President Barack Obama can’t seem to decide how to approach religious controversy.  Should he stand above the fray, solemnly reciting legal rules as a lawyer might? Or should he take a stand and express his opinion about who’s right and who’s wrong?

Obama took the former stance with respect to the proposed mosque near Ground Zero. He proclaimed his support of the Muslim mosque advocates’ legal “right to build a place of worship,” but he refused to “comment on the wisdom of making a decision to put a mosque there.”

But he took the opposite stance last Friday, when confronted with a Florida pastor’s plan to burn Korans on 9-11. “There’s no doubt,” Obama asserted, “that when someone goes out of their way to be provocative in ways that we know can inflame the passions of over a billion Muslims around the world, at a time when we’ve got our troops in a lot of Muslim countries, that’s a problem. And it has made life a lot more difficult for our men and women in uniform, who already have a very difficult job.”

Obama’s approach on the Ground Mosque issue showed a regrettable lack of leadership. His statements sounded like idle musings from his days as a law professor. By contrast, his statements about the burning of the Koran were entirely appropriate. They were presidential. It is a President’s judgment—not his ability to recite the legal rules—that makes him a leader. If anything, this is even truer when it comes to thorny issues of religious liberty.

Obama’s earliest predecessor as President, George Washington, set the right tone in such matters. Washington certainly understood the freedom of religious exercise guaranteed by the First Amendment (ratified during Washington’s presidency), but he also understood the need for presidential leadership when that legal backdrop alone does not provide all the answers. When faced with a question of religious liberty, Washington exercised sound judgment in addressing the ultimate question: What result, within the legal framework, is best for the public good?

Washington, it must be remembered, was second to none in his respect and support for freedom of religion. Indeed, Washington considered “Religious Liberty” a key justification for the American Revolution: Along with civil liberty, it was “the Motive which induced me to the Field.” Yet he also knew that the legal rules alone do not answer all the hard questions.  Instead, the public good often requires that individuals forbear the exercise of their rights or that government forbear the exercise of its powers.

After the American Revolution, for instance, Washington was faced with a proposal to use Virginia state taxes to pay church ministers. Washington took the step that Obama refused to take in regards to the Ground Zero mosque: He reasoned beyond what can be done within the law to what should be done (still within the law, but in order to reach the best result). Washington wrote that he was not opposed to Virginia’s imposition of a tax to pay ministers, at least in principle. Yet, he told his fellow Virginian George Mason, he feared that enactment of the tax would “rankle, & perhaps convulse the State.” Washington believed that any potential benefit from the tax-subsidized religious activities would thus be undermined. Washington wished the proposal “could die an easy death; because I think it will be productive of more quiet to the State, than by enacting it into a Law.”

Thus Washington thought the tax was legally permissible, but he did not hesitate to say that he thought the tax should nevertheless be abandoned as unwise.

Washington equally expected private citizens to use good judgment, too.

One of the greatest statements for religious liberty came from Washington’s pen as he wrote to the Hebrew Congregation in Newport, Rhode Island: “All possess alike liberty of conscience and immunities of citizenship,” he confirmed. “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.”

In the same letter Washington added his thoughts regarding the Jewish congregation’s reciprocal duties to America: They should “demean themselves as good citizens, in giving it on all occasions their effectual support.” This is consistent with all of Washington’s writings on church-state relations, in which he presents religious freedom as a principle that is inextricably intertwined with a duty of good citizenship.

Obama did well to follow Washington’s example in regards to the pastor who has threatened to burn Korans. It is not too late for Obama to do the same in regards to the Ground Zero mosque, despite his recent statements doubling down on his legalistic observation that “if you could build a church [or synagogue or Hindu temple], then you should be able to build a mosque.” Obama knows it is not wise to build a mosque in that particular location for reasons that he himself articulated: “[W]e must all recognize and respect the sensitivities surrounding the development of Lower Manhattan. The 9/11 attacks were a deeply traumatic event for our country.”

Obama should stand on that fact. As the nation’s preeminent political leader, he should call on both the private parties and the government actors involved in the mosque controversy to resolve it in such a way—whether by the exercise of constitutionally permissible government power or the forbearance of private right—that the mosque is not built.  As Obama realized in the context of the Koran-burning controversy, the fact that something is legal does not make, per se, good for the Republic.

Tara Ross & Joseph C. Smith, Jr. are the authors of Under God: George Washington and the Question of Church and State

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