In response to my criticisms of the thoughtful—but ultimately misguided—defense of anti-Sharia laws published by John Witte in Christianity Today, Matthew Tuininga worries that while legal neutrality works in theory it falls apart in practice:
In theory an individual may be able to walk out of her religious community at any time, but in reality the threat of social and religious ostracism is far too great, especially for ethnic and religious communities not well integrated into American society. This seems to be the assumption underlying Witte’s reference to history. So while Schmitz thinks the fears of “creeping Shari’a” are overblown and worries about the more fundamental cause of religious liberty, a valid fear given the events of the last few years, Witte fears that the Islamic community has not yet clearly embraced American values with sufficient enthusiasm to warrant the sort of deference given to other communities, a seemingly equally valid fear given the reality on the ground.
My response to this is simple: Laws often fall short of their aims, and if we’re worried they’re being ignored or going unenforced the trick is to actually enforce them, not impose new burdens. As the Becket Fund’s Eric Kniffin explained last year in a response to the academic version of Witte’s argument, a great deal is at stake:
Witte and Nichols’ essay is troublesome because it suggests that the free exercise of religion is something less than a fundamental — even inalienable — right. To maintain that Muslims “need to earn” accommodations for their religions convictions implies that free exercise is merely a reward for good behavior. Even worse, the observation that “Muslims simply do not yet have the same history of persecution that the Jews have faced in the West,” suggests that we provide kosher food to Jewish prisoners only out of guilt, not as a matter of principle.
The growing Muslim community in America gives us an opportunity to show we have learned from the sins of our past, to prove that we are not doomed to repeat them. Before Catholics “earned” their accommodations, the New York Constitution banned them from public office and Philadelphia mobs burned down their churches. Before Mormons “won” our respect, Missouri’s Governor Boggs ordered that the emerging sect “be exterminated or driven from the state if necessary for the public peace.” We can, and must, do better. To withhold accommodations from American Muslims until they prove they are “good Americans” not only humiliates them, it also dilutes our commitment to this most fundamental of human rights.
Even if one regards theories of universal natural rights with some suspicion, our particular constitution nonetheless accords a special priority to freedom of religion. While Witte perhaps agrees with much of this argument, it’s important to insist that no quarter can be given to anti-Sharia laws. Religious liberty is too fundamental and fragile an American principle to trifle with.
December 1st, 2012 | 6:11 pm
“Religious liberty is too fundamental and fragile an American principle to trifle with.”
In the US, it is quite under attack.
December 1st, 2012 | 7:03 pm
Mormons were persecuted partially because they were polygamous. while that doesn’t justify persecution it obviously had to be done away with for them to not be alienated from American society.
i’m not exactly hankering for anti-sharia laws at the moment but we should be wary of isolated Muslim communities becoming like what they have in London. I know Dearborn Michigan is probably the most commonly cited example, dunno a ton about it though. it’s clear to me though that the strictest interpretations of Islam don’t really gel well with any meaningful assimilation.
December 1st, 2012 | 7:05 pm
also i’m not aware of anything that’s being “withheld” from Muslims in this country at the moment…?
December 1st, 2012 | 7:09 pm
and i guess i don’t get what exactly this post is arguing. i don’t much care about anti-sharia laws because at the moment they don’t seem necessary. the idea that sharia within select communities is OK because it falls under “religious liberty” though is silly though, if that’s what’s being argued.
December 1st, 2012 | 7:22 pm
I am not sure which aspect of American religious liberty is at all threatened by making clear that no religious system of civil law may interfere with a citizen’s individual legal rights. The idea that Muslims citizens should be viewed by the law as Muslim first, and so subject to a special Muslim court, and Americans second, is the very erosion of religious, and civil, liberty we should protect against.
But i also think there is a little naiveté here about how much liberty is given to special religious groups. While the order to exterminate Mormonism is the extreme at one end, is not the belief that religious groups must accommodate themselves to the dominant majority in matters of moral and legal behavior also an extreme at the other end? We certainly didn’t think so when Utah was admitted to the union. The Mormon religious practice of polygamy was banned. Should we rethink that action?
The problem with religious liberty as an abstract absolute is that they don’t defend anything specifically, and cultures are defined by very specific things. Thus there are natural limits to the freedom that can be granted groups so that their freedom does not undermine the very culture in which that freedom is enshrined.
December 1st, 2012 | 7:25 pm
correction: While the order to exterminate Mormonism is the extreme at one end, is not the belief that religious groups must not be expected to accommodate themselves to the dominant majority in matters of moral and legal behavior also an extreme at the other end?
December 2nd, 2012 | 10:58 am
The difficulty with Shari’a is that it is not simply a religious code, but is actually the civil law in not a few countries.
Consider the case of two Algerian citizens, resident in Algeria, who marry there. By the law of Algeria, that marriage is potentially polygamous and can be dissolved by talaq.
The parties now come to reside in Oklahoma. Do we say that their “marriage” is simply void? Or, do we apply the marriage law of Oklahoma to determine their rights and duties, thus creating rights, rather than enforcing them and holding them to a bargain to which they never agreed?
December 3rd, 2012 | 7:56 am
I think there’s some errors in analysis here. In some Muslim countries Shari’a is the law of the land, which means that anyone Muslim or not must abide by that law if they are charged with a crime, have a civil lawsuit, or have some family matter like a divorce or custody suit. Opinions vary greatly about what that law should be. For example, chopping off a hand of a theif is done in Iran but is not done in other countries that consider themselves Shari’a.
The US does not have Shari’a law. It does have a lot of private law, though. Private law, in fact, is all over the place. When you hear that some NFL player has been ‘fined’ $50,000 for making racist comments that is happening under private law.
How are you subject to private law? By agreeing to it. When he signed his NFL contract, he agreed to abide by NFL rules which include things like fines for certain types of speech. The private law is public, though. Meaning if he refused to pay the NFL could sue him, take him to a public court and would win….even though such a law to fine people for speech could never pass the 1st amendment.
Religious communities do have private law systems. The Catholic Church has ‘cannon lawyers’ who help people address the church in things like seeking annulments. I once worked with a consultant who was an orthodox Jew who had a business dispute. He and the other party agreed to have the case heard by a Rabbinical court and abide by the decision. He lost the case and refused to pay because he felt it was unfair, as a result he has a judgement against him that applies in civil court.
Hence the problem with ‘anti-Shari’a’ laws. They are either moot or they violate both freedom of religion and freedom of contract. They are either a declaration of some sort saying the civil or criminal code of a state are not based on Shari’a principles of any type….which is moot since the legislature already said that by passing laws in the English or French traditions and system. Or they are saying that individual contracts will not be recognized if the parties entered into them for any type of religious reason. Which is actually quite anti-religious since it says a secular institution like the NFL can see its private law contracts be enforced by the state but not a religious one. Or it means your private actions may have less legal protection if a court deems they were done by particular religious motivations. The example from the other thread was a man who leaves his daughter less than his son in his will. If he did that because he didn’t like his daughter’s husband, that’s ok per ‘anti-Shari’a’ laws. If he did that because he may have converted to Islam and tried to make his will compliant with inheritance rules, then it can’t be enforced!
The parties now come to reside in Oklahoma. Do we say that their “marriage” is simply void? Or, do we apply the marriage law of Oklahoma to determine their rights and duties, thus creating rights, rather than enforcing them and holding them to a bargain to which they never agreed?
Michael PS can speak to this much more intelligently since he is an expert in just this type of thing, although I don’t know how familiar he is with US law. In general the answer I believe is it depends. Courts will recognize the marriage in cases of people who seem to ‘just be passing through’ but not if they are staying. For example, suppose a man with several wives is traveling through the US on business with his 2nd wife. He gets sick and has to go to the hospital. She probably would be given all the legal rights a wife would have in that case. On the other hand if he decides to settle down and buy property in the state, the courts probably would not let both of his marriages be recognized. This is how US courts handled interracial marriages in the days when some states had banned them. If a couple was ‘innocently’ just passing thru a state they were generally given an ok (back then it was illegal for an unmarried couple to share a hotel room….so interracial couples traveling could easily get caught up in a case). If they seemed to be trying to ‘make a point’ or using another state’s marriage laws to game their home states, they came down on them.
December 3rd, 2012 | 8:59 am
[...] the First Thoughts blog Matthew Schmitz cordially responds to my worry that the situation in Islamic communities is still too complex, and the commitment of [...]
December 3rd, 2012 | 10:13 am
Booton
In my illustration, I was supposing that the man had only one wife. Nevertheless, like all Algerian marriages, it is potentially polygamous.
Take a simpler example. Suppose a Saudi citizen, living in Saudi Arabia, but holding assets, such as a bank account or securities in the US dies. By what law are the succession rights to those assets to be determined? Will the US courts be debarred from looking at Saudi law (which happens to be Shari’a) to determine who are his heirs?
Currently, all countries, pretty well, agree that the law of the nationality or permanent domicile should govern succession to moveables, which, by-the-by, strikes me a simple and practical, especially in an increasingly globalized world, but with jurisdictional boundaries dating from the era of the horse and buggy.
December 3rd, 2012 | 12:43 pm
Michael PS,
I think that’s a very good question. I’m going to guess that either there’s some Federal law that might override all state laws in regards bank accounts and inheritance or banks incorporate themselves in states that have the most sensible laws regulating the accounts of the decased international customers. I would imagine the last thing JP Morgan or Citibank would want is to have to tell a Saudi family with millions in a bank account that they can’t release the funds of their dead father because their state has told them to not recognize inheritance laws from overeas.
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