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.