A Hollow Debate Over "Hallowed Ground"

Seth F. Kreimer is a law professor at the University of Pennsylvania

When I teach law students how to analyze a constitutional case, I drill into them one lesson: always start with the facts.

So when I was asked to opine on TV last week about the proposed construction of a "Ground Zero Mosque," my first instinct was to look into the facts of the case. As a lawyer, those facts made it clear to me that opposition to the "Ground Zero Mosque" cannot claim to uphold American law. But as an American citizen, they made something else clear to me: opposition cannot claim to uphold American ideals.

What exactly did the research turn up? My first attempt led me to understand some things apparent to anyone who takes time to look: the project is not at Ground Zero--it's 2 ½ blocks away. It's also not a mosque-- it's the equivalent of a YMCA with dedicated prayer space. Even without the proposed construction, up to 600 local Muslims have been praying there for the last two years.

Next, I used a research tool not available when I was in law school: "Google maps." It turns out that across the street from Ground Zero stands St. Peter's Catholic Church.

Moving out from the site, we come to St. Paul's Chapel, the River Church, the Glad Tidings Tabernacle and a Christian Science reading room. So the constitutional issue is this: When large portions of the public find the placement of a Muslim prayer space offensive, may an American city exclude it from an area already occupied by five other religious institutions?
As a matter of law, the question is not even close. There are not many cases directly on point; happily, American localities do not make a custom of excluding places of worship on these sorts of grounds. Still, my research did turn up one parallel.

In 1952, Pawtucket, Rhode Island tried to exclude Jehovah's Witnesses from preaching in Slater Park. The City admitted that both Methodist ministers and Catholic priests could preach to their congregations in the park, but claimed that addresses by Jehovah's Witnesses would lead to "annoyance and disorder." A year later, in Fowler v. Rhode Island the Supreme Court unanimously repudiated Pawtucket. It held the city's effort to prefer some religious groups over others was barred both by the First Amendment's protection of free exercise of religion and by the Fourteenth Amendment's guaranty of equal protection. That result would be no different today.

But what of the feelings of the families who lost members on 9/11? Some politicians report to us that 9/11 families feel profoundly angered and insulted by the proposed construction.

The answer begins with facts my research discovered in the USA PATRIOT Act. The Act opens with findings in Section 102 that highlight the heroism of Mohammed Salman Hamdani, a 23 year old New York City police cadet, trained as an emergency medical technician. On 9/11 he was on his way to work as a research assistant at Rockefeller University. When the Patriot Act was adopted in the white heat of 9/11, Congress noted that Salman Hamdani was "believed to have gone to the World Trade Center to offer rescue assistance and is now missing." Six months later, workers identified 34 pieces of Salman Hamdani's body in the wreckage of Ground Zero. They notified his mother, Talat Hamdani and she buried the parts of his body in a Muslim service.

Talat Hamdani recently co-authored an article in the New York Daily News entitled The case for a mosque near Ground Zero: Two mothers of 9/11 heroes argue for a Muslim center there. Should we accord Talat Hamdani's feelings a dignity equal to the feelings of the other families? If we do, it becomes hard to call dedicating a space where she can pray as a Muslim near the spot that her son gave his life a misuse of hallowed ground.

Ideals of religious liberty and equal respect are embedded in our constitution. But the Constitution is not just a guide for courts. A century and a half ago, Abraham Lincoln spoke at the dedication of the cemetery containing the graves of the American soldiers who died at Gettysburg. He observed that "we cannot hallow this ground" because they "have consecrated it far beyond our poor power to add or detract."

Lincoln concluded that the issue was not the dedication of the ground but the dedication of our nation. America was wounded on September 11 and grieving families are still traumatized and angry.

It is to our credit that we feel their trauma and share their anger. But we face a choice. We can define ourselves as a nation of trauma and anger. Or we can consecrate our loss by renewing the American heritage as a nation "conceived in liberty and dedicated to the proposition that all men are created equal."

In choosing, let's remember Abraham Lincoln- and Mohammed Salman Hamdani.

The opinions expressed in this commentary are solely those of the author.
By Seth F. Kreimer::
Special to CBSNews.com