New York Gov. David Paterson’s attempt to defuse the conflict over the so-called ground zero mosque by offering the group state land might seem like one possible path out of the controversy — but it would be certain to trigger serious legal challenges that could make the offer significantly less attractive, lawyers said Wednesday.
“This is absolutely the worst way to resolve the controversy,” said the Rev. Barry Lynn of Americans United for Separation of Church and State. “Not only are you putting pressure on those who choose to build a mosque two blocks from ground zero, but now you’re telling them or suggesting giving them some kind of a sweetheart deal, a free or cheap piece of land to build it elsewhere? It would violate the Constitution.”
A leading authority on church-state legal issues, Harvard law professor Noah Feldman, said he had no doubt that directing state land to the mosque would prompt a major legal battle.
“There would certainly be, by no means a guaranteed-to-win case, but a plausible case brought by the ACLU and Americans United ... challenging the constitutionality of it,” Feldman said. “It’s obviously unlawful for states to lend or lease land to a religious organization — it could only do so on a par with other organizations.”
A plan by Islamic leaders to build a mosque and cultural center on private land two blocks from the site of the twin towers attacked on Sept. 11, 2001, has met with opposition from those who say such a center would be an affront to the memories of those who died at ground zero that day.
President Barack Obama spoke out strongly last week in favor of the group’s right to build. However, he later clarified his remarks to indicate that he wasn’t specifically endorsing the site the group has an agreement to buy on Park Place.
Paterson told reporters last week that he wanted to explore with the planners of the Park51 project whether they might be willing to locate on a parcel of state land farther from ground zero.
“Frankly, if the sponsors were looking for property anywhere at a distance that would be such that it would accommodate a better feeling among the people who are frustrated, I would look into trying to provide them with the state property they would need,” Paterson said.
Earlier this week, Rep. Peter King (R-N.Y.) said Paterson was trying to schedule a meeting to offer “state land” to the mosque planners.
Paterson’s office did not respond to a request for comment for this story. But Lynn said that virtually any arrangement giving the Islamic center preferred access to state land would raise constitutional problems.
“If you cut any deal other than an open auction, I think you’ve violated the Constitution.”
However, some analysts said one possibility that might dodge a legal battle is if Paterson could locate privately owned land that could be sold to the Park51 developers.
During an appearance on CNN Wednesday, Paterson talked again about moving the planned Islamic center and mosque to another site. However, he did not say whether he was considering state land or private land for an alternative location.
For now, though, Paterson’s efforts face a more fundamental hurdle: Park51 organizers have said they have no interest in considering another site.
In a statement on their blog Wednesday night, planners of the project said: “Cordoba Initiative and Park51 are committed to maintaining the current planned location for the Community Center.”
Developer Sharif El-Gamal said Tuesday that the need for the center was driven by a lack of prayer space for Muslims in the area. “This is a local issue affecting lower Manhattan,” El-Gamal said in an interview with a local cable news channel, NY1.
Legal wrangling is already under way over the center’s proposed Park Place site. A New York City firefighter, Tim Brown, is suing to block the mosque development by forcing a New York City board to designate the building as a landmark. Conservative legal group the American Center for Law and Justice did not respond to a request for comment Wednesday on Paterson’s proposal.
Several analysts said Paterson’s suggestion for resolving the ground zero mosque controversy evokes a similar effort by Congress to resolve a long-running battle over a large cross that was part of a veterans memorial on federal land in the Mojave Desert in California.
In 2003, Congress tried to short-circuit a lawsuit challenging the cross by swapping an acre of land containing the monument for five acres of land owned by a Veterans of Foreign Wars post. In 2007, the U.S. Court of Appeals for the 9th Circuit upheld a district court order blocking the land transfer. In April of this year, the Supreme Court sent the case back to the lower courts for further review, but the justices splintered in a way that left the legality of the land transfer unresolved.
“The Supreme Court ducked the underlying issue,” said Feldman. “In a way, it’s similar because it’s about the government giving land to a private party for religious purposes, but it’s not completely analogous. The 9th Circuit did rule against the transfer. If you were suing over [a transfer of state land for the Islamic center] you’d cite that, for sure.”
One potential wrinkle in any legal challenge to a transfer of state land for a place of worship is that the Supreme Court has made it more difficult recently for average citizens to sue over government expenditures alleged to benefit religious organizations. In a 2007 decision involving President George W. Bush’s faith-based initiative, the court ruled, 5-4, that simply being taxpayers did not give individuals the right to sue over executive branch grants or contracts to religious groups. However, the court left in place an earlier precedent that allows such suits when Congress is alleged to have violated the establishment clause by allocating funds to a specific group.
Several legal experts said the so-called taxpayer standing problem could be a hurdle to a federal lawsuit over government land being transferred to the Islamic group but probably wouldn’t be much of a problem for a suit claiming a violation of New York State’s Constitution.
“Even if federal courts could be closed to taxpayers, state courts would probably be open,” said Ira Lupu, a professor at Georgetown Law School. “If the state is giving it away or subsidizing it, then it’s a gift or donation for religious purposes or to a designated religion. I think it would be quite clearly unconstitutional.”
If the Park51 group took Paterson up on such an offer, the Islamic organization might suddenly see many of its current allies change sides and begin battling against the proposed center.
Lynn said he hopes Imam Feisal Abdul Rauf, the religious leader behind the project, understands that the same principle that protects the right to build a mosque at a site of his group’s choosing also forbids the government from doling out property to particular religions or religious denominations.
“That doctrine also means they can’t accept largesse or aid from the government. I’d hope the imam would understand that this involves both sides of the religious freedom coin,” Lynn said.