By Mike Dorf
In my two posts on the controversy surrounding the planned Park51/Cordoba House (here and here), I noted how the debate has shifted from whether the organizers have a right to build it (to which I believe the answer is blindingly obviously yes) to whether it is wise for them to do so. I am tempted to say that the answer to the second question is entirely a matter of tactics for the planners rather than a fit topic for outsiders to speculate about.
Consider an analogy. Suppose a gay couple are vacationing in a country that is generally gay-friendly but has pockets in which people are offended by homosexuality. (Such offense could be on religious grounds, as many Jewish, Christian, and Muslim traditionalists view same-sex sexual activity as sinful. I understand--based on 30 seconds of Google research--that Hindu and Buddhist attitudes can be more flexible.) Should the couple closet themselves when passing through places where their being out would be deemed offensive? I guess my view is that this might well be a sensible tactic for avoiding harm, but the mere fact that others will, without sound justification, be offended, does not create a moral obligation on the couple to hide their orientation. Perhaps it would be supererogatory to closet themselves, but this seems to me more in the domain of manners than morals. I think I probably feel the same way about secular women veiling when entering Muslim countries in which that is the norm. If veiling is required by law, then the question of whether there is a moral obligation to veil reduces to whether there is a moral obligation to obey an unjust law--except that there might be a greater such obligation when dealing with the laws of a foreign country to which one voluntarily travels. Anyway, there can be a great many complications here, and I simply mean to surface them rather than to resolve them. Returning to Park51/Cordoba House, I don't think that there is any moral obligation to refrain from giving offense, when the taking of offense is unreasonable, unexplained, or, as here, both.
But that is not to say that it is difficult to describe cases in which it would be poor judgment--or much worse--to exercise a right. The First Amendment provides the most familiar examples: Nazis and Klansmen have a right to march to express their viewpoints; no right-thinking person believes that they act wisely in doing so. Or, to take an example from the Supreme Court's current docket, in Snyder v. Phelps, the Court will decide whether the civil verdict against the Phelps family and the Westboro Baptist Church (WBC) violates the First Amendment. I am confident that no Justice who finds that their speech was protected will thereby be endorsing the idea of showing up at the funeral of a fallen Marine with signs saying "Thank God for Dead Soldiers" and "God Hates Fags." (The fallen Marine, Mathew Snyder, was not gay, but the WBC believes that 9/11 and the wars in Iraq and Afghanistan are God's punishment for America's failure to address sin. Lovely.) The argument in the case will likely focus on whether there is a captive audience doctrine applicable to funerals and if so, whether it applies given the proximity limits that were applied to the protesters. The argument almost certainly will not focus on whether the WBC's speech was wise or valuable.
It is tempting to say that all constitutional rights have this character: They can be exercised wisely or unwisely. But I think that's not necessarily so. First, consider the "wisely" prong. Someone could think that abortion is always wrong but that it is nonetheless properly the subject of constitutional protection. I have a number of Catholic friends who take a position close to this: They say that they themselves would never have an abortion (the friends in question are women) but that they nonetheless believe government should not foreclose the option. So my friends take the view (not unreasonably, I think, given their various commitments) that the right to abortion really should be a legal right but that as a matter of morality, its exercise is always wrong.
Now consider the other half of the hypothesis: Are there rights that cannot be unwisely exercised? Some strong supporters of the right to bear arms (understood post-Heller/McDonald as an individual right) think that all people who are eligible to carry firearms should carry firearms. I have heard this view expressed on occasion and it follows logically (if not inexorably) from the view that an armed populace deters crime. I'm not taking a position on whether an armed populace does deter crime; I'm simply saying that if you think that, you could well think that everyone eligible to carry firearms has a moral duty to his fellow citizens to carry a firearm.
Finally, notwithstanding the foregoing examples, for the most part I do think it true that constitutional rights can be exercised wisely or unwisely, responsibly or irresponsibly, morally or immorally. Note that in both of my examples--abortion as a right that it is never right to exercise and firearms possession as a right that it is always right to exercise--I had to posit someone with rather idiosyncratic views. I suspect that most supporters of the abortion right and of the right to possess firearms think that there are circumstances in which their respective exercise is wise/morally permissible/morally obligatory, and other circumstances in which their respective exercise is unwise/morally impermissible.