From Rights to Their Exercise

By Mike Dorf

The kulturkampf against the planned Islamic Center within a few blocks of ground zero has morphed into a discussion of the difference between legal rights and their exercise.  Let's briefly recap:

1) Some New Yorkers (including some surviving family members of 9/11 victims) and many others were offended at the prospect of an Islamic Center (to include a mosque) being built a few blocks away from ground zero and so they looked for a means to block it, such as seeking to have the current building (site of a Burlington Coat Factory) designated a historic landmark.  Others sought (and still seek) an investigation into the finances of the Center, presumably as a means of blocking it.  The City Landmarks Comm'n (correctly) rejected landmark status for what was in fact an unremarkable building.  Other efforts to block the project continue.

2) Meanwhile, various pundits and organizations have chimed in.  Some, like the ADL, say that they are not challenging the legal right of the developers to build the center.  They say it is not "a question of rights, but a question of what is right."  But others, such as conservative candidate for Congress Randy Altschuler, persists in saying that New Yorkers should "stop the mosque."  It's not entirely clear what means Altschuler proposes to use to stop the project.  He asks supporters to sign a petition, but the petition is not, as far as the website discloses, addressed to anyone in particular, nor does it make any specific demands.  Somewhat more prominently and less abstractly, Republican gubernatorial candidate Rick Lazio seeks signatures on his own petition to "tell Andrew Cuomo to investigate the proposed . . . mosque in lower Manhattan."

3) In response, various other pundits and a few politicians--most notably NYC Mayor Michael Bloomberg and then recently, President Obama--came out strongly in defense of the cultural center.

4) Some conservative pundits and politicians then accused the President of missing the point.  Notably, Sarah Palin said on her Facebook page that "we all know that they have the right to do it, but should they?"  I'm not a regular reader of Palin's Facebook page (still waitin fer her ta friend me, dontcha know), but I do know how to scroll down a webpage, and doing so brought me to the former Alaska Governor's July 22 entry, in which she wrote--specifically in response to Mayor Bloomberg's defense of the cultural center--that "it would be an intolerable and tragic mistake to allow such a project sponsored by such an individual to go forward on such hallowed ground."  By "allow," presumably she meant something like "for the authorities to allow." I recognize that the Bard of Wasilla has poetic license to invent words and thus perhaps to use words in non-standard ways, but from the context it's patently obvious that she meant for others to allow the project to go forward rather than for the people behind the cultural center to allow themselves to go forward with their plans.  Hence, even if "we all know that they have the right to do it" as of now, that wasn't true three weeks ago, when this fact was not known to Palin herself.

5) Accordingly, when President Obama seemed to back off of his initial strong defense of the Islamic center, he was making a fair point: Much of the opposition to the Islamic Center--including by Palin--did seem to challenge the right to build it and not just the wisdom of doing so.  Thus, defending free exercise was not a non sequitur, given the prior (and to a large extent ongoing) campaign.  We end up with a very narrow disagreement: Palin and Obama now agree that the planners have a right to build the Islamic Center where they plan to build it; Palin says they should not exercise their right; Obama says it's not for him to advise them whether to build it or not.  Yet that small difference will undoubtedly be the source of much electioneering and demagoguing between now and November.

So much for the politics of all of this.  In a follow-up post (possibly tomorrow), I'll have some thoughts on the question of whether all constitutitonal rights can be defended without defending the underlying exercise of those rights.  We're all familiar with free speech cases in which civil libertarians defend the rights of nasty people to say dreadful things, but is this dynamic different with respect to other rights?