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SEKULOW & JOSHPE: Defending sacred ground

Sept. 11 survivors have right to free speech, too

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Last week, the American Center for Law & Justice (ACLJ) filed a lawsuit against New York City's Landmarks Preservation Commission for denying landmark status to 45-47 Park Place - the site of the infamous would-be ground-zero mosque. We represent a former firefighter and Sept. 11 first responder who lost nearly 100 of his friends and nearly died as well on that tragic day. Given the ACLJ's dedication to defending freedom of religion and expression and how supporters of the ground-zero mosque are casting the issue as one concerning religious freedom, our suit has some people alleging inconsistencies. In fact, the opposition to the ground-zero mosque reflects America's sacrosanct First Amendment ideals.

After the commission's unanimous vote last week to deny 45-47 Park Place landmark designation, New York City Mayor Michael R. Bloomberg, flanked by religious leaders and with the Statue of Liberty as a backdrop, delivered a dramatic speech on Governor's Island defending the proposed mosque at ground zero. He asked whether government should "attempt to deny private citizens the right to build a house of worship on private property based on their particular religion."The answer is of course not, and that is not what opponents of the ground-zero mosque are advocating.

As a legal matter, we are asking that government, indeed, apply the law faithfully and without regard to religion. That principle serves as the basis for our suit against the commission, which improperly considered the proposed religious use of the property in deciding not to grant the property landmark status.

In 2007, the same Landmarks Preservation Commission unanimously voted to grant landmark status to a nearly identical building, 23-25 Park Place, which is just one block away from the proposed mosque. Despite the fact that 45-47 Park Place is more historically significant - pieces of one of the hijacked planes crashed through the roof on Sept. 11 - the commission unanimously denied landmark status. The blatant double standard can be explained by the politically correct considerations surrounding the proposed religious use. That is unacceptable and a flagrant betrayal of the very religious agnosticism on the part of government that Mr. Bloomberg claims to embrace.

Second, this issue, as the mayor stated, is as much about private rights as it is the role of government. Landmarked or not, the owners of 45-47 Park Place have a right to practice Islam in a mosque at that location if they so choose. The U.S. Constitution guarantees the right to do and say many things that are offensive - indeed, that is the bedrock of our constitutional system - but well-intentioned people, nonetheless, often choose not to do or say such things out of a moral concern for others. As the Anti-Defamation League eloquently wrote in its statement opposing the project, "ultimately this is not a question of rights, but a question of what is right."

We are witnessing a tidal wave of opposition from all across the nation. Americans are exercising their private First Amendment rights and expressing opposition to the ground-zero mosque. Their voices are what create that famed marketplace of ideas, and attempts to silence them through cries of bigotry and racism in the name of the First Amendment are especially ironic.

This debate, in fact, reflects the ideals of freedom, and despite the intensity and controversy of the issue, the relative civility of the discussion is a testament to American values and tolerance. No serious person has suggested banning Islam or mosques or even the freedom to practice Islam near ground zero. Instead, citizens are expressing their personal views that the location of the mosque is unnecessarily inflammatory and hurtful, given the circumstances, and that if the project's developers seek to promote mutual respect and harmony, as they claim, they should reconsider.

Our client is one of those private citizens who believes this project is an insult to the Sept. 11 victims' memory and their families. His right to express that view - to fight this development politically and by ensuring that administrative agencies follow their own precedents and the rule of law, and to speak with the chorus of others who find the Cordoba House mosque at ground zero inappropriate - represents the essence of a free democracy. That right is not in tension with the First Amendment; it is the First Amendment.

Jay Sekulow is chief counsel of the American Center for Law & Justice. Brett Joshpe is counsel to the ACLJ, which has filed a suit against the Landmarks Preservation Commission on behalf of Tim Brown.

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