Mediation and National Security: Resolving Disputes in the Aftermath of 9/11 When Social Rights and
In the aftermath of the terrorist attacks on September 11, 2001, many Americans view Muslims and Islamic worship centers as national security threats. Across the country, neighborhoods and communities have opposed the building of Islamic religious centers in their communities.
The Religious Land Use and Institutionalized Persons Act (RLUIPA) enforces the Free Exercise and Establishment Clauses of the First Amendment. Under RLUIPA, it is unlawful for a local government to “use land-use regulation to impose a substantial burden on religious exercise, unless that burden is the least restrictive means of furthering a compelling state interest.” § 2000cc(a).
In Brooklyn, New York, the residents of Sheepshead Road have petitioned the government to stop the construction of an Islamic worship center in their neighborhood. residents picketed their streets expressing their hostility towards the “Islamic supremacist” group planning to build a mosque in the neighborhood. In New York City, the highly controversial plans to build a Muslim mosque two blocks away from Ground Zero, caused many to oppose the construction. The objections imply that this type of religious expression of Islam may create a national security threat to the United States. In Tennessee, a group of landowners in Rutherford County filed an action against Rutherford County alleging that the government violated the law when it approved a plan to build a mosque and Islamic Center in the county. The County defends its approval of the building plans pursuant to RLUIPA.
These conflicts over the placement of Islamic worship centers demonstrate the difficulty of resolving disputes when social rights and social relationships conflict. If the parties decide to file an action in court, the legal analysis will focus on social rights pursuant to the Constitution, and federal, state, and statutory law. This type of litigation would ignore the emotional aspect of the conflict – many people remain traumatized by the September 11th attacks. However, the suggestion has been made that mediation by a neutral third-party would provide an equitable remedy that could meet the parties’ needs. http://www.nmb.gov/, http://www.adr.org/.
The mediation process would allow the parties to focus on their interests (i.e. feeling safe in their communities or freely exercising their religion and showing that Islam is not about terrorism) and not just their positions (forbidding or encouraging the construction of new Islamic religious centers in communities). Settlement could involve a mutually acceptable resolution to their problem in a way that preserves the social relationship. An evaluative mediator would consider the strengths and weaknesses of each side’s case pursuant to RLUIPA and other government laws. In a world in which social rights and social relationships
sometimes clash, it is important to consider whether alternative means of dispute resolution would lead us to more mutually acceptable outcomes.