Category Archives: Commentary

The Synod on the Family and the Developing World

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First World Problems?

Not long after his election, the new Pope explained why he had taken the name “Francis”: “Ah, how I would like a church,” he said, “that is poor and is for the poor.” It was refreshing: the Pope was going to change the basic terms of the conversation between the Church and the world. Instead of waging a grinding “culture war” against a secular West, the Church would instead speak to the most urgent concerns of the global East and South. The first Pope to come from beyond Europe and the Mediterranean basin promised to be the champion of those who lived in the parts of the earth where hunger, injustice and persecution abounded. Places like the Philippines, Mexico, and Nigeria had already become the true center of gravity of a global Church, displacing Quebec, Chicago, Milan and Vienna. The new Pope would speak for the populations of the emerging world – for their suffering, their desperation, their resilience, their energy, their sense of hope. The “North/South” polarity would supplant the “Left/Right” one. The Church would make the pivot to poverty. In making that turn, it would address the West too – but by awakening it from the deadly self-absorption of the affluent.

So when one learns that the Synod of Catholic cardinals and bishops summoned by the same Pope has returned the conversation to the culture wars of the West – though with unmistakable overtones of capitulation on many of the bishops’ part — it is, to say no more, a disappointment. Try as it may, the Church under Francis seems to be unable to resist scratching the sores of Western sexuality. The consuming obsessions of the West, now in the terminal phases of the sexual and cultural revolutions that have swept over it for more than half a century, are dominating the Church’s agenda once again. At the Pope’s insistence, the bishops did a reset, plunging the Church into renewed debate over divorce and homosexuality and cutting short the conversation that the Pope had earlier invited over famine, persecution and want. With Islamist terrorist groups like Boko Haram recently murdering 2500 Catholics in one Nigerian diocese alone, and with Christian children being crucified or cut in half by ISIS, you might think that the world’s bishops would have more pressing things on their mind than the compatibility of same-sex unions with Church teaching. You would, of course, be wrong.

Indeed, even considering “family” issues alone, the non-Western Church was short-changed: how much attention was given to the question of inter-faith marriages, despite its being a major concern for the Church in India? In the Philippines, many marriages break up because poverty forces a spouse or parent to migrate overseas in search of employment, leaving home, spouse and children behind. Philippine Cardinal Luis Tagle noted this problem, saying that poverty “goes right at the heart of the family” in his country ; but how much attention did this issue get?

What is more, the organizers of the Synod openly expressed their indifference to – if not contempt for – the opinions of the leaders of the non-Western Church. They spoke as if the opposition of the African bishops to their “modernizing” program could stem only from irrational hatred and prejudice. What the Africans needed, they seemed to be saying, was a good, stiff dose of Richard Posner’s writings. In the controversy over the initial draft of the Synod’s statement, Cardinal Walter Kasper, an octogenarian German theologian and a favorite of the Pope’s, infamously said:

Africa is totally different from the West. Also Asian and Muslim countries, they’re very different, especially about gays. You can’t speak about this with Africans and people of Muslim countries. It’s not possible. It’s a taboo. For us, we say we ought not to discriminate, we don’t want to discriminate in certain respects.

Kasper later denied having made those revealing remarks – a denial that was then proven to be false. In any case, the remarks hardly seemed out of character for the Cardinal. In an interview with the German magazine Focus published under the heading “Third World Land,” Kasper was reported to have said, “When you land at Heathrow you think at times you have landed in a Third World country.” The German Cardinal obviously notices different things when he is at the airport from what Cardinal Tagle does. The Philippine prelate spoke of his anguish in watching Filipino mothers at airports forced to part from their children because their poverty is so desperate that they must leave their families and search for work abroad.

Not Just Cardinal Kasper

Even if Cardinal Kasper’s statement were merely condescension on the part of the passenger with the first-class cabin towards the passengers in steerage, it would be bad enough. But Kasper and those like him simply did not seem to understand the position. Perhaps the Africans and Asians are not just squinting narrowly at the issue of homosexuality, but rather looking at the state of Western culture as a whole? And perhaps they do not like what they see? Perhaps the cultural exports of the secular West – its current practices regarding marriage, abortion, childbirth, the family, the relations between the sexes – are no more wanted in Africa and Asia than the West’s toxic wastes and sewage effluents? (New York Cardinal Dolan’s wonderful defense of the “prophetic” African Church effectively made these points. )

But the problem with the Synod went far beyond the tactlessness and incomprehension of elderly European churchmen. Apparently at the Pope’s insistence, the Synod’s final report included three controversial articles that had received the approval of a Synod majority, but not the supermajority required for consensus. The final report will now go to the Church throughout the world for discussion and debate before the Synod reconvenes. You can be sure that the media coverage of the debate in this intervening period will focus overwhelmingly on the articles that the Pope reinstated. Cui bono? In their effort to get the conversation back on the familiar tracks of the Western culture wars, the Pope and his bishops are doing serious harm to millions of faithful Catholics trying to live out the Gospel in hostile and often dangerous conditions in the emerging world.

My former student, Andrew Ratelle, makes the point forcefully:

By upholding the nuclear family, the Church made what was perhaps the most important social investment in history. People in the poorer, more pagan regions of the world where polygamy, polyandry, arranged and child marriages were common, now had a place to look for support when it came to building a life that was most beneficial for themselves and their children. By weakening this support, or at the very least dispersing it to include more “diverse” arrangements, these bishops have weakened the very shield from which the nuclear family has received so much protection. Even in our own country, where “diverse” familial arrangements have almost become synonymous with urban poverty and crime (at least for those who have no gilded safety net to fall into), where should families look to now, since the Church has seen fit to dilute the medicine they have thrived on for so long?

Church leaders in the developing world understand this perfectly well. South African Cardinal Wilfrid Napier, for instance, wondered how he could deny communion to an African man living in polygamy in accordance with local culture and tradition, if he had to administer the sacrament to a divorced man married to his second wife? “Successive” polygamy, Napier pointed out, is hardly distinguishable from “simultaneous” polygamy.

Pope Francis was right (at first): it really is time to change the conversation. The global Church is not the parochial Western Church; the Church of the poor and the marginal is not the affluent, greying Church of Western Europe and North America. The Church should not be shadowing the West’s cultural trajectory all the way downwards. The future of the Church lies elsewhere. Ex oriente, lux.

Photo from the Catholic News Agency.

More Questions on the Significant Harm to Third-Parties Establishment Clause Theory

In my last post on the subject, I wondered why there had not been more discussion on the part of advocates of the Significant Harm to Third-Parties Establishment Clause theory (abbreviated for convenience hereafter as SHTEC) regarding the application of that theory to the prison-beard case, Holt v. Hobbs. As Rick Garnett notes, the application of SHTEC theory to both Hobby Lobby and Holt v. Hobbs was recently addressed by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. I will rapidly pass over the characterizations of the existing doctrine, as Rick discusses some of this and I’ve talked about it before, except to observe that whatever virtues SHTEC theory may have, its status as an “established principle of constitutional law” seems an improbable one. As I have explained before, SHTEC theory represents a major extension of current law. I also read the Hobby Lobby vote breakdown differently. If Justice Kennedy really accepted SHTEC theory, and believed that third-party rights in Hobby Lobby would have been violated by an accommodation for Hobby Lobby, then it is confusing to me that he would have joined the Court’s footnote 37. But he did join it (and of course he also said some very nice things about Justice Ginsburg).

On the application of SHTEC theory to Holt v. Hobbs, and to RLUIPA prison cases generally, I have some additional questions. My principal difficulties are terminological. I am having a hard time understanding what constitutes “significant” or “substantial” harm to “third party interests” and how that standard works in tandem with the RLUIPA standard.

First, the standard of significance seems elusive to me. With a slight tweak of the facts, maybe this becomes clearer. Suppose that the prison had a “No hair on the face or head longer than 1/4 inch” policy. And suppose it had evidence that exactly one person (or two, or five) had hidden a shank or a SIM card in their hair. What is the relationship for SHTEC purposes between frequency of harm and gravity of harm? Are one or two such instances enough to be “significant” because the gravity of the threatened harm is so great? Whatever one may think of the harm to third parties in Hobby Lobby, that harm is less grave than the third party harm I am positing (assuming one can agree that harm to life is graver than harm to access to employer-paid contraception), but of course the number of incidents of harm is greater in Hobby Lobby than in my modified Holt v. Hobbs hypo. SHTEC theory advocates can respond that Holt v. Hobbs didn’t deal with any of that. And so what is really going on is a failure of evidence. That’s fine, but that side-steps the issue. I’m less interested in the particular state of the evidence here than in understanding how SHTEC theory would apply in even a slightly more difficult prison case (surely these would fruitfully multiply after a favorable ruling for the prisoner in Holt v. Hobbs).

Second, I have difficulty with the distinction between third-party harms and government/state harms. Is there such a sharp difference? Or is it in the end all harm of various kinds to the state (that is to say, harms of multiple and varying kinds to the rest of us who are not being accommodated)? It may be some evidence in favor of the latter that there have been no separate SHTEC claims brought in the context of RFRA or RLUIPA actions. Everything has been analyzed pursuant to the statutory standard. Again, that’s because third party harm might be a kind of compelling interest that ultimately constitutes a state interest under RFRA or RLUIPA. Whether it rises to that level will depend on just how severely it burdens third parties (as Caldor put it, those accommodations which “take no account” of third parties are going to be in hot water). But notice what happens if one layers a SHTEC claim on top of the RFRA/RLUIPA compelling interest standard. Now it seems that third party harm claimants are on an equal footing with religious claimants. Religious claimants must allege a substantial burden; third party claimants can then allege a contravening “significant” burden; with the result that the government need not accommodate the religious claimant, and can circumvent its obligations to come forward with a compelling interest, by pointing to the SHTEC theory violation that would result from religious accommodation.

Third, in addition to administrative harms (which were not argued by the state in Holt v. Hobbs), there may be, as I’ve said before, symbolic harms of various kinds at issue (the state didn’t argue these either…but the state did a fabulously poor job of defending this case). Symbolic harms might affect the prison, the inmates, and the rest of us who support, in various ways, the system of criminal justice. As I indicated in my previous post, these are just as much harms to identifiable interests as are financial harms. They might include harms with respect to the equal treatment of prisoners and harms to the state’s interest (that is to say, to our interests, as well as the prisoners’ interests) in imposing discipline and uniformity on prisoners who very much need it. These are true harms. They are part of the purposes and functions of prisons in general. They even implicate certain important functions of punishment, including retributivism and rehabilitation, functions of punishment that Congress itself has recognized as important in the Sentencing Reform Act, among other places. Surely many state legislatures have done something similar in their own penological systems. To my mind, they may indeed be very significant. The egalitarian harms could be resolved in part by leveling up for non-believers, but that leveling up is extremely likely to produce other harms (resentments among those who cannot come up with a reason of “conscience” as well as rising administrative costs as more and more prisoners seek exemptions of various kinds).

Fourth, a final point of puzzlement: why is there no discussion in SHTEC theory of different standards of deference in a case like Holt as opposed to a case like Hobby Lobby. Under existing law, there is no deference at all in the latter (the standard is one of strict scrutiny), while there is great deference to the state in the former. Indeed, one of the primary points of uncertainty in the oral argument in Holt was how to reconcile strict scrutiny with this substantial deference to prison administrators (cf. Grutter v. Bollinger). But I have not seen this difference in the amount of deference accorded to the state discussed by SHTEC theorists (I may well have missed it). Does SHTEC theory incorporate a deferential posture with respect to prisons (and the military, and perhaps certain other institutions)? It certainly could, and it seems to me that such deference would take the form of giving a great deal more latitude to the state (or to third parties) on the issue of what is “substantial” or “significant” harm. Perhaps Arkansas still loses in Holt v. Hobbs. But it shouldn’t take much more at all for it to win.

What’s Happening in Houston?

When I first saw the story, I dismissed it as a hoax. The City of Houston had served subpoenas on local pastors who had participated in a petition drive against a city ordinance, known as HERO, which prohibits discrimination against LGBT persons. The subpoenas demanded that the pastors turn over “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

What could justify such an intrusive request? Not only the pastors’ own statements – that would be troubling enough – but statements the pastors had revised, or approved, or just kept in their possession, about homosexuality and gender identity. And about the mayor herself. There must be more to the story, I thought.

It turns out there is a bit more to the story— but the episode is nonetheless very unsettling. When the city rejected the petition on the ground that the signatures were invalid, some opponents of HERO – not the pastors themselves – challenged the city’s decision in court. The city issued the subpoenas in connection with that litigation. The theory, as I understand it, is that because these pastors helped organize the petition drive and hosted meetings, the pastors’s statements about the petition are important. I guess the idea is that the pastors may have said something that induced phony signatures.

Now, given the rules of pretrial discovery, one must concede that there is some plausibility in the city’s argument – some. In an American lawsuit, attorneys can ask for all sorts of information before trial, even if that information is not strictly relevant to the litigation, as long as the information seems reasonably likely to lead to relevant and admissible evidence. This broad standard is meant to allow parties to uncover all the facts. So when the city says it would like to know what the pastors may have said about the petition drive itself, that’s not a completely untenable position, given the freewheeling rules of American pretrial litigation.

But there are other very important considerations. The broad standard for discovery can lead to so-called “fishing expeditions” that seek to harass and intimidate litigants and encourage them to back off. As a result, courts generally have wide discretion to reject requests for information that are overly broad and unduly burdensome to the opposing party. In a context like this one, which raises very sensitive First Amendment concerns, courts must be especially careful.

The pastors have moved to quash the subpoenas. They should and will likely succeed, largely if not completely. Indeed, in response to complaints, including from some defenders of LGBT rights, Mayor Parker and the Houston City Attorney have already indicated that they think the subpoenas are too broad and should be rewritten. (They blame the misunderstanding on pro-bono attorneys the city retained to handle the litigation.) Maybe the court will allow subpoenas with respect to statements directly related to the petition drive, but that’s as far as it’s likely to go. I wonder if the court will allow even that.

Still, even if these pastors succeed in resisting the subpoenas, significant damage has been done. It’s hard to see how this episode will not chill religious and political expression. Most people, quite rationally, want nothing to do with lawsuits and subpoenas. They don’t want to make legal history. The lesson they will draw from the episode is this: if you want to avoid trouble, don’t make politically-charged statements about religious convictions that the government doesn’t approve, even if you’re at a private meeting in your own church. In fact, don’t revise or retain such statements. Otherwise, who knows? You may one day have to lawyer up.

Stendhalian Interlude

I’m listening to Stendhal’s The Charterhouse of Parma in the car, a wonderful

Farnese Tower, Castell'Arquato, Parma

Farnese Tower, Castell’Arquato, Parma

work of novelistic “realism” set in the early 19th century world of Italian city-state court life. Stendhal’s portrait of these small time courts is none too flattering, but neither is its chief alternative: “From the whole business one can derive this moral, that the man who mingles with a court compromises his happiness, if he is happy, and, in any event, makes his future depend on the intrigues of a chambermaid. On the other hand in America, in the Republic, one has to spend the whole weary day paying serious court to the shopkeepers in the street, and must become as stupid as they are; and there, one has no Opera.”

The hero of the story, Fabrizio del Dongo, is a figure of perfect aristocratic early Romantic integrity–the sort of man who brashly leaves his suffocating palace life in Como to join the army of Napoleon, only to reach him right as the Battle of Waterloo is concluding. For Fabrizio, the only thing that matters is to get confirmation that he has actually participated in a battle–any battle–something about which he is never quite certain.

Since prisons and prison life (and even prison escape!) have been a subject of discussion here at the Center for Law and Religion Forum this past week, and since a large portion of the key section of The Charterhouse of Parma occurs in a prison (the Farnese Tower in Parma, at right), I thought the following was interesting. The prison warden, a General Fabio Conti, is a detestable person and fairly universally hated, including by many of the guards (to say nothing of the prisoners). At one point, it appears that he may have died by poisoning. But he revives. Yet rather than feeling crushed by the news, the prisoners sing his praises. Stendhal writes:

Fabio Conti was a jailer who was always uneasy, always unhappy, always seeing in his dreams one of his prisoners escaping: he was loathed by everyone in the citadel; but misfortune inspiring the same resolutions in all men, the poor prisoners, even those who were chained in dungeons three feet high, three feet wide and eight feet long, in which they could neither stand nor sit, all the prisoners, even these, I say, had the idea of ordering a  Te Deum to be sung at their own expense, when they knew that their governor was out of danger. Two or three of these wretches composed sonnets in honor of Fabio Conti. Oh, the effect of misery upon men! May he who would blame them be led by his destiny to spend a year in a cell three feet high, with eight ounces of bread a day and fasting on Fridays!

Podcast on Holt v. Hobbs

Mark and I have recorded another in our podcast series, this time on the “prison beard case,” Holt v. Hobbs, argued this week at the Supreme Court. We discuss the claim and the oral argument, and make some predictions. To get our other podcasts, click here.

The Armenian Church in Myanmar: A Follow-Up

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Photo from the BBC

A follow-up to last month’s post on the Armenian Orthodox church in Myanmar: This summer, the BBC did a lovely story about a 150-year old Armenian parish church in the city of Yangon, St. John the Baptist (above). Hardly any parishioners remained, the BBC said, maybe 10 people on a good Sunday. Most of the congregation were not Armenians, either, the Armenians having left Myanmar, with the British, decades before.

A small group of holdouts had continued to maintain the church, however, led by a priest, Father John Felix. Father John was not Armenian Orthodox, the story indicated, but Anglican. Nonetheless, the Armenian Church had, in an ecumenical gesture, invited him to use St. John the Baptist for the small number of faithful who remained, even though he had a very limited knowledge of the Orthodox liturgy. (Most of the parishioners had a very limited knowledge, too). Apparently he was starting to attract a following from among Christian believers of many communions.

The BBC got its information straight from Father John. It turns out, however, that he’s not really “Father” John at all. The Anglican archbishop says that John Felix was never ordained a priest, only a deacon, and that, for unspecified reasons, the Anglican Church no longer allows him to conduct religious services. How he ensconced himself at St. John the Baptist is a mystery. He apparently inserted himself a few years ago, after the last “full” member of the congregation passed away. The Armenian Church hierarchy seems not to have known about it. To be fair, they have many more pressing issues with which to contend.

This summer’s story drew a lot of attention. As I say, once the Anglicans found out about John Felix, they spread the word he wasn’t one of theirs. The story got noticed in Armenia as well. Last week, the Catholicos, or Patriarch, of the Armenian Church, Karekin II, visited Yangon to reconsecrate the altar and conduct a proper liturgy; a large crowd attended. The Catholicos also announced that henceforth an Orthodox priest from Calcutta would fly in on weekends to conduct liturgies at the church. As for John Felix, he’s indicated he intends to remain at the church and has refused to turn over the keys. The BBC says legal action seems likely.

The BBC has posted a video interview with John Felix. He seems like a nice enough man, and gamely tries to chant the Kyrie Eleison (in Armenian, Der Voghormia) to show his bona fides. But, if the BBC is to be believed, he’s been deceiving everyone for years. He has actually purported to conduct weddings and baptisms for unsuspecting parishioners. Is he well-meaning but misguided, or an out-and-out scoundrel? It’s impossible to tell. What a very strange story.

Dim Drums Throbbing, In the Hills Half Heard

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Today is the 443rd anniversary of the Battle of Lepanto

Holt v. Hobbs and the Third-Party-Harms Establishment Clause Theory

Readers may recall that during the course of the Hobby Lobby litigation, some contraceptives mandate supporters argued that religious accommodations that impose “significant” harms or burdens on third parties constitute violations of the Establishment Clause. In this post, I argued that this view of the reach of the Establishment Clause was not convincing. It was based on a misreading (and substantial extension) of the relevant case law but also on a controversial conceptual view of the permissible scope of religious accommodation that, I claimed, should be rejected.

Virtually all accommodations impose harms or burdens of some kinds on others, though both the nature and the degree of the harms will vary. Some harms are financial, others are symbolic, and still others are to value systems more generally. Some harms are acute and others are mild. Yet it would reflect an impoverished conception indeed of what is valuable in life to claim that only financial costs are real or cognizable harms: it simply isn’t true that the only way in which a person can be harmed or burdened is through the pocketbook. Some financial burdens may be much less harmful than some symbolic harms, and vice versa, depending on factors too numerous to list. Whether money is involved or not, choices to accommodate or not to accommodate are often choices between ways of life that specify totally different virtues, or if they specify the same virtues, weigh them completely differently. In Goldman v. Weinberger, for example, a choice to accommodate Goldman would have been a choice against the set of values that the military was bringing to bear, and there were many of them. Ultimately I disagree with the outcome in Goldman. But the reason is not that the military would not have been harmed at all by accommodating him. In fact, it’s only by ignoring, flattening out, or misdescribing the military’s interests and concerns that we can say that the only issue in the case was accommodating Goldman, and the military was simply being obtuse. Perhaps there are rare situations in which the costs on third parties are so small as to be invisible (O Centro?). But in the main, it is in the nature of these kinds of conflicts that when one side loses, so does its way of life to some greater or lesser degree. The Hobby Lobby majority discussed the third-party-harm theory briefly at footnote 37, where it made the point that if all that was required to invalidate a religious accommodation was that a law conferred a benefit on a third party, and consequently that the deprivation of that benefit would be a burden, then the effect might (depending on what exactly “significant” means) be to destroy RFRA and render many religious accommodations unconstitutional.

Now that Holt v. Hobbs is in the offing (argument is scheduled for today, I believe), I am curious why nobody is making the third-party harm claim. Perhaps it is because the degree of deference ostensibly due to prison authorities in the Arkansas system is so great. Still, I would have thought that for somebody who subscribed to the third-party-harm theory of the Establishment Clause, Holt v. Hobbs would present a far clearer case than Hobby Lobby in which there might be serious, or significant, or at the very least cognizable, or tangible, harms to third parties–and a class of readily or easily identifiable third parties at that. I am writing this in haste (for a much more thorough treatment, see this excellent student note by Taylor Stout, The Cost of Religious Accommodation in Prisons), but I can think of three:

1. Increased risk of prison escape, harm to other inmates, and harm to those who must be in physical contact with the prisoner. This is a particularly vicious prisoner, who has shown himself capable of very violent behavior using a knife. He slashed at a woman’s throat with a knife. And while in prison, he held a knife to another prisoner’s throat as a result of a religious dispute. Though Arkansas prisons do not themselves have experience with prisoners hiding weapons and other contraband in their facial hair (naturally, since they don’t allow beards) other state prison systems do (see page 25 and following of this brief). Again, I recognize that it is perhaps the total deference to prison administrators which makes this particular prison policy specially objectionable. But I would have thought that these sorts of harms—harms to the personal security and safety of other people in physical proximity to the prisoner—are not obviously less “significant” than the harms to third parties in Hobby Lobby.

2. Administrative and financial harm to the prison system. The administration of religious accommodations in a prison system is burdensome. It requires more decision-making, more exercise of discretion, more manpower in the monitoring of the exceptions, and therefore more cost. One can dismiss these costs as de minimis, or unimportant, but that seems to me a cavalier view that can be bought rather cheaply at a great distance (which is where most of us are privileged to live) from the actual operations of prisons.

3. Symbolic harm, including harm to the idea of equality in the treatment of prisoners. A prison’s legitimacy depends in part on treating its prisoners equally and fairly, without privilege or favor. Dissimilarity of treatment can breed resentment on the part of the “disadvantaged” prisoners and on the part of the prison population more broadly. Moreover, prisons have important interests in uniformity of treatment that go not to equality concerns, but instead to interests in order and discipline. Prisons are dangerous places. They are populated with people who have been convicted of crimes. Sometimes, as in the case of this particular prisoner, those crimes are extremely violent. Prisons therefore need systems to regularize and impose discipline on such people. It is at least a symbolic harm—but quite possibly much more than that—to burden the efforts of prisons to cultivate uniformity in the service of prison discipline.

To be clear, I believe that the prisoner should win in this particular case. But the reason is certainly not that the prison is simply being obtuse inasmuch as accommodations of this kind are harmless or nothing at all to it. Yet the absence of the third-party-harms theory of the Establishment Clause in general public debate has puzzled me. Setting aside the issue of the remoteness of the potential harms, the nature of the potential harms relating to accommodation under RLUIPA in a case like this goes to deeply important interests in personal and institutional safety—interests that do not seem categorically less important than those of the third parties at stake in Hobby Lobby.

On Christians and the Open Letter to the Islamic State

Recently, a group of more than 120 Islamic law scholars, many of them from very prominent institutions in the Sunni world like Cairo’s Al Azhar University, signed an Open Letter to the leader of the Islamic State (aka IS, or ISIL, or ISIS), Dr. Ibrahim Awwad Al-Badri (aka Abu Bakr Al-Baghdadi). The letter sharply criticizes IS, arguing that most of its actions violate Islamic law. Among other things, the letter rejects IS’s declaration of a caliphate; its conception of jihad; its persecution of non-Muslims, including Christians and Yazidis; its atrocities against women and children; its killing of journalists and aid workers; and its destruction of the shrines of the prophets.

The Open Letter is a welcome development and its authors and signatories deserve credit. Western observers often criticize Muslim leaders for their failure to speak out against Islamist groups like IS, since the silence of Muslim leaders can be taken as assent. The Open Letter makes clear that IS does not represent the totality of Islam and that its Salafist interpretations are not the last word in fiqh. It’s valuable to have a critique of IS from within the Islamic law tradition itself.

And yet, if one reads the Open Letter closely, one sees that its conclusions are not all that Western observers might hope. At the First Things site, Ayman Ibrahim explores some of the letter’s ambiguities. For example, the scholars criticize IS’s attempt to reestablish the caliphate, not because the idea itself is outmoded, but because IS is too small to assert worldwide Muslim rule. “There is agreement (ittifaq) among scholars that a caliphate is an obligation upon the Ummah,” the letter concedes. But a small group like IS cannot declare a caliphate all on its own. “In truth, the caliphate must emerge from a consensus of Muslim countries, organizations of Islamic scholars and Muslims across the globe.”

Well, what if IS ultimately does ultimately obtain support for its caliphate? Given the group’s meteoric success so far, perhaps IS feels optimistic and would like to give it a try. Would consensus make IS’s caliphate legitimate? And does the letter really mean to suggest that Muslims across the globe have a religious obligation to seek the restoration of some sort of caliphate? That’s certainly how it sounds. How about Muslims in the West?

Or take the treatment of Christians, a matter Ibrahim does not discuss. As most people know by now, IS has murdered or expelled Iraqi and Syrian Christians who refuse to agree to the terms of the dhimma, the classical Islamic law “agreement” in which Christians accept subordinate status and pay a poll tax called the jizya. The Open Letter sharply criticizes IS for these actions. “These Christians are not combatants against Islam or transgressors against it,” the letter protests, but “friends, neighbors and co-citizens. “

This defense of Christians from leading Muslim scholars is very helpful. But then the letter makes clear the Islamic law basis for the scholars’ critique: “From the legal perspective of Shari’ah,” it says, the Christians of Iraq and Syria “all fall under ancient agreements that are around 1400 years old, and the rulings of jihad do not apply to them.” As non-combatants, these Christians are subject to a smaller jizya than IS has assessed . This smaller jizya is a substitute for the zakat Muslims pay and is to be distributed among the whole population, including Christians on occasion, as a form of charity.

In other words, the scholars’ objection is not that IS has subjected Iraqi and Syrian Christians to the dhimma and imposed on them the jizya. Rather, the objection is that these Christians are already subject to the dhimma and that IS has no authority to impose new terms, and that IS is collecting the wrong form of jizya. To put it mildly, this reasoning is not likely to reassure Christians and encourage them to return to their homes — assuming those homes still exist.

Some readers will think I am caviling. But I really don’t think so. In law, reasons matter. As I say, the Open Letter is a welcome contribution to the debate over IS and the signers, some of whom have no doubt taken personal risk, deserve credit. But the reasoning of the letter — well, let’s just say it raises some serious questions.

Estrada and Boizelle on the Obama Administration and Religious Accommodation

In the latest issue of the Cato Supreme Court Review, there is a useful essay by Miguel Estrada and Ashley Boizelle discussing the upcoming Supreme Court term and some of the major cases that the Court will hear. As readers of the Forum are aware, one of these cases is Holt v. Hobbs, concerning a claim by an Arkansas prison inmate–who is serving a life sentence for burglary and domestic battery stemming from an incident in which he attempted to slash his girlfriend’s throat–that prison rules forbidding him to grow a 1/2 inch beard in accordance with his religious views violate the Religious Land Use and Institutionalized Persons Act. One interesting feature of the case is that the Solicitor General has filed an amicus brief on behalf of the prisoner. The authors comment:

Solicitor General Donald Verrilli filed an amicus brief in support of Holt’s challenge, calling the no-beard policy “religious discrimination” and “a substantial burden on religious exercise.” Interestingly, this brief was filed only a few months after the government’s reply brief in Hobby Lobby, which insisted that the requirement that employers provide their employees with no-cost contraceptives did not constitute a substantial burden on the religious beliefs of those employers. In the government’s view, prisons can advance their legitimate safety objectives in some other way that is more respectful of the inmate’s religious beliefs; the federal government, on the other hand, need not be troubled to accommodate the sincere religious beliefs of business owners.

The federal government’s differential treatment of these two cases is odd because RLUIPA was intended to make available to prisoners protections that replicate those available to the general citizenry under RFRA. Whatever the relationship between the two statutes, it would be bizarre if those whose liberty is restricted on account of proven antisocial behavior were better protected from the government’s incursions on their religion than members of the law-abiding public. Be that as it may, given the Supreme Court’s disposition in Hobby Lobby, we should not be surprised to see a ruling invalidating the no-beard policy as an unjustified burden on Holt’s religion.