Gene Policinski: Defending First Amendment rights is different from endorsing the message

  Whether or not a Muslim community center and mosque in New York City is built near the former World Trade Center site remains to be seen.

  And whether or not a Kansas-based church can continue its anti-homosexual protests near military funerals remains to be determined — quite likely in the U.S. Supreme Court.

  In both instances there are heartfelt objections from those who have suffered, either from the Sept. 11 attacks or the loss of a loved one in combat. But beyond the passion, politics and propriety of those two hot-button debates, there is an important First Amendment point.

  Those 45 words in the Bill of Rights prevent government from interfering with our most basic rights — religion, speech, press, assembly and petition. Defending those rights does not mean endorsing either the construction of the Islamic center or approving the Westboro Baptist Church’s protests.

  Consider all five freedoms in the First Amendment: Freedom of religion, speech, press, assembly and petition. There's no “except for …” clause. No requirement that other nations adopt the same values or approach to one freedom or another, or our freedoms don’t apply here. Not a word about requiring public approval, legislative vote or judicial verdict in favor of an idea, a speech, a book or a religious belief. No mention of remaining silent because your words may be shocking or rude or insensitive.

  No one can deny that nine years after the terrorist attacks, the pain continues for those who lost family and friends. And the use of a funeral service for purposes other than religious observance or honoring the deceased likely is repugnant to most Americans.

  But President Barack Obama got it right the other day when he said of the New York controversy, “The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are. The writ of the founders must endure.” And a lawyer defending Westboro’s right to protest in Missouri during funeral services also got it right after a federal judge tossed a state law aimed at preventing the protests. ACLU attorney Tony Rothert said the law was too broad, would prevent even non-disruptive speech and that "just not liking speech isn't enough reason” to stop it.

  We frequently debate questions in this country about the location of religious-based operations — considering zoning laws, traffic congestion and the like — but rightly exclude considering the tenets of the faith involved. And we have seen time and again in our history the power of voices that were unpopular at the outset in matters ranging from women’s suffrage and civil rights to anti-tax and anti-war sentiments.

  Certainly deciding whether or not the community center and mosque can be built in a certain place is not the same as forbidding Muslims who would use those facilities from worshiping elsewhere as their faith dictates. But given that protests over mosques also rage in several parts of the nation, and the linking by some of Islam to terrorist activities, it’s not a stretch to envision those “not here” local disputes someday becoming a “not anywhere” challenge for an entire faith.

  And we’ve already seen a host of laws across dozens of states aiming to restrict Westboro from protesting at funerals. These laws invoke time or place restrictions. From the rhetoric that has surrounded passage of some of those laws, it’s not a stretch to see the reasoning behind them has more to do with stopping the protests than regulating them.

  The 45 words of the First Amendment are an easy read – but many times a tough a challenge to live up to. Debates over the “should” must not spill over into placing restrictions on the “could.”

  About the author: Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: http://www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.