The ‘Islam is different’ argument

[This is my last post serializing my just-published article, Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431 (2014); you can see the posts so far here.]

I have argued that many (though not all) of the things that are condemned as intrusions of Islamic law into American law are actually the applications of traditional American legal principles. Those who believe in equal treatment without regard to religion, I have argued, should extend to Muslims the benefits of those principles just as Christians, Jews and others can take advantage of those principles.

Some, however, have argued that Islam should not be treated the same as those other religions. One line of argument goes so far as to say (in the words of noted televangelist and political figure Pat Robertson) that “Islam is not a religion. It is a political system bent on world domination.”[111]

It’s hard to figure out exactly what the first part of this means. What constitutes a religion for legal purposes can be fuzzy around the edges,[112] but surely Islam — a prominent system of beliefs about God and God’s supposed commands to mankind — must qualify.[113] The argument, I assume, must be that Islam, though it is a religion, is not simply a religion but is also a political ideology and therefore loses its status as a religion for, say, religious accommodation purposes.

But that can’t be right. Many religions, especially many strands of Christianity, are “political system[s]” in the sense that they create an agenda for political action. The conservative Christian political program of Jerry Falwell, Pat Robertson, and others is one example.[114] The “liberation theology” followed by some liberal Catholics is another.[115]

Nor is this surprising. Religions often teach adherents that certain conduct (such as slavery, abortion or failure to help the poor) is against God’s will, morally wrong and a violation of the rights with which people are endowed by their creator. In such situations, many of the adherents and their leaders understandably think it imperative to implement those religious commands into secular law.

And, of course, many strands of Christianity seek “world domination” in the sense of seeking to have the world convert to that strand of Christianity (hence the Christian missionary tradition). That, too, is entirely understandable. If one believes that one knows God’s true will, and if one believes that following a particular understanding of God is the key to salvation, one might reasonably want to persuade everyone to embrace that understanding.

This doesn’t mean that Christianity and Islam are equally sound, morally or theologically. Most Christians and most Muslims would disagree with any such equation, thinking their religion to be better than the other. But whatever the difference between the religions, it can’t be that one is a “political system” and the other is not, or that one seeks “world domination” and the other does not.

Sometimes, one hears more specific objections to equal legal treatment for Islam, such as the argument that Islam does not respect religious freedom for other religions, and that if America became dominated by Muslims, then Christians and Jews would be relegated to second-class status. This is indeed true of many Muslim countries, where conversion from Islam to another religion is criminally punishable, theoretically by death.[116] Likewise, in Saudi Arabia, Christian churches are not allowed to publicly operate.[117]

But nothing in the First Amendment limits its protection (including its protection against discrimination based on religion[118]) to those who support religious freedom. People who support punishment for blasphemy — as many American Christians had in the past[119] — are protected by the First Amendment. Pre-Vatican-II Catholics who believed that the religious freedom of non-Catholics could properly be restricted were nonetheless protected by the First Amendment.[120]

People who want to set up Christianity as an official state religion are protected by the First Amendment.[121] So are people who overtly call for constructing a “theocracy” that “denies the religious liberty of the enemies of God.”[122]

People who want to restrict speech that the First Amendment has been held to protect are likewise protected by the First Amendment. So are people who want to ban guns. So are people who want to abolish private property.[123] So are people who want to ban abortions.

So are people who want the government to discriminate based on religion or race — discrimination that would very likely be seen by courts as unconstitutional — including those who want the government to discriminate against Islam.[124] So are people who want to ban homosexuality (contrary to the Supreme Court’s interpretation of the Constitution). Neither the freedom of speech nor the freedom of religion is limited to people who believe in values that are compatible with American constitutional guarantees.

Of course, when people try to turn their beliefs into actions, the law may well intervene. If legislators, whether Muslim or Christian, enact a blasphemy ban, it will be struck down.[125] If citizens, whether Muslim or Christian, decide to attack blasphemers, they will be guilty of assault and should be criminally punished.

Even if they try to claim a religious exemption from assault law, they will lose, because granting the exemption will undermine the compelling government interest in protecting the victims of the assault. The same is true if extremist Christians or Jews read Leviticus as calling for private violence against adulterers, homosexuals or blasphemers.[126]

But having wrongheaded or even dangerous beliefs doesn’t strip people of their other rights. Say someone feels a religious obligation to wear religiously mandated headgear, whether a Jewish yarmulke, a Catholic nun’s habit, a Sikh turban, an Orthodox Jewish woman’s headscarf, or a Muslim woman’s headscarf, and therefore claims an exemption from a no-headgear rule. That person’s exemption claim is judged — and should be judged — without regard to whether the rest of the person’s religious beliefs are considered good or bad.

* * *

Generally, our legal system has long reached sensible results when it comes to accommodating religious believers. It has generally accepted modest claims to exemptions. It has generally accepted most manifestations of freedom of contract and freedom to dispose property by will. It has generally left people at the local level free to engage in democratic self-government, including in places where religious minorities have political power. At the same time, it has generally rejected excessive claims, or claims that unduly interfere with others or with the interests of society as a whole.

Our legal system’s recent interactions with Muslim claimants have largely followed the same pattern. Our traditional legal rules can function just as well in the coming years, whether as to Muslims or as to others, so long as the legal system subjects Muslims to the same rules under which Christians, Jews and others live.

* * *

[111]. The Ed Show with Ed Schultz (MSNBC television broadcast Dec. 20, 2011); see also William J. Dell, Our Constitutional Republic: Seeds of Birth – Seeds of Destruction 156 (2011); JR Dieckmann, Islam Is Not a Religion, It Is Foreign Law, Canada Free Press (Sept. 1, 2010), http://www.canadafreepress.com/index.php/article/27211.

[112]. See generally Jesse H. Choper, Defining “Religion” in the First Amendment, 1982 U. Ill. L. Rev. 579; Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 Cal. L. Rev. 753 (1984).

[113]. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (characterizing Islam as a religion protected by the First Amendment); Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985) (likewise). Indeed, Pat Robertson’s statement came a few sentences after he had called Islam a “violent religion,” which seems to admit that it is a religion (though the other sources I cite do not make such an admission). The Ed Show, supra note 111.

[114]. See generally Susan Friend Harding, The Book of Jerry Falwell: Fundamentalist Language and Politics (2001).

[115]. See generally Gustavo Gutiérrez, A Theology of Liberation: History, Politics, and Salvation (Sister Caridad Inda & John Eagleson trans., 15th ed. 2012).

[116]. See U.S. Dep’t of State, Challenges to Religious Freedom and Executive Summary of Individual Country Reports 2 (2011), available at http://www.state.gov/documents/organization/172440.pdf (“[B]lasphemy and conversion from Islam, which is considered apostasy, are punishable by death in Afghanistan, Iran, Pakistan, and Saudi Arabia.”).

[117]. See U.S. Dep’t of State, International Religious Freedom Report for 2012: Executive Summary 4 (2013), available at http://www.state.gov/documents/organization/208324.pdf.

[118]. See Lukumi, 508 U.S. 520; Larson v. Valente, 456 U.S. 228 (1982).

[119]. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Zeisweiss v. James, 63 Pa. 465 (1870); Commonwealth v. Kneeland, 37 Mass. (20 Pick.) 206 (1838); State v. Chandler, 2 Del. (2 Harr.) 553 (1837); Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824); People v. Porter, 2 Park. Crim. Rep. 14 (N.Y. Ct. Oyer & Terminer 1823); Jared W. Bell’s Case, 6 N.Y. City Hall Rec. 38 (Ct. Gen. Sess. 1821); Commonwealth v. Murray (Phila. Mayor’s Ct. 1818), reported at Law Intelligence, Franklin Gazette, Nov. 17, 1818, at 2; People v. Ruggles, 8 Johns. Cas. 290 (N.Y. Sup. Ct. 1811).

[120]. “Catholic support for religious freedom was a historic reversal of the Catholic Church’s traditional view that ‘error has no rights.’ Prior to Vatican II, there was little religious freedom in Catholic countries.” Robert F. Cochran, Jr., Catholic and Evangelical Supreme Court Justices: A Theological Analysis, 4 U. St. Thomas L.J. 296, 307 (2006) (footnote omitted).

[121]. This includes 32% of respondents in an April 2013 poll, who said they favored “a Constitutional amendment which would make Christianity the official religion of the United States,” and 34% who said they favored “establishing Christianity as the official state religion in [their] state.” YouGov, Omnibus Poll, Huffington Post, http://big.assets.huffingtonpost.com/toplines_churchstate_0403042013.pdf (last visited Sept. 22, 2013); Emily Swanson, Christianity as State Religion Supported by One-Third of Americans, Poll Finds, Huffington Post (Apr. 6, 2013, 9:19 AM), http://www.huffingtonpost.com/2013/ 04/06/christianity-state-religion_n_3022255.html.

[122]. See Gary North, The Intellectual Schizophrenia of the New Christian Right, 1 Christianity & Civilization 1, 25 (1982):

So let us be blunt about it: we must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will get busy in constructing a Bible-based social, political, and religious order which finally denies the religious liberty of the enemies of God. Murder, abortion, and pornography will be illegal. God’s law will be enforced. It will take time. A minority religion cannot do this. Theocracy must flow from the hearts of a majority of citizens, just as compulsory education came only after most people had their children in schools of some sort.

[123]. See, e.g.,Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982); Communist Party of Ind. v. Whitcomb, 414 U.S. 441 (1974).

[124]. See, e.g., Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43 (1977).

[125]. E.g., Kalman v. Cortes, 723 F. Supp. 2d 766, 806 (E.D. Pa. 2010).

[126]. See Leviticus 20:10, 20:13, 24:16.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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