Mirror of Justice

Here is Chris Eberle's response to Paul Horwitz's thoughts:

Just a quick response to Paul Horwitz. I take it that Professor Horwitz and I agree that there are serious questions to be raised about the moral propriety of the building of the mosque near Ground Zero. As I see it, the relevant moral question is as follows: various polls apparently show that many Americans are offended/insulted by the Cordoba Project's intention to build a mosque/community center near Ground Zero. Given that the Cordoba Project's announced intentions are to foster mutual understanding between Muslims and other religious groups, given that acting in ways that other people regard as insulting impedes the aim of fostering mutual understanding, and given that the Cordoba Project can build its mosque/community center in some location that their intended interlocutors will not regard as insulting without in any way diminishing its expressed aim of fostering mutual understanding, the Cordoba Project has excellent reason, given its aims, to relocate. So the Cordoba Project can achieve its religious aims far better by relocating than by erecting a building that will result in lots of Americans thinking far worse of the project than they otherwise would.

Does this grant anything like a heckler's veto to the opponents of the mosque? Hardly. The opponents have no veto at all. The decision is entirely up to the leaders of the Cordoba Project. But the leaders of the Cordoba Project have to realize that, if you want to communicate with others, you must refrain from engaging in actions that preclude communicating, even if you have a right to do so. We should take the announced aims of the project leaders at their word … and therefore implore them not to build as they intend. Should they insist on their rights, then objectors should acquiesce. Acquiescence is of the essence in a pluralistic liberal democracy.

Of course, the leaders of the Cordoba Project don't have to communicate with anyone; they needn't build a mosque/community center with the aim of fostering religious dialogue. They might conclude that the reactions of others are so bigoted that they cannot engage in meaningful dialogue. They could decide to pursue some other religious aim, one that requires them to build exactly in the currently intended location, such that their not building in the currently intended location would preclude them from achieving some important religious aim. Should they change their aims, then they might have reason to build as intended. But not given their current aims.

And, here is Paul:

I'm grateful to Professor Eberle, whose work I greatly admire, for his response.  I should say at the outset that I'm not sure he and I do, in fact, agree that "there are serious questions to be raised about the moral propriety of the building of the mosque near Ground Zero."  For me, the most powerful possible criticisms of the project have to do with the alleged views of its principal backer or backers (about which I offer no conclusions here).  Similarly, I might find Reverend Phelps' views so objectionable that I wish he would not build a church anywhere, but just go away.  But those kinds of moral questions, first, have little to do (for me, at least) with the location of such a church or mosque.  Second, the kind of moral question they raise is a prior one: how should we feel about the presence of illiberal religious groups in our society?  One's views on this may differ.  For myself, I think these groups' presence may be disturbing, but I consider the rules of engagement for a pluralist society best served if they are not excluded in principle, not least because I think many illiberal groups have something to offer public discourse, however indirectly.  In any event, that sort of question for me has little to do with where that illiberal group decides to set up shop.  I agree that there may be moral questions involved in where the Cordoba Project chooses to build, along lines that have been characterized in public discourse in terms of "can they vs. should they," but I do not think they are "serious," by which I mean strong or grave, questions.

Professor Eberle's basic point is this: if the Cordoba Project's stated aim is to foster mutual understanding, and if there are strong objections to its building in the proposed location, then it can better serve this purpose by building elsewhere.  He says this does not present a true heckler's veto, but is merely part of the usual exchange and compromise involved in attempting to communicate with others.  I have some practical and theoretical problems with this line of argument, although I don't consider it unreasonable.  First, practically speaking, the project may have more than one aim.  A church may want to serve its own community *and* reach out to others; if so, it will want to build where there is both a relevant community of co-religionists who need a place to congregate and where there are many non-co-religionists.  The proposed location seems to serve both needs.  Second, relocating can be a burdensome proposition, even if the basic costs are paid for; and a religious group might well not want to accept such funding, given the loss of autonomy that might be or seem to be attached to such an offer.  Third, although I think there is room for public debate about whether the project's aims might best be served by moving elsewhere, just as we can argue about whether a church that wants to serve the homeless ought to relocate out of a residential neighborhood, in both cases I would want to defer substantially to the church or mosque's own assessment of that question.  On this last point, I don't think Eberle disagrees: he says, quite wisely, that if the mosque insists on its rights, "objectors should acquiesce."  This is an important point, and we may be at the point in the public debate where responsible individuals who have argued that the mosque can but shouldn't build in the proposed location are under some obligation to raise it quite vocally and chasten those who refuse to let go of the point.

Most important, I think Professor Eberle is too sanguine on the heckler's veto issue.  I agree that coping with opposition is very much a part of any public dialogue, on both sides.  The mosque ought to consider the possibility of objections, and for all we know it did so before fixing on this site.  But a heckler's veto doesn't depend simply on direct legal force; it depends on the state's (un)willingness to protect the speaker or church against the pressure of the hecklers.  As I said in my earlier intervention, although there are certainly widespread objections to the proposed location -- some of them quite genuine and others, I think it's fair to say, largely opportunistic -- there are also many who either support the location, or are indifferent to it, or who would otherwise have been indifferent but now think a larger principle is involved.  These individuals, and not just the ones who vocally object, are also possible subjects of the bridge-building effort by the mosque, and their desires must also be factored in to the debate.  The presence of objectors is important; but the simple fact that some people object cannot be enough to demonstrate that the bridge-building project will necessarily or even probably fail if the mosque proceeds in its current location.  We must also consider the possibility that if the mosque builds in the proposed location, although some people will continue to object, others -- both the supportive or indifferent and those who are currently opposed to it -- may find that the mosque is not, in fact, dangerous or objectionable, and may arrive at a different and much more supportive or tolerant perspective. 

The bridge-building metaphor is actually pretty powerful here.  We build bridges over chasms, not where there is no need for them.  Similarly, most churches send their leaders among strangers and not only among friends.  Sometimes those efforts engender initial opposition, but that opposition doesn't always last; and we may well hope that the initial objectors will become more supportive once they realize the "threat" is less great than they initially assumed.  For these reasons, I think there is actually an argument -- not a dispositive one but an important one -- that building in *this* location as opposed to another one can be considered an important part of the bridge-building goal.  Indeed, and perhaps with some irony, the bridge-building project may, in the long run, be strengthened rather than weakened by opposition to this particular location.