Sympathy for Anti-Shari'a Laws: why we have to get it right

What the law says on paper does not always reflect what goes on in practice. A government can recognize rights in theory that it does not genuinely respect in reality – or that it does not have the power to protect. An ethnic or religious community can claim legal deference to its internal courts, on the basis that all of its members yield voluntary allegiance to those courts, without the allegiance of such members being genuinely free.

Take the fictional example of a Muslim woman who has immigrated to the United States with her family from Bangladesh. The woman speaks virtually no English and all of her best friends and closest family (aside from her husband) remained in the mother country. In the United States only a few years, the woman’s husband begins to abuse her her in various ways, physically, emotionally, sexually. He manipulates her by reminding her that if she seeks to divorce him he will win custody over their children based on the Shari’a derived prenuptial marriage contract they established and that American law has agreed to recognize as valid. The woman, a devout Muslim, recognizes that if she abandons the Muslim community she will lose everything that is dear to her, everything that she knows, including possibly her salvation.

Hard-nosed critics will point out that everything is fine. This woman has all the same rights and freedoms as do any other Americans. She can flee the Muslim community and find refuge in the hands of secular courts whenever she wants. We should not lose any sleep over her plight, or the plight of potentially thousands of women and children like her.

At 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 most Muslims to fundamental rights and freedoms still too weak, to merit the sort of deference to Shari’a courts that would make the above scenario possible. I’m grateful to Schmitz for his engagement of my post. As he puts it:

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.

Fair enough. One would think, then, that it makes sense to take the time to establish a mode of interaction between secular courts and Shari’a courts that is compatible with the enforcement of basic rights and freedoms and appropriate to the circumstances in most Islamic communities, right? As John Witte writes (in the paper Schmitz is worried about),

First, it takes time and practice for a secular legal system to adjust to the realities and needs of new religious groups and to make the necessary legal accommodations… Concessions and accommodations will come, but only with time, persistence, and patience.

Second, it takes flexibility and innovation on the part of the religious community to win accommodations from secular laws and cultures….

Third, religious communities, in turn, have to accommodate, or at least tolerate, the core values of their secular host nations if they expect to win concessions for their religious courts and other religious practices. No Western nation will long accommodate, perhaps not even tolerate, a religious community that cannot accept its core values of liberty, equality, and fraternity, or of human rights, democracy, and rule of law….

Finally, Muslim tribunals must become legally sophisticated and procedurally equitable to be both attractive to voluntary Muslim disputants and acceptable to secular state courts.

In other words, it takes time and care to get it right. Religious liberties do not trump other rights and freedoms that government is bound to protect, and if religious groups demand religious prerogatives, without credibly demonstrating that they will exercise those prerogatives consistent with a modicum of justice for the weak and vulnerable, the government should not readily yield to that demand.

Schmitz agrees that the law needs to be enforced, but is he open to the steps necessary to ensure that this will actually happen? He is focused on one objective, that of securing religious liberty. He understandably argues that religious liberty is so threatened in this country that we should take its side regardless of the group or practices in view, or of the dangers that might come with it. And I want to make it clear that I wholeheartedly agree with Schmitz in his skepticism about the anti-Shari’a laws passed in places like Oklahoma (and rejected by federal courts). I am not defending anti-Shari’a laws in this post. I do not think they are the way to go.

At the same time, I wonder of Schmitz is taking the dangers of accommodation to Shari’a law seriously enough. Just as importantly, I wonder if he is underestimating the threat that is posed to religious liberty itself if that liberty is widely used as a cloak for oppression and injustice. In short, if we don’t do the hard work of making sure Muslims use their religious liberty consistent with basic inalienable rights and freedoms, it is the cause of religious liberty itself that will suffer, not simply the persons who suffer because the law was not properly enforced.

To be clear, the point is not that Muslims are more guilty of certain crimes – such as spousal abuse -  than are other religious groups. The point is not that Muslims are morally inferior at all. The point is rather that Islamic communities have to go through a process, a process through which Jewish, Catholic, and other communities have already passed, to ensure that accommodations can be granted and yet the laws protecting people’s basic rights and freedoms still be enforced. Many Islamic communities have not yet demonstrated the commitment to fundamental liberties, or to the procedures necessary to secure those liberties, to merit the sort of deference that is ideal.

Schmitz is right that religious freedom has special priority in this country. But that doesn’t mean it justifies irresponsible deference, deference that is blind to the necessity of preserving fundamental procedures of justice. I know Schmitz would not accept religious liberty as a justification for crimes like child sacrifice or the freedom of conscience when it comes to abortion. In that sense it is not a trump card that can be played against other rights like the right to life or to due process of law. And those rights need to be protected in reality, not just on paper.

Religious liberty is indeed “too fundamental and fragile an American principle to trifle with.” That’s why we need to get it right.

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