Legal Ethics Professors Take a Stand for Private Property, Free Exercise of Religion and Against Abusive Lawsuits.

Several legal ethics professors, many of the Jewish faith, are soliciting contributions for the new Mosque and Islamic Cultural Center in midtown Manhattan. As a Christian, I could say that this matter is not my concern, but it is my concern in several respects.

1. Private Property. Freedom from government taking of property is embodied in our Constitution. At times environmental issues, zoning, historic preservation, nuisance or other public interests justify government interference. Not so here. Mass demonstrations seek to intimidate the owners and lease holders of this property and the government has been asked at multiple levels to interfere with their use of it. A candidate for Governor has suggested that New York’s power of eminent domain be used to condemn the property to prevent the owners' intended use. The New York Republican Party, which has defended property rights in the past, seems powerless to bring even its own leaders to their senses.

2. Free Exercise of Religion. Besides private property, free exercise of religion is one of the most important rights embodied in our Constitution. As an organizer of the White House Christian Fellowship and lead ethics lawyer for the White House (2005-07), I confronted the complexities that arise when government employees exercise their right to worship in a manner of their own choosing. There is no complexity, however, when people seek to worship on private property. With respect to this mosque the government has nonetheless been asked to interfere with free exercise of religion. Some office holders and aspirants to public office have proposed every means possible to interfere with free exercise. Others, including the President of the United States, defend free exercise but then make public statements on whether the mosque should be built in this particular place or in some other place, a matter that is none of the government's business. Some commentators have suggested that large parts of lower Manhattan be made into a "religion free zone" (Red Square on the Hudson?). For those of us committed to both our faith and to our Country, this is unacceptable.

3. Abusive Lawsuits.  Litigation is often used to impede free use of private property or free exercise of religion. The organizers of this mosque are defending against abusive lawsuits and threats of lawsuits. I discussed one of these lawsuits in an earlier post here. 

The complaint purportedly is based on historic preservation law, but it borders on frivolous, it is dishonest in failing to disclose the real motives for the lawsuit, and these motives if disclosed would manifest prejudice on the basis of religion. The First Amendment may preclude sanctioning the lawyers. The best approach in my view is the English rule (loser pays the lawyers) instead of the American rule (everyone pays the lawyers). Lawyers prefer the American rule for obvious reasons, but perhaps we should share some of our riches with religious and charitable organizations when the American rule requires them to bear the costs of meritless litigation.

What I find particularly dismaying is the fact that many politicians and commentators who purport to share my convictions on these three issues are either taking the wrong side in this dispute or are running away from it like scared pussy cats and refusing to take a stand.

The reason is obvious. This project has sparked an embarrassing display of religious bigotry not only from unruly mobs but from leading citizens who feed the flames of hatred with their own heated rhetoric. One would think that groups like the Anti-Defamation League brought us to our senses long ago.  Apparently not.  Book burnings are scheduled in Florida (will we revisit Bebelplatz in a church parking lot?). Protesters have taken to New York City streets. All of this occurs despite dire warnings from our military commanders that religious hatred here imperils our troops abroad.

We should all be careful to investigate the religious and charitable groups that we support (the above mentioned people who threaten to burn scripture in Florida operate as a religious organization under a charitable tax exemption). At this point, I have decided not to be a financial supporter of the New York City mosque because I do not know enough about the project.  I admire, however, those who have investigated this project and decided that it merits their financial support.  I would also gladly contribute to the legal expenses that have been unjustly imposed on the organizers of the project.  To hear that legal ethics professors are involved in this endeavor is also encouraging at a time when we hear a lot of discouraging news in the world. 

Comments

[Patrick S. O'Donnell]

Thanks for posting this.

The solicitation letter has been posted to date at several law blogs, the latest of which is here: http://legalhistoryblog.blogspot.com/2010/09/call-to-support-park-51-islamic-center.html

The American Society for the Advancement of Muslims (ASMA), which is the primary sponsoring organization, has its website here: http://www.asmasociety.org/home/

The website for Park51 (aka 'Cordoba House') is here: http://blog.park51.org/

This Islamic community center is modeled on a nearby Jewish community center, the husband and wife rabbis of which were consulted prior to the proposal and remain in vigorous support of it. While the center will contain a prayer room for Muslims (and prayer space for those of other faiths as well), it may be incorrect to call it a mosque although I don't think the nomenclature is all that important in this case.

I'd be happy to answer any questions folks might have about Imam Rauf's form of Islamic spirituality which is, generally speaking, Sufi in orientation: one could say that, along the spectrum of Islamic religiousity, it is about as far away as one can imagine from the "jihadist" ideology (keep in mind that the meaning of jihad among militant Islamists is rather different from its historic meaning in Islamic legal traditions, which do not countenance what we today define as 'terrorism') espoused by al-Qaeda and similar groups (in any case, provided it was justifiably about the collective defense of Muslims under attack, would be defined as the 'lesser jihad,' and thus subject to criteria similar to those of jus ad bellum and jus in bello in Just War theory; the 'greater jihad' being the personal struggle against the vices, the ego, or anything that interferes with the endeavor to get closer to God). Sufism focuses in the first instance on the greater jihad or "struggle" against the nafs (lower part of the soul) that serves to distance us from God.

[Antonio Pele]

Thank you for this posting
I will add it on my blog...

Antonio

[Monroe Freedman]

Richard,

I agree with what you say on the merits of the efforts to prevent the community center/mosque from being built.

But the reason lawyers and many others prefer the American rule over the English rule of loser pays all, is that the American rule enhances access to the legal system and therefore to justice. The risks of the English rule have been recognized to be prohibitive in a large number of non-frivolous cases.

[Supremacy Claus]

If there is a major terror attack, these lawyer fine points will be seen for what they are, appeasement and collaboration. The lawyer in the White House is setting the example. The profession will and should pay a heavy price for its failure to protect the country by its self-dealing, hyper-proceduralism, rent seeking, and interference with the war effort. For example beside the above collaborationist post, lawyers have embedded themselves in the military, like Soviet commissars, to impose political correctness on our warriors. They have canceled military orders at the squad tactics level. A lawyer canceled the rocket attack on Mullah Omar's limousine. Now, lawyers support an offensive, in your face monument to the success of 9/11, which took out 3000 people and $7 trillion from our economy.

[Jerry Merchant]

All Government-Officials are in Office to serve Only American-Citizens Evenly, According to the Preamble of the U.S. Constitution, The U.S. Constitution--Aricle-1, section-8,& the 14th. Amendment.The Original Supreme Court Decision of the 14th. Amend. and McCulloch v. Maryland Case, etc.. Log-on to www.GETYOURZWORLD.COM, AMERICAS WATCHMAN BLOG TO VIEW PEOPLE`S GOVT. V. PRIVATE CORP.S MATERIALS. THHE MOST IMPORTANT LEADING SUPREME COURT CASES CONSTRUING THE POWERS OF ALL GOVERNMENT-OFFICIALS IN AMERICA... FINANCIALLY & MORALLY SUPPORT PEOPLE`S GOVERNMENT,THE ONLY WAY A LAND OF PEOPLE BECOME ONE AND EQUAL UNDER GOD !!!