In this post: Introduction; The First Amendment; Does the Constitution protect the freedom to ‘practise religion’?; Do Americans have the right to ‘worship as they choose’?; My observations thus far; Did President Obama make a principled appeal to the Constitution? And what about the right to freedom of speech?; Understanding the sensitivities over the Park51 proposals; What the President might have said in his Ramadan speech; Conclusion
A debate has been ranging over the so-called Ground Zero Mosque, part of a community centre development proposed for 51 Park Place, New York. That’s just two blocks away from where the Twin Towers of the World Trade Centre once stood.
Tempers are fraying and emotions are at fever pitch.
Now, as an Englishman living on the Isle of Man – a small (but very pretty) rock in the middle of the Irish Sea – you’ll perhaps understand if this controversy has not exactly been front page news for me. I had not therefore been following it at all closely, especially as I have been very busy with work.
But my friend Paula Coyle, who has been active in the online debate, put it on my radar. Then, last week, Chris Rosebrough of Pirate Christian Radio posted his Fighting for the Faith podcast discussing the issue. And yesterday, Jason Coyle (married to Paula) wrote a well considered article taking issue with some of what Chris said.
Having tried to come somewhat up to speed, and having listened to what Chris had to say and read Jason’s response, I have some preliminary thoughts and questions of my own. I might be entirely off base in some of what I say here – perhaps even in everything – but certain aspects of the debate thus far puzzle me.
I am also not sure that I don’t detect some questionable and counter-factual thinking with respect to the First Amendment of the US Constitution.
I shall therefore take this opportunity to air my musings in public, with the hope that someone will set me straight and help me better understand the issues.
Before I continue, I should say that this post is something of a departure for me on this blog. I do not usually deal with political issues here. But this debate centres around the freedoms that my US-based brothers and sisters in Christ currently enjoy to proclaim the Gospel without hinderance from the government. That is most certainly within the remit I apply.
Rather than re-state what others have said elsewhere, I shall assume that you are familiar with the following:
- The Park51 project and its proposed facilities.
- Chris Rosebrough’s Fighting for the Faith podcast on the Ground Zero Mosque.
- Jason Coyle’s summary of Chris Rosebrough’s argument.
- Jason’s response to Chris Rosebrough.
The First Amendment
Even a non-American like me manages to pick up a limited knowledge of the US Constitution. And the protections enshrined by the First Amendment are, I think, one of its better known aspects:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I love this language.
I admire America, her people, and the whole US Constitutional project.
Yet I am frequently puzzled at how often US authorities fail to operate within the seemingly straightforward and easily understood parameters of First Amendment. Case in point: Dearborn, Michigan police repeatedly harassing Christians for peaceably preaching the Gospel. Another: the severe restrictions placed upon prayer in public schools.
Still, I am not a Constitutional lawyer, although I note that with regard to school prayer, that several US Supreme Court justices have dissented from the currently prevailing interpretation of the Constitution. It seems to me that there is hope.
Back to the text of the First Amendment.
It does not grant any rights to citizens. Rather, what it does is to protect them from having the rights that they already possess taken away by Congress.
This is important.
Now is a good time to remind ourselves of what President Obama said in his Ramadan speech:
Pay special attention beginning at the 3:09 mark:
As a citizen, and as President, I believe that Muslims have the right to practise their religion as everyone else in this country. And that includes, that includes the right to build a place of worship, and a community centre, on private property in Lower Manhattan in accordance with local laws and ordinances.
This is America.
And our commitment to religious freedom must be unshakeable.
Given what the First Amendment says, it clearly follows that it is not permissible for the government to object to the building of a mosque anywhere in the US, at least where such construction would be in accord with the relevant laws.
Thus, as a matter of the Lefthand Kingdom, President Obama was correct in his intent to defend the right of Muslims to exercise their religion freely, absent interference from government. This right is indeed protected (but not granted) by the US Constitution. But note that, unlike the President, I say exercise, and not practise (sic – I use British spelling, which distinguishes the noun from the verb). I shall return to this point, as it is one upon which the Supreme Court has ruled.
Muslim Americans thus have the right to pursue the building of a mosque on private property in Manhattan without fear of government intervention, provided that they adhere to applicable laws.
However, nowhere does the Constitution protect the right actually to build such a mosque, as the President asserts that it does.
The distinction may be a fine one, but it is critical to the debate, and to the argument that Chris Rosebrough is advancing.
The Declaration of Independence famously states this:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The Declaration does not say that these are the only unalienable rights with which men are endowed, but it does positively assert that among those rights are Life, Liberty and the pursuit of Happiness.
Now, without becoming sidetracked as to precisely what the 56 signatories to the Declaration of Independence meant by ‘the pursuit of Happiness’, let us read that broadly and assume that it does include the right for American Muslims to pursue the building of a mosque at Ground Zero. Why should it not?
Is there any credible critic of the Park51 proposals who would deny American Muslims their right to pursue Happiness in any lawful way that they themselves desire?
I suspect not.
Therefore, it would be to construct something of a straw man to predicate an argument upon the assumption that opponents of Park51 somehow wish to deny American Muslims their unalienable rights.
Notice, though, that it is the pursuit of Happiness that is an unalienable right. Whereas Life and Liberty themselves are credited with being unalienable, the language of the Declaration makes an emphatic distinction with regard to Happiness. It is only the pursuit of Happiness that is stated to be a right, not its attainment.
Thus, while hardly anyone would deny that American Muslims have the right to pursue the lawful building of a mosque anywhere they wish, it is a considerable stretch to claim that they have an intrinsic unalienable right actually to accomplish the building of that mosque.
Now, President Obama claims that Muslims do have ‘the right to build a place of worship on private property and a community centre in Lower Manhattan in accordance with local laws and ordinances’. He does not say that they have the right to ‘pursue the building of’ their mosque, but the right actually ‘to build a place of worship’. But that is a mere assertion, and he provides no evidence with which to substantiate his claim.
Perhaps this seems to be a distinction without meaning?
Then consider this.
If Muslims have a Constitutionally protected right to accomplish the building of a mosque in Lower Manhattan, would not the Executive, Legislative and Judicial branches of government be obligated to ensure the fulfilment of that right, and thus take active steps to ensure that the mosque were built? Given the existence of such a right, might not the government even be obliged to fund the construction of the Park51 community centre and mosque if, for example, American Muslims were unable themselves to find the $100m that the project requires?
Is anyone arguing such a thing?
If not, why do Glenn Beck (as he says in a clip played on Chris’ podcast) and Chris Rosebrough meekly seem to accept President Obama’s assertion that Muslims have a right, not only to pursue the building of their mosque, but actually to build it (provided it does not contravene the relevant laws)? For that is what the phrase ‘right to build a mosque’ implies.
I suppose they mean to say that this right is present, provided that the Muslims are able to raise sufficient funds, purchase their building, satisfy any public enquiries, conform to planning controls, and so forth.
But in that case, the ‘right to build’ is not really all that meaningful, is it?
Language matters. Words have meaning (despite the assertions of some to the contrary). Precision in our statements is important. Especially when the President of the most powerful nation on earth is lecturing on the finer points of her Constitution.
Is it not possible that imprecision in our terminology might lead to imprecision in our thinking? Might this not in turn impair our ability to sustain a credible argument? And could such carelessness not perhaps ultimately lead to Christians losing the battle of ideas that is necessary to safeguard the religious freedoms currently enjoyed by Americans?
I am in all likelihood missing something fundamental with respect to the nature and operation of the Constitution. I am, after all, a mere Englishman pondering complex issues from a distant position of extreme ignorance. Please explain to me where I am going wrong.
But even if the right to build a mosque does exist, is it necessarily a right protected by the Constitution? As I read it, the First Amendment says nothing about protecting the right of religious groups to accomplish their desires. Neither does it seek to defend religious groups from lawful opposition to their goals. Rather, it protects citizens from Congress passing laws that seek to prohibit the free exercise of religion.
Thus, lawful and peaceable opposition to the building of a mosque on Park Place is not an infringement upon anyone’s First Amendment rights.
Does the Constitution protect the freedom to ‘practise religion’?
The President attempts to support his claim that the Founders intended to protect the practise of religion (1:10–1:22):
Our Founders understood that the best way to honor the place of faith in the lives of our people was to protect their freedom to practise religion.
In the Virginia Act of Establishing Religious Freedom, Thomas Jefferson wrote that ‘all men shall be free to profess, and by argument to maintain, their opinions in matters of religion’.
But notice what the President’s quotation from Thomas Jefferson endorses: not the freedom to practise religion, but merely the right to profess and maintain by argument one’s beliefs.
These really aren’t the same thing. Not at all.
I do not say that no evidence exists to support the President’s position; merely that the he did not present it. His researchers and speechwriters have not served him well.
Do Americans have the right to ‘worship as they choose’?
President Obama makes a further claim that ‘Americans have the right to worship as they choose’ (1:38–2:04 in his speech).
Again, that assertion sounds superficially plausible, but fails upon closer examination.
The Constitution does not protect the right of citizens to worship through performing human sacrifice, for example. And the Supreme Court ruled against polygamy in 1878, interpreting the First Amendment’s Free Exercise Clause as ‘protecting religious beliefs, not religious practices that run counter to neutrally enforced criminal laws’ (as the University of Missouri-Kansas City School summarizes).
Although this position was subsequently softened by later rulings, more recent developments have returned to a narrow interpretation of the Free Exercise Clause. Thus, the University of Missouri-Kansas City School has this to say:
The big development—shocking to some—in Free Exercise jurisprudence came in Employment Division v Smith in 1990. Reinterpreting and, in some cases, throwing out decades of caselaw, five members of the Supreme Court concluded that a generally applicable criminal law raises no Free Exercise issues at all, ending what had long been the obligation of states to demonstrate at least an important state interest and narrow tailoring when they enforced laws that significantly burdened religious practice.
In other words, the Supreme Court in 1878 interpreted the Free Exercise Clause to mean the same thing as the words of Thomas Jefferson that President Obama quoted, and recent courts have returned to that same narrow understanding.
The Supreme Court understands the First Amendment not as protecting the practise of religion, but rather the right of people to hold, profess and, by public argument, to maintain their beliefs.
Thus, the President is speaking contrary to the opinions of the Supreme Court when he appeals to the First Amendment in support of either a right to ‘practise religion’ or for people to ‘worship as they choose’. He presents no evidence that such rights are Constitutionally protected.
Again, it would seem that the President has been ill-served by his advisors.
If I understand him correctly, Chris Rosebrough is vigorously defending what he believes to be a Constitutionally protected right to the free practise of religion. Yet, given the rulings of the Supreme Court concerning the Free Exercise Clause, I wonder whether that point of Constitutional principle has not in fact already been long conceded, if indeed it ever existed.
Simply, then, I do not currently understand the Constitutional basis upon which Chris is arguing.
We do not have to like the Constitutional situation as interpreted by both past and recent Supreme Courts (although a narrow interpretation of the Free Exercise Clause does not seem to me to be incompatible with the precise wording of the text). Americans are free to disagree with their Supreme Court, and to pursue a change of interpretation. But they are unlikely to act with meaningful effect unless they first understand the relevant facts for what they are.
Now, whatever restrictions may eventually be imposed upon the practise of Christianity by an increasingly secularized society, no Supreme Court has yet denied that the First Amendment protects the freedom to profess and argue for one’s religious opinions. Thus, the Constitution does seem to guarantee the unimpeded proclamation of Law and Gospel, even in the face of opposition from those who find the message of Christ crucified for sinners to be offensive.
For this we should rejoice and thank the Lord. For our desire is not merely to uphold the Lefthand Kingdom rights of Christians, but to pursue the Righthand proclamation of the Gospel to the lost, in the hope that the Lord might thereby graciously save some.
My observations thus far
In summary, then, my (probably wrong-headed) understanding of the First Amendment is that it protects religious freedom by prohibiting Congress from passing laws intended to impede the free exercise of religion. Nevertheless, religious practice may be constrained by neutrally enforced criminal law.
Further, I assert that the prohibiting of Congress from passing laws restricting the free exercise of religion is emphatically not the same thing as granting citizens the right to build a mosque, even on their own private property.
I make these observations because much of the discussion I have seen and heard seems to assume that the First Amendment either grants citizens positive rights, or protects freedoms far more extensive than either its plain text or the prevailing rulings of the Supreme Court would suggest.
My general point is thus that, if we are to discuss the Constitutional issues intelligently and prevail in the marketplace of ideas, we need to be very careful of our facts and not misconstrue the freedoms that the Constitution actually protects.
Let me state once more that I am not a Constitutional lawyer. I am well aware that I will already have erred on many points thus far in my discussion, and that my status as one ignorant of US Constitutional law will be patently obvious to anyone who is trained in such matters. Again, please correct me and set the record straight. I am not seeking to be contentious, but merely to establish and comprehend the facts of the Constitutional situation.
Did President Obama make a principled appeal to the Constitution? And what about the right to freedom of speech?
Although Chris Rosebrough correctly points out that President Obama appeals to the Constitution, given the above observations, I rather suspect that Chris is being overly generous when he credits the President with a Constitutionally defensible stance.
As I currently see things (and I am well prepared to change my view, if and when someone shows me my error), the President apparently asserts that the Constitution protects rights that it does not. And he notably fails to balance the right to be free from government interference in the expression of religion with another right also protected by the First Amendment: freedom of speech.
As much as Chris valiantly defends the rights of those seeking to build the mosque, might he not, like the President, perhaps be tending toward inconsistency when he neglects to defend with equal vigour the Constitutional right of those who oppose the mosque to voice their opinions?
It is not a de facto unconstitutional stance to speak one’s strong opposition to the way that someone else wishes lawfully to exercise their religion.
In fact, the opposite would seem to be true: to maintain the freedom to preach the Gospel, it is precisely the right to speak openly in opposition to other religions (including the religion of secular humanism) that must be protected. And that right must be protected every bit as much as the Constitutionally guaranteed freedom from ‘laws respecting an establishment of religion, or prohibiting the free exercise thereof’.
Rights are best maintained by regular use. I do not therefore understand the logic behind the criticisms Chris makes of those who are voicing opposition to the Park51 mosque. They would merely seem to be exercising their First Amendment right to free speech.
Now, if Chris had confined his criticism to those calling for government intervention to prevent the mosque being built, then he would have a point, and I would agree with it entirely.
Any such calls, if they are being made, would be unconstitutional and would represent a real danger to religious freedom in the US.
And I likewise support him in his caution against playing into the hands of those with anti-religious agendas by the use of extreme and intemperate language. Every believer involved in the debate should take his warnings to heart and tone down the rhetoric. Let us be gracious to those with whom we disagree, even if they are unrestrained in their arguments against us.
But I part company with Chris to the extent that he intends to go further than that by criticizing those who simply argue passionately that the mosque should not be built, but who are neither calling for government intervention nor seeking to prevent its construction by anything other than peaceable and lawful means. They have a Constitutionally protected right to voice their opinions, and it is essential to the preservation of religious freedom that they are vigorously supported in exercising that right, whether or not one agrees with every (or indeed any) aspect of their argument.
Understanding the sensitivities over the Park51 proposals
The Park51 website makes plain that a mosque is part of the proposals. This is not a matter of dispute. The website says:
Park51 will grow into a world-class community center, planned to include the following facilities:
- outstanding recreation spaces and fitness facilities (swimming pool, gym, basketball court)
- a 500-seat auditorium
- a restaurant and culinary school
- cultural amenities including exhibitions
- education programs
- a library, reading room and art studios
- childcare services
- a mosque, intended to be run separately from Park51 but open to and accessible to all members, visitors and our New York community
- a September 11th memorial and quiet contemplation space, open to all
Now, the Park51 website also goes out of its way to present its proposals as inclusive, being ‘in the spirit of tolerance and service’ and a ‘gesture of dedication to our city’. For the sake of my following points, I shall assume the veracity of these claims without question.
The President was absolutely right to say that all must ‘recognize and respect the sensitivities surrounding the development of Lower Manhattan’.
Although some might question whether President Obama was correct in stating that the 9/11 terrorist’s cause was ‘not Islam, it’s a gross distortion of Islam’, it is clear that he singularly failed to address meaningfully in his remarks the fact that those terrorists were most certainly at least operating in the name of Islam, and that not a few in the Muslim world saw them as doing so legitimately.
(For the record, let me be absolutely clear that I recognize that there are also many people who would self-identify as Muslim and yet condemn all terrorist acts without reservation. I in no way wish to impugn the motives or behaviour of peaceful law-abiding Muslims, US citizens or otherwise.)
The President rather failed, I think, to show adequately in his Ramadan speech that he understood the legitimate feelings of many New Yorkers and other Americans concerning this issue. On 9/11, America was attacked in the name of Islam. Now here was their President, defending the building of a mosque practically upon the primary place of that attack. Would it not be understandable if many were to feel betrayed by his words, even if the President himself intended no such offence?
Yet President Obama went even further, proclaiming that American Muslims have a right actually to build a mosque in Lower Manhattan. I have already stated my case for questioning whether such a right exists or, if it does, whether it is protected by the Constitution.
Thus, although President Obama asserted that we must ‘recognize and respect the sensitivities surrounding the development of Lower Manhattan’, he gave the impression to many of neglecting to heed his own advice.
It must be blatantly obvious to even the most neophyte politician that not a few New Yorkers would perceive the building of a mosque two blocks from Ground Zero as, if not a victory of sorts for the ideology of the terrorists, then at least something that those sympathetic to the 9/11 attackers would claim as such, and thus use in their continuing propaganda and efforts to raise funds for further terrorist attacks.
Is it not therefore entirely understandable that emotions are running high? How galling it must be for some, not only to have to endure Osama bin Laden’s continuing evasion of justice, but now also apparently to see his professed cause gain ground with their own President’s apparent blessing. And not just any ground, but Ground Zero.
Sentiments are fraught, therefore, not over the proposed building of just any mosque, but over the plans for this particular mosque in a location that has acquired an extreme symbolic importance to the identity of the American people and their stand against terror.
To concede this ground – if not to the enemy, then at least to the religion in whose name an atrocity has so recently been committed upon it – appears to many to be a capitulation to terror. In their view, this would add insult to the terrible injury that the American people have suffered. The very idea is itself a stench in their nostrils, and ample cause for the intensity of the current debate.
One does not have to agree with that view in order to grant that it has a legitimate basis, and that those holding it should be treated gently and with respect.
I do not therefore fault President Obama for not viewing the matter this way himself.
But, by failing to recognize that this is an emotionally sensitive issue of honour, symbolism and principle for many patriotic Americans, and instead treating it as an abstract constitutional matter in his speech, the President is at least guilty of incompetent politics.
Though that is not in itself a crime, I cannot comprehend how President Obama made such a basic error. That said, reviewing again Chris Rosebrough’s analysis, I am not sure that he does not similarly fail to give sufficient weight to the idea that those opposed to the construction of the mosque might have a genuine and potentially legitimate grievance. Perhaps I am missing something.
What the President might have said in his Ramadan speech
I wonder why, in defending the protections afforded by the Constitution, President Obama did not endeavour to unite US citizens together around those very freedoms? Could he not easily have spoken along the following lines, even allowing for the fact he was addressing an iftar dinner:
Our Constitution – which I am bound by oath to preserve, protect and defend – enshrines the freedom of our citizens to exercise their religion without interference from government. That freedom includes the right of Muslims to seek to build places of worship – even in Lower Manhattan.
We treasure these First Amendment freedoms, even as others fear them and seek to take them from us. Unable to win in the arena of peaceful discussion and debate, the enemies of freedom resort to shameful acts of terror. By their deeds, they show the impotence of their ideas, in contradistinction to the preeminence of our liberty.
It is our Constitutional freedoms that define America and make her great. We determinedly hold them fast, whatever trials and tribulations we may endure. The noble ideas upon which this nation is founded can never be defeated by base acts of barbarism.
Nonetheless, the same First Amendment that safeguards our free exercise of religion also protects our freedom of speech. These rights are inseparable. Neither one can stand alone. And so we hold the right to speak freely as dearly as we do our free exercise of religion.
There are many who think it inappropriate that a mosque should be built so close to the place where terrorists committed an atrocity in the name of Islam. They have a right to give voice to their thoughts and feelings. And were a mosque to be built close to Ground Zero, there would no doubt be some among the enemies of freedom who would perceive this to be a sign of our weakness.
They would be wrong.
The building of a mosque close to Ground Zero would be proof not of our vulnerability, but of our steadfast resolve to uphold with eternal vigilance the freedoms of all our citizens, whatever their colour or creed.
Thus, even as we honour the right of Muslim Americans to seek to build a community centre and mosque in Park Place, we also uphold the right of other citizens to speak peaceably in opposition to its construction.
Park51 is therefore a matter for civil discourse, but not for government diktat. This is the American way. And so, even as loyal and patriotic American citizens legitimately disagree over this issue, let us celebrate the Constitutional freedoms that unite us in our noble land of liberty.
I am no speech writer, but could President Obama not at least have acknowledged the First Amendment right of freedom of speech for those who feel so very strongly that the Park51 mosque should not be constructed?
President Obama could have used his speech to prepare the way such that, whether or not the mosque is eventually built, Americans could have stood together, united by their Constitution and proud of their freedoms – the very freedoms that enable the Gospel to be proclaimed without government restriction.
Instead, the President’s words stirred up the controversy and sowed seeds of discord. His Ramadan speech left America more divided, not less.
Am I way off base with anything I have written here? Have I woefully misinterpreted the nature of the Constitution or the First Amendment? Have I misunderstood the motivations of those opposing the Park51 project? Have I been unfair to Chris, or even to President Obama?
If so, I’d appreciate some guidance to bring me back on track, even if it’s just a link to a primer on Constitutional law! And if this whole article is without merit, I am happy simply to withdraw it.
I believe that Chris is probably correct with respect to the hidden agendas held by some engaged in the public debate. It is beyond credible doubt that there are those who are exploiting this situation for their own political or secularist ends.
But it would be overly simplistic to paint everyone involved in the discussion with that particular brush: there are legitimate reasons driving some to oppose Park51, and I believe that Americans would be wise to defend through exercise their First Amendment right to speak freely.
I am therefore unconvinced that opposing the construction of the mosque is in itself to place the religious freedoms of American citizens in jeopardy. I do not see the Constitutional basis for that line of reasoning, although I remain open to persuasion.
That said, any public discourse by Christians should always be conducted in a way that is blameless. It would be all too easy to give ammunition to those with a secularist agenda who wish to excise religion entirely from the public sphere.
Chris is absolutely correct to identify this danger, and to seek to mitigate it.
I thank God for giving the church faithful and insightful men such as he. May the Lord grant that every believer’s conduct be likewise ‘worthy of the gospel of Christ’ (Phil. 1:27). For it is our freedom to proclaim the Gospel of Christ crucified for sinners and raised from the dead that Chris, Jason and many others seek to defend.
My fellow brothers and sisters in Christ, I commend your efforts to contend both for the Gospel and for your continued freedom to proclaim it. I leave you with these words of counsel and encouragement from Paul to Titus:
For the grace of God that brings salvation has appeared to all men, teaching us that, denying ungodliness and worldly lusts, we should live soberly, righteously, and godly in the present age, looking for the blessed hope and glorious appearing of our great God and Savior Jesus Christ, who gave Himself for us, that He might redeem us from every lawless deed and purify for Himself His own special people, zealous for good works.
Speak these things, exhort, and rebuke with all authority. Let no one despise you.