Archive for the ‘Free Speech’ Category

Wisdom from MLK Jr. for the Occupy Movement

December 2, 2011

From Steven Pinker’s “The Better Angels of Our Nature” (Viking, 2011), p. 479:

King immediately appreciated that Gandhi’s theory of non-violent resistance was not a moralistic affirmation of love, as nonviolence had been in the teachings of Jesus. Instead, it was a set of hardheaded tactics to prevail over an adversary by outwitting him rather than trying to annihilate him. A taboo on violence, King inferred, prevents a movement from being corrupted by thugs and firebrands who are drawn to adventure and mayhem. It preserves morale and focus among followers when the movement suffers early defeats. By removing any pretext for legitimate retaliation by the enemy, it stays on the positive side of the moral ledger in the eyes of third parties, while luring the enemy onto the negative side. For the same reason, it divides the enemy, paring away supporters who find it increasingly uncomfortable to identify themselves with one-sided violence. All the while it can press its agenda by making a nuisance of itself with sit-ins, strikes, and demonstrations. The tactic obviously won’t work with all enemies, but it can work with some.


Robert Reich: The REAL Public Nuisance

November 30, 2011

The Impossibility of Religious Freedom

September 11, 2011

The title of Winnifred Fallers Sullivan’s book, “The Impossibility of Religious Freedom,” (Princeton University Press, 2005) is both enigmatic and provocative. As she states in her introduction, “the impossibility of religious freedom is not obvious, nor is the advocacy of such a position popular.”

Because religious freedom is a bedrock principle enshrined in many national constitutions and international declarations, Sullivan’s thesis begs close scrutiny.

Article 18 of the United Nations Universal Declaration of Human Rights (UDHR), ratified in 1948, declares:

Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.

The First Amendment of the U.S. Constitution states that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Which of the freedoms described or implicit in these declarations is “impossible?” Let’s focus for a moment only on the first clause of the UDHR declaration. The right to freedom of thought and conscience, though denied by many regimes throughout history, seems unassailable in liberal democracies as long as thought and conscience are not construed to include practice. There is a broad consensus in these democracies that all people should be free not only to think and believe but also to publicly profess any idea that seems compelling to them. Acting on such beliefs, however, may infringe upon the freedoms of others. Thus, American Nazis may freely believe whatever they like about African-Americans, Jews, and homosexuals, but they are not free to plant bombs outside synagogues, black churches, or gay bars.

This right—to freedom of thought and conscience—necessarily includes the right to religious beliefs, which flow from thoughts and involve matters of conscience.

Does the UDHR need to explicitly mention religion in that first clause? No. It could have said, simply, that “Everyone has the right to freedom of thought and conscience,” because religion is a matter of thought and conscience.

But, then, is religious freedom “impossible” when understood in this way? The question takes us to another level, where we must decide what religion is. The impossibility of religious freedom may result from our inability to make this prior determination. If there is no universal consensus as to what constitutes religion, then religious “freedom” cannot be protected.

This may seem like foolish quibbling over semantics. Doesn’t everyone know what religion is? But in courts of law, such determinations must be made. The law cannot protect something that has not been coherently defined, and this is precisely the problem that Winnifred Sullivan discusses in her book.

Sullivan, an Associate Professor of Law and Director of the Law and Religion Program at the University of Buffalo, was called as an expert witness at the trial of Warner vs. Boca Raton, a 2005 case involving the enforcement of regulations at a municipal non-denominational cemetery in Boca Raton, Florida. The plaintiffs were a group of Catholic, Protestant, and Jewish families who had placed religious artifacts (e.g., crosses, statues, stars of David) around the graves of departed family members. Their contract with the cemetery clearly stipulated that only flat horizontal markers were allowed. Nevertheless, they sued the city, claiming infringement of their First Amendment right to free exercise of religion.

The task of the court was to determine if the plaintiffs’ vertical enhancements of the grave sites were in fact “religious” in nature, as they claimed, or just “personal expressions,” as the city claimed. But the very process of deciding what counts as religion is loaded with constitutional implications because of the “establishment” clause of the First Amendment. Imagine a U.S. Federal court deciding that “lived” or “folk” religion, which was so clearly in play here, does not deserve the legal protection offered to established hierarchical and authoritarian religion. And yet that is exactly what happened in the Warner vs. Boca Raton trial.

Sullivan carefully documents the court’s proceedings to demonstrate that ordinary citizens were repeatedly harassed to identify, explain, and justify their religious views concerning burial practices. Their testimonies revealed them to be not just uninformed but largely unconcerned about whether these practices were “required” or even legitimized by the religious institutions with which they identified themselves. Because the plaintiffs were unable to make such linkages, they lost their case.

The court had, in effect, decided that folk religion does not deserve the protections accorded to orthodox institutional religion, though the decision was not framed in this way. Rather, these folk religious expressions were deemed not to “qualify” as religious because they were not specifically endorsed by religious authority.

Sullivan has this to say about folk religion (from pp. 2-3):

The burial practices of the Warner plaintiffs belong to a grouping of religious beliefs and practices that one might call “lived religion,” or “folk religion,” that is, religion that takes place beneath the radar of religious officials and institutions. These practices…reflect U.S. religious diversity, immigrant piety, political idealism, and a do-it-yourself style of religious ritual and iconography. This kind of religion is, for the most part, local and family-centered—but it is also linked in important ways to international and transnational religious communities and traditions.

[Such practices] are common throughout the world. We live increasingly in a world of diaspora religious communities in which all religions are everywhere, in which all religions everywhere are governed by secular legal regimes, and in which all religions everywhere are being reinvented by their adherents to suit new circumstances. The Warner trial provides a case study for how and whether, given these conditions, law anywhere today can do what it is being asked to do: guarantee freedom of religion. Courts need some way of deciding what counts as religion if they are to enforce these laws. Is it possible to do this without setting up a legal hierarchy of religious orthodoxy? And who is legally and constitutionally qualified to make such judgments? Can “lived religion” ever be protected by laws guaranteeing religious freedom?

What if the court had decided for the plaintiffs, basing its decision on a recognition of their burial practices as “folk religion?” The city would have been disgruntled, but would justice have been served and free exercise protected?

The problem here is that the definition of religion can be expanded even beyond folk religion. What of unaffiliated mourners, those who declare themselves as “nones” on religious surveys? Are they also entitled to place impromptu memorabilia on the graves of their departed loved-ones? Such displays may be prompted by feelings almost identical to those of believers, so is difference to be found only in their beliefs about the afterlife? What of Unitarians, most of whom hold very divergent personal beliefs that often do not include an afterlife or even a supreme deity?

T. Jeremy Gunn, in an article entitled “The Complexity of Religion and the Definition of ‘Religion’ in International Law” (Harvard Human Rights Journal) points out that the term “religion” remains undefined as a matter of international law. Even national constitutions that  guarantee fundamental rights of religion fail to define it. This might not matter were it not that religion is so much more complex and fraught than other terms left undefined, such as “conscience” and “thought.” What is even more remarkable than this failure is the broad historical lack of consensus about the meaning of the word. As one historian (Brian C. Wilson, quoted in the above article, endnote 12) wrote, the “effort to define religion is as old as the academic study of religion itself, [and] the definitional enterprise…continues in full vigor.”

So far, we’ve accepted the prerogatives of religion as a “given,” i.e., whatever can be determined to constitute religious expression is to be given special status. But why should this be so? Is there any person or group of persons who should not have had the right to install vertical displays on their families’ grave sites if those deemed “religious” were allowed to do so?

Presumably, most of the population of Boca Raton is religious, so what is the point of a cemetery regulation banning vertical displays when, clearly, almost anyone buying a cemetery plot can get a religious exemption? And where does that leave the minority of “non-religious” folks? Are they to understand that only vertical displays of a religious nature are to be tolerated? If so, can there be any clearer case of religious discrimination—in this case, discrimination against a non-religious minority by a religious majority?

What do we have here that is substantially different from the suppression or “disprivileging” of religious minorities by certain Islamic states? Discrimination against the “non-religious” is still a form of religious discrimination.

This is where the title of Sullivan’s book starts to become clear. Religious freedom is “impossible” because its putative guarantor, the secular state, cannot decide what religion is and cannot therefore guarantee its freedom. If the secular state were to define religion for purposes of litigation, it would be in violation of disestablishment clauses, which prohibit government from “making laws respecting an establishment of religion.” In other words, the state cannot decide what counts as religion and what does not. If any state makes this determination, it has curtailed freedom of religion.

The other prong of this conundrum lies in the implied privileging of “religious” freedom over “freedom.” Why is religion singled out for freedom, as if religious adherents had rights that others do not? Sullivan asks,

What would be lost if law focused not on the special case of religion but on the accommodation of difference generally, and what compromises any such accommodations imply for commitments to equality? Without an explicit protection for religion, guarantees of freedom of speech, of the press, and of association would continue to protect most of those institutions, including religious ones, usually thought necessary for a free democratic society. With respect to some religious practice, though, religious persons and communities would, like other groups, have to make arguments for the special legal accommodation of difference to legislative bodies… Government favoritism (or endorsement) could be prevented by vigorous insistence on principles of equality, as is happening now in the case of gay marriage. Groups making a case for differential treatment would be required to make a very strong showing, as in race cases, of past discrimination or present need, to justify special legal treatment.

And she concludes her final chapter with these words:

The evidence in the Warner case could be understood to suggest that what is sought by the plaintiffs is not the right of “religion” to reproduce itself but the right of the individual, every individual, to life outside the state—the right to live as a self on which many given, as well as chosen, demands are made. Such a right may not be best realized through laws guaranteeing religious freedom but by laws guaranteeing equality.

U.N. Anti-Blasphemy Resolution Overturned

September 2, 2011

United Nations Human Rights Council

The World Trade Center attacks of September 11, 2001 were followed by a surge of anti-Muslim discrimination, harassment, and violence in Europe and North America. Mosques were desecrated, illegal detentions and profiling became more frequent, and the airwaves vibrated with bigoted and incendiary remarks about Muslims. Concerned about the plight of Muslim minorities in predominantly secular or Christian societies and about the increasingly negative stereotyping of Islam in Western media, the Organisation of the Islamic Conference (OIC)* used its influence in the United Nations Commission on Human Rights* to promote a non-binding resolution condemning “defamation of religion” as a human rights violation.  The resolution, proposed by Pakistan on behalf of the OIC, was passed on March 26, 2009 with 23 states in favor, 11 against, and 13 abstentions.

(*Note: The Organisation of the Islamic Conference was recently renamed “Organisation of Islamic Cooperation,” and the U.N. Commission on Human Rights is now called the U.N. Human Rights Council [HRC].)

The “non-binding” character of a U.N. resolution should not be construed to mean that its contents are weightless. People the world over look to the U.N. as a source of moral authority; its seal of approval can fortify governments and non-governmental organizations (NGOs) in pursuit of their agendas. Censure by the U.N. can deprive them of legitimacy and tip the balance of world opinion against them.

The OIC was legitimately alarmed about “acts of violence, intimidation, and coercion motivated by religious extremism,” but such acts were already covered under the U.N. Universal Declaration of Human Rights (1948). What was new and significant in this resolution was exactly what its name suggests: It was about defamation, not of persons but of religions—and of Islam in particular. Here are the first three “concerns” voiced by the resolution:

The Commission on Human Rights…

1. Expresses deep concern at negative stereotyping of religions.

2. Also expresses deep concern that Islam is frequently and wrongly associated with human rights violations and with terrorism.

3. Expresses its concern at any role in which the print, audiovisual, or electronic media or any other means is used to incite acts of violence, xenophobia, or related intolerance and discrimination towards Islam and any other religion.

A close reading of the resolution reveals a number of serious flaws.

First of all, what exactly constitutes “defamation” of a religion? We are used to thinking of defamation as a negative and damaging mischaracterization of a person or persons—one that may be actionable in some cases because of the real harm that is done to the targeted individual(s). But a negative and potentially damaging statement about a religion or a theological concept does no harm to any individual(s) until and unless it includes an actual incitement to violence or discrimination against adherents, and the issue of incitement is already well covered in international law. Without the incitement, there is only a criticism, which may fair or unfair, true or untrue, but believers cannot reasonably expect to be protected from criticism any more than politicians or scientists are.

Point 1, concerning “negative stereotyping of religions,” also needs unpacking. “Stereotype,” a wobbly word, usually refers to an overly-simplified characterization of a group (e.g., blondes, Lutherans, lesbians). Most humor would be impossible without it (Ellen Degeneres would pass; George Carlin would not.), and, as we have all learned, humor sometimes causes offense—a small price to pay for free expression. Stereotypes, whether kind or cruel, proliferate in satire, polemic, and even in ordinary conversation, and decisions about whether and how to use them must be left to individuals. We do not want to live in a world where films like “The Life of Brian” cannot be made and where books like “The DaVinci Code” cannot be published. The proper response to negative stereotyping is to propagate the truth, not to censor the expression.

International human rights law does not guarantee freedom from offense any more than it protects people and ideas from criticism. Religious adherents may feel deeply insulted by the beliefs of other religions regarding them: the Mormon practice of doing genealogical research on Jewish families in order to “pray them into heaven” is highly offensive to many Jews, as is Pope Benedict’s 2007 claim that Roman Catholicism provides the only true path to salvation. Hindus, Sikhs, and Buddhists would understandably be offended by the Islamic teaching that disbelievers (in Allah) are actually deniers, or liars, and that they will go to Hell. Of all the world’s religions, the monotheisms are probably the worst offenders when it comes to negative, even vicious, stereotyping of other religions.

Point 2 is a bit of “special pleading” for Islam: “Islam is frequently and wrongly associated with human rights violations and with terrorism.” Frequently, yes. But wrongly? One has to wonder how this blatantly false assertion was ever approved by the HRC. Enough said.

Finally, in Point 3, what does it mean to “incite acts of violence, xenophobia, or related intolerance and discrimination toward Islam and any other religion…through print, audiovisual, or electronic media?” What constitutes such an incitement, and how is one to determine whether a particular op-ed piece or cartoon was intended to incite violence or only to invite a conversation? Wherever Muslim sensibilities have been infused with Islamic teachings about blasphemy, they have become finely calibrated to detect insult toward their religion or the Prophet Mohammad. (As someone once warned me in Saudi Arabia, “Never, never start a sentence with ‘Your father…’ when speaking to a Yemeni.”) Any criticism whatsoever, however harmless by the standards of liberal democracies, can be interpreted as an incitement in cultures where honor codes are so finely tuned.

Ironically, the “incitement” clause can be used to stifle dissent and minority religious views in predominantly Muslim countries. This is an encroachment on the very “freedom of expression” that the resolution affirms in its opening clauses. Even Western liberal democracies have felt the punch: Films like “Submission” (by Theo van Gogh and Ayaan Hirsi Ali) and “Fitna” (Geert Wilders)—both critical of Islam—have been subjected to censorship by European governments. (They are now available on the Internet.)

Because the Defamation of Religions resolution made no attempt to clarify these issues, the European Union, India, and Canada formally objected to it. Ottawa’s representative, addressing the council, said, “It is individuals who have rights, not religions. Canada believes that to extend [the notion of] defamation beyond its proper scope would jeopardize the fundamental right to freedom of expression, which includes freedom of expression on religious subjects.”

It’s worth stressing that, while the resolution itself reaffirmed every individual’s “right to freedom of thought, conscience, expression, and religion,” it was precisely these rights that the resolution tried to suppress. It is as though the very purpose of the HRC had been turned on its head. The Center for Inquiry (CFI)—an NGO in consultative status with the UN—issued a statement warning that the resolution might be used to legitimize anti-blasphemy laws that punish religious minorities as well as non-theists or atheists:

Any protection of religious believers must not discriminate against nonbelievers, religious minorities, and religious dissidents. Their right to criticize and dissent from religious belief must be protected. For example, the European Court of Human Rights case law applying the European Convention for the Protection of Human Rights and Fundamental Freedoms Convention rightly holds that religiously offensive expression must be addressed in a manner that does not constitute discrimination against religious nonbelievers … The free interplay of ideas on religious matters may include criticism and even hostility toward religious beliefs: “Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.”

During the two years that followed passage of the defamation resolution, various NGOs, including the Center for Inquiry and approximately 40 progressive Muslim groups, worked to overturn it. The Organisation of Islamic Cooperation, meanwhile, introduced it to the General Assembly twice, in 2009 and 2010, but support for it began to wane. It was eventually abandoned in favor of “General Comment No. 34, Article 19: Freedom of Opinion and Expression,” issued on July 29, 2011. Here are some excerpts:

Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions. (Paragraph 2)

Freedom of expression is a necessary condition for the realisation of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human right. (Paragraph 3)

States parties should put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression. (Paragraph 23)

Restrictions on the right of freedom of opinion should never be imposed. (Paragraph 49)

In Paragraph 48, the Commentary censures blasphemy laws:

Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant. … Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

Paragraph 49 addresses freedom of expression concerning historical facts:

Laws that penalise the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.

This has been a very encouraging turn of events and gives us hope that open societies, honoring freedom of conscience and expression, will take root and flourish around the world. Meanwhile, Western liberal democracies that still have anachronistic blasphemy laws on their books should jettison them without delay as a signal to fundamentalist regimes that the West is serious about these freedoms.

Afghanistan’s Constitutional Confusions Over Blasphemy

August 23, 2011
Sayed Parwez Kambaksh

In October, 2007, Afghanistan security officials arrested Parwez Kambaksh, a 24-year-old Afghan journalism student, for electronically distributing to his classmates an Internet article criticizing the treatment of women under Islamic law. He was detained without a hearing for three months, during which he claims torture was used to elicit a signed confession. His trial was held behind closed doors, and he was denied representation. Fellow students and teachers testified that Kambaksh had routinely asked “difficult questions” in class. The tribunal deliberated for only four minutes before sentencing Kambaksh to death on a charge of “blasphemy and distribution of texts defamatory of Islam.”

Thanks to the international attention brought to bear on this case, Kambaksh was allowed to appeal his sentence. In October, 2008—a year after his arrest—a Kabul appeals court commuted his death sentence in favor of a 20-year prison term.

Not satisfied, international human rights groups continued working through diplomatic channels to obtain Kambaksh’s release. Finally, in August, 2009, President Hamid Karzai granted him “amnesty.” But judicial amnesty could not guarantee Kambaksh’s safety from radical Islamists. Fearing reprisals, he fled the country, and his whereabouts are now unknown.

Afghanistan’s constitution, ratified in 2004 under pressure from occupying military forces, appears to guarantee citizens a broad array of human rights. It is ostensibly more in line with the Universal Declaration of Human Rights (UDHR) than with Shariah, the religious law of Islam. It specifically guarantees the right to life and liberty, to privacy, to peaceful assembly, to freedom of expression, and—in cases of judicial proceedings—the appeal to formally codified statutes or binding precedents (stare decisis), the right to legal representation, and the right to a jury. Shariah guarantees none of these rights.

The constitutional principle most relevant to Kambaksh’s case is found in Article 34, which states that “freedom of expression is inviolable … Every Afghan has the right to print or publish topics without prior submission to the state authorities in accordance with the law.”

All well and good. The only thing missing from the constitutional inventory is freedom of conscience—the freedom to profess whatever beliefs one finds compelling. This is not a trivial omission, for under Shariah law, the penalty for apostasy, considered a treasonous defection from Islam, is death. Even where the death sentence is not imposed by the court, the accused may still be threatened with assassination by thugs who insist on strict application of Shariah. In 2006, Afghan-born Abdul Rahman, a convert from Islam to Christianity outside Afghanistan, was threatened with the death penalty for apostasy. Like Parwez Kambaksh, he was released as a result of international pressure and fled the country to avoid vigilante-style justice. Such cases are not uncommon, and Muslims worldwide are well aware of the severity of Shariah law where blasphemy and apostasy are concerned.

Though Shariah is not specifically mentioned in the constitution, Article Two states, “The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam.” Article Three draws out the implications of this: “In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.”

Could Article Three amount to a claim that the freedoms guaranteed by the constitution are not in fact contrary to the beliefs and provisions of Islam? No one who is knowledgeable about the two traditions could seriously support such an interpretation. Clearly, Article Three means that any of the enumerated freedoms that is not supported by Islamic law may be nullified.

But if these “beliefs and provisions of Islam” are important enough to be referred to—and so prominently—in the first three articles of the constitution, then why are they never enumerated, as are the specific guarantees of rights? At the very least, we might expect the authors to reference them. The “avoidance” of any such reference—which would certainly point us to Shariah—is conspicuous in a document that so plainly affirms Islamic law.

Unlike Western secular law, Shari’ah law includes a category of crimes that involve, among other things, privacy and free expression. The “Hadd”—one of three categories—are “claims against God” and include adultery, sodomy, lesbianism, and—signficiantly—blasphemy and defamation, the two charges brought against Parwez Kambaksh. The punishment prescribed by Shariah for these crimes is death.

The European Court of Human Rights has characterized such punishments as barbaric and cruel, and it has argued that Shariah is incompatible with a democratic state.

Afghanistan’s constitution is a political document reflecting the balance of power that existed when it was written. Whether it merely gives a nod to Shariah or creates an opening for it is unclear. What is clear is that the framers of this document made no attempt to reconcile Shariah with the principles of Western liberal democracies as expressed in the UDHR. Nor could such an effort have succeeded. But by ignoring the intrinsic incompatibility of the two traditions, the framers may have set their country up for an eventual constitutional crisis. Even if that does not happen, incidents like the arrest and detention of Parwez Kambaksh are likely to continue as long as adherents of Shariah law interpret the first three articles of the constitution as a license to suppress free expression. Because the constitution offers no unequivocal protection for dissenters, they are at the mercy of whatever faction happens to be in power. Fortunately for Kambaksh, international human rights organizations had some leverage with President Karzai, but Karzai himself has a poor record of human rights and cannot be depended on.

Perhaps the only hope for Afghan freethinkers like Kambaksh is continued international pressure on Afghanistan’s government to honor their constitution’s guarantees of basic human rights and to protect all citizens from fundamentalist thuggery.

Christian Legal Society’s First Amendment Rights Intact After Supreme Court Ruling

July 26, 2010

The U.S. Supreme Court ruled today in Christian Legal Society v Hastings that the University of California’s Hastings College of the Law may enforce its anti-discrimination policy by denying funding and recognition to a Christian student group that excludes gays and lesbians. The group, Christian Legal Society, requires that voting members sign a declaration of faith renouncing “unrepentant participation in or advocacy of a sexually immoral lifestyle.”

William Saunders, writing in The Catholic Thing, asks “What happened to the First Amendment?” Here is his slant on the court’s decision:

In the case of Christian Legal Society v Hastings, the Court decided that the Hastings College of Law could deny registration to a student group as a CLS chapter because it required morally upright behavior of its members and adherence to its statement of faith. Pause and consider that. “Conservative” evangelical students – unlike over sixty other associations of students – may not be recognized as an official student group because CLS wants its members to agree with the theory and practice – the raison d’etre – of the group, that is, to be good and proper evangelical Christians.

To Saunders’ question, “What happened to the First Amendment?,” I would answer, “Nothing.”

CLS’s First Amendment rights were not violated by Hastings College’s policy or by the Supreme Court’s decision in Hastings’ favor. CLS may continue to discriminate against those who do not agree with its principles, and this is right and proper. Their First Amendment rights of free association, free speech, and free exercise are intact.

What CLS may not do is receive funding or recognition from Hastings College. This is because CLS’s discriminatory membership policies violate the college’s own non-discrimination policy, which withholds recognition from campus groups that seek to exclude people on the basis of religious beliefs or sexual orientation.

The Court’s decision in CLS v. Hastings makes complete sense, and I would agree with Ruth Bader Ginsberg’s opinion that CLS was seeking preferential exemption from Hastings’ policy. To have decided against Hastings, the court would have needed to show that their non-discrimination policy was unconstitutional, and they couldn’t very well do that without running into problems with the Equal Protection Clause (the 14th Amendment).

Like it or not, state universities have both a right and a duty to set and enforce non-discrimination policies. Everyone in the state—Christians, gays, Muslims, Jews, blacks, women, and all the rest—supports state universities with tax dollars. Students at Hastings pay student-activity fees that go toward supporting recognized student organizations. No Hastings student should ever be forced to fund a group that would exclude her. The fact that CLS has now been “excluded” may seem unfair until we remember the reason—i.e., that their policies are exclusionary. This is one of those apparent “paradoxes”—like being intolerant of intolerance—that straightens out under closer scrutiny. Exclusion due to violation of a policy is not the same as exclusion because of race, sexual orientation, or religion, and policies set by faith groups are different from those set by state institutions. Fortunately, our consitutional calculus of rights allows both kinds of entities to flourish. In Christian Legal Society v Hastings, the Supreme Court has steered a deft course between conflicting claims.

Further thoughts (7/27/10):

Here’s a parallel that may throw some light on the CLS v Hastings decision:

Brigham Young University makes a distinction between two kinds of academic freedom—one for individual faculty members to “teach and research without interference,” and the other for the institution to “pursue its distinctive mission.” Obviously, these freedoms may sometimes be at odds, so the faculty are subject to what BYU calls “reasonable limitations.” They may not contradict or oppose LDS Church doctrine or policy in public, they may not deride the LDS Church or its leaders, and they must not violate the “honor code.”

Is any of this a violation of faculty’s First Amendment rights? No, of course not. BYU faculty may say what they like about the LDS Church as long as they are prepared to seek employment elsewhere. When they signed their employment contract at BYU, they agreed to certain restrictions on their speech.

This is why CLS’s case against Hastings was without merit. They wanted funding and recognition from Hastings but refused to comply with Hastings’ non-discrimination policy. Hastings said, in essence, “You’re free to associate in whatever way you choose, but not on our dime.” If the Supreme Court had decided against Hastings, every organization in this country, from corporations to churches, might have lost the power to set its own policies. Face it—that power comes from the ones holding the purse strings. In Hastings’ case, it was the taxpayers.

Today’s Orthodoxy = Yesterday’s Blasphemy

July 10, 2010

The orthodoxy of today is the blasphemy of yesterday. From the beginning, the spiritual search for religious truth has not been against blasphemy, but by way of blasphemy. Depending on where we sit metaphysically, we may want that search called off, or we may want it furthered. Either way, we must welcome religious offense as the unavoidable consequence of a free religious conscience. (Austin Dacey, “Satire is Religion,” on Religion Dispatches)

Read the full essay here.

Responses to “Everybody Draw Mohammed Day”

July 10, 2010

Mohammad in the style of Piet Mondrian (artist unknown)

May 20 is “Everybody Draw Mohammed Day,” an annual protest in support of free speech. It began earlier this year as a response to Comedy Central’s decision to censor episode 201 of its television show, South Park, which contained images of the prophet Mohammad. Comedy Central’s decision came in response to thinly-veiled death threats posted on a radical Islamic website based in this country ( Read the full story here and here.

Needless to say, “Everybody Draw Mohammed Day” has been highly controversial. What follows is a compilation of some of most interesting opinions I found in Wikipedia’s very lengthy and detailed articles about the incident and the protest. I’ll start with the objections:

Objections to “Everybody Draw Mohammed Day”

“Depictions of Muhammad offend millions of Muslims who are no part of the violent threats.” (Ann Althouse, law professor, blogger)

“[Depicting Muhammad] defines those others—Muslims—as being outside of our culture, unworthy of the courtesy we readily accord to insiders.” (James Taranto, The Wall Street Journal)

“[Depicting Muhammad] attempts to battle religious zealotry with rudeness and sacrilege…” (Bill Walsh, Bedford Minuteman)

“As a cartoon, it was mildly amusing. As a campaign, it’s crass and gratuitously offensive.” (Janet Albrechtsen, The Australian)

“[The event is] a blasphemous faux-holiday…that will only serve to reinforce broader American misunderstandings of Islam and Muslims.” (Jeremy F. Walton, The Revealer)

“It is clear that some feel great satisfaction at what they see as ‘sticking it to the Muslims.’” (Franz Kruger, Mail & Guardian)

“Juvenile… an irresponsible poke-in-the-eye.” (Bilal Baloch, The Guardian)

“[It is] debatable whether freedom of expression should extend to material that is offensive to the sensibilities, traditions and beliefs of religious, ethnic, or other communities.” (Editorial in Dawn, published in Pakistan)

Support for “Everybody Draw Mohammed Day”

“Everybody Draw Mohammed Day is a chance to reinstate offense and sincerity to their proper place, freed from terror or silence. … The proper (and, at the risk of looking jingoistic, American) way to combat bad speech is with better speech. To silence and be silenced are the refuge of cowards.” (Jordan Manalastas, Daily Bruin)

“Americans love their free speech and have had enough of those who think they can dictate the limits of that fundamental right. […] Draw to any heart’s discontent. It’s a free country. For now.” (Kathleen Parker, The Washington Post)

“In the South Park episode that started all this, Buddha does lines of coke and there was an episode where Cartman started a Christian rock band that sang very homo-erotic songs. Yet there is one religious figure we can’t make fun of. The point of the episode that started the controversy is that celebrities wanted Muhammad’s power not to be ridiculed. How come non-Muslims aren’t allowed to make jokes?” (Michael C. Moynihan, Reason magazine’s “Hit & Run blog)

“… I realize that in a free society, someone is always going to be doing or saying something that will offend somebody somewhere. I also realize that more free speech, not censorship, is the answer.” (Pam Meister, Family Security Matters)

“The bottom line is that the First Amendment guarantees free speech including criticism of all peoples. We are an equal-opportunity offense country. To censor ourselves to avoid upsetting a certain group (in a cartoon no less) is un-American.” (Andrew Mellon, Big Journalism)

“Indignation from those who claim the right to engage in criticism of religion is as important as the indignation that comes from the Muslim side.” (Helge Ronning, Institute of Media and Communication, University of Oslo)

“In a democratic society where free speech is vigilantly protected, it is perfectly reasonable to call out censorship, particularly when it springs from some form of tyrannical religious extremism.” (Liliana Segura, staff writer at

“No one has a right to an audience or even to a sympathetic hearing, much less an engaged audience. But no one should be beaten or killed or imprisoned simply for speaking their mind or praying to one god as opposed to the other or none at all or getting on with the small business of living their life in peaceful fashion. If we cannot or will not defend that principle with a full throat, then we deserve to choke on whatever jihadists of all stripes can force down our throats… Our Draw Mohammed contest is not a frivolous exercise of hip, ironic, hoolarious sacrilege toward a minority religion in the United States (though even that deserves all the protection that the most serioso political commentary commands). It’s a defense of what is at the core of a society that is painfully incompetent at delivering on its promise of freedom, tolerance, and equal rights.” (Nick Gillespie, Reason magazine)

Civil Discourse in the “Immanent Frame”

July 6, 2010

Ivan Strenski, in a recent essay entitled “Does the Sacred Need Saving?” (Religion Dispatches, 7/2/10), comments on philosopher Charles Taylor’s A Secular Age. The following excerpt will give some flavor of the essay: 

It is not the sacred known as Nirvana, Yahweh, Atman-Brahman, the Dao and such that Taylor seeks to “save” so much as another which he believes may be said to be a worthy successor to them in “our secular age.” …For present purposes, Taylor seeks to outline the nature of a “minimal religion,” a religion that seeks to be honest to the new order of scientific knowledge upon which our world rests — the “immanent frame” that contains our life and thought — but which also resists the sense of enclosure that comes with “scientism.”

I sent a friend a link to the essay. Here is part of his response: 

Religion, more often than not, is where people of faith believe they are staking their lives and immortal “souls” on an idea. They are deeply invested with it. It’s hard to be egalitarian in the ordering of such values. If they can be made to feel they’re wrong, without replacing the error with something of equal value and gravitas, then their life is placed in serious psychological jeopardy. No one participates in that kind of disorientation willingly or without strong resistance. Therefore, getting them to change their mind through “civil” discourse is an overwhelming challenge to whatever belief they’ve formed. If the conversation becomes coercive, even under the enlightened label of shared ideas, it’s unlikely that anyone, who has devoted the lion’s share of their thought process to what they believe constitutes the central meaning of their lives is going to trade off their own version of reality for someone else’s,  unless they can be rationally conned. As the old saw goes, you can’t be reasoned out of a belief you weren’t reasoned into.  To attempt it is to part from reason. How much civility can you ultimately find in that scenario?

My friend has a point. Clearly, most of us are too invested in our worldviews to engage in the kind of civil discourse that Charles Taylor envisions for what he calls our new “immanent frame”—our secular, open society. Ernest Becker and the Terror Management Theory (TMT) researchers got it right: these worldviews are not just intellectual constructs that we readily revise as new evidence becomes available or superior arguments are presented. Rather, they are our lifeline to a sense of meaning, without which our whole narcissistic enterprise of victory over death may collapse. No threat to them—whether coercive or discursive—can be taken lightly.

Whatever our particular worldview may be, it includes scripts for heroism large and small. These scripts tell us how to make a meaningful contribution—how to achieve something for which we will be remembered, whether it’s dying in battle, faithfully following a body of religious teachings, flawless performing a Mozart sonata, or just getting the kids to soccer practice on time. Our reward for these achievements is self-esteem—a precious and fragile commodity that many of us, alas, value more than life itself. Woe unto anyone who suggests that our sense of self-worth is undeserved, that we screwed up, or that our heroic scripts have led us down the path toward error.

Nor should anyone dare suggest that our worldview, which manages all these scripts and the rewards for following them, is factually or morally flawed. Any challenge—even the mere presence of someone who sees things differently—can imperil our self-esteem and the success of our immortality projects. The more vulnerable we feel, the more fearful, defensive, or even aggressive we may become. So we surround ourselves with people who not only validate our views but reward us for validating theirs. We obsess over ideological “purity” and may stop at nothing to cleanse our cohorts of dissent. “I believe” becomes the password for admission into the fold. Proofs and professions of faith may be required to assure our continued inclusion there.

This vision of the human condition—extreme as it seems in places—will not sound exaggerated to anyone who has moved between open, pluralistic societies and closed ones. It describes all of us, but particularly those who subscribe to dogmatic political or theological schemes that offer “salvation” of whatever sort we require—eternity in paradise or a lasting monument to our significance, a statue in the public square. Never mind that the penalty for apostasy may range from social opprobrium to eternal damnation. The rewards are worth the risks, and all that is required is submission.

I am of course expressing my bias, but I’ll go ahead and own it. Accepting one’s own mortality brings a certain measure of relief from the pressures of immortality projects—all of which entail some level of cognitive dissonance and alienation from reality… because, after all, we will all die and eventually be forgotten. This alienation may be extreme in the case of religious beliefs about resurrections and eternal life, slight where we attempt to cheat death through fame or public service, and slighter still where our only project is to pass on our genes. None of this is necessarily problematic, and much of it contributes to human flourishing. But problems arise when death denial requires elaborate delusional schemes that actually harm our chances for survival. I can think of no clearer example than our current ecological crisis, which continues to be upstaged by religious end-times scenarios that are without any basis in reality. Scientists are warning of civilizational collapse by the end of this century if we do not reverse global warming trends immediately. To look at this event is to look at our own deaths, and so we do not look. Instead, we switch to the Bible Channel for something a little more upbeat—a childish apocalyptic scenario in which we are eternally rewarded and our enemies are eternally damned. And meanwhile, global temperatures continue to rise, the seas become more acidic, and the world’s glaciers recede, creating the conditions for unprecedented water crises in many regions of the world.

One of the reasons I am drawn to the secularist/materialist worldview—besides the fact that it seems rooted in reality—is that it removes eternal life from the equation. Secular humanists do not go chasing after immortality in the literal sense, and if we happen to have understood the nature of secular immortality projects, we may “lighten up” on those as well. All this amounts to what some have called “practice in dying” (not quite like practicing so that we can get to Carnegie Hall…). While such realism offers less “comfort” than religious worldviews, it also removes a very large impediment to seeing the world as it is. Our survival beyond the present century will depend on clear vision above everything else.

“But is it necessary to be so aggressive?” is a question often put to secularists. I can propose two answers. First, characterizing another individual’s behaviors as “aggressive” sometimes reflects a cognitive bias of the type, “I’m thrifty, he’s a tightwad” (where the behaviors are identical). Is the behavior really aggressive, or is it only assertive and self-affirming? In some communities, lesbians who walk down the street holding hands are accused of being “in-your-face” though they are doing nothing that straight couples do not also do. And second, aggressive responses are sometimes appropriate. Some worldviews contribute to human flourishing, while others do not. Some heroic scripts have proven their value and deserve to be propagated, while others are toxic remnants of ancient tribal societies or medieval feudal ones and have no place in a modern pluralistic and democratic society. When Pat Robertson declares that the Haitians are themselves responsible for a powerful hurricane that has devastated their country, he is drawing scripts from ancient tribal beliefs about a vengeful god. These scripts and his decision to use them deserve our strongest censure. When Iranian clerics sentence an adulterous woman to hanging, every civilized person should protest. 

“Those who can make you believe absurdities can make you commit atrocities,” said Voltaire.

If you believe selective pruning is possible, then perhaps there’s no need to hack down the whole tree. But many skeptics wonder what would remain of Catholicism or of Islam if all their absurdities and their failed and dangerous practices were eliminated. What would a Catholic any longer “be” without saints, popes, miracles, guilt, homophobia, and bans on contraception? Would he or she look like a Congregationalist or a Unitarian? And would we even recognize Islam if all its odious tribal, patriarchal, and misogynistic elements were removed?


Okay, remain a Catholic, but please support deep reform of church doctrine pertaining to papal authority, clerical secrecy and celibacy, contraception, homosexuality, sex education, and the ordination of women. Your silence and your financial support of the Church are interpreted as assent or indifference.


Okay, be a Muslim, but please speak out against female genital mutilation, forced marriages, stonings, persecutions of homosexuals, fatwas against writers and artists, and promises of virgins in paradise to young men who martyr themselves. Your silence about these horrors is interpreted as assent.


And if either of you claims you can’t do any of these things because God, Allah, tradition, or the Bible forbids, then I have a few remarks about the authority you’re citing.


You see, one begins pruning and soon one is poised to cut down the tree at its base. “One cannot be just a little bit heretical,” says Christopher Hitchens.


Upping the ante to a challenge about bedrock faith is sometimes unavoidable in conversations where someone’s positions about real-world matters are uniquely faith-based, or where personal faith is the fall-back position, the argument of last resort. Dismissing or critiquing another person’s most closely-held personal beliefs has long been considered taboo. However, the strong emotions and sensitivities associated with these beliefs do not constitute an argument; the victims of religious beliefs also have their feelings. “God is not an object of inquiry,” one blogger recently cautioned me, as if to say, “Back off. You’re approaching the Sacred” (which, like the Pope, does not grant interviews). But the stakes are too high to back away. There are too many casualties. The fortress may need to be stormed—discursively, of course, provided the conversants are willing to remain in the conversation.


We have good reason to hope that the secular open society can continue to manage all these tensions as it has done in the past. If civil discourse sometimes seems stretched to its breaking-point in its secular frame, we must at least recognize that it will not flourish for long in any other one.

An Atheist Meets God

June 30, 2010