Archive for the ‘Human Rights’ Category

Another Round Over Marriage Equality at the Cornerstone Forum

June 7, 2012

ImageOkay, okay. Gil Bailie and I will never see eye-to-eye about same-sex marriage. He’ll never convince me because he doesn’t offer empirical evidence for his claims—you know, trend lines, data sets, surveys, even anecdotes. And I’ll never convince him because, well, I can only offer those things (interlaced with generous dollops of opinion, of course).

Nevertheless, these discussions have value—both historical and topical—for those interested in the momentous cultural transformations happening all around us. When looked at longitudinally, they reveal subtle but significant shifts, fissures, and patterns in belief and practice.

I decided to copy many of the discussions from Gil’s Cornerstone Forum Facebook page to this site because I saw that Gil does not value them—or rather, he values only his own part in them. His recent purges on The Cornerstone Forum left gaping holes in vibrant conversations, recalling those Stalinist-era photos where ousted Politburo members were airbrushed out.

Additionally, Facebook is a less-than-ideal host for those discussions. Its archiving and search tools are minimal, and its comments feature hampers both expression and reading.

So, here is the latest round on marriage equality brought over from the Cornerstone Forum’s Facebook page:

Gil Bailie:

The first miracle in John’s Gospel is the miracle at the wedding feast at Cana, where water was turned into wine. The primacy of this miracle in the Johannine tradition should not be lost on us. Marriage is as natural as water itself. It is a natural institution, defined by sexual complementarity and reproductive potential. And yet the Church, faithful to the miracle of Cana, elevates this natural institution to sacramental status. The water of nature is turned into the wine of “one flesh” nuptiality. It begins, however, with the water of nature.

Today we know better. Why start with something as passé as water or nature? Why not wave the wand of political correctness over the spiked Kool-Aid of the sexual revolution just to see if it works? The result is neither fresh spring water nor a nuptial wine capable of aging well. It would be bad enough if our reckless experimentation amounted to nothing more than a reversal of the historical transition from the pagan to the Judeo-Christian understanding of sexuality. It certainly is that, but it’s even more reckless. For, even in the reasonably rare cases where homosexuality was formally tolerated in the pagan world, it was never regarded as indistinguishable from – or in any remote way comparable to – the marriage of a man and a woman.

Our homosexual friends and relatives deserve our love as much as anyone else. We should acknowledge the love they legitimately feel for one another, and sympathize with their struggle and their desire for happiness. But it is not an act of unkindness or insensitivity to recognize that there is grave cultural, moral and spiritual damage in pretending that something is what it is not. Those who think this issue is simply one of equality are not foreseeing its certain consequences: the suppression and eventual criminalization of any public demonstration of one’s fidelity to the moral traditions long held and universally espoused by Jews and Christians. Signs of this intolerance abound, and those who think it will recede once same-sex marriage becomes law are deluding themselves.

One of the key elements in that delusion is a common category mistake: namely, the mistake of regarding the push for same-sex marriage as analogous to the civil rights movement. The real comparison is with another of the sexual revolution’s monumental moral and anthropological blunders: the invention – out of thin air – of the “right” to abortion on demand. This latest insult to commonsense, to moral and legal tradition, and to any reasonable understanding of nature, will fail to achieve long term normativity just as has the Roe v Wade abortion regime. The longer it takes us to realize this, the greater the cultural wreckage, and the more we will run the risk of falling into a new intolerance or back into an old one. Let’s be sensible and settle for tolerance.

Leo M. Walker:

Exactly. If marriage were nothing more than a big, sentimental sugar plum to plop down on a fervid romance to add the perfectly calculated touch of poignancy and gravitas, then sure, allow anybody to marry in any way they like. But marriage is no such thing, and no amount of contrivance , posturing or petulant demand will make is so.

Doughlas Remy:

ImageOnce again, Gil, your dire auguries about the effects of same-sex marriage are contradicted by demonstrable reality. Even Maggie Gallagher of the National Organization for Marriage (NOM), in a recent interview with Michelangelo Signorile, admitted that her claims—by strange coincidence identical to yours—were unsupported by evidence. How to explain, for example, that the state of Massachusetts legalized same-sex marriage five years ago and its divorce rate is still the lowest in the country? How to explain that states where support for same-sex marriage (SSM) is highest have lower rates of divorce and teen pregnancies than those where that support is lowest?

If the Cornerstone Forum and the National Organization “for” Marriage are really committed to strengthening the institution of marriage, then let them study the successes of the blue states.


A Response to Thomas Sowell’s “Occupy and the Moral Infrastructure”

May 9, 2012

Thomas Sowell, writing for The National Review Online, claims the Obama administration has granted the Occupy movement immunity from the law and opened the gates to anarchy, barbarism, and civilizational collapse.

Read his article here.

My response:

Sowell, addressing The National Review Online‘s overwhelmingly Christian readership, complains that educators “indoctrinate their students with ‘non-judgmental’ attitudes.” I wonder if he is equally disappointed with the teachings of Jesus regarding judgment. (“Judge not, that ye be not judged.”) Or maybe there is a distinction that I am missing here. If he is correct about the Academy’s indoctrination of the young in non-judgmental attitudes, then maybe there is some hope after all.

Sowell claims the Fourteenth Amendment (guaranteeing equal protection to all citizens) has been “suspended”, or even “repealed” by authorities unwilling to “clamp down” on the Occupy movement. I would just point out that the 14th Amendment has been neither suspended nor repealed and, in any case, a repeal would require a two-thirds vote in both the House and the Senate. I would also point out that authorities have not stood idly by when anyone’s safety was at risk.

Sowell doesn’t mention the First Amendment, which provides for “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” What does he think it is, chopped liver?

Sowell makes no distinction between peaceful and non-peaceful protest. Fortunately, many or most municipal governments have tried to maintain a balance between their sworn duty to protect citizens and the rights of citizens to protest. Closing down the entire Occupy movement as a response to the excesses of certain individuals would be like closing down the anti-abortion movement over an occasional shooting. Notice no shootings have yet occurred in the Occupy protests.

Sowell claims the Occupy movement’s aim is mob rule. This is patently untrue, and Sowell needs more than a broken plate-glass window in San Francisco to make his case. Not even the Occupy movement is certain of its aims.

Sowell thinks concentrated applications of pepper-spray are appropriate for dispersing students sitting on the ground with their arms interlocked. I think he should try getting doused with pepper-spray before recommending its use on seated protesters.

Sowell frames these events as a struggle between anarchy (barbarism, even!) and law and order. No shades of grey here. No nuance. But why should we expect nuance from The National Review? I imagine President Bashar al-Assad of Syria would take heart that some Americans see things the way he does.

Rick Santorum Should Ditch the “Slippery-Slope” Metaphor

January 25, 2012

Rick Santorum

Would somebody please explain to Rick Santorum why he was booed at a recent town hall appearance in Concord, New Hampshire?

When a young lady in the audience asked him about “two men who want to marry the person that they love,” he cut her off, saying, “What about three men?” Then he trotted out his boilerplate “slippery slope” argument:

It’s important that if we’re going to have a discussion based on rational thought, that we employ reason. Reason says that if you think it’s OK for two, you have to differentiate with me why it’s not OK for three. Let’s just have a discussion about what that means. If she reflects the values that marriage can be for anybody or any group of people, as many as is necessary, any two people or any three or four, marriage really means whatever you want it to mean. [emphasis mine]

Here’s my point of view. And we’re done talking about this issue. We’re going to move on to something else.

Santorum appears not to understand the meaning of “discussion,” the purpose of town halls, or the requirements of rational thought. After rudely interrupting this audience member and insulting her intelligence, he offers an argument that is fundamentally flawed, then declares the “discussion” will be closed after he has stated his point of view. What could be more irking to an audience?

His argument is flawed for two reasons.

(1) If two, then why not three?

First, consider this part of his statement: “Reason says that if you think it’s OK for two, you have to differentiate with me why it’s not OK for three.”

This astonishing and utterly unreasonable claim is not just a momentary lapse on Santorum’s part, because he has said it before—many times. Taken at face value, it means that any monogamous marriage is the first step on the slippery slope to polygamy. And that begs the question, “Why not also ban opposite-sex marriage in that case?”

How are we to explain this bizarre statement? I suspect, though I cannot possibly confirm, that a word or phrase is missing after the adjective “two.” Santorum has mentally edited out a phrase from that position, and that phrase is something like “wicked and depraved persons,” which he has used before. He thinks but cannot say, “…if it’s OK for two wicked and depraved persons to marry, then why not three?” Or maybe the thought-phrase was “two of those people,” or “two perverts.” Something said in the company of family and close friends cannot be uttered when the public is listening.

(2) The slippery slope

The second flaw in Santorum’s response is his very choice of the slippery-slope argument, which logicians, jurists, and scientists universally regard as a logical fallacy.

The fallacy of the slippery slope argument is in supposing that a single step in a particular direction will inevitably lead to taking all the remaining steps. This may be true in the case of jumping off a rooftop, but it is not true in other life situations where choices are still available after the initial step has been taken.

Consider the following argument: “If we lower the drinking age from 21 to 18, there will only be further demands to lower it to 16, and then to 14. Before we know it, our newborns will be drinking wine instead of milk.”

In this example, the regression from twenty-one to zero is linear, and common sense tells us the skids are not greased and that babies will not soon be drinking wine. But what of Santorum’s “regression” from same-sex marriage to polygamy? It is neither more nor less linear than the “regression” from opposite-sex marriage to polygamy. Both entail increments of one or more, and so again we have equivalence of the two.

Also, if the steps are in the proper order and are in fact slippery, then couldn’t we conclude that opposite-sex marriage is the first step on the slippery stairway? Why choose the second step and not the first as the one to avoid?

And what if we were to discover that Santorum’s first two “steps” are in the wrong order and that polygamous relationships were the norm before monogamous ones in most societies? This was in fact the pattern in nearly all the cultures of Southeast Asia, the Middle East, and Africa. Polygyny was clearly approved in the Torah (Exodus 21:10, Deuteronomy 17:17) and was practiced among Jews as late as the second century CE. Only within the last hundred years or so has monogamy been in the ascendancy.

If Santorum is to characterize the historical shift away from polygamy as a “progression” and not a “regression,” then where is he to place our newest entrant in the marriage game, i.e., same-sex marriage?  Is it also a progression, or is it a regression following a progression?

The point of all these questions is to show that slippery-slope analogies inevitably lead to muddled thinking of the kind Santorum displayed in Concord. His audience very likely sensed his confusion and resented his refusal to own up to it.

There is a viable alternative to slippery-slope argumentation, and it lies in evaluating every form of behavior on its own merits. We deserve to hear Rick Santorum’s reasons for opposing civil marriage for same-sex American couples who do not share his particular religious views. So far, he has advanced his badly broken line of reasoning because his objection to same-sex marriage must, for political reasons, appear to be grounded in logic, not church doctrine. Let’s hope that a dogged debate moderator somewhere down the line will smoke him out on this.

And we would appreciate his leaving polygamy, “man-on-dog” sex, and other forms of diversion out of the discussion. They do not belong there.

What if Jesus Had Been Aborted? A Reader Responds

January 3, 2012

A reader writes,

The Manhattan Declaration’s list seems a bit frivolous. Sure, we love the architecture and the art and the great music, but one doesn’t need religion, much less Christianity, for those things. Artists can always find their inspiration somewhere. Why didn’t they mention the Quakers’ opposition to war and slavery, or the efforts of the Protestant churches to civilize the American South and West in the 19th century? They could have also cited the churches’ roles in the Civil Rights movement and in South African reconciliation movements. The list of real, solid achievements would be long, so I’m disappointed that MD focused so much on superficialities.

Your list, on the other hand, was much too harsh and biased toward the negatives. Would have us believe that Christianity has contributed nothing to civilization? Can’t you take a more balanced approach?

My list was an application of force majeure. There was just SO MUCH artillery lying around unsecured! But maybe my riposte was (and not just about) overkill. It was an attempted deicide in retaliation for many successful democides.

But I maintain that Christianity has never been a consistent force for peace. Despite its claims of divine provenance, it has historically been shaped by social and intellectual movements perhaps more than it has shaped them. The Catholic church was, as Martin Luther King, Jr. would have said, “the tail-lights when it should have been the headlights,” changing its positions on slavery, geocentrism, scriptural literalism, marriage, anti-semitism, and a host of other issues only after prolonged intransigence. The same church cooperated with Fascist regimes in Germany, Spain, Italy, Portugal, and Croatia during the 20th century.

The record is mixed, and we could all throw lists at each other until the cows come home. My own inclination is to try to avoid bias. Realism doesn’t mean serving equal portions but recognizing that sometimes the portions are already unequal.

Is There Too Much Morality in the World?

December 21, 2011

Steven Pinker

In his latest book, “The Better Angels of Our Nature” (Viking, 2011), Steven Pinker begins a section called “Morality and Taboo” (p. 622) with the following short and provocative declaration:

The world has far too much morality.

Yes, I, too, had to re-read that sentence. Is he about to say there should be more immorality? Well, thankfully, not. He explains:

If you added up all the homicides committed in pursuit of self-help justice [revenge, vigilantism, honor killings, etc.], the casualties of religious and revolutionary wars, the people executed for victimless crimes and misdemeanors, and the targets of ideological genocides, they would surely outnumber the fatalities from amoral predation and conquest. The human moral sense can excuse any atrocity in the minds of those who commit it, and it furnishes them with motives for acts of violence that bring them no tangible benefit. The torture of heretics and conversos, the burning of witches, the imprisonment of homosexuals, and the honor killing of unchaste sisters and daughters are just a few examples.

What Pinker is telling us is not too surprising when you think about it: the human moral sense can go off the tracks.

Unless one is a radical moral relativist, one believes that people can in some sense be mistaken about their moral convictions; that their justifications of genocide, rape, honor killings, and the torture of heretics are erroneous, not just distasteful to our sensibilities.

Pinker is careful to distinguish between behaviors that are deemed immoral and ones that are merely disagreeable, unfashionable, or imprudent. Only the moralized infraction is universalized, actionable, and punishable within the culture that prohibits it.

Some of these prohibitions are truly universal, or “pan-cultural.” In every part of the world, murder, theft, perjury, and extortion are considered moral infractions. Our revulsion at such acts reflects our species’ core moral values of fairness, justice, and the prevention of harm. Such values pre-date not only religion but indeed the appearance of homo sapiens sapiens. They have been promulgated exclusively via religion—and sometimes horribly abused and violated by it—only in societies where religion has been culturally all-pervasive.

But other “infractions”—e.g., apostasy, blasphemy, homosexuality, and idolatry—have been shown to be culturally contingent rather than universal. They are violations of archaic purity and sanctity codes that might have served some purpose in iron-age tribal societies but that are useless in modern pluralistic democracies. They persist wherever the secular state has not developed or has not completely disentangled itself from religion.

A society that values individual freedom and autonomy cannot bind its citizens to sectarian claims about what constitutes a moral infraction. We cannot all be required to forswear martinis or short shorts because they are forbidden by sharia law, and Mormons cannot expect us all to forswear lattes and black tea. Why then, do so many Catholics, Jews, Muslims, and Mormons hope to universalize their prohibitions against homosexuality? These prohibitions have no rational basis and are as culturally contingent as the scripture-based codes from which they are derived.

Yes, we have far too much morality. Maybe it’s time to return to the true moral universals and reassess our culturally contingent ones. Instead of asking whether a behavior was forbidden by ancient scriptures, let’s ask, “Who is being harmed?” Or, as Sam Harris might ask, “How does our behavior affect human and animal flourishing and the health of our planet?”

The National Organization for Marriage Plays the Free Speech Card … Again.

December 8, 2011

The National Organization for Marriage (NOM) has has found a poster boy for its new project, the Marriage Anti-Defamation Alliance. He is Damian Goddard, the Canadian sportscaster who was fired from his job in May 2011 shortly after tweeting his support for a sports media figure (Todd Reynolds, vice-president of Uptown Sports) who had come under attack for opposing same-sex marriage. Goddard tweeted, “I completely and wholeheartedly support Todd Reynolds and his support for the traditional and TRUE meaning of marriage.” (emphasis his)

Goddard’s Twitter photo, showing him at his anchor desk, clearly identified him with his employer, Sportsnet. And in case this was not clear enough, he referenced Sportsnet in the tweet.

Officials at the broadcast company quickly disavowed any connection between their views and Goddard’s, and the following day they fired him, saying that he was not “the right fit for our organization.” Goddard responded by filing a Human Rights complaint against the company.

Sportsnet denies Goddard was fired over this incident alone and released the following public statement:

Mr. Goddard is aware of the reasons — which are well documented ­— why he is no longer with Sportsnet. Out of respect for our employees we do not discuss personnel issues in the press.

Steve Buffery, writing for the Toronto Sun, calls Goddard’s firing “scary business” and frames it as a free speech issue:

Do we want to live in a society where, if you don’t believe in something like same-sex marriage because of your faith, you have to be silent for fear of being ridiculed en masse, or for fear of losing your job?

Daniel Villarreal, writing for Queerty, takes the broadcaster’s side:

The high-profile TV personality was fired for making a negative political statement against his employer’s wishes, period. They didn’t want their company represented by a man who just told tens of thousands of viewers that he considers their marriages false, dishonest and wrong. Keeping him just would have been bad business, plain and simple.

Villarreal has got it right. To understand why, let’s look at the context:

Same-sex marriage was legalized in Canadian provinces starting in 2003, and legalization at the national level followed in May, 2005. Canada is not due for another census until 2012, but the most recent census (2006) showed 45,300 same-sex couples, of which 16.5% were married. By now, the number of married same-sex couples must be, as Villarreal says, in the “tens of thousands.” Sportsnet’s marketing department could not have been ignorant of this fact.

This alone would explain Sportsnet’s decision to fire Goddard, even excluding other factors. Goddard’s high-profile position made his connection with Sportsnet conspicuous, even when he was tweeting off-site, but all the more so when his tweets made that connection explicit. Goddard’s widely-propagated tweet was bad for Sportsnet’s business, c’est tout.

But should he have had the right to express himself as he did under these circumstances?

That is an entirely different question, and it is for the Canadian Human Rights Commission to decide. However, NOM, which has adopted Damian Goddard, is based in the U.S. and claims to be concerned about First Amendment guarantees for free speech. Does the Goddard case bode ill for Americans who wish to freely express their opposition to same-sex marriage? Are GLBT activists intent on bullying, intimidating, and silencing ordinary Americans who are on “the wrong side” of this issue? NOM, through its “anti-defamation” initiative, would have us believe the answer to both questions is “yes.”

However, a little research into U.S. case law reveals NOM’s  initiative to be more than a little disingenuous. NOM is a lobbying organization with considerable resources (revenues of more than $7 million in 2009)—surely enough to hire a legal expert or two. They must know that, under U.S. law, employers are legally entitled to discharge employees who publicly harm their company, provided that the company is pursuing a lawful and ethical policy.

To paraphrase Oliver Wendell Holmes, sportscaster Goddard (transposed to the U.S.) may have a constitutional right to talk politics, but he has no constitutional right to be a sportscaster.

NOM’s position on this issue is clearly pro-government and anti-corporate. Are they really advocating for more regulation of companies like Sportsnet? Their Republican contributors may want to know.

The Damian Goddard case shows how determined NOM is to frame any criticism of their position as an attack on marriage. To be clear, their position is that the state should prohibit marriage between same-sex couples and that such couples are somehow “anti-marriage” for wanting to marry. (!) This is facially absurd. GLBTs who advocate for same-sex marriage are hardly interested in “defaming” marriage. No one is, so far as I know. NOM is trying to create a bogeyman, to portray marriage itself as under threat, and to cast themselves as its champions and protectors. On the way to this inspired goal, they will claim victimhood if anyone calls their hand.

If I didn’t know better, I would say it’s an elaborate paranoid fantasy. But in reality it’s just tactics—transparent ones, but effective enough in the short term to keep the cash flowing in their direction.

Other Bent Angle articles related to Maggie Gallagher and/or NOM:

For additional information about NOM, visit the NOMExposed website here.

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.

The Trouble With the Cairo Declaration

August 28, 2011

Anyone attempting to understand the tensions between Western liberal democracies and Islamic societies over human rights issues has got to start with the Organisation of Islamic Cooperation (OIC) and one of its foundational documents, the Cairo Declaration on Human Rights in Islam (CDHRI).

Shortly after the 1967 Arab-Israeli War, countries with significant Muslim populations—57 in all—joined together to form the Organisation of the Islamic Conference (OIC). (Just this year, the name was changed to “Organisation of Islamic Cooperation”—still OIC). The organization’s purpose is to represent the interests of the Muslim world (the Ummah) and to promote cooperation between the Islamic states in social, economic, cultural, scientific, and political spheres; it has a permanent delegation to the United Nations and claims to be the world’s second-largest international organization (after the UN itself). In 2007, U.S. President G. W. Bush established an envoy to the Parliamentary Union of the OIC member states (PUOICM), which is headquartered in Tehran.

The member countries of the OIC had long chafed under the presumptive authority of the Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948. In 1981, the Iranian representative to the UN stated his country’s position that the UDHR was “a secular understanding of the Judeo-Christian tradition” that could not be implemented by Muslims without violating Islamic law.

Accordingly, the OIC crafted its own declaration, the Cairo Declaration on Human Rights in Islam, and officially adopted it in 1990. It was promoted as a “complement” to the UDHR, not a replacement, and efforts were made to have it adopted by the UN Human Rights Council.

But the Cairo Declaration does not in fact “complement” the UDHR. In many important respects, it is its antithesis. Recognizing this, liberal Muslim organizations and human rights advocates opposed its endorsement by the UN Human Rights Council. They pointed to two critically important provisions of the document:

All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shariah. (Article 24)

The Islamic Shariah is the only source of reference for the explanation or clarification of any of the articles of this Declaration. (Article 25)

The Cairo Declaration is nothing more or less than a “front” for Shariah law, which is itself a kind of “dark matter” of sayings, traditions, sacred writings, and juridical opinions about which Islamic scholars have disagreed almost since Day 1 of the Islamic era. The Cairo Declaration’s framers obviously meant to provide an Islamic counterpart to the UDHR, which they rightly viewed as a product of Western Judeo-Christian and secularist traditions. Their document would (1) affirm Islamic values that are palatable to non-Muslims while backgrounding those that are not, (2) establish or reinforce rights and protections for workers, families, children, women and military combatants and noncombatants, and (3) protect the integrity of Islam by deferring to Shariah regarding blasphemy, apostasy, and marriage with non-Muslims.

But there were problems in all three of these categories, particularly the third. On the one hand, the writers recognized that certain provisions of Shariah (such as the death sentence for apostasy and blasphemy) were considered barbaric by Western democracies and would never pass muster in international courts. On the other, they knew that the Declaration could not be authentically Islamic without an unflinching adherence to even the most draconian provisions of Shariah. Their solution was to fashion a document that defers to Shariah from beginning to end (15 times in a text of only 2446 [English] words) without ever once specifying what the relevant Shariah laws are. All references to Shariah are vague, embedded in phrases like, “…in accordance with the tenets of Shariah,” “…within the framework of Shariah,” and “…contrary to the principles of Shariah.”

In 1992, the Cairo Declaration was presented to the UN Commission on Human Rights (now the Human Rights Council), where it was strongly condemned by the International Commission of Jurists.

Little wonder.

Keeping in mind that what has been omitted from a document like the CDHRI may be more telling than what is included, let’s examine a few of the CDHRI’s provisions.

Blasphemy protest by London Muslims


In Islam, blasphemy is irreverent behavior toward personages, beliefs, or customs that Muslims revere. Judging from reports that appear almost daily in the world press, Muslims throughout the world seem to have an exquisite sensitivity to any criticism of their religion. All the more curious, then, that blasphemy is never mentioned in the Cairo Declaration. Instead, we learn from Article 22(a) that “Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shariah.”  Fine. So what does Shariah have to say about freely expressing opinions that are critical of Islam?

Islamic scholar Dr. Zakir Naik has this to say: “In Islam, a person who has committed blasphemy can either be killed or crucified, or his opposite hands and feet can be cut off, or he can be exiled from that land. On the other hand, in other religions there is no other option except capital punishment. Islam at least has four options of punishment for an act of blasphemy.”

So we are to conclude that Islam is superior to other religions because it offers a wider selection of barbaric penalties for free expression?

Blasphemy in Pakistan

CDHRI Article 22 (d), which prohibits incitement of doctrinal hatred, can also be used to stifle free expression. The case of Parvez Kambaksh, an Afghani student arrested and sentenced to death in 2007 for having distributed to classmates an Internet article critical of Islam’s treatment of women, shows how broadly the word “hatred” can be interpreted.

Taking into account the importance of Islam to Muslims and its pervasiveness in their lives, the Cairo Declaration’s implicit “bracketing” of expression critical of Islam constitutes a major restriction on human rights. The glass is not almost full. It is almost empty.

Privacy Rights

CDHRI Article 18 (b) states that “Everyone shall have the right to privacy in the conduct of his private affairs, in his home, among his family, [and] with regard to his property and his relationships.”

The broad consensus among scholars of Shariah is that the hadith (sayings of Mohammad) prescribe harsh punishment for homosexual acts—even those performed in the privacy of one’s home. Modern scholars of Islam interpret homosexuality as a punishable offense without prescribing any specific punishment.


Like blasphemy, apostasy is never explicitly mentioned in the Cairo Declaration. This is yet another curious omission in a document that one would expect to advocate against the extremely harsh punishments meted out to defectors from the True Faith under Shariah law. Article 10 prohibits any attempt to proselytize a Muslim, but fails to affirm the rights of those who are successfully proselytized:

“Islam is the religion of true unspoiled nature. It is prohibited to exercise any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism.”

Once again, words like “pressure” and “force” are susceptible to very broad interpretation.

Apostates in Iran

The punishment for apostasy is not mentioned, but the four Sunni schools of Islamic jurisprudence agree with Shi’a scholars that apostasy is treasonous and must be punished by execution. Some contemporary Islamic jurists argue for a more humanistic approach. Nevertheless, the reality is that accusations of apostasy are heard again and again in Islamic societies and executions for it—both judicial and extra-judicial—are disturbingly commonplace. The Cairo Declaration could have sided with the more humanistic interpretations of Shariah on this matter, but instead it gave wide latitude to radical Islamists.

In contrast to the CDHRI, the Universal Declaration of Human Rights has this to say about religious conversion: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief.”

* * *

The Cairo Declaration needs to be either scrapped or massively amended. Its deficiencies are in its unconditional deference to Shariah law, its confusions about human rights principles, its obsessive concern with protecting Islam, and its abject failure to fully address human rights abuses that are so rife in countries with majority Muslim populations. Conditions inside the Islamic Republic of Iran, Pakistan, Saudi Arabia, the Sudan, Syria, Bangdalesh, Iraq, and Afghanistan call for a bold declaration of the rights to free expression, privacy in personal relationships, religious dissent, and freedom of conscience. These are cornerstones of all other human rights and cannot be subordinated to Shariah, which recognizes none of them.

The Cairo Declaration is a symptom of the Muslim world’s inability to achieve an “enlightenment” of its own—not necessarily like the “Aufklärung” of 18th-century Europe, but something more like what some Muslim sages have called an ishraq (“illumination”). What form this might take is not for non-Muslims to suggest, but its effects will be seen in a greater openness to the modern world and less fear about maintaining the fiercely “tribal” integrity of Islam and its traditions.