Friday, August 20, 2010

A Tale of Two Mosques . . .

. . . One in Utica, NY . . . The other proposed for New York City.

The Utica mosque was started in 2008 -- a transformation of the former Central Methodist Church.  This went on with hardly a raised eyebrow.  Today its appearance has completely changed, being faced with light and dark gray stucco with an added minaret . . . literally towering over the Utica City Hall next door.

The mosque has been and is a welcome addition to Utica.  Uticans can be happy that an historic landmark has been saved. . . . Members of the former Methodist Church are happy that a building that housed many memories for them would continue to exist with its life as a house of worship (although a different religion) continued.  The new mosque symbolizes an acceptance and integration of former Bosnian refugees into Utica and our American way of life.  We are one people out of many.

The Utica mosque is something we all can be proud of for what it symbolizes about Utica and America. . . . We welcome newcomers, we recognize the importance of Faith in our community and our country, and we adhere to our Constitutional guarantee of freedom of religion. 

Then there is the $100 million mosque proposed for two blocks from the former site of the World Trade Center in New York City.  It has been intensely debated in New York, locally, and nationally.  Prominent politicians including President Obama, Andrew Cuomo, and Mayor Bloomberg have come out in favor of the mosque, citing the US Constitution's First Amendment guarantee of freedom of religion.

The majority of Americans, however, are opposed.  Some politicians, perhaps sensing the political wind, are opposed.  Is the majority wrong?  Are the opposing politicians succumbing to mob rule?

Many are torn over this issue.  People who are committed to all that America stands for feel a bit guilty for not wanting this mosque to be built . . . but they know that something feels wrong, yet they can't quite put their finger on it.

The key is that freedom of religion, like the freedom of speech also guaranteed under the First Amendment, has its limits. The Constitution is not a license to commit a civil wrong -- a tort -- a breach of duty owed to society.  The human sacrifices of ancient Aztec religion can be constitutionally prohibited.  Harassing phone calls can be constitutionally enjoined.      

People intuitively know that the proposed mosque in New York City has nothing to do with freedom of religion or freedom of speech.

Context is everything.  Proponents of the NYC mosque do not want to even consider alternative locations. Why is this site so important that no other will do? No real explanation has been noted.  Meanwhile, in Utica, the proponents of the Utica mosque took great pains to respect and fit in with the residents of their new home city.  A recent NY Times story questioned whether Uticans would have felt the same if the local muslims were more arab-looking rather than european.  It has nothing to do with looks, NY Times, since very many of arab descent have resided here for most of the 20th Century.  It has everything to do with attitude.  Does a group want to be part of this miracle of freedom we call America ... or destroy it?

A conclusion reasonable people can reach is that the NYC mosque is intended to inflict emotional harm on the citizens of the nation's largest city who were already harmed on 9-11.  Rather than trying to integrate with and become part of America and its citizens, the proponents of this mosque, when they insist on this location, are trying to harm America and its citizens.

What other purpose could there be for insisting that the mosque has to be built on that site?

Intentional infliction of emotional distress has been classified as a tort.

A suit to enjoin the mosque probably would test the limits of the First Amendment . . . but there is an appropriate argument to be made there . . . and someone should be making it.


Dve said...

Good take on the issue. There is a difference between a group's private practice of religion and the murderous intentions of criminals parading as holy people. If your religion harms anyone, we don't want it ... Christian, Muslim, etc. None of this would have been difficult for our founding fathers.

clipper said...

We seem to forget the religious strife that has taken place in Ireland, and nobody is worried about any prospects of building a protestant or catholic church in their neighborhood. Ireland certainly had their share of bombings and violence in the name of religion.

tdunn said...

That was spot on and actually brilliant.

I think you've identified an excellent comparison.

Anonymous said...

It is clear that the issues has nothing to do with freedom of religion. Mosques abound in the country and in NYC. The issue has to do with respect, sensitivity and honor of the victims of 9/11. The mosque can be built elsewhere. The simple truth is that those who murdered over 3,000 at Ground Zero did so in the name of their religion.

Anonymous said...

first, sorry for my bad english :) i've accidentally found this article, i am from bosnia and just wannt to say this, what is in our holly Kur'an: '' if you are to kill one innocent man, it is like you have killed all of mankind''! that is how we 'normal muslims' see attack on 9/11.. believe me those ho did it, they are not muslims, and that is not islamic terorism, they will burn in hell for what they did. islam is the religion of peace. greetings from bosnia and herzegovina. peace

swimmy said...

"A conclusion reasonable people can reach is that the NYC mosque is intended to inflict emotional harm on the citizens of the nation's largest city who were already harmed on 9-11."

I'm not following this story as closely as the rest of the country. So forgive my ignorance of much of it. But I take issue with being lobbed into the above quote. That or maybe I'm just not reasonable.

Without some overt demonstration that this particular mosque and its particular location are intended to inflict emotional harm, I have a hard time drawing that conclusion. Emotionally, yes, I can reach that conclusion. But emotion, fear, and assumptions aside, I cannot reach that conclusion.

I have not heard that this is being built to honor the terrorists who flew those planes into their targets on that fateful day. I have not heard that the developers plan to dedicate this to believers of radical beliefs who would rather destroy our nation. I have not heard that the developers do not want to fit in. I have not heard, read, or seen anything that would lead me to conclude that the sole purpose for this proposed Mosque is to give the terrorists a victory over us or otherwise harm us.

Why that particular location and no other? I don't know. Assuming I am a reasonable person, I could hypothesize that it is on purpose to give bigots and those who are curious an opportunity to learn more about the religion and see the peaceful side Islam offers. Or, perhaps, as a statement that the majority of Muslims condemn the 9-11-2001 attacks? We have immediately assumed, and concluded, that placing a Mosque there can be for no other purpose than "to inflict emotional harm on the citizens of the nation's largest city who were already harmed on 9-11."

Also, this is a private entity developing private property. No real explanation is required. As an outsider to this story, I find this to be not just a first amendment issue, but also a property rights issue. And from a property rights issue, the Mosque has to be allowed. Why did you buy your house where it is located? Why not locate somewhere else. When you saw the house, and fell in love with it, why didn't you move it to some place else? It's not like they're building and setting up a training camp for terrorists. It's not like they're building something that would harm another. It's not going to devalue neighboring properties.

Lastly, to have a successful intentional infliction of emotional distress suit, there must be some type of physical harm. Mere emotional distress is not enough, and New York doesn't recognize the litany of other "emotional" lawsuits that other states recognize. So, without a physical ailment that can be linked to any emotional distress resultant of this proposed Mosque, I fear such a lawsuit, as implied in your blog, would fail to survive a CPLR 3212 motion (or a Rule 12 b motion if in federal court).

Strikeslip said...

Swimmy - People can oppose the mosque for the reasons I cited without being bigots.

The fact is that the governor offered to sit down with the mosque proponents to find an alternative location, but they refused. . . . Why would anyone refuse to at least re-consider a planned action that is alleged to be distressful to a lot of people, unless the Intent IS to distress a lot of people? That is the conclusion opponents have reached. And if the intent IS to distress a lot of people-- which will cause many to have physical ailments-- why is the government powerless to prevent it?

I agree, Intentional Infliction of Emotional Distress is a tough case to make when done, and is probably even tougher to enjoin before carried out. The constitution protects speech that makes people uncomfortable. But All of our constitutional freedoms come with common law RESPONSIBILITIES to society that are usually understood by most (at least until recently). One person's freedom is another person's nuisance -- or worse -- and that's when either compromise is reached or a matter is taken to court and tested.

The difference in reactions to the Utica and proposed NYC mosques is telling. In Utica mosque proponents are trying to be part of the community -- and have been accepted. In the NYC situation they seem to be trying to harm the community or be "in the face of" the community.

Most people can understand the difference.

Some people get so wrapped up in what the "law" says that they forget the "law's" underpinnings . . . Do Unto Others . . .

swimmy said...

Fair enough, strikeslip. And as I have stated, I am not following this story so I was not aware about Governor Patterson's offer of peace. However, as a devil's advocate... Why should they meet with the governor to discuss something that is totally legal? Should we block all land uses that might offend or cause others to be distressed? If so, we no longer should call ourselves land of the free.

To condone the blockage of this Mosque would be, I think, no different than supporting the interment of Japanese Americans during World War II. Or, to give the ignorant youngin's some perspective, if in today's world we interned all Muslims living in America at detention camps for fear they will assist, or worse, commit terrorist acts against the rest of "us." The government is not powerless to stop this. However, if they do stop it, would it not stand to reason that the Constitution no longer applies? We should re-write the National Anthem to end with "Land of the 'do as we please' and the home of the selfish."

"Why would anyone refuse to at least re-consider a planned action that is alleged to be distressful to a lot of people, unless the Intent IS to distress a lot of people?"

See, that's where the bigotry comes into play. The fallacy with the above logic is that it assumes there can be only one intent. What if the intent is to just have a Mosque and it is in an ideal location? Since there is nothing illegal about it, why would or should they would need to or desire to look anywhere else? The point is that there are several reasons other than to intentionally distress or otherwise harm their neighbors. To presume there can be only one reason is irresponsible on a non-bigoted person's part. Though, I do apologize if you - or others with a similar position on this issue - took offense to my choice of labeling. However, it does not change my position.

"Some people get so wrapped up in what the "law" says that they forget the "law's" underpinnings . . . Do Unto Others . . ."

Likewise, some people get so wrapped up in what their emotions dictate, and what THEY deem to be "right" that they forget what the law says. Again, if we ignored what the law says, as appears to be the position you have taken, and do what is "right" (whomever has determined that one), then this country is no longer the land of the free. And all those deaths from 9-11-2001 and continuing in Afghanistan and Iraq were for not and in

Strikeslip said...

No one is ignoring what the law says, Swimmy . . . especially me. That's why my position is grounded on a potential breach of a duty to society by the NYC mosque proponents.

Every law has limits . . . and here is one situation where the freedoms of speech and religion, and private property rights, may be limited by long held (and enforceable) standards of civil behavior. That is why I suggest that the situation needs to be tested.

If no one wants to test the extent of the tort of "intentional infliction of emotional distress," by seeking an injunction to prevent construction at that site, there are other ways that are, arguably, "legal" to stop this particular project from inflicting emotional harm.

We've already seen that private property can be taken for a public "benefit" as opposed to "purpose" (Kelo v New Haven -- a decision I still totally disagree with because it threatens our long held property rights.)

You cannot argue that it is not a public benefit to prevent the infliction of emotional distress (intentional or otherwise) on a large segment of a community. Maintaining public peace has long been a function of government. That would justify Gov. candidate Carl Paladino's proposal to take the mosque site by eminent domain.

A majority of people don't like Kelo . . . but a majority also don't want this mosque at this place. If the law now allows takings for a public "benefit," then so be it.

Hopefully you are starting to feel uncomfortable, because I certainly am.

When people focus on the "law" too much, they tend to pervert it.

swimmy said...

What duty to society? I have never seen any such common law practice, statutory provision, or case law. What legal theory could you proceed on? Again, if that is the argument, then we better change this country's National Anthem to "land of the NOT free." By that argument, every little detail that could possibly violate a duty to society not to inflict emotional distress would be banned. Flag burning, clearly something that invokes emotional distress, would be banned under that notion. But it is a constitutionally protected form of free speech. Homosexuality is arguably capable of causing emotional distress (just look at the debate over gay marriage). Yet, Lawrence v Texas helps protect gays.

I agree that Kelo is a perversion of long understood property rights principles. However, New York does not allow any other emotional distress other than intentional. Without any proof that this will cause emotional distress, as defined under sound legal principle (requiring an actual physical manifestation), you don't have an argument, let alone that any alleged distress caused was intentional. To suggest differently is to pervert sound legal principles to support bigotry. I totally agree with you on that.

I certainly can argue that it is not a public benefit to block this. The courts upheld the display of Jesus in urine, certainly that caused emotional distress to Christians worldwide. The same argument you're making now could apply there. But it failed there. To stop this legal endeavour will most certainly ignore the law and pervert the sound underpinnings of this great nation.

A reasonable person could easily argue that allowing this mosque will provide a public benefit by allowing fear mongers to walk into a Mosque and participate or observe their customs and educate them. It would be a public benefit to allow the Mosque because it shows that the majority of Muslims are peaceful and wish nothing more than to show their respects.

Correction: when people focus too much on emotion, they tend to pervert the law.

Strikeslip said...

Swimmy - you said "What duty to society? I have never seen any such common law practice, statutory provision, or case law."

I was referring to torts -- a common law concept -- when I indicated a breach of duty to society (in the meaning of a duty to other people). You don't need a statute to take action against someone for assault which is a tort. IIED is also a tort. I admit it is not accepted by everyone -- but it is a concept.

Anonymous said...

There is no mention in the words of Swimmy of the families and memories of the victims of 9/11. All deference and respect should be paid to them and understanding that difference and respect should be grasped by the mosque developers and Imam. The fact that it seems to play no part in their thinking is telling. If one does but a little home work on the particular Imam one finds some very serious questions of intent. Superficial legalise mumbo jumbo ducks the bottum line issue, that of respect, deference and memory to those who were murdered in the name of a religion.

swimmy said...

"It would be a public benefit to allow the Mosque because it shows that the majority of Muslims are peaceful and wish nothing more than to show their respects."

Not enough?

"If one does but a little home work [sic] on the [sic] particular Imam [sic] one finds some very serious questions of intent."

Seriously?! Where? Nice listing of sources too, I might add. Good to know that someone is doing their homework.

Again, from an emotional point of view, good argument. But how many countless lives were murdered in the name of a religion? And how many religions are guilty of murdering people over a difference in belief?! More than just Islam, where's your bleeding heart for them too? You seem to be unable to grasp the fact that this has nothing to do with those who perished in such a tragic, unfortunate, and unprovoked manner. The only reason I can surmise to oppose this mosque is out of fear and hatred, nothing more.

Respect must be earned, not extorted through a perversion of legal procedures, bottom line. Pettiness aside, you join a long line of people who have failed to present one legitimate reason to block this mosque from going up. You have failed to answer my question of why they have to consider or defer to anyone on how to use their property.

Your argument has failed to: stop people from burning flags; prevent a band of nazis or white supremists from having a parade in Times Square; prohibit gays to be public about their relationships; stop people to support abortion; block people protesting our fallen soldiers at their funerals; or prevent obama for apologizing for America to our enemies. Your emotional argument has also failed to continue to allow the torturous treatment of POWs in Al Grabhu prison, the law took priority in the end. Nothing about your argument has changed to stop this mosque. It has failed before, and will continue to do so.

Bottom line, don't ignore the Constitution when convenient for you to do so, i.e. when something otherwise legal upsets, or offends you. If anything, ignoring the constitution for bigoted reasons is most offensive to family and friends who lost loved ones on 9-11-2001.

When one ignores the law (e.g. by calling it "superficial legalise mumbo jumbo") substitutes his own emotion, grave injustice is done. No matter how unpopular the cause or how unsavory the character, it is incumbent upon lawyers to dutifully ensure the Constitution is protected.

Strikeslip said...

Swimmy said: "When one ignores the law (e.g. by calling it "superficial legalise mumbo jumbo") substitutes his own emotion, grave injustice is done."

Looking at all the posts above, the most emotional seem to have come from you, Swimmy.

People have certain deep felt opinions on this issue. Dismissing them as "bigoted" is a shallow, uncivil, and unintelligent response.

Dave said...

Hello to Anonymous in the 5th post. I don't know if you reside in Bosnia or the US. If the latter, why is it that we hear little heartfelt outcry from peaceful Muslims in the US when such terrorist acts are committed upon our citizens here by Muslims. If peaceful Muslims are intimidated by their less peaceable brethren, perhaps that speaks to their need to practice democracy among themselves rather than harsh judgment. The same can be said for any system of beliefs that coerces its adherents, in my opinion. In principle, I believe a mosque, church or druid temple should be able to construct a building anywhere they want in America, subject to building codes, but I cannot help but interpret the building of a mosque at ground zero to be the statement of an enemy.

Anonymous said...

The point of over the top emotionalism present in those supporting the mosque, inparticular Mr. Swimmy is well taken. All the words and ramblings in the world do not address the true issue; that of respect to those who lost their lives and their families. Why take a chance on soiling the memory and respect with a questionable project being advanced by a questionable imam and developer? The freedom of religion arguement is setteled; mosques currently exist all over the country and in NYC. One just does no belong at Ground Zero. Insofar as buliding places of worship anywhere, that is simply not the case. Zoning laws prohibit the construction of churches in many locations, including on my property. Finally, both the imam, the developer and their finacers must have known full well that their project would open wounds. The freedom they should have excercized and still should is that of descretion, common sense and respect for others.

Anonymous said...

Since no one disputed the law, one wonders why it keeps being raised. The point is that the law is being used by some to obfuscate the true issues. Also, raising Constitutionalism, freedoms, liberty,etc., in this case borders on the amusing. Will Christians and Jews be allowed into the center and the mosque? Will women be swimming with men? Will those women be praying with men? How about homosexuals and lesbians? Will they be embrace in religious tolerance? We should be asking these questions as we, in the other breath, speak of freedoms.

Anonymous said...

Swimmy has a point here. All the hatred demonstrated by the others is pathetic. But what's more pathetic is the preaching of respect... Where is a blog condemning the planned Quran burning in FL?! Seems if you wish to prove swimmy wrong, you would have posted something similar about the burning of the Quran. I guess swimmy was right, the opposition to this mosque is nothing more than racist bigotry!

Shouldn't we be expecting lawsuits from Muslims about the intentional infliction of emotional distress from the planned event? Shouldn't we be upset that the feelings of innocent people will be unnecessarily and arbitrarily violated because of religious intolerance and hatred?

Strikeslip said...

Actually I agree with you to some degree, Anonymous. The Quran-burning is simply wrong, intolerant, disrespectful, and despicable. Is it intended to inflict emotional distress against Muslims? Probably, yes.

Is it constitutionally protected speech? Probably yes, just like burning an American flag (which certainly inflicts emotional distress on a lot of people) is constitutionally protected speech.

Am I employing a double standard? I am trying not to.

I think Context is Everything, and since the context is different in different situations, that is why it is appropriate to go to the courts to resolve what is "legal" -- not to harass people of a particular persuasion (which is what some of the posts above seemed to imply) -- but to test the limits of freedom.

I am not aware that there is a Muslim community where they are planning on burning the Quran. If there is, then I think intentional infliction of emotional distress is a good argument for them and someone should go to court to enjoin the burning.

Without a specific targeted community (not Muslims in general), it becomes more like attacks on the Catholic Church -- such as certain "art" like the crucifix upside down in a jar of urine, or the portrait of the Virgin Mary with elephant dung. This art is protected by the constitution -- as distressing as it is. (I would test the limits of that, however, when it is displayed or procured using taxpayer dollars).

As I tried to say in my original post and in followup discussion, constitutional freedom comes with limits. Those limits come from common law and the "judeo-christian" ethic of our founding fathers. When the constitution is cut away from what were assumed to be common values held by virtually everyone, the constitution can be grotesquely misinterpreted.

The limits of our freedoms are often unclear. I think it is worthwhile to test them on occasion. This occasion (the Mosque in NYC) is a good one. The Quran-burning may be another one.

Anonymous said...

The preacher of the 40 member church who for obvious publicity reasons has cancelled the burning and rightly so. Will the mosque devloper now show sensitivity and taste?

swimmy said...

"Am I employing a double standard? I am trying not to. "

And by denying my post, you have.

Anonymous said...

Just found this blog after hearing about the Utica Mosque. One question- do you think the families of the Muslims working in the Twin Towers on 9-11 would think the planned Mosque in NYC is disrespectful?

Strikeslip said...

A good question.

I would like to think think that they would.

If the shoe were on the other foot, I certainly would. I'm Roman Catholic. I think abortion is wrong. But murdering an abortion doctor in the name of my religion is also wrong. If someone wanted to build a church on the site of the murder, I think that would be disrespectful.