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The bishops, their allies, and religious freedom for Muslims

One response many people had to the USCCB statement "Our First, Most Cherished Liberty" was that the list of examples of current and recent threats to religious freedom in the United States seemed narrower than it could and should have been. In an article posted to our website on Thursday, "Not a Muslim Issue? What's Missing from the Bishops' Statement on Religious Freedom," Gregory Metzger writes, "One phenomenon [the bishops] might easily have mentioned is the rise of 'anti-sharia' laws in the United States." There have been a number of attempts to restrict the supposed application of "sharia law" in American courts, which are part of a broader effort to resist the alleged Muslim plot to tear down American freedom from within. Targeting Muslims in this way is plainly an attempt to curb their religious liberty; where these laws succeed, they also threaten religious liberty in general. Metzger notes that many supporters of the bishops' recent campaign against the HHS contraception mandate have also protested the rise of anti-sharia legislation:

The Becket Fund for Religious Liberty, arguably the organization most in line with the bishops objections to the HHS mandate, has been on the record for years in strong opposition to anti-sharia rhetoric and laws. In 2010, the funds Asma Uddin wrote that these laws reflected political advantage-seeking and fear of Muslims and were infecting segments of the national political discourse, despite [their] inherent absurdity.

However, allies of the bishops in the fight against the mandate are also among those promoting anti-sharia laws. Metzger cites the Thomas More Law Center, which has been outspoken in its opposition to the HHS mandate -- and which is handling a lawsuit on behalf of Legatus, as Cathleen Kaveny noted earlier this month. The TMLC also alleges on its website that "Radical Muslims and Islamic organizations in America take advantage of our legal system and are waging a 'Stealth Jihad' within our borders. Their aim is to transform America into an Islamic nation." The TMLC's highly selective view of religious liberty is a poor partner for the bishops in their fight. As it happens, the day after we published Metzger's article, the Becket Fund issued a challenge to the TMLC in a press release: "Religious Liberty Is Everyone's Right -- Not Just Christians." The statement, signed by William P. Mumma, Mary Ann Glendon, and Robert P. George, is a response to a pugilistic tweet from the TMLC's Director of Mission Advancement, Tom Lynch: "Believe Islam a religion, then support the Becket Fund. Believe it will destroy US, then supt" Awkward for the Becket Fund, which is a member of the "Coalition to Stop the HHS Mandate," a group that has been organizing "Stand Up for Religious Freedom" rallies. The TMLC's president, Richard Thompson, delivered an alarmingly militaristic (and anti-Islamic) [removed; that's going too far] speech at a recent "Stand Up" rally, as Metzger notes in his article. The TMLC promotes this speech on its website, quoting some of Thompson's applause lines, including "Peace is not our goal. Righteousness is our goal. It is our duty to resist." As Metzger argues, bedfellows like this can only damage the bishops' credibility and compromise any genuine effort to protect religious liberty. The Becket Fund's stand is a necessary one and a welcome one.

About the Author

Mollie Wilson O'Reilly is an editor at large and columnist at Commonweal.



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I think the possible imposition of Sharia law is a good example of why the idea of unlimited religious "liberty" of all kinds is worrisome, at least to me.

Good for the Becket Fund. it does partial dissent. Would that the Radical Orthodox understood that that can happen.It used to be that partial dissent from one's own political party was considered a virtue. It was called bipartisanship. Now partial dissent doesn't have a chance. Politician A (say Senator Lugar) works with opponent (say Sen. Kennedy) to present a bill supporting child health. Radical Republicans then accuse Sen. Lugar of disloyalty and run somebody against him in the next election. Sen. Lugar loses his place in the Senate. Or Rep. Stupak works with some Dem. representatives to get the ACA passed, and he is trashed by his own party and the Radical Democrats.Or a foundation works with another foundation for a common goal, but not for all goals.I guess that's what "radicalism" is == refusal to see that someone who generally often agrees with us can honorably partially disagree. "You're either for us or against us." That's what tribalism is too.

Metzger says: "Currently more than a dozen states are considering legislation to ban courts from considering what these lawmakers rather simplistically characterize as 'sharia law.'" ------------What is the preferred term?Are any of the non-Muslim proponents or critics of the laws that bind Muslims able to read the language in which they were written? If not, why do they presume to tell anyone else what to think about the rules and goals of Muslims? Catholic bishops read Arabic? Which Muslim scholars instruct Catholic bishops about the tenets and goals of Islam? Which Catholic theologians are capable of understanding Islam and explaining its history and its beliefs and goals to other Christians?Which specific laws adhered to by Muslims most alarm Christians? What is the overarching goal of Islam? What is the current pope's attitude to Islam? Perhaps the bishops have been instructed to say little about Islam in their current crusade. We know of the previous pope's views from a book review written in 1996 by John McCloskey of Opus Dei: "Islam has on several occasions in past centuries almost conquered the Christian West through a combination of aggressive and coercive proselytism and bloody jihads. John Paul II wants to make sure that it does not happen again." (If anyone is unfamiliar with Fr. McCloskey, the blurbs written for his book will be informative: )

As part of the Opinionator column in the New York Times, Stanley Fish published a column titled "Serving Two Masters: Shariah Law and the Secular State" (dated October 25, 2010).His column generated 344 comments.So he then published a follow-up column titled "Religion and the Liberal State Once Again" (dated November 1, 2012), which generated 185 comments.His two columns show just how complicated the legal debate regarding Shariah law in the United States is.

Ann Olivier: Have you read E.J. Dionne's lengthy editorial titled "Conservatives used to care about community. What happened?" in the Washington Post today?He discusses the recent demise of bipartisanship, which you also mention.

If "sharia" refers to the whole group of laws held by various Muslims, then no doubt there are inconsistencies within that whole mass of laws. The problem for the U. S. is are the Muslim laws adopted by American Muslims consistent with American law? And, of course, that is also a mass of laws, both federal and state.We have recently seen conflict between Catholic Canon Law and American law in the sex scandal. Philadelphia seems to be showing that American law takes precedence. Msgr. Lynn defends himself by saying, "I was only following the rules". But those rules were the rules of the Church, which did not -- and still do not -- require reporting all cases of child abuse to civil authorities.

"Are any of the non-Muslim proponents or critics of the laws that bind Muslims able to read the language in which they were written? If not, why do they presume to tell anyone else what to think about the rules and goals of Muslims?"I've lived in sharia countries where women definitely had second class status and their rights were subordinated to their husband's or father's. I couldn't read the laws in arabic, but my neighbors told me it was sharia that barred a woman from marrying a non-Moslem, from divorcing her husband or from inheriting real estate. I was told also that it was sharia that permitted a man to have up to 5 wives, but a woman only one husband. It was sharia, I was told, that requited a woman to veil herself, though men were not required to wear veils. "I am comfortable saying such laws are wrong and should not be enforced.

Sharia law is unfair not only to women but also to LGBT people. It's becauae of this and other reasons that the European Court of Human Rights determined that "sharia is incompatible with the fundamental principles of democracy" wikipedia)

Agree, Irene and Crystal.---Council on Foreign Relations backgrounder on Sharia mentions various issues, including FGM. On Earth looks good, judging by the publisher, the reviews, the notes, the index, and the few bits I've read.

Until recently, and maybe still, the city of Miami Beach had a rabbi on the public payroll to make sure the kosher restaurants in town were really kosher. That example of accommodation never hurt, and may have helped, the corned beef at Wolfie's.

Islam has on several occasions in past centuries almost conquered the Christian West through a combination of aggressive and coercive proselytism and bloody jihads. John Paul II wants to make sure that it does not happen again. To reduce John Paul II's relationship with Muslims to this statement from Father McCloskey really distorts his record. He made great efforts to improve Catholic-Muslim relations. Yes, he was very concerned that fundamentalism was a threat to Christians living in the Middle East. But he was also a great believer in dialogue with Muslims, and traveled to many parts of the world to encourage it. He saw marked differences between the Christian and Muslim understanding of God, but also said, "the religiosity of Muslims deserves respect. It is impossible not to admire, for example, their fidelity to prayer." Benedict XVI's tack differed from John Paul's, but in recent years he too has endorsed Catholic-Muslim dialogue, participating in the Common Word initiative.

From these comments it would appear that some would approve of the "anti-Sharia" laws that Thomas More Law Center and others favor. I hope people will read my article and consider what these "anti-Sharia" laws are really all about. I think if they do they will understand why the Becket Fund, together with the ACLU and most other groups considered about the first amendment, are opposed to these laws. The reason why I say "simplistically characterize as Sharia law" is that there is not easy definition of what someone means by Sharia law. What is being tapped into by proponents of these anti-Sharia laws is the extreme version of Sharia envisioned by Jihadists and indeed enforced in some Muslim countries. Of course, I would and the Becket Fund would want to see legislation opposed to any extreme laws that would discriminate against women. But that is not at all being threatened to happen in the United States and under the guise of fighting those draconian types of Sharia law, the proponents of anti-Sharia legislation are engaged in a thinly veiled attempt to discriminate against Muslims. These are direct threats to religious freedom and the BIshops should be clear in opposing them. To do so in no way means that they would actually be favoring extreme Sharia law for America.

Gerelyn, Crystal, Irene--there is no threat of laws of the type you are referring to being brought into American courts. We can continue to make that happen without these "anti-Sharia" laws, which as the two courts have already ruled are clear violations of the first amendment. I agree that the Council on Foreign Relations backgrounder is helpful reading.

Crystal--Nothing I say here is an endorsement of all that the Becket Fund does. I just happen to believe that the Becket Fund is right on this issue, as is the ACLU. I am also sure that the Becket Fund is far more consistent in its concern for religious freedom for all Americans than is the Thomas More Law Center. That is my main point.

Paul: It could be a mistake to underestimate the importance of McCloskey or the reliability of his comments. And it could be a mistake to think John Paul's long-range and in-depth plans were laid out for all to see. Diplomacy at the highest level is secret. Just one example: remember when Pio Laghi of Opus Dei brought a letter from Pope John Paul II to President Bush on the eve of the Iraq war? What did the letter really say? I see what you mean by "simplistically". Agree that laws as detailed as those that bind Muslims cannot easily be characterized. But your assurance about what "is not at all being threatened to happen in the United States" is not convincing, imho, for the same reason. Agree that anti-Sharia laws won't/can't work. Again, for the same reason. Too complicated. When scholars within the religion/culture cannot agree on the interpretation of the rules God gave Muslims, expecting state legislators or bishops -- Catholic, Mormon, Methodist, etc. -- to do so is absurd.

Is there any strong Muslim-American group that can speak to the rest of us Americans about what "sharia" usually means to them and how that belief relates to American law? This is a good teaching moment for them.

I don't think it actually matters what Sharia law mans. We in the west have spent centuries disentagling the law of the land from religious laws. In a country like ours, one that is religiously pluralistic, I can only imagine the chaos, the fracturing, and the ghetto-ization that would accompany allowing each different religious group to live by different laws. The only thing that can really work in a religiously diverse democracy is to keep church and state separate. This doesn't mean a secular state imposing its will on religious believers: religious believers are the very voters who help make the laws we live by. And this doesn't mean there is no religious liberty - John Courtney Murray SJ worked for exactly this kind of religious freedom. I don't know very much about Islam, but seeing my own church put incredible time and money into trying to impose its beliefs on everyone in the country, whether they are Catholic or not, doesn't exactly inspire confidence in allowing religion to define law.

Greg, I completely agree that the targeting of a specific religious group, which this appears to be, is wrong, and thus, anti-Sharia laws, so formulated, should be resisted. However, I share Crystal's concern that in some cases religious law would be privileged over civil law, which you suggest in writing, "American courts have traditionally allowed such religious understandings to have a place in arbitrating disputes in areas like marriage, divorce, and charitable giving." Are there cases in which civil laws arbitrating, for example, divorce and marriage have been subordinated to religious laws? Or, to use Ann's example, should we be worried about civil law being subordinated to canon law in the reporting of abuse cases? How does this work in practice? I honestly don't know anything about how this works in a courtroom. My concern, though, is: If, as you seem to suggest, there is absolutely no reason to worry that any religious law would ever trump civil laws protecting the rights of individual citizens, then the anti-Sharia campaign is discriminatory by way of being unnecessary, but, then, any pro-Sharia/pro-religious law "religious freedom" campaign would also be irrelevant.

I agree these anti-sharia laws are aimed at further discrimination against Muslims. I don't see how one can forcefully object to them, though, without at least implicitly defending sharia.And is sharia defensible? What would be considered "moderate" sharia countries and how do women and religious minorities fare in those countries? Do they have equal status and equal protections?And also, I wonder, for Muslim-American girls who might currently be subject to sharia-imposed restrictions by custom and culture, is it helpful to them if the rest of us defend sharia? Are there any womens advocacy groups joined in the opposition to the anti-sharia laws?This just sounds a little like a rock and a hard place to me.

Irene Baldwin: You mention Muslim-American girls in one sentence. But in the next sentence, you ask, "Are there any women's advocacy groups joined in the opposition to the anti-sharia laws?"However, if there are any women's advocacy groups in the United States that are concerned about Muslim-American girls being subjected to sharia-imposed restrictions and customs, then I would expect those women's advocacy groups to be opposed to sharia laws and customs.If this were the case, then those groups might NOT be "joined in the opposition to the anti-sharia laws."On the contrary, those groups might be joined in supporting the anti-sharia laws.But perhaps I do not understand your statements.

It's a mistake to talk about "sharia" as though it were a single thing -- and as though the choice is between banning sharia from having even a limited role in U.S. courts (as other religious commitments do) or consenting to a government shaped by Islamic law. There is no danger of the U.S. converting to a "sharia country" -- nothing like that understanding of "sharia" is operative here. But that is the kind of confusion that anti-Muslim fear-mongering depends on -- give them an inch and they'll make your women dress in burqas! Ann Olivier asked if there is a "strong Muslim-American group" that can clarify what "sharia" means in the context of U.S. citizenship. the Council on American Islamic Relations (CAIR) came to mind -- here's an informational flyer their Oklahoma branch put out in response to the anti-sharia legislation in that state. But I'm not sure there's a lot of public interest in a strong, reasonable Muslim-American voice. Google "CAIR + sharia" and most of the results are websites claiming to expose the lies and radical intentions of those mendacious Muslims.

1. Campaigning "against Sharia" is campaigning against Islam. Sharia isn't a law. Sharia is a code of laws derived from Muslim norms. Some of those norms are likely quite compatible with western civilization, many not so much. Our constitution ALREADY prohibits the implementation of a patently religious system of laws, so in that light, imagine if someone were to campaign for a constitutional amendment banning the implementation of Talmudic Law or Natural Law or Canon Law -- you would be annoyed (Anne Olivier especially) because, you know, sometimes Aquinas makes sense and shouldn't be kept out of the law JUST BECAUSE what he came up with was nakedly Catholic. The only reason why banning "Sharia" gains traction is because it is the religious code of a disfavored group. 2. The difficulty with enacting this amendment is that there might be some people who privately through commercial contracts or estate planning documents want their rights to be judged in light of Islamic standards. There might be some reasons why some of these contracts would not be upheld -- for instance, prenuptial agreements in cases where the welfare of children is being adjudicated. But the notion that the kind of agreement we might routinely enforce, no matter how harsh it seems, for instance, prenuptial agreements, would be unenforceable BECAUSE they are implementing Islamic norms is to enact a discriminatory standard when it comes to Islam.3. There are close knit religious communities that use coercion to force women, in particular, to adhere to religious adjudication of their rights. In the U.S., this is basically an Orthodox Jewish phenomenon. If you want to see how that works out for the weaker among us, go read the NYT articles on abuse reporting in Orthodox Jewish communities in Brooklyn. All similarities to abuse reporting that was affected by notions of Canon Law are, I am sure, purely coincidental. We don't need amendments prohibiting Sharia law. We need better enforcement of the constitutional standard we already have prohibiting the establishment of religion by secular authorities.

"But that is not at all being threatened to happen in the United States and under the guise of fighting those draconian types of Sharia law, the proponents of anti-Sharia legislation are engaged in a thinly veiled attempt to discriminate against Muslims. "Why am I reminded of an earlier thread, where a conservative Catholic was chided for thinking he could divine the motivation of those he disagreed with? Is it not possible that those who disagree with us simply see the danger differently? Perhaps, even, more clearly?

Specific concerns about Sharia aside, what does it mean in practice for any religious commitment to have "a limited role in U.S. courts" that is not simply redundant vis-a-vis the protections and penalties already mandated by civil law? Do "religious laws" only come in concerning matters where civil law refuses to claim jurisdiction? Are there any examples of a direct conflict between civil and religious law where the latter is preferred over the former? Are there examples where we might want the latter to be preferred over the former? What's at stake in preserving "a limited role" for religious commitments in U.S. courts?

Eric:The only area that I can think of is those situations in which opponents in religious disputes seek judicial resolution. That might be, for instance, the current conflict over the disposition of church assets between members of an Episcopal parish where parish members might claim a superior right of title as against the ECUSA. There might be no way to adjudicate that without resorting to some of the religious norms that underlay the relationship between the parish and the larger church organization. If that were to be the case, "church law" would be proven the way "foreign law" is proven in a U.S. court: through the use of expert testimony. It would serve not so much as a "religious" finding, as a finding based in customs or norms that formed the parties' expectations.

But that is the kind of confusion that anti-Muslim fear-mongering depends on give them an inch and theyll make your women dress in burqas! ------Is exaggeration helpful? (Just as in the mosque discussions two years ago, there seems to be a lot of anger by those who know little or nothing about Islam at those who know little or nothing about Islam.) Good editorial in the NYT this morning:

Gerelyn, you ask: "Which Catholic bishops read Arabic? Which Muslim scholars instruct Catholic bishops about the tenets and goals of Islam? Which Catholic theologians are capable of understanding Islam and explaining its history and its beliefs and goals to other Christians?"Melkite, Maronite, Chaldean and other Eastern Catholic bishops speak and read Arabic as their mother tongue. Musllim scholars and Catholic theologians here in the United States participate in the three regional Catholc-Muslim Dialogues (East Coast, West Coast, Mid-West) sponsored by the U.S. Conference of Catholic Bishops. One of our auxiliary bishops here in the Archdiocese of Detroit (with the largest Muslim community in the U.S. - some 300,000 -- and a large Chaldean (Iraqi) Catholic community as well) is the co-chair of the Mid-West Catholic-Muslim Dialogue. A Muslim scholar is the other co-chair. All this is to say that our Church takes informed, professional, mutually respectful dialogue with Muslims seriously, as called for in the Vatican II document, Nostra Aetate.

Thanks, Barbara. In such cases, it seems that the religious community is inviting the secular legal community to resolve its internal disputes. While the secular court might listen to the testimony of certain (court-recognized) experts on the specific religious norms governing the situation, would the court still not serve a regulatory function in determining whether those norms can be accommodated by civil law? In short, this is a case where a religious community is seeking an ostensibly "neutral" arbiter, and thus, the religious parties are willingly submitting to secular oversight. So, this is a case where the "limited role" of religious commitment is helpful in defining the problem before the court, but not in resolving it. I get the sense that some here want religious commitment to have a more dispositive role to play in arbitrating disputes, but I don't see how this is possible given the prohibition of establishment that you, in my opinion, rightly affirm.

Thanks, Michael. Glad to know so many bishops are fluent in Arabic and informed by Muslim scholars. (Do you think Roman Catholic bishops should be more forceful about including Muslims in their crusade for religious freedom? The former Archbishop of Canterbury Rowan Williams did not hesitate to speak out about the unavoidability of adopting certain aspects of sharia.)I guess I was under the impression that Maronites spoke Aramaic:"If you are interested in establishing a good relationship with God or interested in enhancing your relationship with God - consider the Maronite Catholic Church as a good spiritual portal. The roots of the Maronite Church are traced back to ancient times when Christ walked the earth and to this day the Church continues Christ's Aramaic language in Liturgies and other celebrations."We are a Catholic Church following the Eastern Rite. If you are already Catholic we invite you to come and experience the EASTERN Rite. We offer the same Sacraments (Mysteries) with an older tradition. You lose nothing by sharing the experience with someone you know of who may be in search of renewal of his/her faith. As Pope John XXIII indicates, you may even find the "Treasure" worth the effort."

Eric, these can present some seriously difficult issues. When two parties differ on the interpretation of religious norms or ostensible requirements, the difficulty with calling in secular judges is that, even if the secular judge is being asked to provide an answer, he has no authority with respect to the religious doctrine that he (or she) is being asked to implement. All the court can do is adjudicate a war of experts that and try to credibly adduce what people anticipated or expected such that is what they "agreed to" within the meaning of civil, secular contract law. You see the impossibility at the heart of the problem: the judge has no status as a religious arbiter and either party has a constitutionally protected right to "reject" his oversight on religious matters even if they originally sought it out. That's what it means to have a constitutionally protected right to worship free of state interference. Thus, the judge can ONLY rule within the contours of the secular authority he has been granted under law. Here is an article that lets you link to the 113 page decision involving the historic churches at the heart of the Episcopalian dispute: most obvious case in which contractual agreements will be superseded are those that affect children who were not parties to the contract. They might also be overridden in the area of divorce or inheritance where someone (a spouse) has residual statutory rights that guarantee a minimum inheritance share. These statutes basically permit the spouse to "take" under the law or under the will. (Remember, the spouse is not a party to the will, which is a unilateral instrument. A "post-nuptial" agreement might be void for lack of consideration . . .) Other instances might involve situations that incorporate clearly punitive sanctions -- an agreement to subject one's self to violence or harm if found guilty by religious tribunal, etc. Basically, a secular court could not enforce such an agreement: if the person who made it repudiates it, it is his or her right to decide that they no longer wish to adhere to a given religious precept, and the community's remedy is expulsion or some other comparable social redress. The harder cases are where such an agreement is used as a defense to a charge of crime (e.g., honor killings). Well, I actually don't think these cases are hard -- for good and sufficient reasons we don't enforce private "laws" authorizing violence against non-adherents to the code.

Once more the question of who or what has rights raises its head. Does the religious group or the individual have religious rights? I say that the it is metaphysically impossible for a group to have rights (as the fiction of corporations' having rights allows). To say that the Muslim religion has the right to impose the burkha on girls impllies that the girls and women do not have the individual rights to choose not to wear them. You might make a case that a parent has a right to insist on strange dress for their kids for religious reasons, but certainly the mothers, in violation of sharia, have the right not to wear them.

Is exaggeration helpful?Gerelyn, if that struck you as exaggeration, then I submit it is you and not the rest of us that needs to explore the claims of the anti-Islam movement a little more deeply. What I find unhelpful are your conspiracy theories about Opus Dei and the late pope and random links to tangential things you've Googled. Please dial it back.

Ann Olivier: Are you really sure that you want to argue that "it is metaphysically impossible for a group to have rights"? Your assertion seems to imply that it is metaphysically possible only for individual persons to have rights.But the American Declaration of Independence seems to argue that a group has certain rights, not just the individual persons in the group.

Can anyone point to a comparison between Shari'a law, Beth Din legal decisions and Canon Law?

Thomas F. --Yes, that's what I'm arguing. Only persons have rights. Groups are not persons. Therefore, groups do not have rights.Granted, groups include persons, and so a group can sometimes, at least, conveniently beb spoken of as if it were the group as such that has the rights. But it doesn't.

Barbara and Eric: Our Courts cannot give effect to a legislation banning Sharia law. Nor can they give effect to a law banning Catholic Canon Law, the Catholic Catechism, and any other Church restriction intended to control the beliefs and conduct of Catholics. A court decision sought by the 12 lawsuits filled on May 21, 2012, cannot create rights for Catholic entities and institutions that override the beliefs and conduct of other religious entities and institutions (or their members) that support contraception by means other than natural family planning.Catholics are among the vast majority of the citizenry that do not recognize Humane Vitae as an edict binding the conscience. One can ask: Do the bishops and their Ad Hoc Committee believe the lawsuits will change consciences? Or will it only create pastoral problems that further alienate bishops from the laity?The constitutional questions presented by the cases are entirely speculative at this time there is no discernible reason to litigate any of the cases the case filings, however, appear to serve the political purposes of the bishops. They followed an announcement of a Catholic Fortnight For Freedom that will start on June 21 and end on the Fourth of July. T. HARTINGER

Barbara, Thanks for that information. It is indeed complicated, but I think I see what's going on. Basically, the judge can act as an arbiter only in discerning what the religious parties could have reasonably agreed to in a contract governed by religious norms, and he can recommend whether or not the contract was valid on the basis of the stipulated religious agreement, as described by experts. But if there are overriding civil laws that bar the enforcement of the religious contract because it would involve breaking other laws (like killing), the state could prevent it's enforcement. Also, if one of the religious parties still rejected the contract and the arbitration of the judge, the state would have no way to enforce it.Harry, it sounds to me like you're saying we have an apples and oranges situation. The anti-Sharia movement is stillborn because the state could not enact a law preventing any practice governed by religious norms, tout court. However, the Bishop's case is stillborn because the state could never find in favor of a religious norm at the expense of civil law. So, the Bishops and the anti-Sharia folks are picking up different ends of the stick. The free exercise of religion clause obviates the anti-Sharia movement, and the anti-establishment clause obviates the Bishops complaint. So, much ado about nothing?

I wonder if the USCCB/Becket will say anything to conservative Catholic and Kansas governor Sam Brownback:

Eric:Courts cannot give effect to legislation banning Sharia law or Church law. Courts have the final say about the scope of the First Amendment. Neither Congress nor State Legislatures can limit constitutional rights so defined. Furthermore, the Amendment is not an expression of a theological view; it is a political statement that neither grants to nor denies rights based on religious belief or nonbelief. See John Courtney Murrays article Separation of Church and State in the December 7, 1946, issue of America. The statements of Cardinals Dolan and Wuerl and Archbishop Lori are a reminder that the Catholic hierarchy has ventured into the political affairs of the Nation with a basic misunderstanding of church-state relationships. They share the views of Pius XII but without acknowledging the work of Vatican II. Their views do not justify the lawsuit filings or their promotion as religious doctrine they represent by creating a Catholic Fortnight for Freedom.HARRYHAROLD T. HARTINGER

Eric --Could we say that the system of sharia is legally a system of arbitration? When a contract contains no illegal clauses, doesn't everyone have a right to submit a case for arbitration rather than taking it to court? I really don't see any legal problem with sharia so long as its provisions are consistent with American laws. It's just none of my business whether or not a woman chooses to wear a burkha. I might think she's dumb to do so, but it's her business, and neither mine nor yours.I suspect a lot of objection to sharia is not simply a matter of introducing non-common law, but it's a matter of allowing foreign elements to become part of our culture. It's fear of The Other that is fueling a lot of this. (Damn, I'm starting to sound like a French intellectual :-)

I see many people arguing that their fear and alarm are justified by their ignorance - "we don't know what these strange people intend, so we'd better rally people against them just in case." No, a better response would be to remedy the ignorance and learn about what sharia means in this context and how it relates to U.S. law and courts.Here's one thoroughly researched report on what sharia law means to American Muslims: "Sharia Law: Coming to a Courthouse Near You?: What Sharia Really Means to American Muslims," by law professor Julie MacFarlane

Thomas Farrell and Ann Olivier,Regardless of how this bears on the topic at hand, I thought it worth pointing out that group rights "of peoples and nations" are explicitly and directly recognized in Catholic social doctrine: of peoples and nations (#157)This points out the distinction between human rights in Catholic thought and freedom in the classical liberal tradition, a distinction explain well in a different context here: e.g. "Because subsidiarity claims that human nature is communal the same doctrine claims that our obligations to the community are imposed by nature, rather than by free agreement. So, for example, the authority of the government comes from God and the natural law rather than the free consent of the governed. The people must obey whether they have consented or not. A just salary or wage is determined by the employees financial need (provided the employer has sufficient resources to pay an amount which meets this need and still have his own financial needs and the needs of sustaining his business met) rather than by a free agreement between employer and employee. We must contribute to the common good of the community (town, country, nation, etc.) in which we live. Even if we do not wish to do so, we can justly be compelled against our will to do so and the government can compel us to this even if we have never consented to the governments existence or right to do so."In contrast, the libertarian does not see the human person as under any obligation which he has not placed himself under. So, for example, the libertarian would argue that government must be based on the consent of the governed. Free agreement between employer and employee would be sufficient for a salary or wage to be just. We have no obligation to contribute to the good of the community unless we have first consented to contributing to that good or, at least, consented to the governments existence."

Commenters concerned that religious freedom for Muslims in the U.S. contributes to the oppression of women may be interested to learn that the situation is actually more complex than it might first appear. In many cases, according to the report by Julia MacFarlane I linked to above, a reluctance to enforce contracts made in the context of Islamic law actually hurts women:"Of the nine women who sought payment of their mahr in court, only one was successful (this pattern is borne out by a more extensive analysis of recent cases). This jurisprudence creates personal hardship for women who cannot persuade their husbands to pay them the mahr they have promised in the event of divorce, and usually results in a court action for spousal support." (p. 15-16)

Mollie, what was anti-Islamic about Mr. Thompson's speech? I do not think you would make such a charge lightly, but a quick flip through the video of the speech turned up nothing related to Islam whatsoever.

Perhaps it was an overstatement. I think an anti-Muslim framework is implied in his "sad irony" bit: "This is a sad irony that I want to mentionthousands of American soldiers are shedding their blood, sacrificing their lives, to establish a constitution republic in Afghanistan and Iraq and here our own government is tearing up our constitution. Most of those soldiers in Afghanistan and Iraq are Christians..." But that's probably not enough to justify the label. I'll edit the post.

Well, it's easy enough to find anti-Islamic rhetoric of Thompson's elsewhere, but just not in that speech. I'd rather not link to such, but you can verify it by searching on the phrase, "they are awake and subverting our government" (That sadly yields over 1000 hits...)

I would urge everyone, regardless of their particular opinion, to read what is from my reading the most helpful assessment of these anti-Shariah laws. It is the ACLU's lengthy report "Nothing to Fear: Debunking the Mythical "Shariah Threat" to Our Judicial System. The link is here: terms of Thompson's speech at the Detroit rally, a rally also addressed by the Bishop of Detroit, what was most striking to me was his ominous evocation of Christian/Catholic soldiers in Afghanistan being willing to come home and fight for their rights in the US and his warning Washington DC to consider that possibility. The point I tried to make in my piece is that for people like Thompson, the threat of Islam to our religious liberty is as real as the threat of Obama's HHS mandate. These are not allies the bishops can or should trust if there broad purpose is the defense of religious freedom for all.

An excellent quote from MSW at NCR: "There is another area where the bishops should weigh in regarding religious liberty. Last week, Gov. Sam Brownback of Kansas signed an anti-sharia bill into law. A spokesperson for the Governor said that he signed the law because it makes it clear that Kansas courts will rely exclusively on the laws of our state and our nation when deciding cases and will not consider the laws of foreign jurisdictions. Hmmmm. So, if a group of parishioners decide they do not like their pastor and, having raised the money to build their church building, take the bishop to court asking for control of the church building, will the courts of Kansas say that the canon law of the Church has no bearing on the case? After all, the current Code was signed by Pope John Paul II and the Vatican is a foreign jurisdiction. We send an ambassador to the Holy See, we do not seat a Senator from the Holy See. Most alarmingly, I went to the website of the Kansas Catholic Conference and found not a word about the anti-sharia law, despite having an entire section devoted to religious liberty. The bishops of Kansas should bestir themselves and the USCCB should bestir themselves. If we are not willing to defend the rights of Muslims, and if we are going to wink at laws that have truly alarming implications for the Church because those laws were signed by a Republican, well, then, it is going to be difficult to say, with a straight face, that the issue of religious liberty is not being hijacked for partisan ends."

Harry, Thanks for the link to the Murray piece. The claim that the notion of "religion" being deployed in the First Amendment is a political, and not a theological, one is close to what I have been arguing here in various contexts, and I agree that the notion that "religion" is and ought to be what the Bishops or anyone else wants it to be is beyond the competence of the state to decide. So, the state can only stipulate the existence of some "religious authority," which it can allow to govern matters (for those who recognize that "religious authority") over which the state does not claim supervening jurisdiction. In this way, the state is not a threateningly "secular" opposition to "religion," as the Bishop's and others like to exclaim, it is simply interested in preserving the political stability necessary to maintain a pluralistic society. To the extent that this political goal is not being undermined, religious (and non-religious, for that matter) individuals and groups are free to do what they will. So, I think we agree about the fundamentals. Ann, I don't know anything about Sharia, but it sounds to me like any system of religious norms could be used by a group of co-religionists to arbitrate their disputes. The point, here, as Harry and Barbara suggest, is simply that a civil court would not be competent to decide a case based on religious norms. So, it's strange, if not irrationally fearful, to think that any religious law is suddenly going to be enforced over civil law, but it is also strange to suggest that there are situations in which religious law would or should be preferred over civil law. As the Murray piece argues, the courts simply don't have the competence or authority to consider religious norms.

Think of it like this: a contract might stipulate that the governing law in any dispute will be that of Switzerland, but the parties properly end up in U.S. court that hasn't the foggiest idea of what Swiss law requires. Adjudicating the contract under the state's contract law principles isn't right because the parties intended something else. So, basically, the "foreign law" is decided by the court the same way it decides issues like what was the proper level of medical care in a medical malpractice dispute, by the use of duly recognized experts. You can do this for Shari'a, canon law, or anything else: you use the shell of the U.S. procedures, including, most likely U.S. unconscionability or public policy backstops to the enforcement of privately negotiated agreements. The problems are going to arise in family and marital disputes, where a lot more public policy considerations limit what the parties have the right to negotiate over (and certainly, negotiate away). Most likely, for instance, issues of consideration will limit the degree to which a husband and wife can agree to limit their rights AFTER they have already been married because there is no "additional" consideration being provided for whatever bargain is being struck -- or the consideration is not recognized as valid under U.S. law.

Thanks, Barbara. The Swiss law analogy clarifies a lot. And, yes, a subsequent "contract", not publicly stated, between a husband and wife could be hell to try to arbitrate, not to mention the problem your raise of added consideration. Kind of like commercial contracts sealed with a handshake.I'm wondering if, in sharia, a promise has the binding status of a contract? (Just curious. It's not really very germane.)

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