heeled Tea Party member can pick it up and announce plans for a freedom museum that highlights the anti-liberty ideology of those who attacked us on 9/11. Just make sure to note that 51 Park Avenue
is the perfect location because it was actually struck on 9/11. Then we’ll see how quickly New York City
’s Landmarks Commission declares the building’s 9/11 connection historic, subjecting building plans to heightened scrutiny and giving the lie to their earlier pretense of content neutrality. Refusing to consider the building's 9/11 history is not
Bloomberg, of course
The whole process was manipulated by mayor Bloomberg, who appointed the members of the Landmarks Commission and worked constantly behind the scenes to get the mosque built, to the point where he was credibly accused
by the NY Post
of engaging in state establishment religion:
Bloomberg’s community affairs commissioner even ghost-wrote a letter to CB1 on behalf of Daisy Khan, wife of mosque promoter Imam Feisal Abdul Rauf. Meanwhile, officials intervened to obtain permits so that prayers could be conducted at the site.
To cave to popular sentiment would be to hand a victory to the terrorists.
If we don’t coddle Muslims says Bloomberg (and to hell with the Constitution), they will feel alienated and will want to attack us again. It’s just like his instinct on guns: when under attack, quick disarm! Then the attacker won’t feel threatened and maybe won’t kill us so much. Cowardly pea brain. But as the Post noted, the immediate problem is the unconstitutionality of it:
Government has no business advocating for any religion. That’s the principle that chased Nativity scenes from the public square.
Leave it to Mike Bloomberg to cherry-pick one of America
’s founding principles.
The Andalusia-Cordoba initiative
For those who are interested in more than the First Amendment issue, it is worth looking at just how subversive the Ground Zero mosque project is. Imam Feisal said that he wanted to "push back against the extremists," but far from sending "the opposite statement to what happened on 9/11," Feisal's actual statements and objectives dovetail precisely with Bin Laden's.
Let the whole world know that we shall never accept that the tragedy of Andalusia will be repeated in Palestine
. We cannot accept that Palestine
will become Jewish.
was the Muslim capital of Andalusia (the Iberian peninsula
when it was controlled by the Moors). Bin Laden in-effect named his attack “the Andalusia initiative,” and all Rauf did was change “Andalusia
” to its closest synonym. Both have the same objective, to bring the entire world under sharia law (the instrument of Islamic rule), and about this Rauf brooks no compromise
And since a Shari’ah is understood as a law with God at its center, it is not possible in principle to limit the Shari’ah to some aspects of human life and leave out others.
So much for CB1's belief that "this is a significant step in the Muslim community to counteract the hate and fanaticism in the minority of the community." Not only are they engaged in unconstitutional favoritism, but they are astoundingly naive. The "hateful and fanatical minority" of Muslims is well represented by Imam Rauf.
CB1's thinking here is the same as with the Crescent of Embrace
memorial to Flight 93 (a giant Islamic-shaped crescent), which was favored by some Flight 93 family members precisely because it can be seen as a symbol of outreach to the Islamic world, leading one family member on the design contest jury to scream
out in protest:
I don’t want to reach out to those people: THEY MURDERED MY DAUGHTER!
Indeed they did. It is orthodox Islam that attacked us on 9/11 and orthodox Islam is what the Islamic crescent symbolizes (the flag of the last caliphate).
Orthodox Islam is also what Imam Rauf preaches. There are moral Muslims—those who reject orthodox insistence on Islamic conquest and its systematic suppression of competing views—but Rauf is not one of them. He is orthodox to his core. He is one of the bad guys.
The homosexuals aren't doing themselves proud either. Homosexuals have a right to be tolerated but nobody has a right to approval
and that's what marriage is: society's stamp of approval for qualifying couples to engage in sex. Non-qualifying couples can still engage in sex, they just can't do it with society's approval unless society decides to give
its approval, and that is just not a matter of right.
Tolerance and approval are actually opposites of a sort. Tolerance is in spite of disapproval. In a free society people tolerate many things that they don't approve of because that is what liberty requires and people believe in liberty. At least Christians do. The source of American liberty is the Judeo-Christian belief that man is made in God's image. Since the essence of God is free will, mankind must also be free to choose.
Many Muslims also believe in liberty, so long as they are not followers of orthodox Islam (which is thoroughly totalitarian, prescribing the smallest of life's details and condemning liberty at very turn). And homosexuals? They very much believe in their own liberty, but few seem to have much respect for other people's liberty, which isn't really a belief in liberty at all. Even Idi Amin believed in his own liberty.
Imagine if the tables were turned and city governments were refusing to let homosexuals do business in their communities? That is intolerance and homosexuals are protected from it, yet a large fraction of homosexuals are eager to inflict this flaming injustice on others. The contempt for reciprocity is breathtaking.
Being a small fraction of the population, homosexuals are utterly dependent on the tolerance of our liberty-loving society. They could at least return the favor, but not only are homosexuals en masse
demanding far more than tolerance for themselves—proclaiming a "right" to approval that nobody has a right to—but they refuse to return the basic tolerance upon which they rely. Activist homosexuals are perfectly willing to expunge the livelihoods of those who refuse to approve
of their relationships. Now that
is an abomination.
I had an email exchange with Professor Volokh about the 2010 case. He says he was responding the statements of Rick Lazio who was a running for governor of New York at the time.
Lazio was late to the fight against the mosque (organized first and foremost by super-blogger Pamela Geller
), and his stance made no attempt to address or negotiate the constitutional issue. (Maybe Con Ed can refuse to sell them the building he suggested. Sheesh.) But Lazio's basic stance
(linked by Volokh) was perfectly appropriate:
This is the site of mass murder. It would be much better if the parties could get together and figure out something that is reasonable.
The building in question is a sensitive historical site. Obviously it is within the legitimate powers of the state to keep sensitive sites from being taken over by insensitive uses. The issue is who was considering what to be an insensitive use.
The Bloomberg-led left-elites who thought that the mosque was a wonderfully sensitive and appropriate use would by the same token find have found it terribly insensitive to allow the site to be used by a group that wanted to emphasize the role of orthodox Islamic ideology in fomenting the 9/11 attacks, and they would have no compunction about using their control of local boards to bar any such use.
For a sensitivity standard to be applied constitutionally, it has to be applied equally, not letting the building go to any group that wants to make partisan hay out of 9/11. But Volokh was/is not looking at both sides. To put it most succinctly, I suggested to Eugene that the place where his 2010 opinion goes wrong is where he writes:
...here the landmarking law was clearly being applied precisely because the mosque was a mosque, so the Free Exercise Clause’s prohibition on religious discrimination comes into play.
In actuality, the landmarking law would have been used to block any religious or ideological group other
than Islam, and I think that is proven by the underhanded trick the Landmarks Commission used to avoid acknowledging the 9/11 history of the building (reactivating a pre-9/11 application for landmark status).
The fact that Lazio voiced opposition to the site being used for a mosque in particular is beside the point. How is this any less constitutional a grounds for making permitting decisions than the loud declarations of all the board members who voiced soaring approval of the site being used for
a mosque in particular? Can favoritism for a particular religion be more legitimate in constitutional terms than disfavor of a particular religion?
It may be easier to achieve standing to sue for unconstitutional religious discrimination if, instead of some other religion being waved through by government, your religion has in some way been blocked by government, but the underlying legal issue is exactly the same: is one religion or ideological group being allowed to do what another would not? Volokh apparently thinks he can answer that question while only considering how one group is being treated and then only by its opponents, ignoring what city boards are doing in its favor. Pretty basic logical failure.