Geof Stone on NYC Mosque Controversy
Pretty much everyone now seems to understand that the proponents of the New York City mosque and community center have a First Amendment right to locate their facility near the site of the World Trade Center. That is, almost everyone now seems to acknowledge that the government cannot constitutionally prohibit a religious organization from constructing a church, a temple, a mosque, etc. at a particular location, if it would allow other faiths to construct such a facility there. Discrimination among religions is the paradigm violation of the First Amendment's guarantee of religious liberty.
So, if this is not a legal dispute, what is it? It is a dispute between two groups of private citizens who must work it out for themselves. Because the First Amendment precludes the government from forbidding the mosque, the proponents of the mosque have the upper hand. They have a constitutional right to do what they want to do, and it therefore falls to their opponents to try to persuade them not to exercise that right.
There is nothing wrong, in principle, with making such an argument. Having the right to do something does not mean that one should do it. Think of burning the American flag or criticizing the war in Afghanistan, both of which are protected by the First Amendment. People might encourage would-be speakers not to engage in such expression, because it might upset others.