I have been reading recently an old case of Judge Sotomayor's, Ford v. McGinnis, that I think helps to reveal well American biases when it comes to the intersection of law and religion as compared to a nation such as Iraq, where religious freedom has come to mean something different.

In the Sotomayor case, a prison inmate named Wayne Ford sued the New York State Department of Corrections, basically for not getting a meal on the festival of Eid ul-Fitr, to commemorate the end of Ramadan.  The case has a few aspects to it, but one of the grounds for dismissal in the lower court was that it is not an Islamic requirement that one have a meal at Eid ul-Fitr, which is basically true.  However, Ford himself seemed to have his own genuine and sincere belief that this was an Islamic requirement.  Sotomayor, writing for a unanimous panel in the Second Circuit and drawing on Supreme Court precedent, said that sincerity of religious belief was all that the court should look into.  Given that Wayne Ford was sincere in his religious conviction that he was sinning if he did not have a meal at Eid ul-Fitr, then that was enough. 

This is fairly standard stuff, in fact if the Court itself is to be believed, the defendants did not contest this particular point very strongly.  And the reason most often given (and given in this case) is that, and I quote (from two cases, including Ford), “courts are ‘singularly ill equipped to sit in judgment on the verity of an adherent’s religious belief.’”  Therefore, they have no choice but to operate on the basis of good faith on the part of the litigant.  So long as there is good faith, then there are really no limitations on what the religious belief can be (in theory there are if an opinion is so bizarre or outlandish that it doesn’t qualify as religious, but I’ve never seen this). 

Now the Iraqi lawyer or judge or lawmaker or constitution drafter looks at this and is positively perplexed.  Who is asking you to determine the verity of religious belief?, the Iraqi asks.  No one asked you to decide if the Prophet Muhammad is God’s Last Messenger, it’s not the verity (ie truth) of the religion that is in question, it is its content.  And to know that, you just ask the authorities.  No real Muslim authority says you have to have a special meal on Eid ul-Fitr.  Pork is forbidden.  For the Shi’a, clams and oysters are forbidden.  This isn’t terribly hard, it’s pretty easy to find the authorities in the faith and ask them.  Sure there will be some gray areas (Shi’a scholars split on whether chess is permissible, for example), and then of course it might make sense to just favor the litigant’s claim as a real one, but, if he’s just saying things the authorities universally disagree with, how hard is that to find out?  Certainly much easier than trying to tell whether or not Wayne Ford is acting in good faith.  THAT’s the really difficult exercise.

And so when Iraqis draft the constitution, they make clear that family law and inheritance law (known as “personal status”) are going to be determined by religion. And then they have no problem with the judge applying the religious rules.  They figure that’s not very hard.  They certainly don’t think they are deciding which religion is the right one, they’d recoil at the very notion.  They are perfectly happy to have entirely inconsistent religions, some belonging to the scriptural category and others not (in departure from sharia) create their own rules of family law, and the judge will apply them.  The judge sees it as his job in such a case to figure out what the rules of the religion are, through consulting with the authorities, and then just apply them.  I know well by now the drafters of the Constitution who put this clause in, I don’t know one who thought it required an inquiry into the verity of religious belief.

So is the Second Circuit, and Judge Sotomayor, just simply wrong then?  No, just a little incomplete.  That is, it’s not just that the Court can’t inquire into the verity of religious belief, everyone agrees with that.  It’s also that when in the United States we talk about “religion” we tend to define that rather broadly and individualistically in a manner that most of the rest of the world wouldn’t recognize.  Once you do that, then the rest follows naturally, for to determine a traditional religion, or a traditional interpretation of a religion, is the only applicable one is to favor it somehow in an unacceptable fashion, to “determine its verity” if you will.  So if a woman says she thinks Islam requires one to wear a bikini, well it is not for the Court to decide that more traditional authorities read the Koran better than her, and if she says Islam orders her to burn the Koran, well we can’t decide that traditional authorities are using the right book and she is using the wrong one, we have to respect all viewpoints.  The end point, the only logical endpoint, is, religion has no content beyond a good faith belief in the transcendental. 

An Iraqi would recoil at such a notion of individualist protection of religion.  Let freedom of expression protect individuals if they want to think odd things, freedom of religion, and deference to religion, is meant to protect real religions, and we know what those are for the most part.  (Hindus in, Santeria out; Judaism in, Scientology out, and so on).  The American definition renders Islam and Christianity devoid of all content, and that is quite troublesome to those with more traditional understandings of what religion is and what is to be protected.  And once you have THOSE biases, then the rest follows naturally as well.  You don’t decide whose religion is right, but you identify the relevant religions in your country, and the right authorities, and you let them decide what the rules are, and you go from there. 

Each perspective has its advantages—the American clearly is far more inclusive and tolerant of the possibility of religious change—while the Iraqi takes a view of religion that is I think more in keeping with the expectations and needs of the vast majority of the devout.  In any event, it isn’t my purpose to favor one over the other, only to point out that when one talks of “freedom of religion” or “respect for religion”, that term, as oft used as it is, can mean quite different things to different people.

HAH