- The Washington Times - Friday, August 20, 2010

While the Ground Zero Mosque is a highly emotional issue, it’s essential to distinguish law and emotion when thinking about the matter. President Obama has it exactly right in the way that he does so, acknowledging the legal right to build at this site but questioning whether it makes sense. “Muslims have the same right to practice their religion as everyone else in this country,” but “I was not commenting on the wisdom of making the decision to put a mosque [near Ground Zero].”

As a matter of law, as the president observes, there is no issue: The mosque clearly is permissible under the First Amendment to the U.S. Constitution. Extensive U.S. Supreme Court case law makes clear that government may not prefer one religion over another, and there are other houses of worship in the immediate proximity of Ground Zero. Though it is certainly offensive to the families of Sept. 11, 2001, victims to have a mosque built in that area, there is nothing in the First Amendment that allows, let alone requires, consideration of such feelings. To the contrary, the First Amendment is there to protect unpopular, even offensive, religious expressions. Rightly so; should we refuse to allow construction of Catholic churches and synagogues in the vicinity of wrongful acts by Catholic or Jewish mobsters?

Those who so vehemently advocate applying the literal language of the Constitution in other contexts, such as gun rights and opposition to abortion, need to accept that it unquestionably permits construction of this mosque. Seeking to take into account the feelings of the Sept. 11 families when determining the extent of others’ religious freedom runs perilously close to what we are fighting against in the Middle East, namely an undermining of the rule of law by irrationality and emotion.

However, this does not preclude objections to the mosque and fervent requests that it be built somewhere else. The president’s comment that he is not addressing the “wisdom” of the action is an understatement.

While legally irrelevant, the motivation for placing the mosque in this vicinity seems curious at best. While the proponent of the mosque, Imam Feisal Abdul Rauf, states that he wishes to promote understanding between Muslims and other religions, this is an odd way to do it. There is no shortage of other potential locations in and around New York City, not to mention other places. Insisting upon placing it at such sacred ground in the face of so much opposition smacks of insensitivity - or a deliberate attempt to provoke hostility. Indeed, it seems dense to think there would not be such opposition and to proceed anyway. Whatever the initial motivation may have been, it is clear that proceeding with the original plan is doing anything but promoting understanding and is only causing non-Muslims to become more suspicious of Muslim intentions.

Opponents of the mosque must realize that they have no legal basis for their opposition. However, it is clear that they have a strong case in the court of public opinion and should seek peaceably to invoke this support in an effort to persuade Muslims to build elsewhere. Proponents also must realize that, whatever legal right they may have, they are inflaming the situation and will accomplish nothing positive by proceeding with their plan but will create much more resentment of Muslims than what already exists.

Alteration of the plan in response to the opposition we see would go a long way toward demonstrating that Muslims in general are not hostile to America and that the atrocities of Sept. 11, 2001, were the work of a few demented Muslims and totally unrepresentative of the faith.

Martin B. Robins, a corporate attorney, is an adjunct law professor at Northwestern and DePaul universities.