Varying Conceptions of Equality and the Iraqi Supreme Court
Earlier this year the Iraqi Federal Supreme Court issued a very interesting decision (Decision 7/2011 if I have the number right) respecting equality that I thought was worth blogging about.
By way of background, a core issue that has been of interest to many of us has long been precisely how the Court would go about reconciling constitutional provisions that clearly establish Iraq as an Islamic state with those that likewise insist that all citizens are equal before the law. (Israel shares this problem in the Jewish context). Taken at its extreme, the two are incompatible. That is to say, if you took the conception of equal protection envisioned by conservative Justices like Justice Scalia and Justice Thomas, equality as to race means complete and total and absolute race blindness. Naturally that prohibits not only racists from discriminating and refusing to hire black people, or Asian people, or whatever, but it also prohibits affirmative action, which clearly is not race blind. It's hard to reconcile that particular vision of equality applied to religion with the idea that the state would be Islamic, or Christian, or Jewish, or whatever.
Of course, there are alternative conceptions of equality in states where there is no established religion which are not grounded in total race blindness. Proponents of affirmative action, for example, would say that equal protection is not achieved through race blindness in a society which has seen pervasive and systematic racial mistreatment for so long. Rather, there must be the proverbial levelling of the playing field, a form of more acute attention given to minorities to ensure they are receiving a fair (equal) share of the system's gains. In addition, it's only right that the state take extra care to ensure those more vulnerable are treated decently. (Those interested in precisely how the U.S. Court has dealt with this have to look elsewhere, I can only say from my novice eye they haven't dealt with it particularly cleanly, certainly not in a manner easy to summarize briefly).
It's not for me to favor one version over another as to the United States, I tend to find some appeal on all sides. I had the same bit of ambivalence when I heard that the woman that former IMF chief Dominique Strauss-Kahn allegedly assaulted was a pious Muslim woman from Ghana. The race and religion blind side of me thinks that there is no reason to raise this, a man stands accused of a horrible crime against a woman, and a trial will be had. We don't need to know either side's race or religion to deal with this. But part of me wants it screamed to the hilltops, it's hard to think of better public relations with the Muslim world than that when a poor Muslim woman complained of rape, it didn't matter how powerful the defendant was, the police went to get him. Advertise the religion, that is, to show religion blindness. (I realize it's not affirmative action per se, no moral person thinks you don't prosecute rapes unless you know religion of victim, but the second approach is publicizing concern for a particular community more broadly than we might choose to publicize it if the victim weren't Muslim.) Again, I saw the benefits of both approaches, one which made a fuss of her religion, and one which said to prove its irrelevance we won't mention it.
I will say, however, that the race and religion blindness approach does, in order to make the slightest bit of sense, require a society that is as egalitarian and opportunity available as the United States, a rarity in the modern world. Thus, yes, we have two Muslim members of the House of Representatives, certainly not a full representation of our numbers in the U.S., but still not insignificant, given that there is no such thing as a Muslim majority congressional district, and even if there was, it wouldn't be Keith Ellison's. That doesn't happen in a lot of places.
In particular, it wouldn't happen in Iraq. When we create special seats for Christians in the Iraqi Parliament, it's because we almost have to. Not because there's any broad distaste for Christians let me emphasize (the rules are being created to ensure Christian representation, after all) but because people generally do not cross lines of religion, ethnic group, often even sect easily in Iraq, and Muslim voting for Christian is one big jump. Now for most groups (let's say Kurds) this isn't a problem in terms of ensuring representation, their numbers are large enough, they can vote themselves in, but that's not true with Christians.
Thus, to ensure their presence, and that of the Sabeans as well, special seats are apportioned. For the Christians, it was some number of national seats, meaning any Christian in the country could run for them, and any Christian anywhere in the country could vote for the Christians they wanted. For the Sabeans, however, the apportioned seat was limited to Baghdad, where most Sabeans live. So you had to be a Sabean in Baghdad to run, or to vote for the seat. I've talked to lawmakers, and nobody has been able to explain how this discrepancy came about other than that it was some other faction's fault and probably related to the fact that all just assumed the Sabeans were in Baghdad and so it's easier just to limit it to that than deal with the logistics of a national election.
Now for the decision. Enter our Sabean not from Baghdad, who brings the suit before the Court, pointing out the special seats are national for the Christians, and not for his religious minority, and pointing to this as a violation of equality. He wins. The Federal Supreme Court decides you cannot treat Christians one way, Sabeans another and not run afoul of Iraq's equality provisions set forth in Article 14. Of course, implicit in this is the fact that special seats for religious minorities (Christians and Sabeans alike) are NOT violations of Article 14, as they would be if they were, for example, in the religion blindness version of equality. In that version, you cannot have special seats for any religion, you treat religion as an irrelevant and inappropriate matter for the state to deal with.
So the upshot is that affirmative action style steps are okay in Iraq, at least for smaller religious minorities and we'd have to assume probably for ethnic minorities of that size as well. But if you do it, then you have to treat all the minorities similarly. I'm not sure this would be what affirmative action advocates would suggest is necessary in the U.S. (affirmative action has to be equal in favor of let's say blacks and Asians) though the context in the U.S., with severe race discrimination historically targetted more in one direction than another, and more in need of remediation in one direction than another, is rather specific to the U.S. (An argument maybe for why one does not look to other countries to understand one's own constitution? What's equality in the US with its slavery history doesn't apply well elsewhere? Food for thought anyway.)
Left undecided is the core question we started with, of course. Namely, when do guarantees of equality end and the state's Islamic character begin. Still, the Court has started the journey, will be interesting to see how it carries forward.