Whether it's the extremist Florida pastor promoting a burn-the-Quran day or conservative pundit Newt Gingrich peddling his shrill campaign against the planned Islamic community center in New York City, rising anti-Islam action within in the country is not only "ugly," but raises serious "questions about the future of religious liberty," writes a leading First Amendment scholar.

In an Aug. 27 article for the First Amendment Center, Charles C. Haynes notes a recent Economist poll that reveals 34 percent of those surveyed "say there are some places in the U.S. where it is not appropriate to build mosques, though it would be appropriate for other religions to build houses of worship."

Haynes, director of the Religious Freedom Education Project, continues:

Propaganda works. The drumbeat of anti-Islam messages this summer - often conflating Islam and terrorism - on talk radio, the Internet and at political meetings around the country has apparently convinced a good slice of the public that American Muslims do not have the same rights as people of other faiths.

Haynes notes an e-mail from a soldier serving in Afghanistan, who is Muslim. The soldier asks, "Do we not deserve the right to worship freely and mourn for the people who died on 9/11? They were our countrymen too."

Haynes concludes:

If we are unwilling to protect the right of every American to religious liberty, then we have no business sending this soldier to risk his life in the name of freedom and democracy.

[image via Wikimedia Commons]

 

A Florida pastor has found a way to garner attention - lots of it - for his otherwise unremarkable, but financially troubled evangelical church. The pastor of the fittingly named Dove World Outreach Center has planned a burning of Qurans to mark the forthcoming 9/11 anniversary. Pastor Terry Jones has dubbed the event "International Burn a Koran Day," and conceded to The New York Times that he doesn't know much about the religious text, and that the planned event is drawing donations at a time when his bank has demanded payment on the church's mortgage and its property insurance has been cancelled.

Although, Jones says he has "no experience with it [the Quran]," and only knows "the Bible," he is nonetheless convinced that Islam is "full of lies," and a religion "of the devil." The pastor's actions have drawn attention worldwide. The Council on American-Islamic Relations (CAIR) calls the planned burning an outrage. Watch video of some of CAIR's response here. Dr. Saeed Khan, a professor at the University of Florida, told The Times that Jones is "hijacking Christianity," much like "Al Qaeda hijacked Islam."

As noted here, First Amendment scholar Charles C. Haynes has maintained that the rise of anti-Islam rhetoric is not only a danger to religious liberty in the country but also plays into the hands of extremists. "Such ill-informed statements must be music to al-Qaida's ears. After all, al-Qaida has worked hard to convince the Muslim world that its political and violent ideology is the true face of Islam - and America's ‘war on terrorism' is actually a ‘war on Islam,' Haynes wrote.

[image via Wikimedia Commons]

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By Donna Lieberman, Executive Director, New York Civil Liberties Union, and Louise Melling, Deputy Legal Director, ACLU.

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Cross-posted at ACLU's Blog of Rights

"Of course you have the right to build a mosque, but it is insensitive to build it there."

This is the newest version of the call from critics of the proposed Islamic center in downtown New York City. The sentiment may at first blush seem sensitive: it recognizes the trauma of 9/11, the sacred nature of Ground Zero and the constitutional right to religious freedom. But the sentiment that the Islamic center can be built - just elsewhere - inevitably reflects a prejudice and intolerance that is in fact inconsistent with religious freedom.

To conclude that building the Islamic center near Ground Zero is insensitive, one must, consciously or not, believe that the Muslims of downtown New York City who will come to the center to pray are - by virtue of their faith - all tainted by the terrorists who committed an atrocious act in the name of Islam. How else to explain the alleged "insensitivity"?

Political leaders like Mayor Bloomberg in New York should be praised for standing up for religious freedom in the face of political pressure. But the voices of prejudice still fill the airwaves, and outright hostility toward mosques continues to flare up around the country in locations having no relation to any acts of terrorism.

Throughout our history, Jews, Protestants, Catholics and Muslims have all been victims of fear and discrimination. In the end, tolerance and fairness generally prevail. So should it here. But that means speaking up for fairness, opposing religious discrimination rooted in cultural stereotyping, and resisting those who seek to trade away our most precious values for political advantage. It means letting our political leaders know that discrimination is a losing proposition, and that adherence to the Constitution is not optional.

For our part, the ACLU will continue to defend the right of all religious denominations - from majority faiths to unpopular religions - to establish places of worship, and for Americans to pray, or not, as they choose. We will also continue to defend the right for those who object to speak their mind. At the same time, we will continue to remind people that, even as we are still healing from an indescribable wound, we cannot abandon our core values or we will have lost everything.

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By Sahar Aziz. Ms. Aziz is the author of Sticks and Stones, Words That Hurt: Entrenched Stereotypes Eight Years After 9/11 published in the New York City Law Review. She is a Legal Fellow at the Institute for Social Policy and Understanding and serves as counsel to the Bill of Rights Defense Committee.

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The political backlash and opportunism surrounding President Obama's defense of Muslims' First Amendment rights jeopardizes religious freedom for all Americans.

On August 13, 2010, the White House sponsored the annual Iftar, a tradition started by President Clinton in 1996, commemorating the month of Ramadan. Diplomats, members of Congress, and community leaders from diverse backgrounds celebrated America's venerable support for religious diversity and freedom.

At the dinner President Obama accurately summarized the Founders' intent to preserve religious freedom in America, for native-born and immigrant alike. He commendably stated, "As a citizen, and as President, I believe that Muslims have the same right to practice their religion as everyone else in this country. And that includes the right to build a place of worship and a community center on private property in Lower Manhattan."

Republicans were quick to criticize President Obama for "endorsing" of what has misleadingly come to be known as the "Ground Zero Mosque." Facing a tough reelection, Senate Majority Leader Harry Reid broke with Obama, joining those who call for the mosque to be built somewhere else. Leading critics claim that they aren't opposed to building the community center and mosque per se, but rather its location. But their claim is belied by growing protests against mosques in cities across the country, not to mention escalating religious bigotry on the internet and a scheduled Koran burning on September 11. Statements from major figures like Newt Gingrich comparing supporters of the community center to Nazis make it clear that, in fact, all Muslims are being falsely tarred with the brush of extremism.

Some cite polls indicating that the majority of Americans oppose the project, but we should ask ourselves whether opinion polls should be our compass when it comes to the Bill of Rights and the exercise of religious freedom in America? Indeed, such rights were promulgated by the Founding Fathers precisely to shield minority faiths from persecution by those in the majority. In our history we have nevertheless seen the systematic persecution of Catholics, Jews, Mormons and Quakers. But in each case, the persecution was ultimately repudiated and support for the Constitution restored. That elected officials have forgotten this fundamental American principle is baffling given many of their constituents self-identify as staunch defenders of religious freedom.

This paradox illustrates two important lessons.

First, the fundamental right to religious freedom rings hollow for all if it is only applied selectively. There is nothing in the charter of the Cordoba Center that can be cited as an offense to the memory of the thousands of Americans, including Muslims, murdered on September 11, 2001. And if opinion polling is sufficient to stop an otherwise lawful plan to build a community center and house of worship for Muslims, we are setting a dangerous precedent. By the same logic, predominantly Christian communities might similarly be allowed to oppose the building of a synagogue or temple.

Second, the integrity of our Constitution depends on a meaningful enforcement of the Bill of Rights. When our founding principles are not put in practice, the rule of law is systemically undermined and our Constitution becomes nothing more than a dated piece of paper.

Critics like Gingrich like to suggest that only when Saudi Arabia allows a church or a synagogue to be built in Mecca should we allow the Community Center to be built. But do we really want to cede leadership on religious pluralism, a hallmark of American freedom, to Saudi Arabia or other Mideast states?

Take for instance the issue of religious freedom in Egypt. Article 40 of the Egyptian Constitution states, "All citizens are equal before the law. They have equal public rights and duties without discrimination between them due to race, ethnic origin, language, religion, or creed." Yet the 2009 U.S. State Department human rights report highlights the difficulties Christians face in building new churches and renovating existing ones, due in large part to political opposition by a segment of the Muslim majority population. And in Saudi Arabia the state dictates the practice of religion.

The vitriol and specious arguments being made against building the Cordoba Center should serve as a wake-up call. Once we start down the slippery slope of compromising religious liberty to accommodate majority opinion or the winds of political opportunism, we proceed at our own peril. Pressuring minority faiths to opt out of their rights under the U.S. Constitution can render those rights meaningless for all.

The freedom to practice one's religion is a founding principle of our nation and is embedded in the First Amendment. "And that has been upheld ever since," noted President Obama. Let this not be the day when we focus more on its inscription than its enforcement.

[image via robethuffstutter]

 

As noted by First Amendment scholar Charles C. Haynes, anti-mosque rhetoric is not unique to the situation unfolding around the construction of the Islamic center in New York City. The Washington Post reports on strife surrounding plans for construction of an Islamic center in Murfreesboro, Tenn., not far outside Nashville. Local officials, The Post notes, approved the project in the spring, but the affair has been turbulent. The newspaper also cites similar controversies developing in California and Florida as well as a recent Time poll showing that "43 percent of Americans hold unfavorable views of Muslims, far outpacing" unfavorable views of other religious groups.

The planned construction of an Islamic worship center in Murfreesboro, which The Post describes as "a quiet town of 100,000 people, largely white conservative Christians," drew especially heated opposition. Jim Daniel, a former county commissioner, told the newspaper, "What I sense is a certain amount of fear fueling the animosity," and that residents worry "the Muslims coming in here will keep growing in numbers and override our system of law and impose sharia law." TV preacher Pat Robertson helped stoke the sentiment on his "700 Club," broadcast asserting that it was "entirely possible," for Muslims to bribe Murfreesboro officials to help push the project forward.

Akbar Ahmed, head of Islamic studies at American University, told The Post, "We are becoming aware that the gap between Muslims and non-Muslims is wider than it was after 9/11, and that's a frightening prospect."

In a recent column for FindLaw, constitutional law expert Marci Hamilton wrote that furor over the construction of the Islamic center in NYC revealed a troubling threat to a core American value - religious liberty. "The United States has established the most remarkable principle in the history of cultures - an absolute right to believe whatever you want," she wrote.

[image via commons.wikimedia.org]

While conservative pundits, such as Sarah Palin and Newt Gingrich, are loudly fighting the planned Islamic center and mosque in New York City, legal scholars and First Amendment experts are noting the hypocrisy of the attacks on the planned religious site, the harm the attacks have on democracy, and the fact that the law appears to be squarely on the side of permitting the project to go forward.

As noted here yesterday, the First Amendment scholar Charles C. Haynes has said that the rising "anti-mosque rhetoric," is reminiscent of other periods in the country when disfavored religious groups were the victims of intolerance - Haynes notes, for instance, anti-Catholicism that festered throughout the nation during the 19th Century.

In a recent column for The Washington Post website's "On Faith," Haynes writes:

Since 9/11, demonization of Islam has become a cottage industry in America, aided and abetted by some evangelical leaders and a growing number of politicians. Much like the anti-Catholic hysteria of the 19th century, the current outbreak of Islamophobia is based on the paranoid fantasy that Islam in America is a threat to democracy and freedom.

Haynes, the First Amendment Center's senior scholar and director of the Newseum's Religious Freedom Education Project, adds that what is truly at stake is the nation's commitment to religious freedom, for all:

It's time for people of conscience to look beyond what's happening in Manhattan and pay closer attention to the growing anti-mosque movement around the nation. Although extreme voices now dominate the debate in many local communities, I am hopeful that most Americans will have the courage to stand up for their Muslim neighbors and fellow citizens by speaking out for religious freedom.

Constitutional law expert Marci A. Hamilton, in an article for FindLaw, maintains that "crude politics has polluted the American values that must be vindicated."

Hamilton, a law professor at Benjamin N. Cardozo School of Law, writes:

Sadly, the American Center for Law and Justice (ACLJ) and the Anti-Defamation League (ADL) have each made an exception to their usual full-throated defense of religious interests, and publicly come out against the mosque proposal. The ACLJ joined the conservative commentators, like Sarah Palin, who have tried to transform this land- use application into a way of energizing the base over terrorism. Yet, the only apparent connection between the application and 9/11 is their co-residence in the wide universe of Islamicism. It's like saying that Jim Jones's Peoples Temple Christian Church Full Gospel, which resulted in the largest mass suicide in history, was Christian. The two groups have thus turned this into an instance of identity politics, rather than any kind of sincere honoring of America's war dead.

Hamilton, no fan of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), notes that the law was supported by both ACLJ and ADL. RLUIPA requires, in part, that "No government shall 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," unless the government can show that it has a "compelling governmental interest" in doing so and there is not a less burdensome way to achieve its interest. Hamilton has maintained that the law is heavy-handed and that the First Amendment provides sufficient protection for religious liberty. Supporters of RLUIPA counter that the law is needed because the Supreme Court has overturned precedent making it easier for government to take action that infringes on the free exercise of religion.

But Hamilton concedes that in this instance "if RLUIPA were to protect the mosque project from its opponents - who are acting on vicious, groundless, stereotypes alone - then the law might, this once, actually be doing justice." She adds, however, that the law "would prove its worthlessness as well, because the First Amendment plainly prohibits the invidious discrimination against belief that he ACLJ and ADF are now urging the government to embrace."

Hamilton concludes, however, that a core value of religious freedom for all must be defended. She says we should "stand in front of the world and proclaim our devotion to our right to believe and our tolerance of those whose beliefs we do not share or even fear."

The rising rhetoric and increasing rallies aimed at disparaging Islam represent "a new threat to the religious freedom of Muslims in America," writes the First Amendment Center's Charles C. Haynes.

Haynes, the director of the Newseum's Religious Freedom Education Project, notes that "anti-Muslim rhetoric has taken an ominous turn in recent months as a growing number of political and community leaders - some with tea-party affiliations - have begun warning of a ‘Muslim takeover' of America."

Haynes cites numerous anti-Muslim rallies from Tennessee to California, including the loud opposition to the construction of an Islamic center in New York City.

Haynes writes:

In recent months, tea-party groups in New York have also helped organize opposition to mosques in Manhattan (the controversial plan to build an Islamic center two blocks from ground zero), Brooklyn and Staten Island. Tea-party meetings in Tennessee, Texas and California feature speakers warning of the ‘Islamization of America.'

In an ironic twist reminiscent of the anti-Catholic rallies of the 19th century (warning against ‘Romanism' seeking ‘despotic control' of America), anti-mosque protests in Murfreesboro, Temecula and elsewhere feature groups of citizens invoking their First Amendment rights to freedom of speech and assembly to call for denying another group of citizens First Amendment protection.

...

If the anti-mosque protests are any indication, Islamophobia - the fear and loathing of Islam as a ‘violent political ideology' - is a growing threat to religious freedom in the United States. And in many communities, some tea-party activists are actively encouraging and supporting this dangerous trend.

[image via commons.wikimedia.org]

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By Sandhya Bathija, communications associate, Americans United for Separation of Church and State

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Today's decision in Christian Legal Society v. Martinez is a welcome victory for those who don't believe public funds should support groups that engage in discrimination.

The case stemmed from a controversy at the University of California, Hastings College of the Law. The public law school denied official recognition to an evangelical Christian group called the Christian Legal Society. The society requires all of its members to sign an evangelical statement of faith and bars students who engage in "unrepentant homosexual conduct" from joining.

Though the school denied the student CLS chapter funding, it informed the group that it could still exist and use the school's facilities.

CLS sued the law school, claiming the policy violated CLS member's constitutional rights, particularly their freedoms of speech, association and religion. The district court, and the U.S. Court of Appeals for the Ninth Circuit disagreed. So does the Supreme Court.

Writing for the 5-4 majority, Justice Ruth Bader Ginsburg found that Hastings' policy was constitutional since it did not order CLS to admit any students, nor did the school forbid the group from existing on campus. The court also held the policy was viewpoint neutral and did not single out any particular religious belief.

"In requiring CLS-in common with all other student organizations-to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations," wrote Ginsburg. "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."

The court said Hastings open-access policy was reasonable and ensured that leadership, educational and social opportunities were available to all students. The court also noted that since recognized student organizations receive funds through the student-activity fees, the school's policy ensures "that no Hastings student is forced to fund a group that would reject her as a member."

The court's decision was a good one. The Christian Legal Society was looking to ignore rules that every other group at the school had to comply with. The court's decision is a big step forward for fundamental fairness and equal treatment.

The decision also makes it clear that just because a group may have a constitutional right to discriminate on its own terms doesn't mean it has the right to receive the government's support to do so.

As Justice John Paul Stevens wrote in his concurring opinion, "Other groups may exclude or mistreat Jews, blacks, and women - or those who do not share their contempt for Jews, blacks, and women," he wrote. "A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities."

Americans United filed a friend-of-the-court brief in the case along with the American Jewish Committee and the Religious Action Center of Reform Judaism, asking the high court to rule against discrimination. On the other side, conservative groups had hoped a ruling in favor of the CLS would open the door for "faith-based" groups to insist that they can discriminate on religious grounds when hiring staff even while receiving government funding. That avenue has been chocked off to them, at least for now.

The court made the right call today.

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By Marci A. Hamilton, Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University

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So often, cases at the Supreme Court disappoint, because the media has followed the backstory, as it is called, but the Court has in its sights more technical issues. Its recent decision in Salazar v. Buono is further evidence of this phenomenon.

It is understandable why the media would focus on the backstory - a cross was erected by the Veterans of Foreign Wars 70 years ago to honor World War I fallen soldiers. It is located in the on Sunrise Rock in the Mojave National Preserve in San Bernardino County, California. In 2001, Frank Buono, filed suit against the Secretary of the Department of the Interior on the grounds that the cross violates the separation of church and state. The District Court held it was unconstitutional and entered an injunction ordering that it not be displayed. This is when it gets entertaining, because Congress enters the picture.

First, Congress designates the cross as a national memorial. Then it bars federal funds from being used to dismantle federal memorials. Then it enters into a "land transfer" deal with the VFW, which provides that a small plot surrounding the cross's base is to become private while the federal government gets a small piece of the VFW's land. The District Court ruled that the land transfer was unconstitutional and the Ninth Circuit affirmed twice.

If this order of events sounds familiar, it should. After the Ninth Circuit declared that the inclusion of "under God" in the Pledge of Allegiance violated the separation of church and state, members fell over each other rushing outside the Capitol to place their hands over their hearts and loudly recite the full Pledge of Allegiance, "under God" and all. When the Elk Grove Unified School Dist. v. Newdow case got to the Supreme Court, the Justices granted certiorari, but then apparently got cold feet, because they avoided the Establishment Clause issue entirely and decided the case on a dubious interpretation of state law and standing doctrine.

In the Salazar case, they did essentially the same thing, with the focus of the majority on how the lower courts are to apply the law of injunctions and what role the changed circumstances of the congressional acts should have meant when the District Court re-assessed the injunction following their enactment. With that, the Court sent the case back to the District Court with instructions to decide the case based on its directions.

More interesting, in light of the backstory, though, are the opinions entered by Chief Justice Roberts and Justice Alito. The Chief appears to have been impatient with the whole affair and in a one-paragraph concurrence makes it clear that he would permit the land to be sold to the VFW, cross and all. The message is that he is not likely to be interested in the niceties of Establishment Clause doctrine.

But Justice Alito's relatively lengthy concurrence and concurrence in the judgment is more telling. He re-interprets the backstory as standing for the proposition that Congress was engaging in "accommodation" of a "delicate" situation. On the one hand, the cross does represent the "preeminent symbol of Christianity, and Easter services have long been held on Sunrise Rock." On the other hand, it symbolized the "white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict." It is as though he was claiming that the cross is the equivalent of a war memorial. Thus, for him, it was obvious that the land transfer was just the right balance between the interests of those who worship the cross where it is and those who honor the dead. What he left out was Establishment Clause doctrine, which would follow the reasoning of the District Court and the Ninth Circuit and find that the government may not inappropriately embrace one religion over all others.

Congress's antics in this context were obviously in response to lobbying by particular religious interests, and the members' pandering to such particularized interests is embarrassing. The military does not share the world view that one faith takes primacy over others. Quite to the contrary, the United States' premiere soldier burial ground, Arlington Cemetery, soldiers or their families can choose between 39 religious emblems for their gravestone.

 

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By Tamara Metz, Assistant Professor of Political Science and Humanities, Reed College 

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Forty years ago citizens of California told the state to get out of marriage. Judges and lawyers turned a blind eye as droves of otherwise-enemies colluded to concoct evidence of marital misconduct to secure the divorces they wanted. The state could protect their children and divide their property, but tell them whether or not they could separate? No way. This was a private matter. Members of the legal profession, concerned about faith in the system, led reform efforts. In 1969, the first no-fault divorce law was introduced. By the mid-1980s, most states had followed suit.

The remarkable ease with which this dramatic change took effect reflects an unusual convergence of public opinion and political principle. Growing numbers of citizens simply believed government had no business in the cultural, emotional, and religious side of marriage. Legal advocates had an easy time making the case, I propose, because the logic fit comfortably with the liberal traditions that animate our constitutional democracy.

Today, the citizens of California again lead the charge for change in marriage law. This time, however, combatants have had a harder time settling on strategies: marriage is a fundamental right; no, it's a unique civil institution; it's about family, reproduction, heterosexuality, no, citizenship; it's a matter of justice, stability, our future on the planet; a matter of equal protection; no, due process. In its latest iteration: its democracy versus liberty.

There's a good reason both sides are having a harder time: they share the crucial but deeply problematic assumption that the state should, even must be in the business of defining, conferring, and regulating marriage. As the earlier generation of Californians sensed, this arrangement -- the establishment of marriage -- conflicts with our basic liberal democratic commitments to and strategies for securing liberty, equality, and stability in our deeply diverse society.

Or so, as a political theorist, I argue in Untying the Knot.

Beginning in the awkward silences and incoherence of current debates, I engage American judicial decisions, classical liberal and contemporary political theorists to shed light on long-standing tensions in the marriage-state relationship. Out of this critical inquiry, I craft a liberal democratic case for disestablishing marriage and creating a civil status aimed at supporting intimate care in all its guises.

In the American context, the features that distinguish marriage from civil union are the very ones that led the Framers of the federal and many state constitutions to insist that church and state be separated by non-establishment clauses. As an institution, and especially in terms of what it asks of the public authority that controls it, marriage is more like a bar mitzvah than it is like a registered domestic partnership: it demands ethical recognition. The liberal state is ill-suited to provide such recognition. When it does, I argue, it threatens liberty, equality, marriage itself, and families of all sorts.

If marriage requires ethical recognition, but the liberal democratic state cannot (and should not try to) effectively provide such recognition, what is to be done? Must we choose between a healthy marital institution and our liberal commitments? No. The suggestion implicit in the comparison to religion -- that there may be good reason for the state to withdraw from its pivotal role in controlling marital status -- is compelling. The state should get out of the marriage business. This is not, however, to say that the state should withdraw from protecting intimate associations. The presumption that the state should limit its action to matters of the physical and material well-being of citizens has long been central to the liberal approach to negotiating the inevitable conflicts between freedom and equality. Legitimate public welfare goals traditionally treated through marriage can and should be addressed through an instrumental status narrowly tailored to these purposes. (I propose an intimate caregiving union status.)

My proposal will strike many as radical, if not unwise. As a historical matter, severing the direct link between marriage and the state would be radical. Reigning political powers have, in most places and times, controlled marriage. And yet, as recent trends indicate -- Canada's Beyond Conjugality and the matching legislation, France's PACS, and in the U.S., the demise of fault-based divorce, the increasing legal recognition and protection of non-married cohabitants and the criminalization of marital rape -- disestablishing marriage would not be so radical. As a matter of principle, getting the state out of marriage squares with basic liberal values and widely shared understandings of marriage, and as a practical matter would do better by both.

Do I expect anyone engaged in the same-sex marriage battles to take up these suggestions? Not really. My sister and her wife say this is a just war. That's right. And yet, this war occludes deep tensions. After we resolve the same-sex marriage question, they will reappear. If we care to make a more perfect union among deeply diverse people, we would do well to address them in a manner commensurate with our liberal values.