Government needs to step out of center debate - by Judge Jim Gray

So should the Muslim community be "allowed" to build a mosque or religious center two blocks away from the former World Trade Center site? Actually President Obama gave us the answer. Numbers of times in these pages I have been critical about some of Obama's comments and policies, mostly dealing with economic issues, but this time he got it exactly right!

Obama said that the government should not interfere in this decision because it is a question of religious freedom. But he also said that, under the circumstances, building a mosque or religious center in that place would be insensitive, and the Muslim community should show the grace to decide to put it somewhere else. This may be a subtle distinction, but it is a critically important one.

First of all, this issue presents a wonderful teaching opportunity to show the world that we really do have religious freedom in the United States — and make no mistake, the world is watching! Because the Muslims own the land and the zoning is in their favor, they have the clear legal and constitutional right to build the center on this site, and that should end the government's involvement. The idea of "I support religious freedom, but not in my back yard" is not what the Bill of Rights stands for.

But secondly, and even more importantly, if we persist in looking to the government every time decisions like this have to be made, we will lose the ability to deal with each other as people. For example, years ago when I moved into a new house in San Clemente, the homeowner's association was contemplating installing a system of fines for virtually every activity one could imagine. So if people left their trash cans on the street for too many hours after the trash was collected, they would receive a fine. Or if your neighbors mowed their lawns on a Sunday morning, you could call the "association police" and have a fine assessed. I attended a meeting and recommended that the whole system be scrapped.

Instead I suggested that if your neighbors were playing their music too loud, etc., simply go across the street, introduce yourself (if you have to) and politely ask them to turn the volume down. That would give everyone the opportunity to act in a "neighborly" fashion, which is what most of us would do if given the chance. Those in attendance agreed with that approach, and voted down the program. (And then they proceeded to draft me to be a member of the board of directors.)

It is the same thing with the question of the Muslim center. Having the government step in puts the Muslim community immediately on the defensive and deprives it of the opportunity to choose to be sensitive. Instead the situation evolves into a legal or political event, where if the Muslim leaders graciously decided to build the center somewhere else, it will look like they are capitulating or "giving in." As a result, they are almost forced into taking a more hard line position. In addition, if they do decide to build the center there anyway, that might also reduce the chances that they would, as a compromise measure and gesture of good will, include a memorial to all of the people on the ground who lost their lives.

As another case in point, remember when the Catholic Church decided to remove a 26-foot cross erected at a Carmelite convent within view of the Auschwitz-Birkenau extermination site in Poland, and also move the nuns to a different location? This was done without governmental fiat, but instead as a gracious accommodation to Jewish sensibilities not to have a cross easily visible from the site of this tragedy for the Jewish people (and tens of thousands of non-Jews). The Polish government not being involved gave the Catholic Church this opportunity to be gracious, and our government not being involved in this matter in Lower Manhattan will give the Muslim community the same opportunity.

Furthermore, even aside from the critically important constitutional protections of religious freedoms, how could a government possibly draft regulations or laws dealing with situations like this? The practical problems are significant. For example, just what constitutes "hallowed" ground? Yes, the destruction of the World Trade Center was a catastrophe, but how big a catastrophe must there be? What about the site where United Airlines Flight 93 crashed into the ground near Stonycreek Township in Pennsylvania, despite the heroic attempt of passengers and crew to thwart the terrorists' further plans? Why not include the sites of other airplane crashes where large numbers of people have died? Or how about the site of the federal building in Oklahoma City that was destroyed with much loss of life by Timothy McVeigh? All of the loved ones of those who lost their lives grieved just as much!

Or, for that matter, why should hallowed ground only come from catastrophes? What about other hallowed grounds, like Gettysburg, Cape Canaveral, Yellowstone National Park, or even Woodstock in Bethel, N.Y., or Fenway Park in Boston? Who gets to decide? And how far away should these edicts be enforced? Two blocks? Three? Ten miles? Only where visible? (That would exclude this proposed Muslim center.) And should the laws just apply to Muslim religious centers? How about Christian centers, or those of the YMCA? These are almost impossible situations for laws to cover — or to enforce — and trying to draft or implement them will only result in additional and almost irresolvable emotional confrontations.

Finally, and just as importantly, in many regards what we are seeing with this issue are many radical people with an agenda using it as a political opportunity for their own purposes. They include some Christians and others fanning the flames of Islamophobia, and some Muslims and others using the opportunity to show their paranoia. Let's try to take away these types of opportunities by using our efforts to tone down all of the rhetoric.

The first place to start in this and so many other situations is to get the government out of the equation. This will foster a situation that will more greatly promote people treating each other in a humanitarian manner, and also get us further away from being outcome oriented and instead back to understandable process and principles.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at jimpgray@sbcglobal.net or http://www.judgejimgray.com. Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.