Tuesday, August 17, 2010

Whose Place Is It Then?

By Mike Dorf

My post yesterday noted how at least a sizable fraction of the participants in the public discussion of the planned Islamic Center near ground zero have come to accept that the people proposing to build the Center have a right to do so.  Now the question is whether they ought to do so or whether they ought instead to build somewhere else.  Like the President, I don't have a view on that question.  I share the sense of some of the commentators that there doesn't seem to be any good reason for people to be offended by the planned Center.  And, as I noted in my comment on yesterday's post, I think anti-Muslim prejudice likely accounts for most of the offense.

That's not to say everyone who opposes the Cultural Center is acting out of prejudice.  E.g., Charles Krauthammer likened the building of the Islamic Center to the building of a Japanese Cultural Center at Pearl Harbor, a disney park at Manassas, or a convent at Auschwitz, on the ground that to each of these groups it should be said "This is not your place."  But while I don't doubt the sincerity of the non-crazy opposition, I don't think that the argument works.

President George W. Bush got a great many things about the response to 9/11 wrong but the one piece he got right was his consistent (albeit not so successful) effort to make clear that the U.S. was attacked by people acting in the name of Islam, not by Islam itself.  And even Krauthammer says that Al Q'aeda represents only a minority strain of Islam. So why is the vicinity of Ground Zero not the "place" of Muslims who preach tolerance and mutual understanding?

I suppose it's possible that the people opposing the construction of the Islamic Center would oppose the construction of any new religious facility near ground zero--but in fact no one appears to take that position, which makes no sense in any event.  Why would the construction of a church or synagogue near ground zero be offensive?  But if no offense would be given by a church or synagogue, then why would an Islamic Center be offensive?  The Pearl Harbor analogy--which has been promoted by others besides Krauthammer--is revealing,  Presumably a Japanese cultural center at Pearl Harbor would be offensive (or would have been offensive 65 years ago) because the Empire of Japan attacked the United States at Pearl Harbor.  But the analogy only works if one then says that Islam attacked the United States on 9/11.

This explains why many of the critics of Park51 have characterized it as trafficking in "radical Islam" or have pointed to Saudi financing for the center.  Radical Islam is an umbrella term that can encompass Al Q'aeda, while Saudi Arabia produced all but one of the 9/11 hijackers.  There's perhaps something to this line of argument, though much less than meets the eye.

Thus, when Newt Gingrich (straddling the line between the crazy right and the sane-but-craven-say-anything-right) says that Park21/Cordoba House should not be permitted because there are no churches or synagogues in Saudi Arabia, he both draws attention to the Saudi connection and shows that he's not really making the claim that ground zero is not the right place for an Islamic Cultural Center.  The logical inference to draw from Gingrich's invocation of Saudi Arabia's exclusion of non-Islamic houses of worship is that no mosques should be allowed anywhere in America.  And again, it's hard to shake the feeling that that's the sentiment underlying most of the opposition.


Unknown said...

Not to get all Ward Churchilly on ya, but what does preaching "tolerance and mutual understanding" have to do with whether a group of Muslim's should have the right to open a cultural center near Ground Zero? If a group of neo-Nazis wearing swastikas, promoting racial intolerance, and eventual violent overthrow of U.S. democracy, has the right to march through an Illinois suburb known to have a large population of Holocaust survivors, doesn't that provide some sort of precedent for a minority group to have a presence in NYC? I may be conflating first amendment principles, but I think there is discrimination based on speech, association, and religion going on.

Michael C. Dorf said...


I think you walked in during the middle of the movie. The first line of this post says I'm going to take seriously the claim of some of the anti's that they concede that there is a First Amendment right to build the Cultural Center here--as there obviously is. I also link to my prior post explaining that this move from legal coercion to a discussion of "what's right" represents a shift.

Unknown said...

Ah, indeed. Apologies. IMHO, what's right in this instance is up to the people building the cultural center. They have taken a brave stance despite the sensationalism surrounding them in cyclonic fashion. I consider NYC a safe city, and would expect and hope that they would be safe in proceeding with their plans. But if they decide to change locations, I would not quarrel with that decision.

Bob Hockett said...

Here's another conjecture, quite off the cuff, which I've not had a moment even to begin empirically to test in so little even as anecdotal fashion: I wonder whether some portion of the 'controversy' might be rooted in differing 'proximity' heuristics associated with people's familiarity with Manhattan? Much of the noise in the media seems to be coming from people under the impression that the center is actually 'on' or 'adjacent to' Ground Zero. I suppose that if one inhabits Alaska and thinks of Mr. Putin as being located virtually on her doorstep by dint of Russia's being across the Bering Strait, then any place on Manhattan might seem distastefully close - like a convent literally on the grounds of an erstwhile death camp. (In such case one would only need be an ignoramus, rather than a bigot, to start feeling alarm.) If one spends much time on Manhattan, by contrast, even a couple of blocks seem in many cases to separate entire worlds, such that the center need not strike one in any sense as 'a Ground Zero mosque.' I am of course ignoring the fact that some of the opposition comes from Manhattanites; but perhaps these folk are much rarer, proportionally, than are opponents who don't know Manhattan?

Paul Scott said...
This comment has been removed by the author.
Paul Scott said...

Wish the blog had an edit feature. :) Or I wish I had actually pasted my comment to notepad or some such to confirm that it, rahter than simply "Afghanistan" was in my paste buffer.

tjchiang said...

It seems to me that the liberals who think there can be no other reason to oppose a mosque on ground zero except anti-Islam bigotry share the same strain of thought as Justice Scalia in Salazar v. Buono -- who couldn't understand how anybody could find a Christian Cross to memorialize war dead offensive except as anti-Christian bigotry.

Patrick S. O'Donnell said...


By all means please provide us with the precise reason or reasons we should find the community center and mosque offensive. Or, please explain exactly what it is about this project that others find offensive, unwise, disrespectful, and so forth. I'm inclined to believe, with William Saletan at Slate, that in political controversies such as this, "If you can’t justify your discomfort, it merits no respect." Being discomforted in this case for vague, inchoate, or unexpressed reasons suggests lack of candor, an inability or refusal to publicly articulate coherent, sound or persuasive reasons why one is expressing opposition to the Cordoba House at PARK51. It's not too hard to infer disingenuousness on the part of opponents which, in turn, prompts one to search for explanations along the lines of bigotry, Islamaphobia, ignorance, and the like.

tjchiang said...

Patrick, your demand is a non-sequitur to my comment. If I likewise ask you for the precise reasons why some people might find a Christian Cross honoring the war dead to be offensive, I doubt it will be easy to come up with precisely why. By your logic, we would infer the only possible reason is bigotry against Christians.

And it doesn't work to say that the Cross is offensive because it violates the Establishment Clause. Presumably, the Establishment Clause doesn't exist for its own sake but to serve some underlying purpose, such as to prevent non-Christians from being offended. So why is a Christian Cross honoring the war dead offensive to non-Christians? Are they just all bigots?

AF said...

"If I likewise ask you for the precise reasons why some people might find a Christian Cross honoring the war dead to be offensive, I doubt it will be easy to come up with precisely why."

It's quite easy to say why: Some war dead are not Christian and would not want to be memorialized with a cross.

Now that I've met your challenge, perhaps you could explain how one can oppose the mosque without equating Islam with Al Qaeda.

tjchiang said...

AF, your flip response gets us nowhere. I could easily just reply that some (most) of the 3,000 people who died on 9/11 were not Muslim and wouldn't want a mosque on their gravesite. If it is justified for dead non-Christian soldiers not to want to be honored by a Cross, it seems equally justified that dead non-Muslim victims of terorism don't want to be "honored" by a mosque on their gravesite.

Patrick S. O'Donnell said...


For what it's worth, I would indeed want to know precisely why some people would find a Christian cross honoring the war dead offensive (and I think I know at least some of the reasons). Perhaps one such reason revolves around the fact that because it's on public land, it suggests the possibility that the government is privileging (showing preference for) one religious group over any number of others, Christians, say, over Jews or atheists, or Hindus, or Muslims, what have you. The reason for the offense is incarnate in the bias or privilege, thus the offense, such as it is, has public and justified (or the attempt at same) warrant. The problem is not the offense per se but the reason that causes the offense (if that be a proper description in this case, which I'm not sure it is). There need not be bigotry against Christians to motivate such a finding as we've come up with a more plausible if not compelling explanation for the offense (assuming a principle of charity).

In any event, I'm more concerned with the case at hand, and thus am still wondering if you can come up with any reason that the Cordoba House should cause offense to those who oppose it. If there is no comparable reason, then it makes it all the easier to find in favor (as a default explanation if you will) of bigotry, ignorance, Islamaphobia, and the like as the principle motivating, or at least one of the primary causes of such "offense." Or do you believe the offense exists in the absence of a cause or explanation?

Patrick S. O'Donnell said...


No one has proposed putting a mosque on the "gravesite" of the victims of 9/11.

tjchiang said...


If by your more recent comment you mean that Corduba house is not actually going to be on the site of the former WTC, I know that. But that has not been a distinction anyone has made in this debate. The argument has been that opposing a mosque, even if built on top of the WTC, cannot be opposed without anti-Islam bigotry. The very fact that you seem to need to draw some distinction between a mosque on the gravesite and somewhere else, I think, indicates a feeling htat a mosque on the gravesite is, in fact, different -- and not for reasons of pure bigotry.

tjchiang said...

And as for your earlier question, I believe that offense can exist for reasons that are difficult to articulate precisely. For example, your explanation for the reason why non-Christians might feel offense at a Cross was rather difficult to follow. So just because no one has clearly articulated a precise reason doesn't mean that the reason is bad.

As for whether anti-Islam bigotry is really a motivating factor for the offense, I am sure that it is for some people. I am objecting, however, to your inference that it is true of ALL people.

Patrick S. O'Donnell said...


It was your comment that mentioned a mosque being built on a gravesite. And the debate is NOT properly characterized as one "opposing a mosque, even if built on top of the WTC, cannot be opposed without anti-Islam bigotry."

I'll leave you to make the last comment or comments as I have nothing more to say at this point.

tjchiang said...

Yes, I have nothing to add either. I do wish to fix the typo, since the sentence should read: "opposing a mosque, even if built on top of the WTC, cannot be for any reason other than anti-Islam bigotry." I think the context made clear that the double "opposing" was a typo.

Unknown said...

Just when I thought we were examining whether the builders of Park 51 should build their cultural center near Ground Zero, assuming they have a right to, the discussion has gone off on a bit of a tangent.

(I would just say to tjchiang that in addition to Patrick's point that the cross memorial on public land was offensive because it was on public land, not because it was Christian, is that the Muslim cultural center is being built on private property.)

What's getting distorted in the media and by certain public figures, is that, while the center will house a mosque in it, the mosque is a very minor part of the vision for the center. There are mosques (built as mosques and not centers) near Ground Zero that were there before 9/11, and will continue on. Should they now have to move? What about the Catholic churches in the area? If it's not an anti-Muslim sentiment, but some other symbolism of the center as offensive, why not be consistent in eliminating symbols of religious worship in the vicinity? The families of victims lost in 9/11 who were devout (Jews, Muslims, Hindus, Buddhists, Mormons take your pick) may think that all the (Catholic, Protestant, Baptist, Evangelical, whatever is the converse of a group in the first parenthetical group) within 5 blocks of Ground Zero is offensive to the sacred memory of those victims.

Yes, Jews, Muslims, Hindus, Buddhists, Mormons also died on 9/11. But do you see the absurdity of banning churches (or synagogues, or temples, or whatever type of house of worship) on private property in the area because another group decides it is offensive to the memory of those they lost?

This is why I think it makes sense to leave it up to the owners/builders of the cultural center. I would support their decision to go forward, and hope the hysteria over this dies down quickly. But if they decide to build elsewhere, I can understand that decision too.

AF said...

"AF, your flip response gets us nowhere. I could easily just reply that some (most) of the 3,000 people who died on 9/11 were not Muslim and wouldn't want a mosque on their gravesite. If it is justified for dead non-Christian soldiers not to want to be honored by a Cross, it seems equally justified that dead non-Muslim victims of terorism don't want to be "honored" by a mosque on their gravesite."

You could indeed make that reply, and it would be a good one if the mosque were being built on public land (or if public land were being transferred to private hands for purposes of building the mosque.) However, that is not the case. As you know, the mosque is being built two blocks away from ground zero, on private land.

Belief in separation between church and state is a non-bigoted reason to oppose the government's support of religious symbols and institutions. That belief is fundamentally what drives the opposition to the cross in Salazar v. Buono. A government-supported war monument should not favor certain religions over others. That is the principle.

In contrast, the mosque cannot be opposed on any plausible account of church/state separation. The offense derives not from the government's support of the mosque, but from a private developer's decision to build a mosque. Salazar v. Buono is not remotely analogous.

The distinction is not merely a formal one between publicly and privately owned land. There is, in fact, a public monument to the victims of 9/11 and it will not contain a mosque (and it would violate the Establishment Clause if it did). Thus, this debate is not about anyone's gravesite. The fact that this distinction is not being made by those who oppose the mosque is evidence of their misunderstanding or bad faith. It does not show that the distinction is irrelevant.

Charles T. Wolverton said...

"Justice Scalia in Salazar v. Buono ... couldn't understand how anybody could find a Christian Cross to memorialize war dead offensive except as anti-Christian bigotry."

Assuming you have read J Scalia's dissent at all, I believe you have misinterpreted it. I just searched the opinion and neither "anti-Christian" nor "bigotry' were found. And in any event, it is stated clearly that the plaintiff explicitly denies being offended by the cross per se, only by its placement on government property. The resident constitutional scholars will correct me if I'm wrong, but my inference/guess is that to bring the suit the plaintiff needed a cause of action - ie, he needed to claim "harm" of some sort - and being "offended" by the claimed EC violation was what his attorneys came up with. This is consistent with the relevant part of J Scalia's dissent in which he apparently is merely challenging this claimed "harm" (as I recall, a recurring theme in his EC opinions/dissents).

If my reading is correct, suggesting that anything about that case is analogous to the present situation seems wrong on multiple counts: here there is no claim of constitutional violation - in fact, my understanding is that it is widely agreed that those proposing the Islamic center have the legal right to place it at the proposed sight; the "offense" in Salazar was technical, having nothing to do with bigotry, ie, your interpretation of J Scalia's dissent was totally wrong; judging from your difficulty "follow[ing]" Prof O'Donnell's explanation of possible offense resulting from display of a religious symbol on government land, I question your familiarity with EC jurisprudence - although I consider that explanation unnecessary, it was nonetheless crystal clear to even a lay student of that jurisprudence (ie, me).

So, IMO the arguments from Charles Krauthammer - though inapplicable analogies every one - remain the best Prof Dorf could find to represent the "unprejudiced" view, and I think the default inference from opposition to the center stands.

If one wants to find something about which to be truly offended, IMO the despicable congressional maneuverings to subvert the judicial process in the Mojave cross situation are much more deserving than either the cross, its placement, or the proposed Islamic center, none of which will do any real long term harm to anyone. Not so for unprincipled congressional shenanigans.

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