Sacred cow of religious rights

By Christopher Caldwell

Financial Times

Published: July 16 2005

After episodes of Islamist terrorism – whether in New York after September 11 2001, or in London last week – Islam itself has tended to face high levels of suspicion and even hostility. But, surprisingly, such incidents have also elicited a raft of praise for Islam from political leaders. In his televised address in the wake of the London bombings, Tony Blair, the British prime minister, said: “We know that these people act in the name of Islam but we also know that the vast and overwhelming majority of Muslims here and abroad are decent and law abiding people who abhor terrorism every bit as much as we do.” Days later, he extolled “the moderate and true voice of Islam”.

As when President George W. Bush, four years ago, proclaimed that “Islam is peace”, Mr Blair risks sounding like protesting too much. For if the terrorists’ idea of religion is as perverted as he says, then their attitude towards true religion should be of no more import than, say, the economic programme of the Red Brigades. Most likely what Mr Blair means is radicalism among certain Muslims should not be allowed to shake western traditions of freedom of

But how secure are these traditions in the first place? Winnifred Fallers Sullivan, a scholar of religion and law at the University of Chicago, has just published a smart – and in the present circumstances, sobering – little book called The Impossibility of Religious Freedom (Princeton University Press). Her argument implies we have overestimated the amount of real religious difference that even a tolerant democracy can handle. Freedom of religion can be called a “basic” right, but it is not one that goes without saying.

Ms Sullivan’s book deals with a federal court case (Warner v. Boca Raton) in which religious sensibilities were riled by seemingly small matters. The city of Boca Raton, Florida, established a public graveyard. Whether to ensure the site looked “classy” or to make the cemetery lawn easier to mow, the authorities had rules against gravestones and other memorials. Small, flat grave markers, flush with the grass, were used instead. Over the years, this regulation was honoured in the breach. Groundkeepers turned a blind eye to, and even encouraged, the installation of Stars of David and shrines to the Sacred Heart of Jesus. Cemetery authorities ordered the monuments removed, to the relief of some neighbours, who found the displays garish, or “not Boca”. But Florida, like many states, has a Religious Freedom Restoration Act, which places heavy burdens of proof on government entities that try to limit exercise of religion. The plot owners sued. Ms Sullivan testified in their favour. And they got clobbered.

Most of the plaintiffs in the case were Catholics, with a scattering of Jews, and the judge was Protestant. That may or may not have been important. What was important was that the entire legal idiom in which cases like these get argued in America is a Protestant one. For the court’s purposes, writes Ms Sullivan, true religion “came to be understood as being private, voluntary, individual, textual, and believed. Public, coercive, communal, oral and enacted religion, on the other hand, was seen to be ‘false’.” Religions with a large role for ritual or community or sacred objects – such as American Catholicism in the 19th century or Islam today – are not always intelligible to this system.

Attorneys on both sides of the Warner case were uncomfortable talking about religion, and preferred to address the issues as if they were the same as those in free speech cases. Ms Sullivan notes that they often spoke of religious “views” and “expression”. But protecting expression or views or opinions cannot be the aspiration the American founding fathers had in mind when they included freedom of religion in the Bill of Rights. It if were, then protecting freedom of speech would have been sufficient. The problem is that not all people understand religious freedom as freedom of speech about holy things. For many, religion is primarily a matter of allegiance and custom.

Not all of these customsarise from a religion’s doctrines and holy writings. This opens up an avenue for misunderstanding and those most zealous about protecting religious freedom can be led down it quite easily. It is always the temptation of political authorities to take the parts of an alien religion that are similar to one’s own and call them (protected) religion, then to take the parts that are foreign to one’s own and call them (unprotected) culture. The Warner prosecution argued that there was no “genuine” religious reason for preferring a statue of the Sacred Heart of Jesus to a headstone that is flush to the ground and the court accepted this view. After all, such statues are not a “requirement” of Catholicism. The court, Ms Sullivan argues, “frequently implied the plaintiffs did not understand their own religion”.

We hear echoes of this strategy for understanding religious diversity in Mr Blair’s pronouncement on what is, and is not, true Islam. Similarly, most discussion of the Islamic headscarf in both France and Turkey has turned on whether such coverings are “religious” or “political”. As a practical matter, such judgments are totally in the eye of the beholder. Judges and legislators seem powerless to resolve them.

To determine when religious expression is a right, courts need to determine when it is present at all.Maybe freedom of religion can be realised only where religious differences are limited as a sociological matter, as they have been between American faiths; or where people are demoralised by some historical calamity with a strongly religious element, like Protestants and Catholics after the Thirty Years War or Christians, Jews and atheists in the 50 years after the second world war. Meanwhile, our confusion is not simply over what is religion and what is culture. It is over what a religion is in the first place.

The writer is a senior editor at The Weekly Standard