Sunday, August 22, 2010

Can Alexander Hamilton Stay?

Looks like the Episcopal Church may take yet another hit. My Nixonite brother Hugh Hewitt, arguing for a no-religious-message zone (and thus no mosque) near the World Trade Center, seems to be making a case for tearing down Trinity Wall Street (emphasis added):
As a lawyer who has long represented churches and religious schools in land use disputes, the basic law is this: The government may not constitutionally treat one proposed religious land use differently from similarly situated other religious land uses, and the government may not single out religious land uses for discriminatory treatment in ways that uniquely burden those uses.

By contrast, the government can and does zone land to serve the general good, and in the course of doing that, it may treat religious land uses as one category of land use that will be treated in specific ways, provided those ways are not intended to burden or discriminate against that class of land uses or a particular denomination.

Thus New York City or the state or even the federal government could choose to protect the entire area around and including Ground Zero from all uses that are intended to exploit proximity of the hallowed ground to send messages of any sort. None of these governments could single out the Muslim faith for special burdens or prefer a different faith seeking a shrine nearby.

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