August 20, 2010

Fox News' Peter J. Johnson Jr. believes that Muslims in New York should "give up their rights" and move the Park51 Islamic center in order to please opponents.

When Johnson isn't guest hosting at Fox News, he regularly gets time to offer commentary on Fox & Friends. In his Friday segment, Johnson visited the site of the proposed Islamic center to give his opinion on the project.

The Fox News legal analyst explained that the First Amendment shouldn't really be a factor a factor in whether or not the proposed mosque gets moved.

"We are proud that we are one of the few countries in the world which allows the free exercise of religion, but when we resort to legalisms instead of common sense, or compassion, when we invoke our First Amendment as a sword, not a shield, it means we have lost sight of and broken faith with our national identity and strength," he said.

Johnson then seemed to compare the controversial Westboro Baptist Church to supporters of the Islamic center.

Pastor Fred Phelps' church is known for picketing soldiers' funerals with signs like "Thank God for Dead Soldiers," and "AIDS Cures Fags." A federal judge recently upheld Phelps' First Amendment right to protest outside military funerals in Missouri.

Missouri's tight restrictions on protests and picketing outside military funerals were tossed out by a federal judge Monday, over free speech concerns.

A small Kansas church had brought suit over its claimed right to loudly march outside the burials and memorial services of those killed in overseas conflicts. The state legislature had passed a law to keep members of the Topeka-based Westboro Baptist Church from demonstrating within 300 feet of such private services.

"Do our courts encourage disrespect and instability among us when they allow a so-called religious sect to protest at servicemen's funerals and hold signs that say, 'Thank God for Dead Soldiers?' And then say the First Amendment makes it all okay. How have we fallen so far so quickly?" asked Johnson.

"I look for the day when this is no longer about politicians or pain or protest, but about neighbors becoming good neighbors," he said.

"Thank god and our founders for the First Amendment, but God help us if it all comes down to the need to rely upon it," he continued.

"Any American can assert a right. Great Americans give up their rights to help those they share nothing else with but a love of this country," he concluded.

But not every conservative even thinks the First Amendment protects supporters' rights to build the mosque in the current location.

Jason Sager is a strict constitutionalist and a candidate for the 5th Congressional District in Florida. Sager told The Saint Petersburg Times' Dan DeWitt that "there is nothing to preclude states and local authorities from determining what will or will not be built on their streets."

Yep, he said, which didn't sound right, so I called a well-known authority on the First Amendment, Florida State University law professor and former president Talbot "Sandy" D'Alemberte.

Federal authority is indeed severely limited in the original Constitution, D'Alemberte said. But this concept took a major hit in 1868, with the passage of the 14th Amendment, which says states can't deny U.S. citizens basic rights.

Then, in 1940, the U.S. Supreme Court (dooming many a relaxing Saturday morning) ruled that the door-to-door evangelizing of Jehovah's Witnesses was protected by the constitutional right of "free exercise" of religion — that this trumped state and local laws.

"To make the argument that the First Amendment doesn't apply to local governments," D'Alemberte said, "is quite beyond the bounds of all the scholarly thinking that I know of."

Sager says he just can't get past the wording of the First Amendment that says "Congress" shall make no law about the free exercise of religion. Regardless of the 14th Amendment, that shouldn't include state and local governments, according to Sager.

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