Ground Zero mosque
Morality vs. legality?
The debate over the Muslim mosque and community center near Ground Zero has resulted in a number of different, passionate reactions. Once the media took up the subject, politicians and leaders from all over the US weighed in rather quickly.
On Friday, even President Obama shared his view in favor of the mosque, stating “This is America, and our commitment to religious freedom must be unshakable. The principle that people of all faiths are welcome in this country, and will not be treated differently by their government, is essential to who we are.”
Not surprisingly, critics of the mosque pounced. And their response was strong enough to push the President and his staff to “recalibrate” his comments from Friday evening more than once. Although his remarks were initially received as a deliberate endorsement of the mosque construction, President Obama apparently meant only to speak in favor of the project’s legality—not in favor of “the wisdom of making the decision to put a mosque [near Ground Zero].”
Regardless of how you interpret the President’s statements this weekend, his clarification here suggests a crucial distinction underlying this Ground Zero mosque debate: even in a society that emphasizes personal liberty and freedom of religion, there may be a difference between what is legally permissible and what is morally permissible.
Most leaders, even critics, seem to consider the construction legally permissible. But they also speak of it as being highly offensive to many Americans. This raises two related questions:
1) Can something be legally harmless but nevertheless reprehensible for other, probably moral, reasons?
2) Can something be legally harmless but unpleasant enough for us to rightly or morally require
legal intervention at the cost of others’ legal rights?
In the second volume of The Moral Limits of the Criminal Law, Joel Feinberg illustrated this question with six sets of hypothetical, uniquely offensive situations on a public bus. His third set of examples is particularly relevant, and involves “shock to moral, religious, or patriotic sensibilities.”
For example, imagine you’re on a bus on your way to an extremely important meeting. Then:
After taking the seat next to you a passenger produces a bundle wrapped in a large American flag. The bundle contains, among other things, his lunch, which he proceeds to eat. Then he spits into the star-spangled corner of the flag and uses it first to clean his mouth and then to blow his nose. Then he uses the main striped part of the flag to shine his shoes.
Undoubtedly, the average American would be offended in this situation. Some would even maintain that citizens deserve legal protection from this level of offensiveness, even if it is the result of perfectly legal exercise of private rights.
In some ways, this example resembles what is happening with the Ground Zero mosque: the construction’s supporters are exercising their rights, but in ways that are extremely offensive to other citizens. As a result, many of the mosque’s critics advocate legal prevention of the construction, implore its supporters to cancel their plans, or even deny that the mosque is proper exercise of a right at all.
For similar reasons, Feinberg goes on to recommend something called the ‘offense principle,’ and concludes that the state is sometimes justified in imposing criminal penalties for offensive, but legal, behavior.
So, setting aside the original legality of the construction: is the Ground Zero mosque offensive enough to justify the state in denying a legal right?
This image was used under a Creative Commons attribution license from Flickr user Todd Ehlers.