Crescents and Crosses at Ground Zero
I have two principal reactions to the Park 51 Islamic Center controversy. The first is that the legal issues are pretty clear cut. The government cannot deny approval t0 – or move to block construction of – the center because its Muslim character would be seen as offensive or insensitive. This would apply, I think, to any effort to transparently manipulate historical preservation laws to block or restrict the project.
The second is that those who are concerned about the project ought not to be dismissed as nativists or bigots. One can acknowledge that the attackers on 9-11 represent a small slice of a huge religion and remember that Muslims died that day as well and still think that a prominent Islamic Center that close to Ground Zero is insensitive and subject to misinterpretation,. One can wish it wouldn’t be built without unmooring oneself from our traditions of tolerance and religious liberty. (To be clear, I, like the President, take no position on the matter and, for reasons, set forth below. worry that not going forward at this point would be problematic.)
I wonder if the controversy represents a larger problem in our interconnected society – one that the law is ill prepared to address. We generally believe that the state cannot restrict speech in deference to a heckler’s veto. But should we be concerned about the private consequences of public outrage?