The Ghost, The Building, The Battle

Jason St. James, Albany Government Law Review Member

On September 11, 2001 the collective consciousness of the United States of America was forever shattered.  Gone was the visage of invincibility, replaced by feelings of disbelief, heartache, shock, and awe, the likes of which had not been felt since the attack on Pearl Harbor on December 7, 1941.  While almost seven decades separate these catastrophic events, one common thread still exists: the spirit of America was underestimated.  In the wake of the unimaginable, President George W. Bush stated, “[o]ur enemies have made the mistake that America’s enemies always make.  They saw liberty and thought they saw weakness.  And now, they see defeat.”[1] Another conflict now looms on the horizon.  This battle is not being waged by the use of arms, but through a clashing of ideals.  The ambitious Park51 Project acts a lithmus test of U.S. resolve to learn and move past the 9/11 tragedy.

Park51, originally designated as the “Cordoba House,” is a proposed fifteen-story Muslim community center located approximately two city blocks from the World Trade Center site[2] in Lower Manhattan. Imam Feisal Abdul Rauf and Soho Properties Chairman and CEO, Sharif El-Gamal, are heading the project.  The Park51 Project has been controversially referred to as the “Ground Zero Mosque” because it will contain a Muslim prayer space capable of holding between 1000–2000 people.[3] However, the community center design also includes a 500-seat auditorium, theater, performing arts center, fitness center, swimming pool, basketball court, child care area, library, culinary school, art studio, food court, and a September 11 memorial.[4] The proposed community center will be replacing an 1850’s Italian-style structure that was being used as both a Syms and Burlington Coat Factory, until the building was damaged during the September 11 attack on the World Trade Center.[5] One possible obstacle to the construction was the discussed conferment of landmark status upon the current 1850’s building, but on August 3, 2010, New York City’s Landmarks Preservation Commission voted 9–0 against granting landmark status and historic protection to the building, thus clearing the way for the building’s demolition.[6]

The Controversy

While it is uncontroverted that the proposed Park51 building would not be visible from the World Trade Center site, many opponents of the project have voiced their concerns that establishing a mosque so close to Ground Zero would be offensive to the families of 9/11 victims since the attacks were carried out by Islamic terrorists,[7] that the Park51 Project would be interpreted as an “act of triumphalism” memorializing a successful Islamic conquest,[8] or that the new Park51 Community Center would serve as a breeding ground for terrorists.[9] On the other hand, supporters of the Park51 Community Center point out that some victims and victims’ families are in favor of the project and note that some of the 9/11 victims were Muslim.  The level of attention, coupled with the passion on both sides of this conflict, “reflects the degree to which people care about the very American values under debate: recognition of the rights of others, tolerance and freedom of worship.”[10]

The Intended Benefits

According to Imam Feisal Abdul Rauf, the Park51 Community Center is being designed with a broader mission in mind: “strengthen[ing] relations between the Western and Muslim worlds and to help counter radical ideology . . . .”[11] Imam Feisal Abdul Rauf went further and stated that these objectives “lie[] not in skirting the margins of issues that have polarized relations within the Muslim world and between non-Muslims and Muslims.  It lies in confronting them as a joint multifaith, multinational effort.”[12] With these purposes in mind, Park51 is said to be founded on “two fundamental commandments common to Judaism, Christianity, and Islam: to love the Lord our creator with all of our hearts, minds, souls and strength; and to love our neighbors as we love ourselves.”[13]

Fostering love and goodwill not only can serve a humanitarian purpose, but may improve our nation’s security, as well.  Three years ago, the Pew Research Centre reported that most Muslim Americans were “largely assimilated, happy with their lives . . . and decidedly American in their outlook, values and attitudes.”[14] However, since that report was issued it has become abundantly clear that the U.S. is also capable of fostering “home-grown” terrorists—Nidal Malik Hassan, a native born army Major who killed thirteen of his comrades in a shooting spree at Fort Hood, and Faisal Shahzad, a legal immigrant who attempted to set off a car bomb in New York’s Time Square, are just two examples.[15] However, Nihad Awad, the Executive Director of the Council on American-Islamic Relations stated that “building this mosque is the solution not the problem, because Islam calls for rapprochement with other religions and . . . a culture of moderation.”[16] It was because of this understanding that President Bush repeated, ad nauseam, that after 9/11 the Americans were at war with the terrorists who had attacked them and not at war with Islam. President Obama has embraced a similar approach, stressing that “diversity is part of our strength—not a source of division or insecurity.”[17]

Another popular reason supporters cite in affirmation of the Park51 Project is the embodiment of freedom of religion within the Project.  Talat Hamdani, parent of a 23-year-old son, who gave his life trying to rescue people from the crashing World Trade Center Towers, said that “supporting the Islamic center and mosque ‘has nothing to do with religion.  It has to do with standing up for our human rights, including freedom of religion.’”[18] Freedom of religion is one of our primary tenants and was put in place to help stop religious persecution and fear of reprisal.  In this vein, Justice Stevens warned that “[i]ignorance—that is to say, fear of the unknown—is the source of most invidious prejudice.”[19]

The right to build a place of worship

The Freedom of Religion is a foundational belief that permeates our culture.  The observance of many types of religions requires that a place of worship be established.  With this principle in mind, Congress passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) in 2000.[20] RLUIPA was designed to protect churches and religious assemblies from the effect of zoning laws that discriminate against and interfere with the free exercise of religion. “Congress recognized that it was essential for religious groups to have a place of worship where their members can congregate and practice their faith together.”[21] Senator Kennedy stated that “[t]he right to assemble for worship is at the very core of the free exercise of religion.  Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements.  The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.”[22]

RLUIPA can be violated in two distinct ways.  First, a government may not “impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.”[23] The most common violation of this provision occurs when a government makes “individualized assessments of the proposed uses for the property involved.”[24] Second, a government may not discriminate against religious assemblies through a land use regulation “that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”[25] The substantial burden provisions of § 2000cc(a) and the nondiscrimination provisions of § 2000cc (b) are “operatively independent of one another.”[26] Violation of either provision will result in liability against the government unless its conduct can survive strict scrutiny.[27]

The Possible Burdens

While supporters of the Park51 Project cite the various possible “healing” scenarios the Project is designed to embody, opponents point to the possibility that these project may in fact have a negative or destabilizing effect.  The most commonly held belief among Park51 objectors is that the location of the Community Center, while completely legal, is offensive to the 9/11 victim families.[28] For instance, the House Minority Leader, John Boehner, summed it up by saying, “[j]ust because they have the right to do something doesn’t mean it is the right thing to do.”[29] Popular Conservative Blogger, Pamela Geller, stated in support that “I’ve no problem with Muslims.  I love Muslims.  I do have a problem with the ideology that inspires Jihad.”[30] Some of the 9/11 victim’s family members have stated that the reason the location of Park51 is offensive is because the World Trade Center site has become a makeshift cemetery.

For instance, one woman stated that she lost her son, Vincent Boland—a 25-year-old investment banker from New Jersey—who was working on the 97th floor of the First Tower on 9/11, when a hijacked aircraft was flown into it.[31] She went on to say that “‘[w]e got no more than a few inches of skin and a couple of pieces of bone.  Ground Zero is the burial place of my son . . . [and] I don’t want to go there and see an overwhelming mosque looking down at me.’”[32] Another like-minded opponent to Park51 stated that “‘[i]f you want to reach out and heal the wounds, you don’t do it in an in-your-face way, in somebody’s cemetery.  Two blocks from Ground Zero is Ground Zero.’”[33]

Survivors’ families are not alone in their rebuke of the project.  Dalil Boubakeur, head of the Grande Mosquee de Paris, said that “[t]here are symbolic places that awaken memories whether you mean to or not.  And it isn’t good to awaken memories.”[34] While a lack of sensitivity toward the families of 9/11 victims is the most cited reason for opposition to Park51, it is by no means the only reason.

Another popular contention among the opposition party to Park51 is that the physical structure of the Community Center will act a memorial in favor of the terrorist, emboldening their efforts to grow and recruit more terrorists.[35] Zuhdi Jasser, a physician, United States Navy veteran, and Founder of the American Islamic Forum for Democracy stated that “Ground Zero shouldn’t be about promoting Islam.  It’s the place where war was declared on us as Americans.  To use that space for Muslim outreach is the worst form of misjudgment.”[36] Evan Kohlmann, senior partner of the New York-based security firm Flashpoint Global, says that radical Islamists see a propaganda and recruitment opportunity in the New York mosque.[37] Mr. Kohlmann went on to say that “[t]he reaction is, at least on the part of extremists, fairly gleeful—that America is playing into our hands, that America is revealing its ugly face, and that even if it doesn’t further radicalize people in the Middle East, there’s no doubt that it will radicalize a kind of a key constituency that al-Qaida and other extremists are seeking to covet, seeking to court, which is the small number of homegrown extremists here in the United States.”[38]

Conclusion

The specter of 9/11 may haunt this nation into the foreseeable future unless positive steps are taken by all interested parties to educate one another and allow the healing process to begin in earnest.  Park51 is just such an education experiment.  While it is undeniable that any alteration to the World Trade Center area conjures up immense sorrow, sometimes it is through pain and suffering that we truly discover ourselves.  Perhaps this center, which represents everything that is good with our nation—freedom of religion and tolerance—can be the first step in learning how to successfully co-exist with one another, adding yet another class of people to the American Melting Pot.


[1] President George W. Bush, Address to the Nation for the three-month observance of the Sept. 11 attacks (Dec. 11, 2001), available at http://transcripts.cnn.com/TRANSCRIPTS/0112/11/se.01.html.

[2] Joe Jackson & Bill Hutchinson, Plan for mosque near World Trade Center site moves ahead, N.Y. Daily News, May 6, 2010, available at http://www.nydailynews.com/ny_local/2010/05/06/2010-05-06_plan_

for_mosque_near_world_trade_center_site_moves_ahead.html; see also Javier C. Hernandez, Vote Endorses Muslim Center Near Ground Zero, N.Y. Times, May 26, 2010, available at http://www.nytimes

.com/2010/05/26/nyregion/26muslim.html.

[3] See Jackson & Hutchinson, supra note 2.

[4] Welcome to Park51, Facilities, http://blog.park51.org/programs/facilities/ (last visited Dec. 22, 2010).

[5] See Jackson & Hutchinson, supra note 2.

[6] Javier C. Hernandez, Mosque Near Ground Zero Clears Key Hurdle, N.Y. Times City Room, (Aug. 2, 2010, 12:45 PM), http://cityroom.blogs.nytimes.com/2010/08/03/mosque-near-ground-zero-clears-key-hurdle.

[7] Josh Nathan-Kazis, Mosque’s Plan to Expand Near Ground Zero Sparks Debate, May 26, 2010, available at http://www.forward.com/articles/128347.

[8] Id.

[9] Bobby Ghosh, Editorial, The Moderate Imam Behind the ‘Ground Zero Mosque’, Time Mag., Aug. 3, 2010, available at http://www.time.com/time/nation/article/0,8599,2008432,00.html.

[10] Feisal Abdul Rauf, Op-Ed, Building on Faith, N.Y. Times, Sept. 7, 2010, available at http://www.nytimes.com

/2010/09/08/opinion/08mosque.html.

[11] Id.

[12] Id.

[13] Id.

[14] Build that mosque: The campaign against the proposed Cordoba centre in New York is unjust and dangerous, Economist, Aug. 5, 2010, available at http://www.economist.com/node/16743239/print.

[15] Id.

[16] Mohammed Al Shafey, Controversy Rages in NYC over Planned Mosque Near Ground Zero, Ashar Q Al-Awsat, May 18, 2010, available at http://aawsat.com/english/print.asp?artid=id20990.

[17] Build that mosque, supra note 14.

[18] 9/11 Families, others rally in favor of NYC mosque, China Daily, Aug. 26, 2010, available at http://www.chinadaily.com.cn/world/2010-08/26/content_11205677.htm.

[19] Editorial, Justice Stevens on ‘Invidious Prejudice, N.Y. Times, Nov. 9, 2010, available at http://www.nytimes.

com/2010/11/10/opinion/10wed4.html.

[20] 42 U.S.C. §§ 2000cc et seq. (2006).

[21] Vietnamese Buddhism Study Temple In America v. City of Garden Grove, 460 F.Supp.2d 1165, 1171 (C.D. Cal., 2006).

[22] 146 Cong. Rec. S7774-01 (daily ed. July 27, 2000) (joint statement of Senator Hatch and Senator Kennedy on the Religious Land Use and Institutionalized Persons Act of 2000).

[23] 42 U.S.C. § 2000cc(a)(1) (2006).

[24] 42 U.S.C. § 2000cc(a)(2)(C).

[25] 42 U.S.C. § 2000cc(b)(1).

[26] Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir. 2003).

[28] Finlo Rohrer, Is ‘Ground Zero Mosque’ Debate Fanning the Flames?, BBC News, Aug. 25, 2010, available at http://www.bbc.co.uk/news/world-us-canada-11076846?print=true.

[29] Id.

[30] Id.

[31] Basharat Peer, Zero Tolerance and Cordoba House, Financial Times, Aug. 13, 2010, available at http://www.ft.com/cms/s/2/bf1110d8-a5b0-11df-a5b7-00144feabdc0,dwp_uuid=a712eb9.

[32] Id.

[33] Id.

[34] Thanassis Cambanis, Looking at Islamic Center Debate, World Sees U.S., N.Y. Times, Aug. 25, 2010, available at http://www.nytimes.com/2010/08/26/world/26islamic.html.

[35] See, Comment, Monument to Jihad: Ground Zero Mosque no Joke, Toronto Sun, Aug. 7, 2010, available at http://www.torontosun.com/comment/2010/07/26/14835681.html.

[36] Jeff Jacoby, A Mosque at Ground Zero?, Boston Globe, June 6, 2010, available at http://www.boston.com/

bostonglobe/editorial_opinion/oped/articles/2010/06/06/a_mosque_at_ground_zero/.

[37] Gary Thomas, Radical Islamists Try to Exploit Islamophobia, Voa News, Aug. 26, 2010, available at http://www.voanews.com/english/news/Radical-Islamists-Try-to-Exploit-Islamophobia-101592048.html.

[38] Id.

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Filed under Constitutional Law, Equal Protection, Land Use, Religion

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